Examination of Witnesses (Questions 260
- 279)
TUESDAY 17 JANUARY 2006
MR KEITH
BEST, MR
COLIN YEO,
MR CHRIS
RANDALL AND
MR MATTHEW
DAVIES
Q260 Mr Winnick: Which you readily
admit, of various kinds, who have one motive, to get money, and
no other desire. They are certainly not philanthropists. What
about your own organisation, Mr Best? When someone comes along
who has no right to be here, who is in breach of immigration law,
what are the procedures that you adopt? Mr Yeo.
Mr Yeo: Like any lawyer, we have
a duty of client confidentiality. We advise somebody of what their
legal status is, what their position is, whether there are any
steps they can take to try and regularise their position and what
their immigration options are in the circumstances, and also whether
they are currently at risk of committing any criminal offences.
Q261 Mr Winnick: So you take the
same view as solicitors, that you have confidentiality with a
client and give advice accordingly?
Mr Yeo: Yes.
Q262 Mr Winnick: Would you consider
that in any way meaning that the organisation is complicit in
immigration abuse?
Mr Yeo: No, I would not. I say
we are under exactly the same duties as a solicitor is.
Q263 Mr Winnick: But where there
is no foundation for any claim to be made on behalf of the client,
what would be the response of IAS?
Mr Yeo: It makes me sound evasive,
but there is no one answer I can give to that. It depends on the
individual circumstances of the client that is in front of me,
but, as I say, we will advise them on what their position is,
what their options are and any criminal offences they either are
committing, have committed or are at risk of committing.
Mr Best: We will advise people
as to the law. If someone comes to us, say, as an overstayer,
and a knowing overstayer, we will tell that person that they are
an overstayer and that they should leave the country because they
are at risk because they are committing a criminal offence. The
bounds of confidentiality would not then entitle us to telephone
the IND or get in touch with the authorities and say, "Oh,
by the way, we have just had this person here who we think is
committing a criminal offence." That would go way beyond
the bounds of confidentiality and the duty of the lawyer to his
or her client, but our duty is to tell people the way the law
affects them, not as we might wish it would affect them but how
it does. That is our job, to give disinterested legal advice.
Q264 Mr Winnick: I do not think anyone,
in fairness, would dispute that for one moment. You could hardly
get on the phone to the authority and tell them someone is here
illegally, because presumably you would not have much credibility,
to say the least. That is understandable. But has the Home Office
in any way argued over the years that you are not doing what you
should be? Putting it in plain terms, have they ever accused IAS
of abusing and helping people to be in breach of immigration law?
Mr Best: No, we have not had that
allegation.
Mr Yeo: The Home Office considers
us to be a very helpful part of the process, as far as we are
aware, in that we can advise people of what their rights are.
That helps people with their position and with making proper applications.
Q265 Mr Winnick: That is IAS?
Mr Randall: Might I just add,
if I was advising a person, as Keith was talking about, one issue
would be has this person who has come to me as an overstayer already
overstayed for more than 14 years? If he is, in the Immigration
Rules there is a rule, passed by the Home Office and endorsed
by Parliament, that says that, other things being equal, an overstayer
who has been here over 14 years will probably be regularised;
and I would be negligent if I did not bring that to the attention
of the client. I might also need to talk to that person about
whether any Human Rights Act issues arise from their situation.
There is a range of other issues that arise when somebody arrives
in your office for the first time and says, "I am an overstayer",
and there are obligations to deal with all of this, but I concur
with the opening remarks which Keith mentioned.
Q266 Mr Winnick: I do not want to
appear to be taking business away from solicitors—we all
have to make a living—but many of us parliamentarians advise
people to see IAS because of its longstanding reputation and that
the costs, where there are costs involved (and I am not sure the
client is asked to pay), would probably be less than solicitors?
Mr Randall: Yes.
Q267 Mr Winnick: What is your view
on that?
Mr Randall: I think they are a
good organisation. I refer people there myself.
