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"APPEAL FROM WITHIN UNITED KINGDOM: CERTIFICATION OF UNFOUNDED CLAIM
After section 94(6A) of the Nationality, Immigration and Asylum Act 2002 (c. 41) (appeal from within United Kingdom: unfounded human rights or asylum claim) insert
"(6B) A certificate under subsection (1A) or (2) may not be issued (and subsection (3) shall not apply) in relation to an appeal under section 82(2)(d) or (e) against a decision relating to leave to enter or remain in the United Kingdom, where the leave was given in circumstances specified for the purposes of this subsection by order of the Secretary of State.""
The noble Baroness said: My Lords, these minor technical amendments will clarify the definition of who may or may not be employed for the purposes of the civil penalty scheme in Clause 15 and the offence of knowingly employing an illegal migrant worker in Clause 21.
The Bill currently provides that an employer may not employ an adult subject to immigration control who has not been granted leave to enter or remain in the UK, or whose leave to enter or remain in the UK is invalid, has expired or is subject to a condition preventing him accepting the employment.
We have reflected on whether the term "expired" provides sufficient legislative clarity in every case where leave has ended, other than as a result of the passage of time. It is, of course, important to ensure that the obligations which these provisions place on employers are not ambiguous and that they effectively prohibit the employment of those not entitled to work.
by virtue of curtailment, revocation, cancellation or the passage of time. In moving the amendment, I confess that I have learnt a new word, "effluxion". I did not know that it existed, but all the lawyers in my department told me that that was down to my ignorance and my not being a lawyer. I beg to move.
Lord Avebury: My Lords, I am glad that the Minister noticed the word "effluxion". Your Lordships may remember that she was keen to remind us in Committee that "thinks that" had been adopted rather than "is satisfied that" on the ground that it was always preferable to use plain English. So I took the trouble to look up the word "effluxion". I did so first in the Oxford School Dictionary. It includes 30,000 words, which is a vocabulary slightly larger than most of us command, but the word was not there. Roget's Thesaurus contains it, alongside a number of alternatives which the parliamentary
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draftsmen no doubt looked at and discarded. The noble Baroness suggested that we might use "passage".
In legal language, "effluxion of time" normally means the expiration of a lease or option or some other right due to passage of time, rather than due to a specific event that might cause the right to be extinguished, such as the destruction of a building. I do not think that its use has so far been extended to the immigration laws. Perhaps this would be a good opportunity to prevent it from spreading all over the statute book by referring to the OED. The meaning that the OED gives is,
I suggest that "lapse" ought to replace "effluxion" not only here, but in the several other places in this Bill where it occurs, as well as in other parts of the statute book that have been polluted by use of words other than plain English.
Baroness Carnegy of Lour: My Lords, there is a serious point here. The Minister said that the purpose of the amendment was to make the provision unambiguous. She did not know the word; I certainly did not. The noble Lord, Lord Avebury, looked it up and told us what the dictionary says. If the amendment really means the passage of time, it should say so; if it means the expiry of time, it should say so. It is not a good idea deliberately to include a wordpresumably for some reason or otherif one can use a synonym which is perfectly acceptable and which everybody understands.
Baroness Ashton of Upholland: My Lords, I agree about using plain English, partly because there are lots of words in the English dictionary that, sadly, I do not know. The noble Baroness's noble friend Lord Brooke usually uses several such words in his contributions and I have to rush away later and discover what they mean. However, I checked the word, precisely for the reasons which the noble Lord, Lord Avebury, and the noble Baroness, Lady Carnegy of Lour, indicated as being important. They are important to me, too. We need to use this word because it has a resonance which brings clarity to this legislation. The need for clarity is absolute. We do not want there to be any lack of it. My best and strongest advice is that this is the appropriate word to use in these circumstances. I argue for clarity every time: I have received at least one other note from parliamentary counsel on another issue where I have thought about plain English. I said that the word is new to me, but I am reassured by my legal team and my parliamentary consultants that, in this context, the word will be of great value because it is absolutely clear. I hope that the noble Lord will accept the amendment on that basis.
