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The proposed change entirely contradicts the expressed desire of Government policy to be compassionate with victims of child trafficking, outlined by the Minister’s
colleague, the Under-Secretary of State for the Home Department, the hon. Member for Gedling (Mr. Coaker), in a recent debate on the ratification of the international convention. During that debate, on 18 January, Members in all parties spoke eloquently of the need to tackle human trafficking, particularly child trafficking, and to stand up for its victims.
On 19 February, in evidence to the Joint Committee on Human Rights, the Minister conceded that there might be a need for “carve-outs” to protect children and victims of human trafficking. The Children’s Commissioner wrote to request that he include an
“exception for those who were under 18 at the time of the breach”.
However, the Minister replied that the concern over trafficked and asylum-seeking children had been answered by the concession that delayed the implementation of the changes until 1 October. That is plainly wrong. How does the concession help children brought here by traffickers, who will in future be subject to re-entry bans for varying lengths of time because they entered the country illegally, although they were effectively kidnapped? They are least likely to be able to afford their passage home, and may therefore be subject to more severe penalties.
What will happen to a person who used to live in the United Kingdom with his or her parents? If the parents overstayed, or used deception in that person’s application when he or she was a child, that child will not be able to come and study in the United Kingdom without being subject to a blanket re-entry ban for offences of which he or she is completely innocent. In the extraordinary, discretion-free world that the Government are creating, the sins of the parents, of people-traffickers or of the person who is trying to take a child away from danger to sanctuary in the UK—albeit illegally—are visited on the child. I cannot believe that that is what the Minister intended, and I urge him to amend the rules to exclude offences committed when the person concerned was under 18.
Let me cite another case. Recently, the chief executive of the UK Border Agency told her officials not to be so silly when they were about to remove three students; the students had wrongly filled in their applications to extend their stay, and were branded “overstayers”. The lack of discretion in the new rules means that that second chance would now be entirely impossible. Indeed, the mistake may now also be viewed as deception and the students be banned from returning and completing their course, or from undertaking postgraduate studies. That is an arbitrary and extraordinary imposition, and a terrible way to make friends and influence people who may return to their countries and in due course become people of influence and position.
This is likely not just to involve injustice and hardship, but to prove counter-productive in streamlining the immigration procedures. Of course, we can understand the Minister’s logic. The Minister is a former management consultant; he understands these problems. Officials are human, and to err is human; therefore, officials err. It is an ineluctable logic—although when it was first expounded I doubt that anyone had in mind the spectacular capacity for human error recently perfected by the Home Office. After all, such a large proportion of decisions are
overturned on appeal—in asylum cases, for example—that it must be intuitively appealing for discretion to be removed entirely from the process.
This is immigration rulings by rote; there is no room in these rules for any discretion. It does not matter whether someone has overstayed by one day or 10 years, or whether they have made a typo on a form or they have used false documents. That rigidity and automaticity will not save official time, however. We Liberal Democrats contend that it will prove counter-productive because more and more cases will end up in the courts and there is no evidence that the UK Border Agency is capable of handling them because, extraordinarily, there was an abject failure on the part of Ministers to consult on these matters before tabling their proposals in February, and because, most bizarrely of all, the changes are regarded as too trivial to merit an impact assessment. Why then are Ministers coming to this House and undertaking such trivial changes, and failing to concentrate on serious matters that deserve their attention? If, as we contend, these matters are far from trivial, why is there no consultation and no impact assessment from either the Home Office or the Ministry of Justice, when the courts system may well have to bear the fall-out and sweep up the mess?
The Government should withdraw these changes, at least until those assessments have been undertaken and they know what they are doing. At the very least, we need a provision for the exercise of discretion in cases of minor and inadvertent breaches and we need exceptions for children, people who have been trafficked and asylum seekers.
I have attempted to show that the rules would lead to significant injustice. Children, who most need our protection, would be denied it and potential immigrants would be discouraged from regularising their position because it might mean, de facto, the break-up of their family and the loss of their job. Automaticity will not only prove to be a poor handmaiden of justice, but it will lead to increasing numbers of appeals against arbitrary and insensitive official decisions. We conclude that the measures will not even deliver a reduced burden on the officials concerned, who will find themselves increasingly often in court.
For all those reasons, we beg to move that the measures be now disapproved.
10.9 pm
Damian Green (Ashford) (Con): The Government are evidently in some difficulties over this instrument, and the problems arise essentially from a lack of consultation. Their basic case—that there should be penalties that discourage people from staying here illegally—is a sound one, but the problem, as so often in this policy area, is a lack of sensitivity and an unwillingness to listen.
