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I turn to the Accession (Immigration and Worker Authorisation) Regulations 2006. I am very pleased to have the opportunity to present the Government’s proposals on the accession regulations to your Lordships' House. The accession of Bulgaria and Romania to the EU is an object of real and legitimate public interest and it is right that this House should have the opportunity to debate these proposals. Managed migration is good for our economy and is in the interests of the UK. It was this principle which informed our approach to the accession of the new member states two years ago. Accession migration

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has been a success and migrants from those countries are filling gaps in our labour market and helping to deliver public services.

Managed migration does not raise only economic issues. We must look not only to the economic impacts of our approach, but also to the social effect. There are public services on which accession state migration has not impacted, such as the National Health Service. Indeed, migrants from those countries are often working in our public services. However, there have also been some transitional impacts, with quite large numbers of people arriving in a short period of time, especially in areas where migration has not been a feature of life until now, which can have an impact on the community, private housing and local services such as schools. That is why we will take a gradual approach to this round of accession. We want to make sure that we understand the pressures which migration from the accession countries has created and will create. Our approach will take into account the needs of the labour market, the impact of EU expansion and the positions adopted by our fellow member states.

That is why we propose placing restrictions on Bulgarian and Romanian nationals who seek to work. Most skilled workers will need to obtain a worker authorisation document if they wish to work here. Many people in this situation will apply under the equivalent of the work permit scheme. This means that their prospective employer will need to show that there are no suitable workers from the UK or from the rest of the European Economic Area. Accession nationals will also be able to obtain this document if they wish to apply under other categories of the immigration rules, such as those applying to ministers of religion and au pairs.

Highly skilled migrants will not need to obtain a work authorisation document; they can apply under provisions equivalent to schemes such as the highly skilled migrant programme. Some Bulgarian and Romanian nationals will be able to come to the UK to do low-skilled work, but they will be restricted to jobs in the agricultural and food-processing sectors, although we will listen to representations from other parts of the economy which feel that they need low-skilled workers. There will be a quota on these schemes of 19,750. We will also be restricting these schemes to Bulgarian and Romanian nationals upon accession, which is in line with the principles of Community preference.

Students will still be able to come to the UK as now and, if they do not wish to work, they will not need to apply for any documentation. If they do wish to work—for up to 20 hours a week—they will need to apply for a registration certificate. We cannot place restrictions on the self-employed. We will take measures to make sure that people who are really working do not pose as self-employed persons.

We are proposing new powers to help us to enforce the system. It will be an offence for an employer to employ a Bulgarian or Romanian national who needs a worker authorisation document but who does not have one, or who is undertaking work other than that specified in the document. Individual workers in this

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situation will also be committing an offence, for which they may face prosecution, although this will be waived if the individual pays a fixed penalty. It will also be an offence for a Bulgarian or Romanian national to seek to obtain a worker authorisation card by deception.

In implementing this system, we are also catering for the needs of law-abiding employers. We will introduce an information campaign for them, backed up by a toolkit and helpline to ensure that companies are aware of the rules and of their responsibilities under the new system. We wish to work with employers to make sure that the new system benefits private enterprise and the whole economy. We are also working with the International Organisation for Migration to provide Bulgarian and Romanian nationals with information on how the rules will function. That will stress to prospective migrants the need to check their rights before they travel to the UK and the need, in most cases, not to travel to seek work.

The regulations themselves are for a total period of five years. This reflects the fact that after two years we are required to notify the Commission if we intend to maintain the restrictions. We can then maintain them for a further three years. However, we are committed to reviewing these arrangements within 12 months. I believe that these regulations enable us to pursue a controlled, managed approach to migration which is in the interests of the UK economy. I beg to move.

Moved, That the draft order laid before the House on 16 November be approved. 2nd Report from the Statutory Instruments Committee.—(Lord Bassam of Brighton.)

