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The noble Lord invites me to consider at a later point his suggestion for some other way of dealing with this matter. My officials and I will read Hansard and give that some consideration.

Lord Avebury: My Lords, I will have to be satisfied with what the Minister said in his concluding sentence. I honestly think that, when he and his officials look at this in detail, he will find that we are not driving a coach and horses through the system and allowing everyone to appeal at a late stage. We are trying to deal with a situation that he must acknowledge exists, which is that people can make genuine mistakes on the applications. For example, they can miscalculate the number of points that are required or they can misconstrue the criteria and therefore get something wrong in the application form. I hope that our amendment would allow those kinds of mistake to be corrected.

I recognise that we should not open the door to appeals by all and sundry. We should confine this, as I suggested, to those people who are not able to take advantage of the Minister’s suggestion that, if they have made these mistakes and the application is incorrectly formulated, they should start again with a new application and pay the second fee. My objection to that, as the noble Lord is aware from the previous occasion on which we talked about it and from what we have said this afternoon, is that someone who is applying for an extension of leave would, by the time that they put in a fresh application, be out of their permitted leave to remain.

This is of particular interest to people such as students or work permit holders who would not only forfeit their right to put in another application, but be effectively denied all future rights to remain here as

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students or workers, as the case may be. This is such an extreme penalty, as I hope the noble Lord will agree, that we ought to do something to correct it. If he can discuss the matter with officials and come back to us by Third Reading with suggestions on how we can deal with this evil, I shall be very satisfied. In the mean time, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendment No. 20 not moved.]

Clause 20 [Fees]:

Lord Avebury moved Amendment No. 21:

(a) be satisfied that the increase is no greater than is required to maintain the value of the amount in real terms; and(b) in doing so, must have regard to the All Items Retail Prices Index Excluding Mortgage Interest Repayments published by the Office of National Statistics.””

The noble Lord said: My Lords, in Grand Committee we had some discussion about the level of fees charged for services provided by the BIA in consequence of Section 51 of the Immigration, Asylum and Nationality Act 2006 and Section 41 of the Asylum and Immigration (Treatment of Claimants, etc.) Act 2004, and the extension of those charges under Clause 20 of this Bill to,

In his reply, the Minister concentrated almost entirely on the universities, which were not the main focus of our concern, although we are of course anxious that the additional costs of sponsorship, which must no doubt be recovered from the students, should not be self-defeating by causing a drop in overseas student numbers and diminishing the economic benefit to this country of the presence of these students. It would take only a small reduction in the number of such students to wipe out any extra revenue that the Government hope to receive in sponsorship fees. However, the universities are capable of looking after themselves and will no doubt raise their voices if they consider that the sponsorship fees are over the odds.

The Minister said that the Government were obliged to consult on the fees and that, before the order was introduced in March, they sent the proposals to 3,000 people and stakeholder groups, as well as publishing the document on the Home Office website. He omitted to say that the document gave no indication of the level of the fees to be charged, and that the document appeared not to have been sent to spouses, family members or those representing their interests. I am not sure that the consultation included the Joint Council for the Welfare of Immigrants or the Indian Workers’ Association, but those organisations have written to me with numerous complaints about the levels of the March fees and, particularly, the fee for indefinite leave to remain, which, as I have told your Lordships in other debates, shot up from £350 to £750. Even if

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they had been consulted, they could have had no inkling that such an outrageous increase was to be imposed. It seems that the fees charged to students were relatively modest because the Government realised that they were capable of making a lot of trouble through Universities UK, while those charged to relatives and spouses were extortionate, based on a cynical calculation that those people and groups were not well organised or vociferous.

We want to prevent the Government mulcting spouses, entry clearance applicants, and applicants for transit visas and certificates of entitlement, as they have already done applicants for ILR. We also suggest, as I have in correspondence with Ministers, that we cease to pretend that the level of our fees is comparable with fee scales in other countries, and that we stop being so arrogant as to imply that British citizenship is worth more than Australian citizenship, as did Mr Byrne in a recent letter to me. The UK is certainly an attractive destination for tourists, students, workers and relatives, but that does not justify making them and their sponsors pay far higher fees to enter and stay than do other countries. I beg to move.