Mr Yeo: Can I come back to the
issue you were raising about trafficking in gangs and quickly
go over that territory? You were talking about an increase in
the entry clearance refusal rate from 10% to 19%. I think it is
important not to confuse that with the issue of trafficking and
also smuggling, because I am not aware of any evidence whatsoever
(and unfortunately we are in a situation where we are matching
anecdote with anecdote) of abuse in that. What I am aware of is
that there is an increasing demand for movement around the globe,
there are increasing living standards in many countries and there
is clearly an increasing demand for visas to come to the UK. There
is no evidence that I am aware of to suggest that that is an illegitimate
demand in any way, shape or form and, as far as I am aware, the
problems with smuggling and trafficking have been relating mainly
to asylum. I think it is important not to confuse those two issues.
Q268 Mr Winnick: You would not wish
to deny, Mr Yeo, that many applications in certain parts of the
globe are not genuine?
Mr Yeo: I would not try to deny
that, no, but I cannot give you figures.
Q269 Mr Winnick: It is not just on
the Indian sub-continent and in other places in certain parts
of Europe, but the number of applications are quite large, which
could not by any stretch of imagination be considered genuine.
Would you disagree with that?
Mr Yeo: It seems to me you are
at risk potentially of over-stating the problem. I cannot quantify
the problem; I do not have the information to do so.
Q270 Mr Malik: You will be aware
that there is existing provision within the 1999 Immigration and
Asylum Act for a financial bond to be deposited where risk might
be attached to applications. You will also be aware that the Government
is proposing to implement a bond scheme for such risky applicants.
Do you think it is possible to have a bond scheme which is both
fair and effective?
Mr Best: This has been looked
at on many occasions in the past, as Mr Malik will be only too
well aware. It is going to be very difficult for such a scheme,
it seems to us, to overcome the evil that it is meant to overcome,
because if you have a bond scheme of such magnitude in the requirement
of the deposit of financial security that it would deter very
large numbers of people other than the most wealthy from being
able to actually put that forward, that is inherently discriminatory
and unfair. If, however, you pitch it at a level which is far
below that, then it is not going to deter the determined person
who wishes to evade immigration control; in fact, it is probably
almost an incentive, because the bond is likely to be less than
what they might otherwise have to pay to a smuggler or to somebody
to forge documents in order to be able to get to the United Kingdom
in any event. I think, on the face of it, it has that easy attraction
which makes it sound as though this is a good idea, this is going
to regulate the system better, but I think, if you look at it
in closer examination, it is not likely to overcome the evil that
it is meant to overcome, and, of course, the danger is that if
you charge employers or other sponsors with the requirement to
furnish some sort of bond, how does the Home Office know what
kind of penalty is being visited on any applicant who is going
to be the subject of the application relating to the bond? Who
is really paying the money, and for what? I think it is not an
easy thing to deal with, and it may be that, for the reasons I
have advanced, it is not worth a great deal of further examination.
Mr Randall: An alternative approach,
which is equally difficult, is if you were to decide that because
of historical reasons or prejudicial reasons a particular nationality
of applicant will be subject to a bond whereas another one is
not, again there will be issues of fairness, of race discrimination,
but on the model that Keith suggests, if you have only got 15
minutes to decide whether to grant the visa or not, how long are
you going to take to means-test the person to decide how big the
bond is going to be? It is easy to suggest this, but I do not
think it stands up.
Mr Best: I think the Committee
should not be beguiled into the assumption that because certain
groups have suggested bonds that they are in favour of them. I
have a lot to do with the Bangladesh Caterers Association, for
example, and they have said, "If this is what it is going
to take to get the people we need to actually work as kitchen
porters in restaurants in Asian cuisine in the United Kingdom
then so be it", and they are estimating something like 7,000
unfilled vacancies as a result of the removal of the Sectors Based
Scheme and the inability to have any substitute at the moment
whereby they can engage those kitchen porters who speak Bangla
and, therefore, can communicate within the kitchens of the Asian
restaurant trade. Their view is that if what it takes is us having
to put up money to get these people, we will do it; but it is
said only because that is, it seems, the only way they are likely
to persuade the Government they can continue to recruit the workforce
that they need. It is not actually said out of a great deal of
enthusiasm for the idea.
Mr Randall: The track record of
the Home Office in bureaucracy generally is not too good. If I
was a tourist who had returned and was waiting for my deposit
to come back, I might be quite worried about how long it would
take to get it.
Q271 Mr Malik: The second part, I
was going to ask about what incentives to return, but I think
you have covered that pretty much. I do not know if you want to
add anything to that.
