First Standing Committee on Delegated Legislation
Monday 31 January 2000
[Mr. Barry Jones in the Chair]
Draft Immigration (Regulations
Period for Overstayers) Regulations 2000
The Minister of State, Home Office (Mrs. Barbara Roche): I beg to move,
That the Committee has considered the draft Immigration (Regularisation Period for Overstayers) Regulations 2000.
Thank you, Mr. Jones. I warmly welcome you on behalf of Committee members to the chairmanship of this Committee.
The regulations cover an area that was discussed extensively in Committee on the Immigration and Asylum Act 1999, and on Report. As such, they will give effect to Parliament's will. It may help Committee members if I set out in some detail the regulations' purpose, because it is important that the limits are clearly understood.
The regulations will be made under section 9 of the Immigration and Asylum Act 1999. During the passage of that legislation, the Government offered to consider representations on overstayers who, under the Act, would no longer have a suspensive right of appeal against decisions to remove them from the United Kingdom.
In effect, the Act provides that, where overstayers do not depart voluntarily, decisions not to allow them to remain will be implemented by an administrative removal procedure. Such decisions will not, in themselves, attract a right of appeal before removal. It is expected that the provision will come into force on 2 October, when Human Rights Act 1998 is also due to come into force. As Committee members will know through their constituency work, overstayers are currently removed through the deportation procedure, which attracts a specific and suspensive right of appeal. There is a full right of appeal if they have been here for seven years or more, and, subject to some limited exceptions, an appeal that is restricted to the decision's lawfulness if they have been here for less than seven years.
It should be appreciated that many overstayers on whom decisions will be taken from 2 October will in fact have a suspensive right of appeal in any case. For example, those who have sought asylum or made a human rights claim will benefit. However, the right of appeal that we are considering today concerns solely-I emphasise that-the question whether the deportation process is appropriate or lawful.
In Committee, concern was expressed about the position of current overstayers. It was suggested that many have been here for a considerable time and should not be removed without a suspensive appeal. We listened to that argument, but it became clear that we could not agree to an open-ended approach, so we introduced a new clause on Report, which is now section 9 of the Act. Section 9 sets out a scheme through which those overstayers who make specific applications will have a limited opportunity to take advantage of the right to a suspensive deportation appeal, even where a decision is taken after the new appeals provisions have come into effect.
I must stress here and now that the scheme is by no means an amnesty for those who overstay. No one, inside or outside the House, should be misled by the use of the term "regularisation". The regulations are for people whose status is irregular. The scheme makes a special arrangement for those who apply to regularise their stay during the period, but it gives no promise whatever that the application will succeed.
As was made clear, applications will be considered under the normal criteria, and unless compassionate circumstances outweigh the public interest leave to remain will be refused. Unless the overstayer then makes a voluntary departure, deportation will follow, subject to appeal. The scheme ensures that those who apply will retain the appeal right if the decision was taken after 1 October.
Mr. Simon Hughes (Southwark, North and Bermondsey): It is interesting that the new system will come into operation on 2 October, which is also the date on which the Human Rights Act 1998 takes effect in this country. What difference would it have made if that Act had come into force on a different date? In other words, was the date of the order coming into force chosen specifically because it would coincide with the implementation of the Human Rights Act, or is that a coincidence, which the Minister wants to present as a happy coincidence?
Mrs. Roche: The date is relevant to the time of the new appeals system, under which we have the new procedure of administrative removal, not deportation. That is why the order is so framed.
It may help the Committee if I explain how applications under section 9 will be considered. Applications under the arrangements will be considered in the same way and will apply the same criteria as in cases of other overstayers. In other words, they will be considered in accordance with the immigration rules. As those rules make clear, when someone has remained without authority.
"deportation will normally be the proper course".
Each case is, of course, considered on its individual merits, balancing the public interest against any compassionate circumstances. The rules require us to take account of such factors as are known to us, in particular, age; length of residence in the United Kingdom; links with the United Kingdom; and personal history, including character, conduct, domestic circumstances, criminal record, compassionate circumstances an any representations that we receive on behalf of the person concerned. That is why applicants under section 9 will be invited to provide such details.
