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Session 2008 - 09 Publications on the internet General Committee Debates Borders, Citizenship and Immigration Bill [Lords] |
Borders, Citizenship and Immigration Bill [Lords] |
The Committee consisted of the following Members:Gosia McBride,
Chris Shaw, Committee
Clerks † attended the
Committee Public Bill CommitteeThursday 11 June 2009(Afternoon)[Sir Nicholas Winterton in the Chair]Borders, Citizenship and Immigration Bill [Lords]1
pm
The
Chairman: I welcome Members to this afternoon’s
sitting and I am confident that steady, constructive progress will
continue to be made during the next four
hours.
Clause 39Exceptions
to application of this
Part Amendment
proposed (this day): 43, in clause 39, page 29, line 7, after
‘person’, insert ‘who came to
the UK under the Highly Skilled Migrants
Programme’.—(Damian
Green.)
The
Chairman: I remind the Committee that with this it will be
convenient to discuss amendment 44, in
clause 39, page 29, line 9, after
‘person’, insert ‘who came to
the UK under the Highly Skilled Migrants
Programme’. Gwyn
Prosser (Dover) (Lab): Before we adjourned, we were
talking about what I described as the intrinsic unfairness of using
legislation and rule changes retrospectively, particularly when it
affects individuals’ real lives. We were discussing the text on
the back of work cards and whether it gave people, no matter what
category they came under, reasonable expectation—not expectation
of a natural, God-given right to indefinite leave to remain or to
citizenship, but whether the spirit of the text led them to believe
that they would be able to do so.
One issue
that we did not touch on was that of a spouse joining their partner. On
the website and in letters from the Home Office, there are clear
statements that a person is entitled to apply for ILR if they are still
in the country after two years. The phrase “apply for
ILR” is used, and experience shows us that that would be the
case in most instances. It is pretty far-fetched to believe that there
is no expectation that spouses or partners would be unable to remain.
Similarly on the website, there is a phrase that says in effect that,
if a person is still married when their temporary period to remain
expires, they are entitled to apply to remain in the
country. I
will not detain the Committee any longer except to say that we do our
best not to apply laws and rules retrospectively. I do not want to
introduce a sour note, but let us imagine that the new rules that the
House is now considering with regard to MPs’ allowances and
expenses were applied retrospectively. It would give us all a great
deal to think about.
The
Minister for Borders and Immigration (Mr. Phil
Woolas): It is good to be starting the debate so soon
after lunch, under these new modern hours. I am not sure why I voted
for them, but I can see the point of view of the Minister at the
time.
I will try to
be helpful and answer the questions on specific points, and then
explain the approach we are taking. Before I do that, it is incumbent
on me to bring it to your attention, Sir Nicholas, and that of members
of the Committee that I have placed an updated impact assessment of the
Bill in the Vote Office this afternoon. Quite rightly, it is the
Government’s obligation to give the House information that is as
up-to-date as possible. There are some revised figures in the
Government’s estimate of the implication of the Bill for
benefits and I draw that to the attention of the Committee out of
courtesy. Members will want to be aware of
it.
The
Chairman: Order. Seeking to be helpful to the Committee, may I ask
the Minister whether there is a copy of the document in the
room?
Mr.
