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European Communities (Definition of Treaties) (Europe Agreement establishing an Association between the European Communities and their Member States and the Republic of Lithuania) Order 1996
6.9 p.m.
Baroness Chalker of Wallasey: My Lords, I beg to move.
Moved, That the draft order laid before the House on 26th November be approved [5th Report from the Joint Committee].--(Baroness Chalker of Wallasey.) On Question, Motion agreed to.
European Communities (Definition of Treaties) (Europe Agreement establishing an Association between the European Communities and their Member States and the Republic of Estonia) Order 1996
Baroness Chalker of Wallasey: My Lords, I beg to move.
Moved, That the draft order laid before the House on 26th November be approved [5th Report from the Joint Committee].--(Baroness Chalker of Wallasey.)
On Question, Motion agreed to.
Statement of Changes in Immigration Rules
Lord Dubs rose to move, That the Statement, laid before the House on 31st October, be disapproved.
The noble Lord said: My Lords, on examining the changes in Immigration Rules, at first sight they seem reasonably straightforward, but on closer examination the implications are more complex than that. I have to say that it is not always clear in respect of some of the
provisions whether we are dealing with an entirely new provision or whether we are dealing with a tidying-up based on many of the discussions we have had in this House and in the other place earlier this year. In one sense, we have already had a good deal of debate about income support and other measures for asylum seekers. Therefore, if by some chance in this debate noble Lords--myself included--make points which are not new I am sure that the Minister will be the first to clarify the matter.It seems to me that these provisions clearly affect asylum seekers. That is to say, they affect those asylum seekers who would like to claim child benefit and who did not apply for asylum on first entering the country. In other words, they are defined as individuals who entered the country, possibly with a visa as a visitor; possibly they did not require a visa and went to the country and then claimed asylum and, on the arguments of the Government, by implication they came in on the understanding that they would not have recourse to public funds. Therefore, as these rules change the definition of "recourse to public funds", it means that they will in future be denied child benefit.
Similarly--and I know that we had this discussion a few months ago--any individual who claims asylum at the port of entry who, some months or years later, is then refused asylum and wishes to appeal will also be in the position of not being entitled to child benefit as well as other benefits. If that argument is correct it seems to me that because children, by definition, are involved in claims for child benefit there will be a pretty heavy additional burden on local authorities.
The Government have already announced that some additional funds will be made available to local authorities, but it appears that we are in a rather confused situation, given that the Government are appealing against some of these matters in the Court of Appeal. I understand that will be in the middle of January next year.
We are in the position, therefore, where we are asked to approve changes in the Immigration Rules which affect children, but in one sense it is not clear what the effects will be if the Court of Appeal does not uphold the Government's appeal next month. In any case, perhaps the Minister could say a little more about the effects of these rule changes on local authorities; that is, whether this will impose an additional burden on local authorities or whether that has already been taken into account by the extra money that the Government have given, although I know that the extra money is only to meet part of the cost.
We have some other changes in the Immigration Rules, which were laid in August. We are not able to deal with them this evening, although they did affect spouses. The new wording of the rule changes under discussion this evening affects postgraduate doctors and dentists, au pairs, seasonal workers and family members of these individuals. One difficulty, as I see it, is that the Home Office would have no discretion even in the most compassionate cases to enable child benefit to be legally claimed.
Perhaps I may put two hypothetical examples to the Minister. Let us take the case of a man who is a British citizen with a wife and child who are not British citizens. The wife and child enter the country together in order to join the British citizen father and are given 12 months' leave to enter. The father claims child benefit, as he is entitled to do. At the end of 12 months' limited leave the mother and child apply for indefinite leave to remain, as would be normal. A requirement of obtaining such limited leave is that the child can and will be maintained and accommodated adequately without recourse to public funds.
In the case of the spouse's application the wording of the requirement is,
- "the parties will be able to maintain themselves and any dependants adequately without recourse to public funds".
