House of Commons |
Session 2006 - 07 Publications on the internet General Committee Debates UK Borders Bill |
UK Borders Bill |
The Committee consisted of the following Members:Emily
Commander, Committee
Clerk
attended the Committee
Public Bill CommitteeThursday 15 March 2007(Morning)[Mr. Eric Illsley in the Chair]UK Borders BillClause 19Points-based
applications: no new evidence on
appeal
9
am
Mr.
James Clappison (Hertsmere) (Con): I beg to move amendment
No. 53, in clause 19, page 11, leave out
lines 4 to 8.
We now
return to the question of appeals under the points-based system, which
was where we left off on Tuesday evening. The clause is a new aspect of
those appeals. As members of the Committee will recall, it deals with
appeals under the points-based system and, in particular, what sorts of
evidence may be adduced on appeal.
The amendment relates to
proposed new section 85A(4)(d), under which evidence that would
challenge the Secretary of States discretion to refuse an
application under a points-based system, and in particular to do so on
grounds not related to the acquisition of points, would be allowed to
be adduced on appeal. There are two purposes to the amendment, which
would delete that proposed paragraph. The first is to ask how far the
points-based system will extend, and therefore how far the appeals
provisions will extend. In asking that I bear in mind the problems that
have been encountered in the appeals system: a huge volume of appeals
in certain categories, a backlog of appeals, a disjunction between the
working of the asylum and immigration tribunal and posts overseas, long
delays and many other problems. It is a relevant question to
pose.
The Government
have published their proposals for the points-based system, but I
understand that they are not entirely cast in stone. I would like to
know how far the system will extend. It seems evident from the
Governments papers that it will apply to work permits,
including those with an entitlement to settlement, which are an
important feature of the work permits system and are overlooked. When
one talks about work permits it is not always understood that permits
of certain categories carry the entitlement to reside in the United
Kingdom or to become a UK citizen after four or five years of
residence. That is an important fact but it is not always taken into
account. The question is not just of work permits but of entitlement to
settlement and therefore economic migration.
It is clear that the appeals
system will cover work permits, but will it extend, for example, to
students applying to study in the United Kingdom? How will they be
dealt with? Will they be part of the points
system and, if so, will they therefore be able to appeal under these
provisions? Will evidence be able to be adduced on appeal about a
student studying in the United Kingdom? I would like to know how far
the provisions will extend and what applications they will
cover.
The
second purpose of the amendment is to register support for the judgment
of immigration officers as an exercise of discretion when it is
appealed against under these provisions. That seems to be what proposed
paragraph (d) is getting atgiving the right to appeal against
the discretion of the Secretary of State as exercised by immigration
officers. I pray in aid the important evidence that we heard from
Migrationwatch UK about the importance of the judgment of immigration
officers. I remind the Committee that I asked a question specifically
related to the amendment, and Sir Andrew Green told us about the
judgment of immigration officers. He
said:
That
judgment is absolutely essential. I think appeals against that judgment
should not be allowed. It is turning into a legal
nightmare.[Official Report, UK Borders
Public
Bill Committee, 13 March 2007; c. 277,
Q331.]
I can also pray in aid
what the Minister himself said in an earlier debate about the
importance of the judgment of immigration officers. There was an
element of consensus, at least between him and myself, on what a good
job immigration officers do and how important a part of that job is
their judgment. In support of the amendment, I quote what the Minister
said to the
Committee:
putting feet
on the ground is not enough if those officers do not have the power or
the tools to do their job effectively in the 21st
century.[Official Report, UK Borders Public
Bill Committee,
6 March 2007; c.
163.]
I believe that a
large part of the power of immigration officers is the power to
exercise their discretion. Removing much of that discretion, in effect,
changes the role of immigration officers and takes away much of their
power. I think that the Minister and I were at one on that, but I would
like to hear a response.
In other documents about the
proposals for a points-based system, Ministers have spoken of the
clarity and objectivity of such a system, but there does not seem to be
a lot about the judgment of immigration officers. I would suggest that
that judgment is so valuable, because it is formed from experience of
conditions on the ground, at post, based on local knowledge, and in the
case of the applications that we are dealing withfor work
permits and other types of leave to remain or enterpresumably
the immigration officer has had the opportunity to see the applicant.
An immigration officer in such a post knows the local conditions and
the problems that there can be generally, and specifically to certain
countries. The immigration officer then exercises his judgment on the
basis of that local knowledge and possibly after having had the
opportunity to see the
applicant.
Appeals
against the judgment of the officer will go to the asylum and
immigration tribunal, which sits at Taylor house on Rosebery avenue in
Farringdon, well away from the conditions that immigration officers
face daily. The tribunal will not have the local knowledge or the
experience of the officer. Sir Andrew Green speculated that it may well
be, apparently, that
members of the tribunal will not even have visited the country in
question; and presumably they will not have the opportunity to see or
question the applicant. Wondering aloud, how can one sensibly say that
an asylum and immigration tribunal sitting in London can exercise
discretion better than an immigration officer on the ground? How can
the tribunal sensibly challenge such discretion? However, that is what
the clause appears to
do.