The rules are clear. Usually, deportation will be the proper course of action and that will not change. During the passage through the House of the Immigration and Asylum Act 1999, section 9 was debated extensively. The official Opposition did not oppose the introduction of the section at the time, nor have they done so subsequently.
Mr. David Lidington (Aylesbury): indicated assent.
Mrs. Roche: The hon. Member for Aylesbury (Mr. Lidington), who speaks on such matters on behalf of the Opposition, is nodding in agreement.
I want to make the position clear, as I know that the legislation will be examined outside the House. Those people who apply under the terms of the scheme will not benefit from any relaxed criteria. The same deportation criteria that are in force now will be applied to those who apply under the scheme. Those who are not given leave to remain and who were last given leave to enter the country more than seven years ago will have a full right of appeal, while those given leave to enter less than seven years ago will have a limited right of appeal, confined to whether in law there was power to make a notice of intention to deport. For those whose appeals are dismissed, deportation will be the usual course.
Section 9 provides for a regularisation period during which overstayers may apply in a prescribed manner. It also provides that the start and finish days will be prescribed. The period is to be at least three months and the scheme will be publicised. We have done our best to maximise the period, which we hope will be nearly eight months. we are producing a leaflet and poster that will be distributed through the advice centres of the National Association of Citizens Advice Bureaux and passed on to local community groups. The leaflet will also be available on the website of the immigration and nationality directorate. We are arranging further distribution of the leaflet through the Joint Council for the Welfare of Immigrants. The immigration and nationality directorate has an active user panel that comprises many familiar groups, many of them in the voluntary sector, that are active in certain areas and we shall discuss further publicity as the scheme progresses to ensure that the message is getting across. We shall also make full use of the press.
In accordance with a general commitment that we gave during the passage of the Bill, I should like formally to state that in my view the provisions of the regulations are compatible with the convention rights, as defined by section 1 of the Human Rights Act 1998. Regulation 1(1) provides that regulations shall come into force on the day after the day on which they are made. Subject to parliamentary approval that will enable us to commence the scheme as soon as possible. Regulation 2 prescribes the manner of application. An application is to be made in writing and is to set out certain information and attach certain material. Addresses are given for both postal and personal service.
Regulation 2(4)(a) to (c) requires basic information to be provided in order to identify the applicant, establish where he may be contacted and who, if anyone, is representing him. Regulation 2(4)(d) and (e) require the applicant to set out what details he can recall of his immigration history: the dates and periods for which he was granted leave to enter or remain. The period spent here lawfully and the length of his stay are vital elements in the applicant's case. There may be no central record of admission and the passport may not be available, so we need some indication of the central basis for the claim. Regulation 2(4)(f) asks for the applicant's Home Office reference number, if known.
Regulation 2(4)(g) requires that the application make it clear that it is an application under the scheme. We cannot assume that everyone wishes to benefit: some may prefer to be administratively removed in order to avoid the stigma of deportation, for example, and we think it important that they be allowed to do so. Regulation 2(4)(h) requires the applicant to tell us the circumstances that he wishes us to take into account. The circumstances listed broadly follow those set out in paragraph 364 of the immigration rules, which the Secretary of State is obliged to consider when deciding whether to deport an overstayer. Regulation 2(5) specifies the material to be submitted. We ask for passports used by the applicant and for any documents that the applicant considers will support his application.
There is no specific application form for the scheme. We envisage that many applicants will apply for leave to remain under the scheme on the basis of a provision of the immigration rules, for example as the spouse of a person settled here. If that is the case, we may well ask them to complete the form that such a person would normally be asked to fill in if further information is needed. We have tried to achieve a balance that gives us enough information in the first instance to establish whether the applicant is an overstayer and to make an assessment of the general merits of the case.
Regulation 3(1) sets the start of the period as the day on which the regulations come into force; which will be the day after the regulations are made. Regulation 4 provides that where an application is sent by recorded delivery post to the specified address, it is taken to have been delivered on the second day after posting, unless received earlier. We recommend that all applications be sent by recorded delivery, thus ensuring that there is a record of posting and proof as to whether an application has been made in time. I hope that the Committee will forgive me for having taken a little time to explain the regulations; I thought that that would be useful to all members of the Committee but also to those following our proceedings. I wanted to give as full an explanation as possible to the organisations that interested in advising people on those points.