The difficulty here, if I understand the new rule changes, is this: can the requirement be met if the father has already been claiming child benefit, or will child benefit be disallowed from the date that the wife and child apply for indefinite leave to remain?
Perhaps I may give another example. It is a slightly simpler one. Let us take the situation of a married couple, the husband having been given permission to enter the UK temporarily. Let us suppose that, for family reasons, he leaves the UK for a period exceeding eight weeks, leaving his wife, who is not a British citizen, behind, but the wife has not obtained indefinite leave to remain. In that situation, if this provision is enacted could the wife's entitlement to child benefit be challenged? In other words, would she lose the right to child benefit because of the way in which these rules are drafted?
I hope that those examples are not too abstract. I believe that they could apply to real situations and I am concerned as to the effect that the rule changes may have.
My third question is simply this. Can we have an assurance that people who properly claim child benefit at the present time will not have that entitlement altered by the passage of these changes in the Immigration Rules? Is there a straightforward exemption from any of the provisions if people are already getting child benefit and nothing changes except that these rules have been enacted? They have already been enacted because I understand that they came into effect on 1st November.
Finally, perhaps I may deal with another aspect of the changes in the rules relating to the revocation of entry clearance. In the second paragraph of the rule changes an entry clearance may be revoked under certain circumstances by the entry clearance officer. One situation is where the holder's exclusion would be conducive to the public good. I am not concerned with that aspect but with two others. One is where the entry clearance officer is satisfied that false representations were employed or material facts not disclosed for the purpose of obtaining the entry clearance. It is rather difficult to see how an entry clearance officer at the port of entry could possibly discover that false representations had been made at the time that entry clearance was sought. That seems to be a difficult
process. If it never happens in practice and it is a theoretical safeguard, well and good, but it is difficult to envisage circumstances in which this could clearly and effectively be applied.Similarly, I am concerned about the other condition referring to a change of circumstances since entry clearance was issued. Perhaps there is a way in which the entry clearance officer could discover that at the desk at Heathrow or at Dover, but I find it hard to see how. This is important because I understand that if entry clearance is revoked it is as if entry clearance had never been granted. Therefore, there is no right of appeal against such a decision by the person wishing to enter the country. A decision made in these circumstances by an entry clearance officer ought at the very least to be subject to some form of scrutiny rather than an immediate decision, possibly made at the entry desks at Heathrow Airport after an all-night flight. It is pretty onerous to say "You have no recourse at all; you have no safeguards against such a refusal."
I appreciate that there are other issues in these rules and I am concerned that we should scrutinise them adequately. I hope that the Minister will be able to meet some of my anxieties.
Moved, That the Statement, laid before the House on 31st October, be disapproved.--(Lord Dubs.)
6.19 p.m.
Lord McIntosh of Haringey: My Lords, the House should be grateful to my noble friend Lord Dubs for raising these issues today and for the care he has taken to expose some of the problems which arise from the changes in the Immigration Rules, which, as he said, have already come into effect. He covered quite a number of the substantive points which give cause for concern but I have a number of others which I should like to raise with the Minister. Changes have been made and further changes could be made. Therefore, any opportunity for parliamentary scrutiny to produce better rules would be to the benefit of this country as well as of people coming to this country.
The basic starting point is that those who have leave to enter this country as visitors or to study and work have to convince the authorities that they will maintain and accommodate themselves and any dependants without recourse to public funds. That has always been interpreted as meaning that they will not have access to housing, income support, family credit, council tax benefit or housing benefit. The changes to the rules mean that two categories of benefit are added to the list of what is called public funds; first, child benefit, to which my noble friend has referred and which I do not need to cover again, and, secondly, disability benefits, including attendance allowance, severe disablement allowance, invalid care allowance, disability living allowance and the non-means tested benefit and disability working allowance. They have also added the income-based job seeker's allowance.