I would like an
answer to a specific question. Can the asylum and immigration tribunal
just look at the same circumstances with which the immigration officer
was confronted, or can the appellant, in support of an appeal, present
new evidencenot seen by the immigration officerto the
tribunal? As I understand section 85 of the Nationality, Immigration
and Asylum Act 2002, which deals with appeals under the present system,
that is not allowed. The asylum and immigration tribunal can only take
into account circumstances appertaining at the time of the decision to
refuse. Under the proposed subsection, will the asylum and immigration
tribunal be able to look at new circumstances? That is an important
question, to which I should like an answer. My view is that one should
trust immigration officers on the ground, rather than allow their
judgment to be challenged. I look forward to the
Under-Secretarys
response.
Many other
issues surrounding the points-based system more generally, come into
play in determining how many such appeals are likely. There are lots of
issues about how high the bar will be set in the points-based system
for what the Government describe as highly skilled migrants. Just how
highly skilled will they be? How much demand will there be for the work
of skilled workers in tier 2? How wide will be the range of occupations
for skilled workers covered by the Governments points-based
system? All are relevant to the question of how many such appeals there
are likely to be. Those might be matters for another day, but I should
like a response from the Under-Secretary to the points that I have
raised now.
The
Parliamentary Under-Secretary of State for the Home Department (Joan
Ryan):
I welcome the opportunity to discuss the matter, so
I am pleased that the hon. Member for Hertsmere has tabled an amendment
that touches on issues that will benefit from discussion and
clarification.
Let me make a
few general comments. Under the points-based system, applicants must
prove their entitlement to points by producing, as part of their
applications, pieces of evidence specified in the immigration rules and
accompanying guidance. That obligation is new to our immigration
system, and it is an essential part of the new, objective points-based
system. We believe that that requirement will benefit applicants
because, unlike now, they will know exactly what they need to provide
in order for their applications to succeed. It is, therefore, fair to
expect them to supply that evidence up front, with their applications,
rather than allowing them to submit it later or even with their appeal
papers, as they can now. For that reason, I believe that appellants
making appeals under the points-based system should be entitled to ask
the asylum and immigration tribunal to consider only evidence that was
submitted with their
original application. The tribunal will be allowed to consider new
post-application evidence only in narrowly defined circumstances, for
the sake of fairness and in order to comply with our international
obligations.
Mr.
Clappison:
I am tempted to ask what those circumstances
will be. What are the international obligations that the Minister
mentions? As Sir Andrew Green reminded us, we are talking about people
applying from abroad to come to this country; not UK citizens or people
who happen to be in this country.
Joan
Ryan:
It might be helpful if I remind the Committee that
we are talking only about in-country appeals under the points-based
system. Under that system, there will be no appeal in relation to
out-of-country applications, because if one of those applications is
refused a new application will be made. It is important to remember
that the measures apply to in-country appeals relating to points-based
applications. The obligations that I refer to relate to justice. Later
I shall cite some specific examples that will, I hope, illuminate the
circumstances in which new evidence on appeal will be
allowed.
In order to
avoid injustice, the new provisions for appeals must come with
appropriate safeguards. Everybody who is refused leave to enter or
remain and who has a right of appeal under existing legislation will
continue to have that right. This clause simply restricts the evidence
that can be presented at an appeal against the refusal of an
application under the points-based system.
New evidence will always be
allowed where it is presented in support of an appeal brought on the
grounds that the decision was racially discriminatory or in breach of
the appellants right under the European Community treaties, the
refugee convention or human rights legislation. New evidence will also
be allowed in cases in which the Home Office alleges that a document
that has been provided with an application is forged or not genuine.
The applicant might not be aware that that is an issue until the
allegation is made, so it gives him or her a chance to clear his or her
name.
Damian
Green (Ashford) (Con): The Under-Secretary is specifying
categories of appeal in which new evidence will be allowed. Can she
clarify who will decide whether an appeal comes into one of those
categories? That will clearly be an important measure of how fair and
independent the system will look to the
appellant.
It
is clear that if we suspect that a document is forged, the applicant
cannot know that allegation in advance, so he or she should
have the right to question
it.
9.15
am
Mr.
Clappison:
Who will be looking at the document to see
whether it is forged, for the purposes of these
appeals?
To finish the point that I was
making, for the same reason that applies to the forged documents the
clause will also allow an appellant to submit new evidence in order to
contest a reason for refusal that does not relate to his or her
entitlement to points under the points-based system. That is designed
to avoid injustice, for example in a case in which an appellant has
enough points to qualify for leave but is refused because, according to
the immigration and nationality directorates records, he has a
criminal conviction that makes his presence here undesirable.
