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The real problem is that an employer might have submitted a false document, and the migrant might have no knowledge of it. The same could be true of an educational or financial institution. Any false statement by a third party damns the applicant, too. Children are affected in the same way, as I have just said. The child who overstays because the parent failed to renew their
leave is caught by the mandatory rules. That is not fair on the child, who is still caught by the ban.
The seriousness or otherwise of the breach makes no difference at all. The person who overstays by 29 days because they made a mistake with their visa date, or because their flight was delayed, is treated in exactly the same way as somebody who has overstayed for 10 years. That is not fair or right. Similarly, no discretion can be applied in the case of a student who works an extra hour beyond the 20 hours a week permitted. Some provision must be made for dealing with such hard cases. The consequence of mandatory rules is inevitably injustice. In this case, there is another by-product: cases will increasingly be fought tooth and nail, every step of the way, through the courts.
I urge my hon. Friend the Minister to consider whether some discretion could be used in cases involving children, trafficking victims, inadvertent mistakes or mistakes where there is no culpability whatever on the part of the migrant concerned. If we are serious about our international obligations to asylum seekers, about our obligations to victims of trafficking under the European convention that we are supposed to be signing by the end of the year, and about the convention on the rights of the child, which I hope we will sign by the end of the year, we have to make exceptions in such cases.
Simon Hughes (North Southwark and Bermondsey) (LD): I think the Minister will be getting the message by now. My hon. Friend the Member for Eastleigh (Chris Huhne), the hon. Member for Ashford (Damian Green), who speaks for the Conservative party on immigration, and the hon. Member for Hendon (Mr. Dismore), whose Joint Committee on Human Rights considered the matter at a very appropriate time, have made the strong general case that the rules that we are discussing, which were presented to Parliament without consultation, are clearly not justified. They would not only fail to remedy a mischief but would leave the system for dealing with people who want to come to this country properly far worse than it is now.
I want to add two points about procedure. As the Minister will know, we have a ridiculous system, although I do not blame him personally for that. The changes to the immigration rules were published on 6 February. The Joint Committee met on 19 February to consider them. Hon. Members have 28 days in which to pray against rules and, with the support of my hon. Friend the Member for Eastleigh and other colleagues, we did so. That hopefully triggers a debate. However, some of the proposed changes came into force on 29 February, while the changes that we are concerned with tonight came into force on 1 April. From 1 April all the new rules were in place, even though we had not yet held the debate on whether they should be in place.
The Leader of the House has accepted that the system is nonsensical. This is not a Home Office problem, but a general Government problem. We must change the system whereby important rules introduced under secondary legislation come into force before we have had the chance to debate them. If we had had the chance to debate them, the point about the absence of consultation, made by all three colleagues who have
spoken so far tonight, would have been pre-eminently made, and Ministers would have said, We understand, and well reflect on those points.
Happily, there was a debate in the House of Lords between 6 February, when the rules were laid before Parliament, and 1 April, when the changes that we are most concerned with today came into effect. The debate was initiated by my noble Friend Lord Avebury, and he was supported by my noble Friend the Liberal Democrat Lord Roberts of Llandudno. Anyone who reads that debateas the Minister, the hon. Member for Ashford and my hon. Friend the Member for Eastleigh have clearly donewill see that it showed overwhelmingly that the situation is nonsensical. To his credit, the Minister in the Lords accepted that it was nonsense, and at the end of the debate he said that the rules in question would not come into force on 1 April; instead, their implementation would be deferred until October.
Like friends and colleagues from all parts of the House, I deal with a huge number of immigration cases of the kind that we are discussing. It is not a record that I aspired to hold, but I think that I am currently at the top of the Home Office league table because of the number of cases that I have brought before it. Colleagues who are present, including the hon. Members for Islington, North (Jeremy Corbyn), for Slough (Fiona Mactaggart), for Hendon and for Regents Park and Kensington, North (Ms Buck), also deal regularly with significant numbers of cases that would involve the rule that we are discussing.