The argument for increasing the definition of "public funds" is no doubt the cost to the public of claims on public funds, but the existing categories of public funds have all been in effect basic survival benefits--those
which apply to everyone and which are supposed to be saved by pledges of self sufficiency when people come to the United Kingdom. On grounds of cost, I should have thought it less reasonable to add to them the categories of disability allowance and child benefit which apply only to severely disabled people or to people with children. In any case, disability attendance allowance and disability living allowance are available by the existing rules only to people who are ordinarily resident in the United Kingdom and have been here for not less than 26 out of the past 52 weeks. That must exclude a very substantial number of those people who would be affected by these changes in the rules.We are talking here about people who have been admitted to the United Kingdom and whose circumstances change; for example, those who become disabled after entry to the United Kingdom. Surely those people should not be penalised. They have convinced the authorities that they are self-sufficient but for particular reasons--in particular, disability--they are in need of a small amount of extra help. Surely it is wrong to extend the definition of "public funds" in this way. Surely the cost of not doing so would not be excessive.
My noble friend referred to the new power to revoke entry clearance. Presumably, the intention is to revoke entry clearance where false representations were employed, where a change in circumstances has removed the base of the claim or when, to use the words of the Asylum and Immigration Act,
- "the holder's exclusion would be conducive to the public good".
In any case, even if someone has come in as a result of poor advice or untruths told by his sponsor and the sponsor has made false representations, he ought to have an opportunity to make the position clear at the time of entry. The additional problem with this is that there is no appeal against revocation. We are in the position that we debated at the time of the passage of the Asylum and Immigration Bill that the lack of an appeal structure is not only unfair in itself but is likely to lead to appeals to the High Court in the form of judicial review which could be avoided if there were an effective appeal structure.
I do not think I have anything much more to add to what my noble friend said about the categories of maintenance and accommodation requirements. As he said, it is extended beyond visitors, students and student nurses to a wide range of other people, including postgraduate dentists and doctors, au pairs, seasonal workers and prospective students. What is happening here is that the process of criminalising these temporary categories which was introduced in the Asylum and Immigration Act 1996 is being extended. That is thoroughly undesirable.
It is not even necessary, because there is already provision in the existing rules for ensuring that people coming to the United Kingdom will be self-sufficient. In paragraph 35 the rules provide for a sponsor to give a written undertaking to be responsible for the maintenance and accommodation of a person seeking leave to enter, or variation of leave to enter, or remain in the United Kingdom. Entry clearance officers have a discretionary power to refuse entry clearance where there is a refusal to give such an undertaking. Income support which is paid to a person in respect of whom an undertaking was given can be recovered from the sponsor. Why is not that power more widely used? Is it not a better way of safeguarding public funds than penalising the holder using the criminal law?
My final point is concerned with the definition of "minor" for asylum purposes. The definition in the Asylum and Immigration Act is a person who is under 18 or, in the absence of documentary evidence, appears to be under that age. In other words, the onus is on the applicant to prove that he is under 18. When this matter was debated on 20th June this year at the Report stage of the Asylum and Immigration Bill, the noble Baroness, Lady Blatch, said that she would consult the Department of Health as to whether further guidance concerning the methods of determining a minor's age was needed. Has that happened? Will the Government consult more widely? If not, why has it not happened, and why are we seeing the extension of this unsatisfactory definition to the Immigration Rules?
My noble friend has performed a valuable service. The questions we have raised deserve answers.
6.28 p.m.
Lord Avebury: My Lords, I agree with the noble Lord that it was useful for the noble Lord, Lord Dubs, to put down the Motion to enable us to consider this statement. As he rightly said, many issues are raised which are not clear at first sight. After several days of careful study, there are matters which are not crystal clear in my mind and on which I should like to put questions to the Minister.