The
appellant might want to provide evidence that the conviction relates to
someone else and not to him; he may have to submit that evidence after
he has been refused, because he may not know about the alleged
conviction until the refusal. Those are the types of circumstances in
which we would expect to be able to allow new evidence. The tribunal
will decide whether evidence comes within the exception.
The hon. Member for Hertsmere
asked how far the points-based system will extend. It will extend
through all five tiers: skilled workers and business people; skilled
workers with work permits; unskilled workers; students; and youth
mobility and temporary workers.
The hon. Gentleman also asked
about the presence of appellants at appeals, but as the proposal
applies only to in-country appeals it is always possible, if not
desirable, for the appellant to be present at the appeal and nothing
should stand in the way of that.
Mr.
Clappison:
I should like some clarification. The hon. Lady
keeps talking about in-country appeals to the asylum and immigration
tribunal, but these are applications for work permits or student visas
that will have been made by someone overseas who has been refused
permission to come to this country. The hon. Lady shakes her head;
perhaps she can explain the circumstances to which she
refers.
Joan
Ryan:
These are applications under the points-based system
by people who are already here and who have leave to remain that is
approaching its expiry date. They must make their application in time;
these are not applications from people out of country overseas who wish
to apply for entry clearance under the points-based system to work
here.
Mr.
Clappison:
On what basis are these people in the country?
Where in the Bill does it establish that these are only in-country
rights of appeal rather than appeals for anyone who applies on a
points-based system, which one imagines will be the vast majority of
people who apply? The Government envisage in their own paper that it is
for people who want to apply for work permits or student visas from
overseas.
Joan
Ryan:
In our document on the points-based system it is
clear that there is no right of appeal for people overseas applying for
entry clearance under that system. Their right is simply to reapply;
the right of appeal only applies in-country for those whose leave is
about to expire. That could involve anyone who has leave to be here, to
work or study, who comes within the five tiers of the points-based
system.
As is the case now, people must
apply for further leave to remain if their leave is moving towards
expiry. What we are referring to are in-country applications for an
extension to existing leave. Out-of-country appeals for clearance under
the points-based system are removed by section 4 of the Immigration,
Asylum and Nationality Act 2006, rather than by this
Bill.
Damian
Green:
I am grateful to the Under-Secretary, who has been
very generous in giving way. However, she will recognise that there are
important matters here that need clarification. Can she give the
Committee an estimate of how much extra pressure this measure will put
on the already creaking asylum and immigration tribunals? If it is the
case, as the Minister has just explained, that it is going to be a mode
of appeal for in-country appealsfor people who are already
hereand they will all go through the tribunals, how much extra
work will be put on that
system?
Joan
Ryan:
If the hon. Gentleman thinks through how the system
will work, he will find that this measure will have the opposite
effect. It will lift the pressure and make a more streamlined and
speedier system, which will be to the benefit of all: those who apply;
those who deal with the appeals; and in fact employers, colleges and
others, who will benefit from a speedy system and from knowing who will
be given extension to their leave and who will not.
Just to backtrack a little bit,
there was one other point that the hon. Member for Hertsmere put to me,
about who will decide whether a document is forged. It is for the
asylum and immigration tribunal to decide whether an appeal is allowed,
so it would have to decide whether a document is valid or
not.
This measure is
not a new right of appeal, so there is no reason why it would add extra
pressure to the system and every reason why it would reduce pressure.
It restricts evidence that already exists from being submitted at
appeals. It will be a beneficial measure.
The amendment has illuminated
some of the issues and I hope that it has clarified how this measure
would operate and to whom it would apply. However, I cannot accept the
amendment for the reasons that I have givenreasons of justice
regarding the appellant being refused on the basis that I have
explained. I can assure the hon. Gentleman that this matter is narrowly
defined and that the point of the measures is to ensure that no new
evidence will be submitted to appeals, unless it falls within those
narrowly defined instances.
With that, I ask the hon.
Gentleman to withdraw his
amendment.
Mr.
Clappison:
I want to reflect on what the Under-Secretary
has said, but there is one matter that I am unhappy about, which is
what she was telling us about fraud and decisions on fraudulent
documents. That is because, sad to say, in some posts in
particularalthough this could also be a general
problemthere is a huge problem with fraudulent
applications.
The same
fraudulent documents may be used in applications made in this country
that then go to the asylum and immigration tribunal. Those fraudulent
documentseducational qualifications, professional
qualifications or documents showing work experiencecan be
extremely sophisticated and it requires a great deal of training of
immigration officers in their posts to be able to spot the difference
between one type of forgery and another. To ask the asylum and
immigration tribunal to be able to judge documents from so many
different countries and to develop the expertise necessary to sort out
the fraudulent documents is asking a great deal of that tribunal
sitting in Finsbury Park. I am unhappy about that, because I prefer to
rely on decisions that are taken by people who have more experience of
identifying these fraudulent documents.