Viscount Bridgeman: My Lords, I shall deal first with the Asylum (First List of Safe Countries) (Amendment) Order. We indeed welcome the accession of Bulgaria and Romania to the European Union. We are concerned to ensure that asylum claims are dealt with as speedily and accurately as possible. I am grateful to the Minister for setting out the procedure for so doing. It is certainly not in the interests of the state or the individual if deportation is a lengthy process. However, that does not mean that these orders are uncontentious.

First, I address the issues raised by the Asylum (First List of Safe Countries) (Amendment) Order. As the Minister said, Bulgaria and Romania will join the EU on 1 January next. It is axiomatic that they should therefore be expected to be safe countries alongside existing members of the European Union. Their membership should surely not have been agreed had that not been the case.

By passing this order, the House is accepting that it is right that any third country national who has made an asylum or human rights claim in the United Kingdom may be removed to Bulgaria or Romania if that is appropriate under the provisions of the Asylum and Immigration (Treatment of Claimants, etc.) Act 2004. All European Union member states and states in the European Economic Area are on that list.

The Minister will, however, be aware of the concerns that have been widely expressed about the lack of readiness of the judicial system in Bulgaria.

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The latest EU preparedness report, Key findings of the monitoring report onBulgaria’s preparednessfor EU accession, 26 September 2006, highlighted the fact that:

What is the Government’s view on that assessment? What representations have they made to the Bulgarian Government while they were preparing to bring this order before the House? What guarantees have they obtained that the defects identified will be remedied? What is the timetable for that action?

In the case of Romania, the Government will be aware that the monitoring report on that country’s preparedness for EU accession stated:

What representations have been made to Romania in advance of bringing forward this order, and what response have they received?

Furthermore, there are widespread concerns about the treatment in both countries of the Roma community. What guarantees have the Government sought and obtained to ensure that the countries will no longer tolerate discrimination and racist behaviour to the Roma community?

On the immigration and worker authorisation regulations, we welcome the new limits that the Government say that they will place on Bulgarian and Romanian workers entering the United Kingdom. This is a vital area of policy that will affect the economy, public services and community relations, yet several important questions remain to be answered.

Our experience of the Government’s mishandling of the admission of workers from the A8 countries makes us very cautious when judging whether the restrictions brought forward today by the Government will be adequate. Prior to the accession of the A8, the Government indicated that they expected around 15,000 migrant workers to arrive in the United Kingdom. The UK was one of only three countries not to place restrictions on the granting of work permits. It is estimated that in the 18 months following the accession, 447,000 people arrived in the United Kingdom. This figure rises to nearly 600,000 when self-employed people such as builders and plumbers are included.

What is the Government’s estimate now of the number who will come from the A2 countries to seek work here in the first two years? What estimates have they made of the number who will ultimately settle and bring their families and dependants to the UK? What estimates have been made of the number who will seek self-employment in the United Kingdom? What will be the proof required that their employment is genuinely self-employment and that they are not

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simply employees posing as contractors? The Minister referred to the need to make sure that such workers do not evade the law and the regulations.

I note that those who come here to work in low-skilled jobs in agriculture and food processing will have their right to work limited to six months. Does that mean in total in their working lifetime, or are they able to return to Bulgaria or Romania at the end of that period for a matter of days, obtain a further accession worker card, return to the United Kingdom and start another period of six months’ exemption? That would clearly be unacceptable. I suggest that the position is not made clear by the drafting of paragraph (9)(3) of Article 3 of the order. I would be very grateful if the Minister could put the position clearly on the record today.

We do not oppose the making of the order but we enter severe reservations about the ability of the Government to make the system work effectively. We will judge whether the restrictions have a desirable practical effect once they have operated for a time. We must keep a close scrutiny of this very important matter.

Lord Dholakia: My Lords, I very much support the questions put by the noble Viscount, Lord Bridgeman.