We do not object in principle to the idea that people given limited leave to enter the United Kingdom should not be eligible for social security benefits. However, what the Government are saying, as I understand them, is that no one with limited leave to remain or to enter should ever have recourse to public funds. We do not accept that proposition, as the Minister will recall from the debates we had on the Asylum and Immigration Act earlier this year.
We believe that different considerations apply to persons whose limited leave to remain in the United Kingdom extends over a period of several years than to those who come here as short-term visitors who are normally given leave to enter for a maximum of six months in the first instance, extendable to a year at the most. That is not to say that every person who enters in a capacity other than that of visitor should be entitled to benefit, but that there may be some exceptional circumstances in which it would be right for them to be eligible.
Before commenting on the statement itself, I should like to point out that to be certain of knowing what it means, one has to look at no fewer than seven other documents which are referred to in the first paragraph of the Statement of Changes in Immigration Rules of 23rd May 1994 and the amending statements which are listed there.
Why do not the Government publish consolidated statements each time so that the persons concerned with these matters, and their advisers, as well as the officials, can refer to a current and up to date statement of the rules, as amended, in a single document? Better still (and I gave the noble Baroness notice that I was going to put this question to her) why not publish the consolidated--I notice that the noble Baroness is shaking her head. I telephoned her office to say that I was going to raise this point. I apologise if the message did not get through to her. Why are the consolidated rules not published on the web page which already exists at the address "http://www.open.gov.uk/home--off/ind.htm". I say that so it is on the record, and if anyone wants to look it up they can do so in Hansard.
It is commendable that the Government have started to publish material electronically and to make it available to the public in this form. As the noble Baroness may know, the right honourable Roger Freeman has recently issued a Green Paper asking for comments on the way it has been done so far and the strategy for taking it further. That will be a very good example of the kind of information that ought to be made available electronically on the already existing web page. The amount of work required to do that will be very small.
Under the statement that we are now looking at, together with the changes set out in the earlier statement to which the noble Lord, Lord Dubs, referred (HC 3365) any person who requires leave to enter or remain in the United Kingdom is effectively prohibited from claiming benefits of all kinds. Under that earlier statement, an immigration officer can impose on such a person a condition requiring him or her to maintain and accommodate himself and any dependants without recourse to public funds. The statement that we are now considering extends the meaning of the term "public funds".
Noble Lords may remember that in the Notes on Clauses for the Asylum and Immigration Bill, exceptions to the restrictions on entitlement to child benefit were to be prescribed for refugees, persons granted exceptional leave to remain and the nationals of states party to certain international agreements. That was confirmed by the noble Lord, Lord Mackay of Ardbrecknish, in Hansard of 24th June at col. 736. He remarked,
- "it seems logical and consistent to have all the conditions for entitlement to child benefit for people from abroad set down in one place in regulations".
It was also stated in the Notes on Clauses (although not by the Minister) that the restrictions would be applied on an individual basis, so that the effect would
be that child benefit would only be denied where both parents were subject to restriction. I believe that that takes care of the first of the cases mentioned by the noble Lord, Lord Dubs. I hope that it does.I should like confirmation from the Minister concerning the case where one parent was already in the United Kingdom and claiming benefit and the spouse and another child entered. It seems to me that the exceptions mentioned by the noble Lord, Lord Mackay of Ardbrecknish, would have covered that; but, unfortunately, this statement we are now looking at does not spell out those exceptions and neither did the previous one of August 1996.
As I understand it, there is yet another document, the Child Benefit (General) Amendment Regulations 1996, made by the Secretary of State for Social Security under the Social Security Contributions and Benefits Act 1992, which has to be looked at as well. I attempted to get that other statement from the Library but I was not successful in the time available. So it will be useful if the Minister can tell us where the exceptions are spelt out so that we can refer advisers and those who look at these matters to the whole of the documents in one single reference.