I hope that I have laid down a
marker in the remarks that I have made, that I place great reliance on
the judgment of immigration officers. However, because I shall want
further clarification on this matter, I shall be asking for leave to
withdraw the
amendment.
My only
other point is that I have been talking about people whose applications
should be turned down. I do not want to lose sight of the fact that the
applications of an enormous number of people who seek leave to come to
this country should be granted. I am thinking particularly of students,
because it is important that some students come to this country to
studyit is of benefit to them, to their country and to this
countrybut there must be strict control over them and a careful
sifting of applications. On that basis, I beg to ask leave to withdraw
the
amendment.
Amendment,
by leave, withdrawn.
(3) The Secretary of
State shall lay before Parliament, not more than 12 months after the
commencement of the provisions under this section, a report on their
operation..
The
amendment attempts to give Parliament a handle on how the clause will
operate in the real world. I want to put it in the context of a letter
that I received from a legal practitioner in the field who, for her
sake, had better remain anonymous. She makes a point about the clause
and its attempt to make the points-based system faster and more
automatic, and to give some framework for appeals under it. She
states:
At the
moment the quality of decisions on the only points based
category
the
highly skilled migrant
programme
is
terrible, with many decisions being overturned and many decisions being
seemingly arbitrary, with the issued guidance being totally inadequate.
If this scheme is to be rolled out across the whole of the managed
migration programme, then initial decisions MUST be better, and
guidance MUST be clearer. To refuse further documentation to be sent
effectively means that applicants will have to hire legal
representatives to assist, and that costs will be driven up
further.
That evidence
from the workplace is based on the experience of a current legal
practitioner in the field who suspects that the measure will drive up
costs and will require more people to take expensive professional legal
advice.
I hope that
Ministers will pause briefly and consider amendment No. 90. If that
practitioner is right, and trouble is being stored up by the
provisions, it is all the more important that Parliament should have an
opportunity fairly quickly after their commencement to receive a report
on their operation. In previous debates, Conservative Members have made
the point
that we wish generally to improve the accountability of the Executive to
Parliamentindeed, the Minister expressed some sympathy with
that desire. It is particularly important in respect of this part of
the Bill, which will obviously have a direct impact on peoples
ability to stay in this country. We have heard that it will
specifically affect those who are already here and who are applying to
remain under the new points-based system. This area of immigration
policy is as sensitive as any, and therefore it is all the more
important that we should know what happens. Parliament needs to be
assured that Ministers have the balance right between our desire for a
robust system and our desire for a fair
one.
The
practical effects of amendment No. 90 would be relatively modest. It is
surely not too much to ask the Secretary of State to come before
Parliament and explain to us the actual workings of the legislation.
The amendment asks for a report not more than 12 months after
commencement, and I would hope that it would become a regular feature.
I suspect that, in the long term, it might give pause to those
Departments that seek to pour out new legislation every Session if a
significant part of the ministerial work load were to involve reporting
back on previous legislation and on what had gone wrong with it. It
would be an interesting exercise for Ministers to go through the
various immigration Acts and explain why some parts of them are in
operation and others still are not. That would apply even more to the
Home Offices plethora of criminal justice legislation, some of
which lies unused on the statute book for years after
introductionbut I am conscious that I am going wide of the
amendment. However, I commend to Ministers that proposal as a way in
which to improve the long-term performance of the Department and the
ability of Parliament to do its job
properly.
9.30
am
Paul
Rowen (Rochdale) (LD): I rise to support the hon.
Gentlemans proposal. We heard earlier from the Minister, who
said that he was proposing to set up the IND differently and to subject
it to regulation by Parliament. I welcome that. Certainly, anything
that makes the immigration process more transparent and subject to
parliamentary reporting must be welcomed. We are talking about a
points-based system that, as has been said, is used only in one area at
the moment, and so is new and relatively untried. During our
discussions on earlier amendments, we debated changes that would have
allowed new evidence to be used in certain circumstances, but the
Minister did not accept them. However, we need to know fairly soon
after the clause comes into operation how it is proceeding. An annual
report, given the new regulatory framework that the Minister will set
up for the IND, would be good practice and would give hon. Members
confidence that the IND was on the road to
recovery.
Mr.
Clappison:
I, too, welcome this important amendment. It is
very difficult to talk about clause 19 and the appeals system without
talking about the points-based system as a whole. I think that the
Minister conceded that point in his opening remarks. We need to look at
how much pressure will be on the appeals system and, therefore, how
many applications there will be under the points-based
system.
Will the Under-Secretary say a
few words about the nature of the points-based system? In particular,
how high is the bar for qualification for those described as
highly-skilled migrants? Are the Government thinking in terms of the
table set out in their points-based system document, which explains how
applicants can acquire the necessary points to enter the United
Kingdom? Under such a system, it would be quite easy to construct
scenarios in which people in their mid-20sthey could be as old
as 27with degree-level qualifications and earnings in their own
country comparable to those of graduates in this country could qualify.