Mr Best: I am firmly of the view,
having looked at this for a long time and been in my present post
for 12, 13 years, that to an extent you see things come around,
and there is not much in the way of new ideas out there. I really
do feel that the greatest disincentive for people to abuse immigration
control, other than those who want a one-off visit to see the
Tower of London and that is the only time they would ever want
to come to the United Kingdom, is the threat that if they abuse
immigration control they will be a marked person and their ability
to come back subsequently will be inhibited, either for a few
years or maybe, in a bad case of abuse, for ever, and it seems
to me that that is likely to have a much greater effect, particularly
if you couple with that not only embarkation controls but, as
you know, the roll-out now of fingerprinting of applicants so
that there is not much chance, or there is less chance, of those
people impersonating somebody else when trying to make a subsequent
application in order to avoid the penalty that would be visited
on them as a result of having abused immigration controls in the
past.
Q272 Mr Malik: So far, I think, in
terms of abuse and corruption, we have focused on the kind of
external, if you will. If we just move to the internal, i.e. the
IND, the bureaucracy, as you put it, you will be familiar with
the Lunar House "sex for visas" allegations. Do you
believe these reports and have you seen other examples of corruption
amongst case-workers either within the IND or, indeed, abroad?
Mr Randall: My answer to that
is that those allegations appeared to me when I downloaded them
to be rather thin, and nothing has yet been brought to my attention
to suggest otherwise. There was some history many years ago of
corruption, but we are talking 15/20 years ago. I have not seen
anything recently emanating from Lunar House that has caused me
concern in that the respect.
Mr Best: I agree with that. I
have not seen or heard of any evidence, anecdotally or otherwise,
about that. I think it would be idle to pretend that there is
not any kind of abuse, but if one is looking at posts overseas,
for example, most of that abuse has been with locally engaged
staff rather than through entry clearance officers. There has
been some problem with entry clearance officers. Very many years
ago, for example, in Dhaka there was a problem of an entry clearance
officer who was giving visas by telling people at which window
he was going to appear the following day on the desk, and, as
a result of that, the whole system was changed.[2]
Now entry clearance officers will not know until the actual morning
which window they are going to be appearing at. I think UKvisas
and others have taken steps to try to overcome as much of that
potential abuse as possible.
Q273 Mr Malik: I think we have discussed
earlier the certificates of approval for marriages. I am wondering,
the IND certainly believes that they have managed to reduce abuse
by the marriage route with this policy. Do you agree that this
is the case or do you think that those who would have married
simply have not made an application rather than leave the UK?
Mr Randall: I certainly think
that the certification process has reduced the numbers of marriages
and therefore reduced the numbers of applications made on the
basis of marriage, and in particular the provisions preventing
marriages to EU nationals maybe have prevented applications which
might otherwise have been made. It is not for our organisation
to say what those people who might have done that are doing instead,
and that is always a problem in terms of increasing control in
one area as to whether things merely go underground. What I would
say is that it has meant that an awful lot of people who have
perfectly genuine desires to marry now have to go abroad in order
to do it, and there is a significant amount of disquiet that that
now happens and some uncomfortableness that a Church of England
marriage will do but no other marriage will.
Mr Best: I endorse those points.
It is not a matter for us, it is a matter for the Committee to
express a view as to whether it is right that the Secretary of
State should tell me whether I should marry a foreigner or not.
Q274 Gwyn Prosser: Mr Randall, I
want to ask you about the no switching of the rules which requires
visitors who are already in the country who wish to change their
status to go home and make a new application. I know that your
organisation has said this is inefficient and it is bad for customer
relationships, et cetera. Do you want to expand on that?
Mr Randall: Yes. Switching, broadly
defined, covers changing from a variety of categories to a variety
of other categories. You have referred particularly to the visitor
capacity, and for some time now visitors have not even been able
to switch to a marriage application, they have to leave and go
forward. That would not be our primary concern. The area in which
we were particularly raising concern was where you had approved
migration, managed migration applications—HSMP or work permit—where
you might be talking about nationals who are from the other side
of the world, and, if we are looking at granting applications
because they are to the economic good of the country, whether
it is sensible to require people to go all the way back to Australia
in order to get a visa to come back again when the issue as to
whether they were qualified under HSMP or work permit has already
been decided. It might, for instance, be rather more useful if
they could go to an embassy set up to do that in Europe. That
would be the area that we particularly wish to raise as far as
the Committee was concerned. I do not know if my colleague wants
to add anything.
