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Clause 46 will enable controls on air and sea routes for people travelling within the common travel area between the Republic of Ireland and the Crown dependencies and the United Kingdom. This step will enhance the UK’s security and will be augmented by increased intelligence-led operations on those entering the UK, via the land border in Northern Ireland. Let me be clear that the common travel area will remain and that we do not intend to introduce fixed controls on the land border between the Republic of Ireland and Northern Ireland or for those arriving from the Crown dependencies.
Clause 47, which was mentioned, introduces a change to the conditions for foreign students who come to the UK to study to allow their permission to be linked to the particular institution which sponsors them under the points-based system. At the moment students come here, go to an institution, move after a few months and then disappear. In future, we want to ensure that there is a responsibility on both the educational institution and the student to inform us that they will move to another course at another educational institution, which must be properly sponsored and registered. That is to ensure that we do not have a loophole, which has caused considerable problems in the past.
Lord Avebury: My Lords, it is one thing to require the student and the university to notify the UKBA when a move is contemplated, but it is quite another to take the power to forbid such moves.
Lord West of Spithead: My Lords, I am not quite clear about the noble Lord’s point. If the educational establishment is not properly registered and we do not recognise it, we would not allow that to be a way for the person to come into this country in the first place to study. Therefore, we do not think it appropriate for him or her to come here and then say after a matter of months, “I am moving to the school of guerrilla warfare in northern so-and-so”. We want them to go to properly recognised educational establishments. If they move, we should be aware of the fact and their telling us should be of no difficulty to them. Then we can monitor and keep track of all those people, which we are unable to do at the moment.
Clause 48 ensures comprehensive powers to take the fingerprints of foreign criminals subject to automatic deportation. Clause 49 extends powers already available in Northern Ireland, England and Wales to Scotland to allow immigration officers to detain at port for up to three hours a person subject to a warrant for arrest.
In Part 4, Clause 50 will provide the administrative court and equivalents in devolved areas greater flexibility in handling immigration judicial reviews. It will allow the transfer of suitable cases to the Upper Tribunal of the new unified tribunals system established under the
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Finally, the Bill introduces a duty on the UK Border Agency to safeguard and promote the welfare of children in its work, a clause welcomed by the Children’s Commissioner for England, Sir Al Aynsley-Green, in the following terms:
- “a significant step forward to creating an immigration regime that places the best interests of all children at the heart of the decision making process”.
In conclusion, as I have made clear, the Bill is focused on immediate changes necessary to build the UK Border Agency and bolster its ongoing work, and to implement the Government’s new approach to earned citizenship. It makes important provisions which will make our system both firmer and fairer, while our wider work to reform and simplify immigration law continues. I beg to move.
4.16 pm
Baroness Hanham: My Lords, I start by thanking the Minister for his introduction and explanation of the Bill. Neither the size nor the content of the Bill seem to justify the efforts of the Home Office team in the contribution that it makes to the control of immigration, asylum and the security of our borders. It is beyond parody that it is described by the Home Office on its UK Border Agency website as being,
That statement might be justified if this had been the long promised consolidation or simplification Bill, but it is not. I am glad to hear from the Minister that that will come later this year, but there is a lot of work to be done on it when it does. It might be justified if the Bill had implemented either the full proposals in the draft immigration and citizenship Bill—it was only published in July 2008, for goodness’ sake—or those under A Pathway to Citizenship, the consultation document published by the noble and learned Lord, Lord Goldsmith. But it does not do that either.
As the Refugee Council states in its briefing, there is concern that by taking a piecemeal approach to implementing the simplification proposals, the Bill adds to the existing complexity of asylum and immigration law, rather than reducing it, and reduces opportunities for proper parliamentary scrutiny of the whole simplification programme. That is quite an indictment, and the Minister might like to comment upon it.
Of the 52 main clauses, 36 are devoted to constructing a system of border control that parts the department of Her Majesty's Revenue and Customs from most of its customs and many of its revenue functions, and gives them to the Home Office. They then become the property, for implementation, of the Home Secretary and the new Director of Border Revenue. I am interested to hear from the Minister that the chief executive of the UK Border Agency will, by any other name, be the Director of Border Revenue. Between them, they will control the newly named general customs officers and customs revenue officials, who, it seems, may hold either role or a combined role.
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Clause 22 gives the Secretary of State powers to invoke provisions under PACE to enable these officers to undertake investigations. Clause 3(8)(g) and Clause 7(8)(h) give the officers powers of arrest. Clause 15 then enables them to share personal information gleaned from their inquiries with other bodies. I hear what the Minister says about the care and confidentiality with which that information will be treated, but the Government’s record on preventing information going AWOL is not startlingly good. We need to find out what information is open to being passed on and whether it will be passed on on security grounds, and we will need to ensure that such information is subject to legal professional privilege.
These officers have wide powers and functions, which are enhanced by the provisions of PACE being passed to them. I realise that these provisions are already given to current immigration officers, but they should be confined to the police. Following any arrest, will these officers will be able to caution and detain without police input, or will it still be the case that, once someone is arrested and detained, no charges can be laid without the police attending? This is an important point, and I hope that the Minister will be able to answer it.
It is straining credulity to suggest that these officers, who emanate from the department of Her Majesty’s Revenue and Customs and who, under the UK Borders Act 2007, also include immigration officers, can or should become pseudo-police. If these proposals are to go ahead and to succeed—they are of course enabling, and it will be up to the Home Secretary to decide whether and when they are implemented—it is essential that all the officers are trained and competent to deal with all aspects of their immigration and customs and revenue roles, including, most importantly, how those who are suspected of illegal or criminal activity are dealt with at the border.