Lord Bassam of Brighton: My Lords, I understand the background to the amendment and know that it arose from concern about the scale of increases to certain fees charged from April. Sufficient safeguards already exist in the Asylum and Immigration (Treatment of Claimants, etc.) Act 2004, which is amended by the clause. It requires the instrument that sets fees above cost-recovery level to be agreed through the affirmative process in both Houses. Before the statutory instrument that sets the fees is made, the Secretary of State is required to consult such persons as she deems appropriate. As the noble Lord, Lord Avebury, said, the consultation has been extensive. We held some 13 or 14 stakeholder meetings to underpin it.

The Act also requires that fees set above normal cost-recovery levels should reflect the benefits to applicants after a successful application. That is not an unreasonable criterion and it is right that we incorporate it in the Bill. It is important that the Secretary of State’s discretion, with the approval of Parliament, to set the fees at the appropriate level to recover the costs of a service provided should not be fettered by a limit on the percentage increase to a fee. There are a number of instances where an increase above inflation may be appropriate; for example, to correct an anomaly in the charging structure or, perhaps more importantly, to reflect wider policy changes affecting the benefits and entitlements offered through a successful application.

Whom did we consult? Migrants who might qualify for settlement are a disparate group with no key representative bodies with which we can engage in the same way as, for example, in the education sector. We recognise that that presents difficulties in ensuring that key policy changes are communicated effectively and in good time. We are exploring how we might do this differently in future. The consultation document was freely available on the BIA website and the UKvisas website, and we welcome responses from members of the public as well as stakeholder groups.



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As for how new fees compare with other countries, international comparisons of migration systems and fees are complex—I think that most noble Lords would accept that—and do not always readily read over huge differences in the benefits to successful applicants. We believe that our fees compare very favourably; the entitlements that we grant with our various services are highly valued and, I would argue, bear any international comparison. Direct comparisons of price where that is the case can be difficult, because we cannot easily compare like with like. End-to-end migration costs vary considerably in all comparative economies and are usually dependent on the particular circumstances of the applicant, such as their current location, category of stay and relationship to the settled person. Visas can be for different lengths of time, allow more than one visit, confer particular entitlements to work or bring in dependants. So we believe that it is right to charge those who directly benefit from our services, but that we can also do so and keep the UK competitive as a destination for those whom we wish to attract. For all those reasons, I cannot accept the amendment.

Lord Avebury: My Lords, I welcome what the Minister said about improving the consultation process. I hope that he will particularly consider how he can bring in these hard-to-reach groups, particularly those concerned with sponsoring visits by intended spouses and other family members. I am sure that if he consulted the JCWI, for example, it would be helpful not only in responding to the consultation but in suggesting other organisations that represent the interests of family members. However, that whole process will be useless unless in the consultation itself some indication is given of the level of the intended fees.

The answers that people gave to the general questions in the previous consultation were not based on knowledge of how much was to be charged and the questions were phrased in a very general form—such as, “Do you think it’s reasonable for the Government to recover the costs that they incur in operating this system?”. Of course, the answer to that must be yes. On the face of it, all the costs that go into providing the services would make for a legitimate charge on the user. But if people thought that that meant that the existing charges were to be more than doubled, they might have a second thought about it. I hope that that notion will be taken into consideration in the consultation on the sponsorship fees.

With regard to the comparisons with other countries, I do not know whether the Minister has seen the detailed correspondence that I have had with his colleague, Mr Byrne, but he asserted as a matter of fact that our charges compared favourably with those in Australia. When I asked him to give me a comparison, that was the one that he chose. We have been through that in enormous detail, and the end-to-end comparison of the cost of a spouse coming in here with the cost for Australia is extremely unfavourable to us. The Minister sought to defend that by saying that there are enormous benefits to

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coming here, therefore implying that the benefits to a spouse entering Australia were not comparable to those when someone enters this country. I have just written to him saying that I do not really think that he could have meant to imply that we were so superior to the Australians that we were entitled to charge much more for the equivalent services than they do.