The asylum amendment order adds Bulgaria and Romania to the list of safe third countries to which an asylum seeker can be removed from the United Kingdom without consideration of the merits of his asylum claim. We ought to be very clear about that.

We raised this concern during the passage of the Asylum and Immigration (Treatment of Claimants, etc.) Act 2004 when my noble friend Lord Avebury said:

We have moved from the previous requirements where each case had to be individually certified. I am uneasy whenever we speak about “safe countries”. I want a clear assurance from the Minister that if a country was not operating to the letter of the human rights convention, its inclusion on the list should be seriously reconsidered. This undertaking was given in the other place during the debate in Standing Committee on 22 January and should apply to Bulgaria and Romania.

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On Bulgaria and Romania, the regulations make transitional provision to take account of the free movement rights that nationals from these states will have on accession. They also set up a worker authorisation scheme restricting access by Bulgarian and Romanian nationals to the UK labour market during a five-year transitional period. Under the terms of the EU accession treaties governing Bulgarian and Romanian entry into the EU, Britain is perfectly within its rights to introduce transitional arrangements before full access to Bulgarian and Romanian workers is granted. All EU countries have the option to keep such transitional measures in place for a maximum of seven years. There is no dispute on that particular provision. However, certain transitional measures should not be undertaken lightly. They should be clearly justified, workable and fair in their application, and lifted at the earliest possible opportunity.

We remain of the view that it is clearly beneficial to the British economy to support an open approach to labour migration within the European Union. Indeed, it is a right that hundreds of thousands of Britons exploit to their advantage by living and working elsewhere in the European Union. None the less, we acknowledge that legitimate concerns have been raised about the temporary effect of a much larger than expected inflow of labour from Poland and other accession countries in recent years. The effect on housing, schooling and overstretched local government resources in some specific areas has been significant.

The fact that the Home Office dramatically underestimated the number of newcomers to the UK from those countries has clearly dented public confidence in the system. Our view is that any transitional measures are workable only if they are developed in close co-ordination with the other EU countries that are likely to prove attractive to Bulgarian and Romanian workers. Given the presence of large, settled Bulgarian and Romanian communities in Spain and particularly Italy, it is essential that government measures to manage the flow of Bulgarian and Romanian migrants are similar in nature and timetable to a temporary restriction applied to those two countries.

To date, the Government have not given any indication that they have made an attempt to work in co-ordination with the EU member states on their proposals. Indeed, the Home Secretary has announced a series of unilateral measures that are almost certain to prove unworkable and difficult to enforce in practice. We will certainly closely scrutinise the implications of the Government’s measure, and we will continue to put forward a more rational approach to the issues of principle and practice that are at stake.

The Earl of Sandwich: My Lords, at first sight, the order on safe countries is a housekeeping measure to ensure that Bulgaria and Romania are merely added to the list of safe third countries as they become members of the European Union. I recognise that this is about the removal of third country nationals. However, it gives me the opportunity to reflect briefly on the merits of such a transition. We belong to a club with rules, but as the second statutory

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instrument shows, we can sometimes make up our own rules too. We cannot automatically assume that these two countries will become safe for asylum seekers overnight. No country can be said to be safe for everyone.

The noble Viscount has already mentioned the judiciary in Bulgaria. There are still serious human rights violations against citizens of those countries from which the state may be unable to protect them and others. The noble Lord, Lord Dholakia, has again drawn attention to the individual merits of asylum cases. Can the Minister confirm that once a country is declared safe, no proper risk assessment is carried out before an asylum seeker or a trafficked person is removed to that country? Does that not mean that individual circumstances will inevitably be overlooked?

There was a recent case of a woman who was retrafficked from the Ukraine to the UK, after which she was promptly removed without any assessment being carried out. Victims of trafficking from Bulgaria and Romania, who may also be third country nationals, may have protection needs elsewhere or in the UK. Women and children who are tricked into trafficking are still potential victims of further abuse or reprisals after their forced return. Debt bondage is another subtle form of family coercion. A number of trafficked Roma persons are known to have been retrafficked after their return, as family members were involved in the crime, and they had no protection against repeated exploitation. Those cases may or may not be subject to this order.