Mr Davies: A recent example—someone
who is here. If you are a highly skilled migrant and you get the
65 points, you make your application to the work permit section
and they write you a letter saying, "Yes, you are approved
as a highly skilled migrant." You then have to fly all the
way back to your country to get a highly skilled migrant visa
to come back again, and if you have a spouse who is with you here,
they then have to fly all the way back and get their visa to come
back again. That is what is happening. It has been introduced
by the Government to stop what they perceive as abuse, to stop
people who are already here in some category applying in another
category, being refused, then having an appeal. That is the logic
behind it, but on a practical level it does cause difficulty.
The key areas are the work permits and the highly skilled migrants
where one part of the Home Office have said, "You deserve
to be a highly skilled migrant" or "You deserve this
work permit". It seems a bit strange to then make them travel
back to the other side of the world to pick up a visa to come
back again.
Q275 Gwyn Prosser: So on that quite
narrow interpretation you would not support taking away the no
switching rule from people who come in and claim asylum and then,
someone suggests, artificially or in reality, set up a whole structure,
form a relationship and then claim to stay in another circumstance?
Mr Randall: People who claim asylum
at the port have long had difficulties in switching to anything,
because presumably they do not have the appropriate visas to do
that.
Q276 Gwyn Prosser: I do not mean
within 48 hours, I mean within the course of the long appeal procedures,
altruistically long?
Mr Randall: I think a number of
policy issues come in here. One is you might take a view at some
stage that there are certain types of labour shortages that could
be filled through this group. It used to be rather easier for
port asylum applicants to switch into work permit for instance.
For some time now it has not been possible at all—there
was change in policy—and I think the onset of the A8 nationals
and different approach to labour markets has formed that view.
I think it is open to governments to have that view, to take a
view as to what economic requirements might inform that particular
discretionary area of immigration, but I think the general principle
that you should ask for what you want at the outset is a good
one and that if you want something different to that which you
ask for then you need to provide a good reason for doing it.
Mr Davies: I think that is an
important issue. There are asylum seekers who have set down roots
here, who have married here and maybe had children, who have lost
their asylum appeal, but they are genuinely married, and the Home
Office policy is, unless you have a valid leave to remain at the
time you apply on the basis of marriage, we are not going to grant
it. Their policy is that you must go back to your home country
and apply for entry clearance if you want to come back in that
capacity. My experience is that for some clients that is okay.
Some clients make the decision: "I am going to go back, apply
for entry clearance." They go back and they get the entry
clearance without much difficulty, but for other clients there
is a real difficulty to make that decision. They really do not
want to go back to their own country because of whatever happened
to them before—they might not have been recognised as a
refugee but they really do not want to go back—and you end
up fighting human rights appeals around Article 8 to try and keep
them here. I do not know how you get round that. I think sometimes
more commonsense should be applied to the cases where they are
not going to be eventually removed, and they should be allowed
to stay.
Q277 Gwyn Prosser: A bit more humanity
sometimes?
Mr Davies: Yes.
Q278 Gwyn Prosser: Even on the narrow
issue which you described earlier, what do you say to the argument
that even that provides a cause for queue jumping in terms of
those coming from far away places who have to enter into the queue
in a more legitimate way?
Mr Randall: On the issue of an
HSMP application, there is not a queue, you qualify according
to whether you have got enough points or not, and if you are abroad
and you wish to apply for an HSMP visa, there will be no great
the delay in the post where you need to apply, so there is no
queue in that sense. Again, as far as a work permit application
is concerned, the need for you has already been assessed. You
would not have got the work permit if the employer had not already
shown that there was nobody else in the EU who can do the job;
so in that sense there is not a queue because you are that person,
so again that individual is not jumping a queue.
Q279 Colin Burgon: Your association
in terms of fees takes the view that the level of fees for applications
is too high, yet IND takes the view that services are charged
for on the principle that those who benefit from them should meet
the costs rather than the taxpayer. That seems a reasonable view.
Mr Randall: Yes.
2 Note by Witness: The intended reference was
that entry clearance officers were taking money for giving visas. Back
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