There were the first signs of flexibility in the debate on this issue in another place when the Government spokesman in the House of Lords, Lord Bassam, made a welcome concession by, effectively, delaying the implementation of the changes before the House until October, so that those who are here illegally have the chance to leave the country without falling foul of these rules. He said:
“It is normally the practice that we would go through fairly rigorous consultation arrangements, but it is not always possible to consult everyone who might have an interest”.—[ Official Report, House of Lords, 17 March 2008; Vol. 700, c. 97.]
Does the Minister agree that it might have been better to consult organisations such as the Immigration Law Practitioners Association and the Immigration Advisory Service, and other bodies, such as the Refugee Children’s Consortium and Universities UK, which might well have had constructive and helpful suggestions to make? As far as I can see, he consulted absolutely nobody, which, in this context, seems a little foolish.
I accept that the Government have to strike a balance. They are rightly charged with securing our borders and preventing abuse of our immigration system while ensuring that the system is fair to individuals. We are all aware that occasionally those two objectives sit uncomfortably with each other, but when concerns were raised in another place about those who have made mistakes on their application—the hon. Member for Eastleigh (Chris Huhne) has also made the point—Lord Bassam said:
“The Government believe that the points-based system will provide an adequate remedy for migrants who have made mistakes in their application”.—[ Official Report, House of Lords, 23 October 2007; Vol. 695, c. 996.]
I hope that the Minister can tell us whether he is satisfied that adequate remedies are in place, because there seem to be some powerful arguments that they are not in place.
The hon. Member for Eastleigh made a number of points, and I, too, wish to deal with a range of questions that the Minister needs to answer. I wish to start with what is clearly both the most sensitive issue and the one on which the Government’s case is weakest: the treatment of children. The whole House will agree that the issue of children in our immigration system needs to be handled carefully, and the Minister will know that those most involved with children’s rights in this area have considerable concerns as to how the changes will impact on children.
It is clear that children in the immigration system cannot be accountable or wholly responsible for their own application and that, in some cases, they are legally in the care of a responsible adult. I hope that the Minister will tell the House what will happen if a child’s application contains false documents or statements made not by them, but by others. Will the Government treat that as deception? Will they bar such children from entering the UK even after they have become an adult?
Jeremy Corbyn (Islington, North) (Lab): I support the point that the hon. Gentleman is making. Is it also the case, as I understand it to be, that if the documents cannot be produced when the child is often much older than they were when they first arrived in this country, they would fall foul of this proposal and be threatened with removal—or if they are removed, they would not be allowed to come back for five years?
Damian Green: The hon. Gentleman makes a good point, and, again, I hope that the Minister can address it.
Clearly, a number of detailed issues affect children, where, as I just said, the Minister’s proposals are at
their weakest. The Refugee Children’s Consortium makes a large number of points, of which I shall just detail two. First, it says that
“any application for further leave must be refused if any false document has been submitted, or false statement has been made, or there has been any failure to disclose a relevant fact. Refusal is mandatory in these circumstances regardless of whether the applicant is aware of the falsity or omission”.
That is clearly an extremely tough test to pass. Secondly, it states:
“These changes make no distinction between refugees and other immigrants; nor between children and adults. The previous Rules made no explicit distinction, but by admitting discretion allowed decision-makers to have regard to the particular age and circumstances of applicants.”
Another related point is that everyone in the House has particular concern for the victims of human trafficking, so I hope that the Minister will frame his response also in terms of the effect of these changes on potential child trafficking victims who are, as we all know, victims of one of the fastest-growing and most repellent crimes in the modern world. I hope he will address the issue of children.
Another area where questions need answering is cost recovery.
Mr. John Spellar (Warley) (Lab): Before the hon. Gentleman moves on, will he be clear—he has not really touched on this—about whether he thinks there should be any penalties on those who are deported from this country in relation to having to wait a time before applying to come back?
Damian Green: Yes I do, and if the right hon. Gentleman had been listening he would know that I made that point quite explicitly at the start of my speech. I said that Governments have responsibility to protect our immigration system. It is late at night and I am happy to make things clear for him.
In the explanatory notes to the statement of changes, the Government say:
“Where migrants have left the UK at public expense, we will also require them to repay the cost of their departure, once we have introduced primary legislation that allows us to do so.”
Will the Minister tell the House when the Government intend to introduce those proposals? Having removed someone from the country, how do the Government propose to recover that payment? What discussions have they had with foreign Governments about their co-operation in recovering costs from their own nationals? On the surface, the Government’s aim of recovering costs from people who have already gone back to their own country looks extremely optimistic. I suspect that this part of the changes is somewhat unrealistic.