It appears that a very large number of people could qualify as
highly-skilled migrantsthat is how the Government choose to
describe them. A very significant number of people could qualify,
particularly, one suspects, from developing countries and countries
with income levels much lower than ours.
There is also the
question of what the Government describe as skilled workers, who can be
recruited from overseas to come and work here if there is a shortage in
those occupations. We need to hear from the Government about how long
the list is of occupations that would be covered. We heard, I think, in
the evidence from the trade unionists how active agencies can be in
recruiting from overseas on behalf of employers in this country. We had
a recent example of how extensive that recruitment can be with the
Governments recruitment to the national health service. Since
2000, the Government have recruited 50,000 doctors and
nurses3,000 doctors and 47,000 nursesfrom Africa. That
is a substantial number. They have all come here under the
Governments programme. One suspects that many have come as a
result of recruitment by agencies, which raises a number of issues, not
least the effect on the African countries. That is possibly an issue
for another day; I have asked the Secretary of State for International
Development about it and I was not entirely convinced by his answer,
which was that more infrastructure was needed in Africa; more hospitals
needed to be built and more training programmes needed to be run. That
is a lot to ask of African countries where incomes and gross domestic
product are a fraction of those in this
country.
There is also
the issue of economic migration to this country. The Government have
presided overI use that neutral phrasea period of
significant economic migration through the work permit programme. As
the Minister told me in a recent written answer, the number of people
in receipt of work permits that carry with them the entitlement to
settlement has increased from 58,000 in 2000 to 107,000 in the first 11
months of last year, which is a near doubling in seven years. That is a
substantial rate of increase.
From some of the rhetoric that
one hears from the Government, one suspects that there are elements
within the Government that are in favour of economic migration on what
they see as economic grounds, although Migrationwatch dealt with that
argument with the evidence that it gave to the Committee on Tuesday,
which I certainly did not hear successfully
challenged.
Damian
Green:
Under the specific terms of the amendment,
Parliament would have a report from the Home Secretary. It would give
this Home Secretary, for example, the chance to agree with or repudiate
the proposal of his predecessor but one that there was no obvious upper
limit to immigration to this country. The Government behave as though
they do not believe that any more, but they have never formally said
so; the amendment would give Parliament a useful chance to ask the Home
Secretary whether he has reversed the Governments previous
immigration
policy.
Mr.
Clappison:
While the Government are answering that, they
might also like to answer the question whether they believe that under
the points-based system, the number of applications will be the same as
it is now, or higher or lower. Perhaps the Minister would like to tell
us. Do the Government see the number running at this rate of over
100,000 a year? As I emphasised, I am talking about work permits that
carry the right to settlement, which I suspect will be exercised in a
substantial number of cases.
David
T.C. Davies (Monmouth) (Con): My hon. Friend is making
some excellent and interesting points. Does he feel also that the
Government should explain what checks are made on the qualifications
that are produced by people who want to come here, particularly in the
case of medical practitioners? What safeguards are there to ensure that
their documents are valid?
Mr.
Clappison:
My hon. Friend makes an important point. I will
come to it in a moment. I should like to hear from the Government about
the migration that they foresee taking place under the provisions. Let
us remember that such migration carries with it the right to
settlement. The system is called work permits, but it
is work permits with the right to settle. We are not talking about the
number of people coming from eastern Europe; that is a different issue,
which is dealt with under European Union
treaties.
The
Chairman:
Order. The hon. Gentleman is straying a little
bit wide of the clause and the amendment. I remind him that the clause
relates to points-based applications and no new evidence, so he is
going rather wide of the mark. I should like him to come back to the
Bill.
Mr.
Clappison:
You are absolutely right, Mr.
Illsley. We need to know how many applications, and therefore appeals,
there will be, and how much pressure there will be on the system. The
applications will result in pressure on the system. The Minister needs
to deal with this question: how many applications does he foresee under
this system?
My hon.
Friend the Member for Monmouth has just mentioned the important point
of checking the entitlements of the people in question and guarding
against forgery. That is very important to the clause, because the
Government seem to envisage the system working through a mechanical
checking of whether the person ticks the right boxes to accumulate
enough points, on the basis of the documents and any other
evidence that they produce. The Under-Secretarys earlier use of
the word objective echoes the Governments paper
on the matterthe term is used repeatedly, because the
Government see what is happening as an improvement on the
systemand it is, I think, meant to signal that there will not
be as much scope for individual judgment in individual cases, when the
person making the decision is not satisfied, after looking at the case
in the round and bringing their experience to bear on it, that the
application is genuine.
The Government seem
to wish among other things to facilitate such migration and put it on
what they regard as a legal basis, although I do not know whether such
a basis is a legal requirement. However, I know that it is important
that immigration control should be tight and that people should not
slip through the system because they happen to tick the right boxes,
without their applications being examined for possible irregularities
or wrong motivation. I am very worried about problems at that end.