I look forward very much to further discussions on these points with Ministers. When the consultation document on the sponsorship fees is issued, I should be grateful if a copy could be sent to me so that I can comment on it. I very much hope that it will include the figures. In the mean time, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

The Lord Bishop of Ripon and Leeds moved Amendment No. 22:

The right reverend Prelate said: My Lords, this amendment seeks to ensure that asylum seekers whose claims for asylum are dealt with through the detained fast-track process at Harmondsworth and Yarl’s Wood can secure legal advice and representation throughout that process. I am particularly grateful to the Immigration Law Practitioners’ Association for raising this concern and to others who have written to me about it. Their concern comes from an awareness that standards of justice in the fast-track procedure are in danger of being inadequate. The amendment seeks to ensure proper legal representation in this process and in doing so to protect the judicial system with which we work in the asylum process.

Only some 50 per cent of appellants in the fast-track process are represented at appeal according to both Her Majesty’s Chief Inspector of Prisons and Bail for Immigration Detainees. There is agreement that it is important whenever possible for appellants to be legally represented and this is a problem in the whole asylum process. This amendment seeks to tackle it in one limited area where the dangers of injustice are particularly acute.

Many asylum seekers lose their right to legal aid through the merits test whereby the lawyer needs to assess that the appeal has a better than 50 per cent chance of success. In the fast-track system there is very little time to make that assessment effectively; typically, the decision needs to be made within a couple of days of the lawyer and client meeting. We are dealing with people’s lives and their whole future. We must make proper provision for their legal support in a complicated and, at this point, surprisingly speedy system.

Lawyers have a strong disincentive to provide this legal support. The Legal Services Commission has a performance indicator which expects lawyers to achieve a success rate on appeal of 40 per cent. Perhaps it is a good thing that we do not have such a

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merits test for amendments in this House. The failure to achieve that may prejudice a lawyer’s chance of bidding for such work in the future. The Asylum and Immigration Tribunal can do its work only if people are properly legally represented. The number of unrepresented people in such tribunals is increasing and many of them are unable to access the safeguards which are designed to provide due process for them. This very simple amendment would enable lawyers to provide the service appropriate for such serious cases. It would defend the fast-track system against the accusation that it is simply a “refusal factory” and would affirm our desire for a legal system which provides the manifest justice for which we all look. I hope very much that it can be added to the Bill. I beg to move.

Lord Avebury: My Lords, we support this amendment and have experience, through talking to lawyers, of the difficulties that are faced with the fast-track process which result in many applicants remaining unrepresented. When the Minister comes to reply, it would be useful if he could give us some statistics on how many of the people going through the fast track actually get legal advice at all.

The merits test is part of a process which has been continued for some years of squeezing out of the legal aid system the money which is supposed to underpin a fair and reasonable asylum application process. If you make it far more difficult for people to get legal advice, a great many people will not succeed in meritorious applications. If the Minister had the time we could go into a number of cases I know of where people have been very poorly represented until the point where they were about to be sent back. Then a good lawyer has come in and rescued the case at the last minute. That cannot happen in the fast track, because by the time the good lawyer has appeared on the scene the person is back in the Democratic Republic of Congo, Somalia, or wherever. It is vital that we provide the same rights of access to good legal services in the fast track as elsewhere in the system. I hope that if the amendment is agreed to by the Government we will be able to do that.

The Lord Bishop of Winchester: My Lords, in passing, it would be especially serious if the applicant were back in the DRC or Somalia, because there they would be in grievous danger. The Government were returning people to the DRC until very recently and had to be stopped in the courts from doing so. The basic point at issue is, to put it in rather un-legal terms, that the faster the track the more critical the quality of the legal assistance. I hope the Minister will reflect on that when he responds.