Another issue, which the hon. Member for Eastleigh raised, is inadvertent mistakes. Clearly, nobody condones the intentional use of misleading or false information and those who use it should be subject to stringent penalties. We support the general approach that those who give false information should be refused entry, but will the Minister clarify what entry clearance officers will take the word “false” to mean? Does it mean intentionally false or inaccuracies of any kind? In short, does it involve active deceit? Is a mistake made in good faith also covered by these measures?
The Minister will be aware that that issue was raised in another place by representatives of the universities. Perhaps students are particularly prone to making such mistakes, but whether they are or not, it is clear that full clarification will be important.
It is also important to put these changes in the context of the wider weaknesses of the points-based system as it has been introduced by the Government. It is designed to do one job, which is to allow the economically beneficial to come to this country, but Ministers would like it to do another, which is to limit the numbers coming here. The scheme does not set limits of that sort and, as it is set up, it is not intended to do so. Ministers constantly argue that it is a system like Australia’s, but they know that the Australian system is entirely different. It starts with a limit and selects within that total.
Nor does the Government’s points-based system prevent long-term settlement. By staying on for five years and making an application, all work permit holders will be qualified to apply for settlement in Britain and, later, for citizenship. That will apply whether or not their skills are needed beyond the short term.
The result of those weaknesses in the system and the complete lack of public confidence in the Government’s immigration record is that Ministers are at all times having to try to look as tough as possible. The result of that, as we see before us this evening, is too often self-defeating. We have seen that over the highly skilled migrants programme. The Minister will be aware of complaints from the restaurant sector and there are now complaints from those who employ seasonal workers. It is conceivable, indeed, that there might be objections from some people who are covered by the measure. The root of the problem is policy driven by rhetoric, which is never a happy prospect.
I put it to the Minister that this is the day of the U-turn for the Government. I hope that he repeats the performance of the Chancellor this afternoon and introduces another set of U-turns and sensible concessions on this badly drafted measure.
10.19 pm
Mr. Andrew Dismore (Hendon) (Lab): My hon. Friend the Minister for Borders and Immigration gave evidence to the Joint Committee on Human Rights on this issue on 19 February, and I am not entirely sure that we saw eye to eye during that session. The first point that I put to him arose from the explanatory memorandum to the document laid on 6 February, which said in paragraph 8.1:
“An impact assessment on these changes will be published on the website of the Border and Immigration Agency...and on the Home Office website”.
When he came to give evidence, that impact assessment had not been published and he went away to check it. I do not think that it has been published yet. No doubt the Minister will correct me if I am wrong, but the fact that we do not have that impact assessment is serious. Despite what we were told in the explanatory memorandum, no real thought has been given to the consequences of the rule changes for some vulnerable people.
I am reminded of a couple of cases that I put to the Minister in Committee. I gave the example of a trafficking victim who is brought into the UK by deception, so her entry is illegal, but who manages to escape from the traffickers. As she has no money to return to her own country, she relies on the UK to pay for her return and is barred for 10 years because of the deception, or for five years because her return is paid for by the UK. The other example I gave was of a child fleeing persecution in his home country who is smuggled into the UK with the assistance of an agent, and who has no travel documentation so has entered the country illegally. The child has no funds of his own and is given discretionary leave, but when his asylum claim is ultimately decided, it is refused, perhaps because the circumstances in the home country have changed. Even if the child agrees to a voluntary return, he has no money to pay for it so either he is excluded for 10 years because of the deception in getting into the country or for five years because he cannot pay for his own return.
Those are two examples of hard cases, and because there is no discretion in the system and it is based on mandatory refusals we end up with two pretty appalling cases. We have no special exemptions for children and trafficking victims, and so one would have thought that that sort of thing might be thrown up by the impact assessment, which has not been produced.
It is irrelevant if the applicant believes that he had a good reason to believe that the statement was true or the document was genuine or valid, if the statement was made or the document submitted by a third party without the applicant’s knowledge, if the applicant did not understand the relevant fact that needed to be disclosed and made an entirely innocent mistake, or if the false document or statement was totally irrelevant and immaterial to the application. None of those factors is taken into account. The refusals are absolutely mandatory, no matter how innocent of any wrongdoing the applicant might be.
Jeremy Corbyn: Before the idea of a mandatory rule came in, had my hon. Friend come across any evidence in his capacity as Chairman of the Home Affairs Committee of the number of cases in which a decision had been overturned on appeal or on humanitarian grounds by the Minister’s office?
Mr. Dismore: I must correct my hon. Friend. I am Chairman of the Joint Committee on Human Rights, not the Home Affairs Committee. I will not say whether he just offered me a promotion or a demotion. All of us who have high immigration case loads in our constituency offices will be aware of such problems. People make genuine mistakes and they end up being challenged. The point about these rules is that there is no incentive to put things right. The incentive would be to fight everything every step of the way as a consequence, because there is no benefit in trying to put things right.
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