All I am saying is that we must ensure that the Government address their needs as victims of crime and ensure their safety. It cannot be assumed that every victim of trafficking would now be safe on their removal to Bulgaria or Romania solely by virtue of their being accession countries. There are concerns about this order among the refugee agencies. It might also help if the Government looked again at the UK action plan on trafficking and prepared guidelines on how best to apply the principle of “safe country” to individual circumstances.

Lord Bassam of Brighton: My Lords, I thank the noble Viscount, Lord Bridgeman, and the noble Lord, Lord Dholakia, for engaging in a serious discussion and debate on the issues and for responding to my opening remarks in a constructive way. I pay tribute to them for that. I thank the noble Earl, Lord Sandwich, for his contribution as well. Although there are obviously critical questions behind what we propose, there is an acceptance in your Lordships’ House of the importance of these issues and of trying to get them right. Obviously, at different stages, there will not always be entire satisfaction and agreement on the nature of the measures that the Government have to take in this field, which we all accept and acknowledge is not an easy one.

In seeking to add Bulgaria and Romania to the list of safe third countries, we are taking the right step to acknowledge the accession of Bulgaria and Romania and, in particular, participation in the Dublin II

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arrangements. It is important to remember that this provision is not about sending people back to a country of origin, but to a country that we believe is better placed to deal with the claim under international law. The asylum systems in Bulgaria and Romania have been through a process of scrutiny, which is right. That has been undertaken, in essence, by the European Commission as part of the accession process. They were not found wanting in that assessment.

I understand the concerns that have been raised about some of the treatment of minorities that is felt to have been adverse, particularly so far as the Roma are concerned. But we have to play by the rules, and the rules are set out in the accession process. We have to use that process to measure how things are and how things have changed in the past. That is an important part of a country going through the accession process and conforming to standards of which we are rightly proud. It is fair to say that the Commission assessed both countries against the requirements of the acquis on asylum, the common European asylum system, to make that approval of accession. Their assessed suitability for joining the EU is an important factor, reflecting the standards of protection for asylum seekers. The Home Office has undertaken research from a variety of sources to satisfy ourselves that Bulgaria and Romania have procedures in place to ensure that an individual will not be exposed to persecution either in that safe third country or by refoulement to the country of origin in breach of the refugee convention.

What sources did we use? We used, for example, the European Commission monitoring reports on accession, the UNHCR reports, the US Department of State reports on human rights practices and our own country research. The noble Viscount, Lord Bridgeman, raised the concern about what the Commission said about the asylum systems in Bulgaria and Romania. We acknowledge that initially there were some concerns, but the format of the Commission’s monitoring reports is to comment on any areas where matters were outstanding from previous reports and where further work would be of benefit. In the final report of September 2006—the monitoring report relating to accession on 1 January 2007—the Commission did not detail any remaining concerns about either country meeting the justice and human affairs asylum acquis. So the Commission was satisfied that those standards had been reached.

The only comment on asylum was a reference on page 26 of the September 2006 monitoring report to the fact that in Bulgaria the administrative capacity of the agency for refugees had been adequately strengthened. We play by the rules and the judgments that are made on these matters; and the judgments were not found wanting—indeed, there was active support for measures that had been taken to remedy what had been seen at an earlier stage as defects.

The noble Viscount, Lord Bridgeman, raised concerns about Roma. The order concerns essentially the removal of third country nationals, not the removal of Roma. The noble Viscount has used this opportunity to raise that issue and, of course, we have

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in the past expressed our concern, but we do not believe that that is an issue at present. We think that progress has been made by bringing Bulgaria and Romania into the fold of the European Union. We acknowledge the history of the Roma and where they have come from but we know that these issues have been of concern.

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