The Earl of Sandwich: My Lords, I shall add a word in support of the amendment. The right reverend Prelate has put it very well. He said that the cards are stacked against asylum seekers in the fast-track process. We have seen the decline of legal aid year on year, in parallel with what the Government are doing with this policy. It is simply unrealistic to expect an asylum seeker to follow the safeguards that the Minister is

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bound to mention in a minute within two or three days in this process. I would be grateful if he would explain how they are meant to do that.

Lord Bassam of Brighton: My Lords, I am grateful to noble Lords for raising the issue as it enables the Government to set out our position and perhaps to clarify a few issues. The Government believe that to accept this amendment, which removes the merits test for those in detention, would contradict our aim of ensuring that public funding is targeted on cases with merit and that weak cases are not supported. We need to make the best use of limited resources by ensuring that only cases with merit are funded and that genuine applicants are adequately supported through the process. The merits test is common in the criminal justice system for legal aid; it is not unique to this process.

The merits test for representation at the tribunal has existed since representation at appeal and bail hearings was brought into the scope of legal aid in January 2000. For funding to be granted, the prospects of success have to be moderate or better, which is defined as clearly over 50 per cent, as noble Lords understand. However, in asylum cases, if the prospects of success and the merits of the case are borderline or unclear, funding can still be granted if the case has wider public interest or is of overwhelming importance to the applicant. Where a case has a poor prospect of success, the fact that making or pursuing an application or representations will in itself prolong a client’s right to remain in the UK will not be treated as a sufficient benefit to continue with public funding.

It is inevitable that in any system of merits testing there will be applicants with poor cases who do not receive publicly-funded representation. The Legal Services Commission’s guidance to suppliers on the fast-track scheme states that where the client’s substantive appeal lacks merit and would not warrant the grant of funding for the appeal, the case may still merit the grant of funding for a bail application. The Government recognise that individuals detained under the fast-track process will face particular difficulties in securing representation where we are processing an asylum application under an accelerated timetable. That recognition is there. To ensure that clients in the fast-track process have early access to quality legal advice and representation, the Legal Services Commission runs duty representative schemes at Harmondsworth, Oakington and Yarl’s Wood removal centres.

Fast-track advice is provided through exclusive contract schedules. Services are awarded in this way to those organisations that can demonstrate that they are able to offer the best service to clients through skilled and experienced staff, effective supervision arrangements and a good track record of audit with the Legal Services Commission. Only suppliers who have a Legal Services Commission contract and who have gone through an additional tendering process are able to provide publicly funded advice under the scheme.



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The provision of advice in these cases covers the substantive case as well as any associated bail applications. In addition, there is provision for legal advisers to accompany clients to substantive asylum interviews and for the adviser to make a decision as to whether to grant legal aid funding for those in detention under the fast-track process. Onsite legal advice is available through regular advice surgeries open to all individuals who are detained in immigration removal centres in England and Wales. The purpose of the surgeries is to ensure that those in detention and who have not yet received legal advice, or who no longer have a legal adviser and who require advice, will be able to access advice through this scheme.

The noble Lord, Lord Avebury, asked how many individuals receive advice through fast track. We are satisfied that current agreements meet needs. As I have explained, we have a process in place—there is a fast-track duty rota system at Harmondsworth, Oakington and Yarl’s Wood. Therefore, fast-track clients do have early access to good quality legal advice. That scheme appears to be working satisfactorily. No scheme is perfect, but there is a proper merits test in place. I hear what noble Lords have said about fast track, but, as I have explained, we put particular emphasis on ensuring that the fast-track process is well supported through advice. For those reasons, it would not be appropriate for us to depart from our current practice and procedure in this regard. I hope that the right reverend Prelate will withdraw his amendment.

The Lord Bishop of Ripon and Leeds: My Lords, I thank the Minister for his response and I was glad to hear his assurance that the Government recognise the need for particularly skilled staff to be involved in a fast-track scheme such as this. I am grateful, too, to other noble Lords who have taken part in this debate and who have spoken, as the noble Earl, Lord Sandwich, did, about the odds stacked against the asylum seeker in this respect, as is the case for others within the system. I thank the noble Lord, Lord Avebury, for his comments on the poor representation that can exist, even within the fast-track system.


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