There is no use in the Governments producing proposals for
dealing with overstayers and the like if we do not get the first line
of defence right. In that line of defence, the interests of immigration
control should come before anything else. That necessitates an element
of judgment. Of course, if people have a legal entitlement and it is
accepted that their application is genuine, they must receive whatever
benefits they are entitled to under the Governments proposals
on permission to come to this country, but there must be an element of
individual judgment.
The
Government are storing up problems, and things will get even more
unsatisfactory as far as appeals are concerned. The Government have
already had to withdraw some rights of appeal, which I believe they
granted in the first place because the system was being overwhelmed.
There is a fundamental problem or disjunction in a system that has what
Migrationwatch suggested was, in comparison with those of other
countries, a Rolls-Royce appeals system. I should be interested to
learn what happens in other countries in this respect. I do not know,
but I should not be surprised to learn that our appeals system was far
more extensivea Rolls-Royce in comparison with other
countries
systems.
Damian
Green:
From my experienceI have visited Taylor
house; I spent an interesting day thereif we have a Rolls-Royce
system it is a Rolls-Royce without an engine, because however it gleams
on the surface, it barely moves. For many people involved, particularly
the judges, the system is dysfunctional. There are about 450,000 cases
delayed in it, and anything that puts added strain on the system will
make a bad situation worse.
Mr.
Clappison:
My hon. Friend has anticipated my next point,
as I was about to say that the Government had set out to create a
Rolls-Royce system, but that it turned into an old banger on the way. I
think that what my hon. Friend has seen of the system has amounted to a
similar experience to mine. I also had the opportunity of visiting a
post, seeing the appeals papers piling up, the ping-pong of requests
for information between posts, and the delays and all the problems that
arise from them. It is all set out in the Home Affairs
Committees evidence. It is not surprising that Ministers have
concluded that they must restrict some rights of
appeal.
Mr.
Stewart Jackson (Peterborough) (Con): Does my hon. Friend
believe, as I do, that Ministers should consider carefully, when they
compile the points-based system, work force needs in key areas,
particularly the health service? The Select Committee on Health will
report shortly on work force planning. That will make interesting
reading, but it is already publicly known that we may have about 3,200
hospital consultants for whom there will be no jobs. Should that be
considered in the points-based
system?
The
Chairman:
Order. I ask the hon. Gentleman not to respond
in too much detail to that, and to come back to the matter before the
Committee.
9.45
am
Mr.
Clappison:
I put it in a way that is highly relevant to
this clause. I would like an answer to the point that I put to the
Under-Secretary. How wide is the list of occupations under tier 2 for
skilled workers? How big a list is that going to be?
I was told by an immigration
officer that immigration was all about economics. I think there was a
lot in that observation, because there is literally unlimited demand
for people to come and work in this country and to enjoy the higher
incomes that are available in this country as compared with the lower
incomes available in their countries. They are hard-working people and
they have laudable motivation but it has to be taken into account
whether or not levels of economic migration are sustainable. The level
of economic migration into this country today is historically at a
higher level than ever, putting it mildly, and that is without any
disrespect to the economic migrants themselves, who are extremely
hard-working people with laudable motivation. However, other issues
arise which, we dealt with earlier. They need to be addressed and all
these proposals need to be seen in that
context.
We need to
have up-front honesty from the Government about this, and answers to
the very relevant questions that my hon. Friend the Member for Ashford
posed to them. This amendment would provide a means of achieving those
answers.
Joan
Ryan:
I can assure the hon. Member for Hertsmere that he
will get nothing but up-front honesty from the Government. I am pleased
to say that although I cannot accept this amendment, I do not think
that the hon. Gentleman and his party will have any need to require me
to when I explain to them that the measures we are taking will meet
exactly the requirement that they have outlined with regard to
reporting to Parliament. Like them, our view is that all these measures
are about creating greater transparency and that should be married to
appropriate scrutiny. That is exactly what we are attempting to achieve
here and what I think these measures when implemented will
do.
We have ranged
across the whole of the points-based system and this clause is in fact
about in-country appeals, but I will cover some of the points that the
hon. Gentleman has made on the points-based system. Suffice it to say
that the points-based system is an important policy that we have
brought forward, which
will help us to ensure that migration to this country meets the needs of
this country. It is the caseand the hon. Member for Hertsmere
has made the point himselfthat, although there is a balance to
be struck, there is economic gain to this country from appropriate
immigration.
The
points-based system, working in conjunction with the migration advisory
committee, is a crucial element which we have not discussed here this
morning. I will be careful as I do not want to range outside the scope
of the clause. It is very difficult to cover some of the points made by
the hon. Gentleman if I do not slightly push the boundaries; I hope
that you will bear with me, Mr. Illsley.
The operation of the
points-based system with the migration advisory committee is a crucial
relationship. When hon. Gentlemen ask how high or low the numbers might
be and where the bar will be set, they will know that the migration
advisory committee will be in a position to advise on just that and
make sure that, whatever the list of occupations and whatever
occupations we have skills gaps for, we will be able to use the
points-based system to recruit to fill those skills gaps. The
points-based system will allow us to be flexible over periods of time
rather than be tied to an exact number at an exact point in time.