Let us be absolutely clear: the changes are misguided. If there was a breach of any of the rules, or if there was a failureit is set out in these terms in the proposed changesby overstaying, which could be by a day; by a breach of a condition, which could be one failure to report; by being an illegal entrant, which is obviously more serious but the applicant could have been as a child, brought as a relative, brought as a teenager, brought with somebody else, brought against their will, or brought not knowing what was happening; or by using deception in an application for entry clearance, whether the deception was theirs or was carried out on their behalf by an agent, by somebody whom their family had paid or whateverany of those circumstances would automatically lead to a series of blanket bans, depending on the circumstance of the persons departure.
If the migrant leaves voluntarily, it might be a year before they can come back in any circumstance; five years if they left voluntarily at public expense and only if they had repaid the cost; 10 years if they were removed or deported; and 10 years if they used deceptionno questions, no qualification, no exemptions; a blanket ban. The case has been made as to why that is nonsense. To give the Minister some credit, his Department during his tenure as Immigration Minister and under all his predecessors from both the Labour and the Conservative parties since I have been in the House has always had a system whereby, as well as the immigration law and the rules, discretion has been available to the Home Office. That is normally exercised by officials and occasionally by Ministers, if the matter needs to go higher, so to speak. Officials regularly exercise that discretion because there is a good case, and so they should. Ministers occasionally do so, too.
That is as it should be. The case for the changes to the rules would not be justifiable in human rights law, as the hon. Member for Hendon pointed out, on the basis of the right to family life or on non-discrimination, and the system would not be sustainable or tenable if discretion were not allowed as a remedy for the person who, for example, was due to leave on a certain day and whose flight was cancelled, or who was due to go and report and was taken seriously ill. There are all sorts of examples.
In my office we were alerted to the issue pretty well immediately by people with whom we work, who represent immigrants and asylum seekers. They are highly respected companies and organisations, particularly the Immigration Law Practitioners Association. This had an immediate effect and rang alarm bells, hinted at by previous speakers. When I saw that Lord Bassam had agreed that there would be concessions until October, I advised everyone in my constituency who was likely to be affected to go immediately. I explained that if they went by October, there was a chance that they would benefit from the exemption and be allowed back in if they made an application.
That was no different from the practice that I have adopted for years when people come to me. I have many Sierra Leoneans in my constituency. Let us suppose that one of them had married a Sierra Leonean who had indefinite leave to remain in the UK, or who had become British by nationality, but they did not have proper status, possibly because they had been a student and overstayed, or had come as a visitor and overstayed, or had a work permit and overstayed for whatever reason, and they thought that that would be valid. I have always said to them, The best way for you to deal with this is for you to go back to Sierra Leone now that there is peace and not civil war, and make a proper application. Provided everything is in order, provided you have somewhere secure to live, provided your partner or spouse is working, and provided youre not going to be dependent on the state, you would be given probably one year initially, then possibly a second year, and then you would be allowed to stay. They would do that.
The effect of the changes, as my hon. Friend the Member for Eastleigh suggested, is that those people would not say, Fine, Simon, thats what Ill do. They would say, Thank you very much, Mr. Hughes. I may not see you again, and if you see me in the street, dont tell anybody where I am. Let us be realistic about this. If somebody has married and has a child, or has a long-term relationship and has two children, or has just got engaged and is desperately in love with someone, they will not suddenly give that up, with the prospect of at least one year and possibly two, five or 10 years before they can come back. That is just not realistic.
I was dealing with a case only the other day involving somebody whose children were in care in this country because there had been difficulties, but not the sort of difficulties that meant the family had given up links with them or that the children would not benefit from still having links with both parents. People make mistakes and want to put their lives right. There are all sorts of such cases in which people behave as anybody here in the Chamber would behave.
Mr. Spellar: Does the hon. Gentleman think that there should be any differentiation between those who have completely abided by the rules and done everything properly and those who have not? Does he think that there should be no differentiation whatever?
Simon Hughes: But not automatically, as my hon. Friend says. The failure might be accidental and unavoidable. It could happen to the right hon. Member for Warley (Mr. Spellar): if he had been struck down with a serious illness and could not deal with the paperwork, one would hope for his sake and that of his family that compassion would be shown to him. I apply the same principles to immigrants as I would apply to people of this country in respect of any other administrative procedure. That must be the right way.