Woolas: One copy is in the room because I have it. I will make
arrangements for others to be sent. I am trying to be helpful. There is
no substantial policy change in the document; there are some up-to-date
figures that will inform the House on Report. We will put some reports
on the
table. I
shall try to answer some of the specific questions that were asked in
what has been an interesting and important debate on the amendments. I
shall choose my words carefully because others outside the room will
read and interpret them. I shall answer the general principle points
raised by my hon. Friend the Member for Dover, but the key point is
about work permit conditions. It has been tested in the court, as I
said before, under the Ooi case. Mr. Ooi was a gentleman of
Chinese citizenship. It was stated that a condition of the work permit
was that the person could, within four years, apply for leave to
remain. The court, in line with our policy, found that was not an
explicit and unequivocal representation creating a legitimate
expectation. My hon. Friend was talking about the expectation of
applying, not the expectation of necessarily receiving. It is an
important point, because there is a clear difference between temporary
admission for a purpose and indefinite leave to
remain. The
hon. Member for Ashford helpfully read out the letter from Lord Brett,
following the debate in the Lords. It duplicated the comments the noble
Lord had made in the Lords about clause 37. The critical change between
what was reported at column 541 of House of Lords Hansard of 2
March 2009 and the subsequent letter was the point relating to migrants
with ILR when the earned citizenship clauses under the Bill are
commenced. They will be able to apply to naturalise under existing
section 6 and schedule 1 of the British Nationality Act
1981, provided that they apply within a set period after the clauses
have been commenced. Lord Brett said that, although we have not yet
confirmed the period, it is likely to be for 18 months after the
clauses are
commenced. Following
the debate in the Lords, I looked at that point and made the suggested
change to 24 months not 18 months. The hon. Member for Ashford read out
a reference to 24 months. My suggestion is dependent, of
course, on the House agreeing a commencement date of December next year.
That would meet the specific point that has been
made. I
come now to the more general points. The hon. Member for Ashford
referred to policy and what we were trying to achieve. He made an
important statement in respect of Conservative policy. I think that he
said it was desirable, and that he agreed with the Government, that the
indefinite leave to remain concept should move on, and that we should
have a system of temporary leave to remain and moving into citizenship.
He is right to suggest that—perhaps for reasons of dual
citizenship—people might not want to have to choose. That is
recognised, but it is important that people note the statement that has
been
made. As
for what we are trying to do, our policy is aimed at helping the
migrant who wishes to become a citizen of our country to integrate, to
better understand our society and the specific community and to better
be able to contribute. That is based on the belief that migrants want
to contribute and that we should provide a route for them to do that.
One can see earned citizenship in a punitive sense as a hurdle that has
been put in front of people or as a platform on which to help people
build a life. We believe that it is right—I welcome the
consensus on this point—that those who wish to become citizens
of our country should have an adherence to the commitment to the rule
of law and to the English language, and an understanding of our
democratic system. During the debate we shall look at how we can define
that. The strategy is to try to break the automatic link that is in
many people’s minds, and in some cases in statute, between
temporary stay and automatic right to citizenship, and to help the
migrant to integrate.
Paul
Rowen (Rochdale) (LD): Does the Minister not accept that
the link already exists? Indefinite leave to remain does not grant one
British citizenship. What the Bill seeks to do—in the parts and
sections that we support—is to provide a much clearer route to
what has to be done for British citizenship. But the change that is
being proposed will make the route longer—the point the hon.
Member for Dover was making. Under certain categories, someone marrying
a British citizen and coming to live in this country will be faced with
a longer time period. One can accept the principle of a route, but for
those who are already on the route, why should the time to complete it
be lengthened?
Mr.
Woolas: The hon. Gentleman makes a good point. I shall
come to the transitional arrangements, but putting them to one side for
a moment, I believe that the purpose of the changes has the consensus
of the Committee. What the hon. Gentleman says is quite right. I know
that he agrees with the other side of that coin, which is that we have
created in this country a category of people who have indefinite leave
to remain that has no end point, necessarily, at citizenship or
otherwise. That is what the provision is
addressing. However,
let me turn to the meat of the amendments and the clause, and try to
help the Committee find a way forward. The point has been made on both
sides of the House that we should not move the goal posts and that it
is unfair to legislate retrospectively. Where that expectation is
legitimate, I absolutely concur with that point of view. Indeed, the
debate in the Lords and
lobbying by individuals and Members of Parliament caused me to look at
the practical implications of our proposals and alerted me to a
potential gap in one or two areas. In particular, I have been in
correspondence with a young lady from Croydon. By highlighting her
circumstances she convinced me of the case.