Together the points-based system and the migration advisory committee
will ensure that migration meets the economic needs of the
UK.
The
hon. Gentleman will also know that with regard to the numbers, whether
higher or lower, it will be employers as well as colleges, universities
and other higher education institutions that will sponsor applicants
from outside the UK coming into the UK. Of course, they will also have
a responsibility to ensure the legitimacy of applications. They will
subsequently be subjected, as ever, to rigorous checking. There are
occasionally issues about that matter in various posts, but the clause
is about not out-of-country application but in-country application.
Opposition Members may wish to have an annual report that would cover
everything, which will indeed be the eventual outcome, but I presume
that the report that they are asking for under the clause would be to
examine the operation of these measures following the implementation of
the points-based
system.
The
Under-Secretary will be aware that we have tabled similar amendments to
various parts of the Bill, because we believe in the Government
reporting back to Parliament and believe that that should be as
widespread as possible. We feel that this clause is so important that
such reporting is particularly important under
it.
The
Under-Secretarys point about the migration advisory committee
is interesting and, in many ways, welcome. Is she saying that it will
set overall numbers, or will it just examine individual
sectors?
Joan
Ryan:
I am saying that that committee, whose establishment
is imminent, will advise the Government. The responsibility will remain
with the
Government.
Mr.
Clappison:
I am grateful to the Under-Secretary for giving
way. I did not say that there was an economic benefit from migration,
and she must answer the point that was made by Migrationwatch. On the
advisory committee, what will its advice be? Will it be a number, or
advice on the skills that employers say are needed in the economy? Will
the migration advisory committee just be the renamed skills advisory
board, which the Government thought about all along and mentioned in
their
paper?
Joan
Ryan:
It is good that hon. Members are so interested in
how the migration advisory committee will
operate.
Joan
Ryan:
It is a very important new measure. It will advise
the Government on attributes needed and on what skills shortages there
are, and it will be able to gather evidence from employers, businesses,
higher education institutions and others. It will therefore be able to
inform the Government so that we can make decisions about the
categories in the points-based system that are related to our needs. It
is clear that the committee and the points-based system will have a
strong
relationship.
Joan
Ryan:
I think I should just answer a few of the points
that the hon. Gentleman raised with me earlier before I am overtaken by
the paper that is flowing towards me at a satisfying rate of
knots.
The purpose of
the points-based system is to make the application process much
simpler, so reducing the scope for errora point that has been
much raised from the Opposition Benches. Applicants will be told what
they need to submit as evidence, and if they do so they will get the
points. There will therefore be less scope for discretion and thus less
scope for error. I disagree that the changes will require applicants to
seek legal advice earlier in the process; in fact, quite the opposite.
As the hon. Member for Hertsmere quoted me as saying, they will
introduce more objectivity and much less subjectivity into the process,
which can only be a good
thing.
We are always
open to representations from all individuals involved in the process,
but I do not agree with the views of the anonymous individual that the
hon. Member for Ashford gave us the benefit of hearing. Obviously,
everything is subject to review, but
it is not our view that the highly skilled migrants programme is working
in the way that the anonymous evidence-giver appeared to
say.
Much was said
about the requirements under the points-based system. The question was
asked, what exactly will they be? The exact requirements have not yet
been finalised, but the revised immigration rules for the highly
skilled migrants scheme set out the sort of evidence that we are likely
to require from highly skilled migrants under tier 1 of the
points-based system, which will replace that scheme. That includes such
things as degree certificates to prove academic qualifications, wage
slips to prove earnings and recognised certificates to prove English
language ability. Hon. Members may want to see the list in detail. I am
happy to be able to tell them that they can find that in appendix 4 to
the immigration rules. We are reviewing the effectiveness of the
changes to the highly skilled migrants scheme, and as a result of that
review the evidence that we require under tier 1 may differ in some
respects. However, the highly skilled migrant rules will give the
Committee an idea of our
thinking.
In respect
of students, again the exact requirements have not been finalised, but
will not be onerous. Students will need to provide a certificate of
sponsorship from their university or college. They are also likely to
need evidence, such as bank statements or evidence of sponsorship, to
show that they can pay their course fees and maintain themselves within
the
UK.
David
T.C. Davies:
Will the Under-Secretary take steps to ensure
that we see an end to the scandal of offices being set up as supposed
language schools or other centres of learning when in fact they are no
such thing and are just a front to allow people to get into this
country while pretending to be students? I know from personal
experience that that practice is extremely widespread. My wife is
eastern European and told me that it was a ruse used by many people
before the enlargement of the European Union, and it is presumably
still going on now for countries outside
it.