Of course, there are already procedures for allowing people the opportunity to reimburse the fare. There are different policies depending on whether a person is sent back at public expense or whether they pay their way. I always encourage people to pay their own way; sometimes they need to borrow to do so. Of course I do that, because they need to be socially responsible and show that they are keen. Other things can also be done. There are perfectly proper ways of addressing the issue without there being any threat to the immigration system.
It seems to me that the Government have accepted that they made a mess of the process, and that a process that we should not have in Parliament was used. They have made an initial concession. However, that will be flawed if it lasts for six months and then stops. Other cases will come to that point on 1 November and 30 November, and 1 December and 31 December, and so on. It would be a nonsense if some people coincidentally benefited from the concession and others did not.
Like me, colleagues in the House will have been pursuing a constituents case that has gone on for one, two, three or four yearsit may be an asylum case or another kind of case. In the end, the case might be decided in November, on the other side of the concession. It might be decided next year; there might be an appeal, or there might not. It is a nonsense for there to be a cut-off. The change has to be within a system and work for ever.
I have two short last points. Under this proposal, when the final decision comes there are only 28 days for a person to get their life in order and go. The Home Office has been intelligent in the past; it has understood that if a person is from a country at civil war such as Somalia, Eritrea, Ethiopia or Sri Lanka, or is from a country where there is political persecution such as Zimbabwe, Saudi Arabia or China, and if after one, two or seven years in this country that person is told that they have come to the end of the road, it will sometimes not be possible for them to sort out their whole life in 28 days. The Home Office normally shows sensitivity in such a situation. That has to remain, and it would be a nonsense if it did not.
Lastly, if the Minister is minded to be helpfulI hope that he isI should be grateful if he looked at the issue of how families are defined. Families are not just the engaged or married couple, or formal civil partners; they are also people who have clearly been together for a very long time as partners. There can be other relationships, including between brother and sister, parent and child, and elderly parent and grandchild. I hope there can be an understanding that the right to family life in such circumstances is just as important as it is among a conventional nuclear family.
I hope that the Minister can be helpful. If he can, I hope that in addition to any concession given in Lord Bassams statement and any further concession that the Minister may be able to make, he will look at how we can come back to the issue in a consultative, formalised way so that in due course we get immigration rules that say what they mean and are workable, practicable and civilised. If we do that, it will be to the immigration services credit and it will strengthen the service. If we do not, the service will be discredited. I am sorry that we have had to come this far before we begin to get, I hope, the sort of change that many thousands of families and, I am sure, many colleagues in the House hope that the Minister can deliver.
Jeremy Corbyn (Islington, North) (Lab): I want to make a few points, but I will be very brief because I want to hear the Ministers reply to the debate. First, we are debating rules that came into operation several months ago and have caused a great deal of complication, hardship and confusion. Unless the Minister has some very good news for us, the rules will be approved in tomorrows vote. That is not a very satisfactory system of parliamentary scrutiny and accountability, and it seems to be a negation of the parliamentary process.
Secondly, I would be grateful if the Minister told us exactly who was consulted before these rule changes were brought in. I understand that very few people were consulted. Organisations dealing with unaccompanied asylum-seeking children, childrens charities and bodies such as the Immigration Law Practitioners Association would have had something helpful and useful to say, and we should be well aware of it.
Thirdlythis follows on from the point made by the hon. Member for North Southwark and Bermondsey (Simon Hughes)there is the question of discretion. That concerns me a great deal. I have been dealing with immigration cases since I was first elected to this House, and a very large number of them too. One has always known that there is a degree of discretion, either with an official or ultimately with a Minister. That is absolutely essential, because it is almost impossible to draw up rules relating to children seeking asylum or to immigration in general that can define every possible circumstance. Once the Minister throws discretion away, he is, in effect, getting it off his table and handing it over to immigration courts to decide, however perverse those decisions might be, and he will end up back here having to reform the rules or legislation to cope with that. It would be much better all round to keep that degree of discretion.