Baroness Ashton of Upholland: My Lords, I do not want to get into a Committee debate at this Report stage. The noble Lord, Lord Avebury, gave a very
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clear definition. I sought in my note to explain precisely what it meant, which is why I referred to it as being a clear explanation of what we are trying to achieve.
"( ) An employer is excused from paying a penalty if it is the first time he has acted contrary to this section, and he
(a) co-operates fully with enforcement officers; and
(b) is willing to take help and advice to avoid the repetition of the offence."
The noble Baroness said: My Lords, in moving the amendment, I shall speak also to Amendment No. 24. I have tabled the amendments in response to a briefing from representatives of the Chinese, Bangladeshi, Indian and Pakistani communities in the UK. They are probing amendments which seek some explanation and assurances from the Minister.
We debated Amendment No. 22 in Grand Committee and, as we are now at the Report stage, I shall refer to it only briefly now. It would excuse an employer from paying a civil penalty if it was the first time that he had contravened the provisions of Clause 15, if he had co-operated fully with the enforcement officers and if he was willing to take help and advice so that he does not reoffend.
Members on all sides of the House have made it clear that they deplore the employment of those who have no right to work here. Illegal working can end in tragedy, as we saw at Morecambe Bay. All good employers and their representative bodies support the principle of sanctions on employers, but are concerned about the detailed implications of the Government's proposals in this Bill.
Amendment No. 24 would require the Secretary of State to consult employers before the Government put into place the civil penalty regime. In Grand Committee, the Minister made available a draft of the code of practice. What further developments have there been on the draft code? Have any improvements been made as a consequence of any further consultations that the Minister has held? She stated in Grand Committee that she anticipated meeting again representatives of the various ethnic communities which had expressed their concerns. She made some reference to that earlier today during tributes to Lord Chan. Will she bring us up to date on those meetings?
I have been advised by Christine Lee of the North London Chinese Association that she and her colleagues have held briefing meetings around the countryfor example, in Manchester, Birmingham, Stirling and Sheffield, in addition to London. At Second Reading, Lord Chan gave a full explanation of their reasons for concern and set it carefully against the background of the development of their small businesses, which are so important to the UK economy. Ms Lee and her colleagues point out that the Government have not had any consultation specifically with the Chinese, Bangladeshi or Indian
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catering sectors or with any other organisations which involve employers who rely on overseas workers in the restaurant industry. I would be grateful if the Minister could respond to that point today.
I am also advised that many employers do not have the time or resources to perform the policing role that they believe is better and more appropriately performed by the IND. The Minister will be well aware of the vibrancy of the catering sector represented by Ms Lee and her colleagues. It is also interesting to note that the most recent statistics published by the Government demonstrate the importance of the Chinese ethnic group in England. The Government's press release of 26 January states:
"The fastest population growth between 2001 and 2003 in England was in the Chinese ethnic group with an average annual growth rate of 11.1%, largely due to the net international in-migration of people born in China".
Mr John May, vice-chair of the North London Chinese Association, has put forward three proposals to improve Home Office practice. First, the Home Office should include a non-compulsory invitation to disclose the respondent's ethnic group when an individual or a group responds to a consultation exercise; secondly, the Government should publish the ethnic breakdown of respondents to consultations; and, thirdly, the Home Office should as a matter of urgency produce the list of stakeholders that it has undertaken to compile and should make positive efforts to include Chinese community and business associations on that list. I appreciate that, as we recognised earlier, the Minister has her locus in the DCA and is taking this Bill forward on behalf of colleagues in the Home Office, but will she agree to discuss those proposals with her colleagues at the Home Office to ensure that this is a continuing process?
I referred in passing to these concerns when we debated the Identity Cards Bill on Monday of last week. I was cautiously optimistic about the response of the noble Lord, Lord Bassam of Brighton, who expressed an intention of the Home Office,
But, as the vice-chair of the North London Chinese Association points out to me, the devil is in the detail. If the Government do not know who these groups are and how to contact them, outreach will not work, however good the Government's intentions are. I beg to move.
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