Joan
Ryan:
The hon. Gentleman makes an important point. He will
know from the discussions that we have had throughout proceedings in
Committee that we are doubling our enforcement resource and bearing
down on both illegal employment and the kind of practice to which he
refers. It is something that we would take very seriously and seek to
take enforcement action against, so he can rest assured that
enforcement is at the top of our agendait is a priority for us.
That is evident in the
Bill.
I want to give
hon. Members some reassurance about how the effects of clause 19 will
be scrutinised. They will be scrutinised in the following ways. The
independent inspectorate will include a number of key themes relevant
to the operation of the points-based system, including its appeals
process and the operation of clause 19. The inspectorate will report
annually to the Secretary of State, who will have to lay its report
before Parliament. For all intents and purposes, that meets the
requirements of the amendment tabled by the hon. Member for Ashford and
the comments by the hon. Member for Rochdale.
Furthermore, in accordance with
Cabinet Office guidelines, our regulatory impact assessment commits us
to conducting a post-implementation review of the whole Bill, again
including clause 19. We will place a copy of the reviews report
in the Library. The further report that the amendment would entail
would be unnecessary and would not justify the resources needed to
prepare it. However, I hope that what I have said about the annual
report, which will be laid before Parliament, will meet the
amendments requirements.
10
am
Damian
Green:
I am grateful for the Under-Secretarys last
remark. It will be interesting to know how long it will be before we
have the impact assessment, and how detailed it will be. I am glad that
she has taken note of our point.
The
Under-Secretary started by committing the Government to transparency
and openness, a deathbed conversion that will be very welcome if it
turns out to be true. However, in the context of those remarks, I
observe that she carefully avoided answering the salient point that my
hon. Friends and I made about whether the migration advisory committee
will advise on the numbers of people who will be allowed to enter in
any year.
The hon.
Lady returned repeatedly to the point that Ministers, not the migration
advisory committee, would take the final decision. Of course that is
the case; advisory committees advise, Ministers decide. But on what
basis are Ministers making that decision? Will the advisory committee
really say, We need more nurses, teachers or IT technicians
this year, or will it say, Overall, we reckon the
number for this year is x? That is absolutely central to the
workings of the migration advisory committee and the Under-Secretary
notably failed to respond to that point.
Mr.
Clappison:
In the Under-Secretarys very patient
and generous acceptance of questions, was it not extremely illuminating
that in her response on this very point, not only was there no mention
of a limit, but there was no mention of any factors to be taken into
account by the so-called migration advisory committee other than
skills, and what I think will be regarded as employment opportunities?
There was no mention of housing, infrastructure or the other myriad
factors that should be taken into account in managing
migration.
Does my
hon. Friend agree that this is a case of the Government renaming what
they originally wanteda skills advisory body, which was in
their White Paperas a migration advisory committee, and
pretending that it will advise on migration rather than skills? As the
Under-Secretarys reply made absolutely clear, that is all it
will
do.
Joan
Ryan:
The migration advisory committee will indeed be
about migration; it will not be limited to skills, although they are
extremely important. It will consider wider issues but they will be
announced at a later
date.
The hon. Lady
said that the removal of discretion would reduce the error rate in the
appeals system under the clause. It is hard to believe that any
Minister could make that assertion with a straight face, given the
constant stream of abject failures that result from an over-reliance on
technology; this may well be another one.
My hon.
Friend the Member for Peterborough mentioned the health applications,
which is the most recent example, but one does not need to go beyond
the Home Office to know that it has happened before. The search for an
automatic, form-filling solution in which everything will go through
perfectly smoothly is a chimera. The Government have failed in that
search many, many times and the clause is yet another example of it. I
fear that, once again, human misery will be increased by that search,
as it has been before. Far too often, the individuals involved find
themselves faced by a system that appears to them to be Kafkaesque in
its inability to respond to individual human circumstances. If the
clause ends up by establishing yet another system like that, it will
not just be Ministers who regret it but everyone, particularly those
who get sucked into having to use this appeal system. I put that
warning on the record to
Ministers.
Mr.
Jackson:
I want to reiterate the general comments made by
my hon. Friends, but I would also like to make reference to my
particular concerns about the points-based system. My comments are
based on the experience that I have had as an MP dealing with the
issues arisingI put it no more pejoratively than
thatfrom the EU migration from May 2004 onwards.
Two specific points
concern me. First, as Sir Andrew Green said in his evidence, the
Government and the migration advisory committee will be almost solely
driven by large employers and certain
sectors
The
Chairman:
Order. The hon. Gentleman is going far too wide
of the amendment and the clause. If he wishes to continue speaking, he
must come back to the
amendment.
Mr.
Jackson:
Thank you, Mr. Illsley. Secondly, I am
not yet reassured that other factors will be taken into account by the
migration advisory committee, which will advise Ministers, in
particular the revenue support grant to local authorities that must
deal with the issue of the large-scale migration that may occur as a
result of this particular points-based
system.
Amendment,
by leave,
withdrawn.
Clause
19 ordered to stand part of the
Bill.
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