Fourthly, I am very concerned about the penalty imposed on children for the circumstances under which they came to this country. My constituency, like that of
the hon. Member for North Southwark and Bermondsey, has a considerable number of Somali people who sought a place of safety in this country because of the war in Somalia. There has been a war going on in Somalia for a very long time, and I suspect that sadly it will continue for a long time to come. I have encountered many people who arrived in this country as children and who cannot remember how they got here, do not know by what route they came, do not know who brought them, and do not know what documentation was involvedit was probably false, and they were probably smuggled, with a people-trafficker involved. There were probably some desperate parents somewhere back home in Somalia who just wanted to get their children to a place of safety. The priority should be at least to look after those children in that place of safety. My understanding of the rules that are being introduced is that if, at a later stage, it became apparent that the documentation was false or that people-traffickers were involved, the child would be penalised in some way. That simply cannot be right. The same applies to children coming from Congo or from very many other places. I hope that the Minister will be able to help me in that respect.
Simon Hughes: I am sure that the hon. Gentleman will also have encountered youngsters who have come here legally and who have left their affairs behind to be dealt with by somebody on their behalf such as a relative or lawyers, or so-called lawyers, who have not done what they should have done, and they have subsequently discovered that their application was not made in time.
Jeremy Corbyn: The hon. Gentleman makes a good point about what is, in reality, a kind of informal adoption. I was just about to come to that. Unfortunately, there are within the world of immigration law some extremely incompetent, inefficient and corrupt advisers who are no good or help to anybody, as well as a lot of very good and overworked immigration solicitors who have great difficulty in coping with their work loads and the pressures that are put on them. I have come across cases where children have come to this country, perhaps from Nigeria or Bangladeshfrom many different placesas quite young children, probably unaware of what was going on, and have been effectively adopted by an uncle or an aunt. I am not saying that there is anything bad about the uncle or aunt in question, who may often have looked after them and brought them up very well. That child came to this country to be with their adoptive parents; those parents either did not understand the system or did not do anything about it, and when the child reaches the age of 18 and becomes an adult, they apply for all the things that adults want and discover that they are not legally allowed to be in this country.
I have had cases where 18 or 19-year-olds who have been all the way through the education system in this country are removed. Under the rules, they would be banned from even visiting again within five years because they had come here by what someone has decided is a process of deception. I can think of families where at one level it could be argued that there had been deception. I would argue that there is a huge degree of ignorance and that those families needed help and support. Above all, why are we penalising the young people in question? They are not the ones who created the deception or problem in the first place.
Jeremy Corbyn: Because we are dealing with immigration law affecting people resident in this country, and, in the case of the young people I was talking about, people educated in this country who wish to make a contribution to its economic welfare and development. My right hon. Friend would do well to recognise that much of the wealth of this country comes from migrant labourpeople who have given a great deal to our society, from which we have all benefited and continue to benefit. I am sure that his constituency includes such people just as mine does.
My last point follows the one made by the hon. Member for North Southwark and Bermondsey on family reunion or right-to-family-life issues under the Human Rights Act 1998. The problem seems to be an over-close definition of what a family is. We could argue that it is lots of things: the nuclear family of two parents and however many children, one parent and a child, informal adoptive parents, brothers and sisters, or a wider family unit. It is extremely difficult to define, and either it should be defined in a very general way, as the UN convention attempts to do, or officials and Ministers should retain a high degree of discretion so that we can avoid the often unbelievably hurtful situation where a family is broken up because one of them has not achieved citizenship or status in this country. In such situations, it is claimed that someone came here by some degree of deceptionthey may have come as a childand they are removed from this country, leading the family to suffer a great deal as a result.
We have to be rather more humanitarian than we appear to be at the moment, and recognise that human beings are involved. The people involved want to live ordinary decent lives and make a contribution to our societyindeed, they do make a good, positive contribution to our society. I hope that the Minister will be able to help me with the concerns that I have expressed about the rules, which are shared by a large number of childrens organisations in this country.
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