As I understand it, neither does the present statement affect the situation of asylum seekers, whether they apply at the port of entry or at some later date. I believe that this will help the noble Lord, Lord Dubs, if my analysis is correct. If they apply at the port of entry, they are technically given temporary admission rather than leave to enter, so that another set of conditions apply which are not dealt with in this statement. However, if they apply after entry--and I believe that this is the case that the noble Lord had in mind more specifically--having come in, say, as visitors, they will have been subject to a condition already; and since they are seeking variation of their leave to remain, that condition would be renewable by the entry certificate officer who considers the application.
The Government have already made their intentions of refusing benefit to this latter class of persons clear, although what the judge had to say in the case of R. v London Borough of Hammersmith (ex parte M and others) is relevant to the case of others apart from asylum seekers. Noble Lords will remember that the judge made the comment,
- "I find it impossible to believe that Parliament intended that an asylum seeker, who was lawfully here and who could not lawfully be removed from the country, should be left destitute, starving and at risk of grave illness and even death".
There are always going to be exceptional cases, and the effect of applying blanket conditions to whole categories of persons, without any discretionary power, as I understand it, to vary or revoke the conditions, may be very extreme. It would be useful if the noble Baroness can tell us whether that is in fact the case that whatever the circumstances in which the person finds himself or herself, there is no question of the entry certificate officer having any power whatsoever--or indeed the Secretary of State--to revoke or vary the conditions which were imposed on first entry or renewal of the leave to remain.
An indirect effect of this statement is that a person who makes a claim for child benefit would be liable to prosecution--the noble Lords, Lord Dubs and Lord McIntosh, have already referred to it--because they would be in breach of a condition of entry and they would also be liable to deportation under Section 3(5)(b) of the 1971 Act. Would the Government really prosecute those parents? I agree with the noble Lord, Lord McIntosh, that the extension of the criminal law into these areas is not wise and should not be pursued.
It was provided in Schedule 1 of the Immigration Act that a person who has obtained leave to enter by deception would be liable to deportation under Section 3(5) of the 1971 Act and would have a restricted right of appeal. This statement goes a lot further in that it enables the officer to revoke an entry clearance if he is satisfied that,
- "whether or not to the holder's knowledge, false representations were employed or material facts were not disclosed, either in writing or orally, for the purpose of obtaining the entry clearance; or a change of circumstances since the entry clearance was issued has removed the basis of the holder's claim to be admitted to the United Kingdom".
As I understand it, it has been the case for a long time that failure to disclose material facts by a third party would render a person liable to deportation. I remember back in the 1970s I represented a young man who came from Lome, Togo, to stay with his mother in London. Unknown to him, his mother had applied for him to be enrolled in the Oxford School of English in Panton Street for a course of study there. On that coming to light, the young man was recommended for deportation. I represented him at the hearing when the adjudicator found against us. The case went to judicial review and I am sure that the young man would have had far longer than the six weeks which he originally sought, waiting for the case to come before the court. What the Government are now saying is that in a case of this sort, where material facts were not disclosed by a third party, the entry clearance could be revoked and the person could be removed without the right of appeal. Such a radical downgrading of people's rights ought not to be enacted in such an obscure piece of secondary legislation. To confer the power of revocation on the entry certificate officer, and to put his decision beyond challenge, is not in accordance with British traditions of fair play.
Finally, reference has been made to the entry clearance officer's power to revoke leave to enter where there has been a change of circumstances so that the basis of the holder's claim to be admitted is removed. I hope that the Minister can give a small explanation of how that provision is to be applied. One can imagine that where a person has been given exceptional leave to remain on the basis of the situation in his country of origin, there could be valid grounds for reassessment, but not by the entry clearance officer, an official who has no qualifications to make such a judgment. Suppose that a political movement is in conflict with the government in a certain country, and a member of the movement has
been given exceptional leave to remain on that basis; suppose that the internal situation in that country changes, and there is a rapprochement between the government and the group. Should we continue to play host to the members? Such a question ought to be considered at ministerial level, if not by Parliament itself.
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