We accepted
the judgment on the highly skilled migrant programme. The
Government’s intention was not to punish, but to create a new
system. However, the point was made in the court—the hon. Member
for Rochdale quoted from the judgment in this morning’s
sitting—and we have put it right. There is not necessarily a
read-across to other temporary routes, but there is a principle
connection. My hon. Friend the Member for Dover, who knows more about
these things than most, made that point as
well. The
rights of people who have already been granted ILR will not be
affected. The question is: how do we deal with the transition? It is a
difficult and complicated question, which is why I suggested to the
Committee this morning that, in light of clause 39 being inserted in
the other place, and in light of the deliberations, we wish to ask the
Committee to reject clause 39 stand part and take out the clause, and
the amendments if they are accepted, with the commitment that we will
come back with further transitional arrangement proposals. That does
not mean that the Government are confused—we have clear
proposals—but it does mean that I want to look at them afresh,
particularly at the routes that I shall now
explain. Damian
Green (Ashford) (Con): The Minister says that he is about
to explain the substance of his new proposals and that he will come
back to them at a later stage. It would be regrettable if the House
could not discuss the new proposals. Can he give a commitment that they
will come back in a form that can be discussed by the House as well as
in another
place? 1.15pm
Mr.
Woolas: The hon. Gentleman is right. I can give that
commitment. As this clause has been inserted in the other place, it has
to go back there and, if we send it back, it has to return to us
anyway. Even if it did not come back, I would want that to be so,
because I want the Government’s intention to be understood, for
the reasons given by my hon. Friend the Member for Dover and by the
Members for Rochdale and for Ashford. This is important; we are talking
about people’s lives and their contributions to our
country. As
I have already said, clause 39 was inserted following the debate on
Report in the House of Lords. I have already quoted from that clause,
which intends to set out how the earned citizen provisions impact on
certain groups of migrants. The effect of that is to set down
transitional arrangements that the Government should apply, the clause
argues, when the earned citizenship provisions are
implemented. On
Third Reading, my noble Friend Lord Brett made it clear, on behalf of
the Government, that we would return to this issue. The Government
understand that the intention behind the clause is to allow migrants in
three main groups to be able to apply for British citizenship under the
existing naturalisation requirements in section 6 and schedule 1 of the
British Nationality Act 1981,
rather than under the new earned citizenship requirements proposed in
the Bill. The Government consider that it is not appropriate to set out
details of transitional arrangements in the Bill and I will explain
why. Rather, such arrangements should be in the commencement order that
would give effect to part 2 of the Bill. That is the right thing to do,
given the level of detail needed to be set down. In addition, the
clause as currently drafted, does not achieve its intended aims, which
means that, even if had not reconsidered the categories, we would ask
the Committee to object to the clause in its own interests, as it were.
Ministers often make that
point. Let
me deal with some of the detail. When the clause was debated in the
other place, the Government indicated that we would return to this
matter. Committee members will no doubt have noticed that we tabled an
amendment in my name to remove the clause from the Bill. We have
previously argued that there is no reason why transitional arrangements
need to be set out in the Bill. I have outlined my reasons for that,
which remain valid. There is a good argument for the commencement order
giving effect to part 2 of the Bill being the proper place to set out
transitional arrangements. The provisions need to be detailed and will
be relevant only for a certain period. Setting out the provisions in a
commencement order also gives us scope to update them, should the need
arise. However, there are concerns about our intentions. I understand
the desire for clarity and certainty that has been mentioned by hon.
Members and constituents in recent weeks. Our intention is and has
always been to make transitional arrangements that are fair and
reasonable, as my hon. Friend the Member for Dover
said. Just
to reassure Committee members that I mean what I say and say what I
mean, it is my duty as Minister to make Public Bill Committees aware of
technical deficiencies, where I have been advised to do so by
parliamentary counsel and my officials. Part 2 of the Bill is concerned
solely with the acquisition of British citizenship and it cannot in
itself affect applications for indefinite leave to remain. The hon.
Member for Rochdale made that point and I am just emphasising it. The
Bill is about citizenship and it cannot affect applications for
indefinite leave to remain, which are made at an earlier stage in the
process and are decided under immigration rules. I am asking the
Committee to recognise that point by removing the
clause.
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