Clauses 4 and 12 make it clear that general customs officials and general revenue officials—those are the new names—can be designated only if the Secretary of State or the Director of Border Revenue is satisfied that the officers have received adequate training. We will table amendments to satisfy ourselves about the terms and the level of such training. The Law Society of Scotland has drawn attention to the fact that officers will need to have a high level of training, competence and familiarity with tax law as well as with customs and excise law, and we need to ensure that they do.
The contrivance in the Bill to avoid having to admit that our proposals to have a border police force are correct—proposals that we have put forward for several years now—makes a farce of having inclusive border security. I note what the Minister says about this, but I do not agree with him. The Bill’s proposals only shuffle the pieces around the board; they do not do a proper job. It is not our intention to rubbish the need for a dedicated border force, but that is not what we have in the Bill. We will table an amendment in Committee to have a border police force that will have all the necessary powers to arrest, detain and prosecute offenders. Only by having a fully integrated border police force
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We welcome the changes relating to the forces and their families in Part 2, which is on citizenship. However, as the Immigration Law Practitioners’ Association, which has briefed me, has said—I am sure others have said this—we are at a disadvantage in discussing the limited changes. The reason is that the provisions in these clauses on acquiring British citizenship by naturalisation are the tip of the iceberg, and are being promoted in isolation to the wider aspects of the anticipated changes, such as those who are not British citizens or permanent residents being denied access to services such as social care and healthcare.
We will also test by amendment the effect on existing migrants of these changes. In the White Paper, The Path to Citizenship, the Government acknowledge the importance of understanding the effects of the proposals now before us on those who are already in the system and say that they will continue to examine this before making any changes. Will the Minister tell us the result of that examination, particularly as the Bill is now here and there seems to be no operative date for the start of this scheme and, thereby, the effect of that on those who still have their applications under consideration? Many migrants currently will be progressing their way along the road to citizenship and will be concerned as to whether they will end up in a game of snakes and ladders, by which they may fall down and have to start the process all over again. The Government need to make it clear in the Bill that those who are already in the scheme will be able to enjoy its benefits as originally offered to them.
The Bill also includes a completely new terminology of “probationary citizenship”, rather than the better understood phrase, “limited leave to remain”. It is not at all clear why this change has been made or what its implications are. As a correspondent has pointed out to me, one of the rationales put forward is that probationary citizenship will be an explicit stage which recognises that migrants are on a journey and need to continue earning the right to become British citizens, which is very much what the Minister said. But “limited leave to remain” was also a stage on a journey, so what is the great difference that makes this part of the legislation worth while?
There is also the much vaunted requirement to be able to speak English, which, as the Minister said, is a requirement already. However, the current standard is far too low. Will the standard be enhanced and how will it be tested? Finally, the new proposals that a quicker way to naturalisation will be through participating in an activity—for which we should read the words “voluntary service”—will also require considerable scrutiny.
I declare my interest now as the chair of the England Volunteering Development Council, which is an integral part of Volunteering England. This organisation has been and is a member of the design group, which the Minister mentioned, on this aspect. It has put forwards its concerns during the discussions and wants to ensure that the Government’s intentions can be fulfilledin a way which is beneficial to the applicant and fair to
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The Minister will know that my noble friend Lord Marlesford has been beavering away though Questions about his concerns over the citizens of this country who have dual nationalities and more than one passport, and he will raise this matter again today. My noble friend Lord Kingsland, who cannot be present today, will take part in Committee on the transfer of immigration judicial review applications. My noble friend Lord Bridgeman, who will wind up, will speak on our intention to have inserted into the Bill the provisions outlined in the draft Bill on expulsion orders. On Part 3—I think that he will have been overtaken by several other speakers by that stage—he will speak on the common travel area and also will address issues within Part 4.
I should say now that we are in favour of the duty to have regard to the welfare of children. We were successful—I underline the “we” quite heavily—through amendments to previous legislation moved in this House, in having this duty accepted and put into two Bills for all those who come into contact with children in the immigration system, whether they are employed by the Government directly or work under contract. However, we want to assure ourselves that the provisions remain sufficient to prevent children being detained under unsatisfactory circumstances, and that they are all encompassing. A suggestion has been put forward by the Immigration Law Practitioners’ Association that there is, in particular, difficulty in preventing babies being trafficked.
For all its brevity, the details of this Bill must be scrutinised with care. My noble friends Lord Bridgeman and Lord Kingsland and I look forward to doing just that during the later stages.
4.30 pm
Lord Avebury: My Lords, the challenge posed for the Minister by the noble Baroness about the use of the expression, “the greatest shake-up of immigration for a generation”, is fully justified when we see that the shortcomings of this Bill have as much to do with what is missing from it as with its actual content. It was a great disappointment to us that the draft Bill, which was published in July and involves a long-delayed attempt at consolidation, has been postponed yet again ostensibly until October, but perhaps for a great deal longer if an election is held in the mean time and a weak incoming Tory Government have different priorities. This Bill makes no attempt to clear up the citizenship anomalies identified in the Goldsmith review, which was requested by the Government. They asked the noble and learned Lord to undertake the work and have now shelved action on his recommendations for eliminating the residual categories of citizenship, particularly for rescuing those whom we have effectively
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No provision has been made to deal with the appalling hardship faced by tens of thousands of destitute people who are described as “legacy cases”, as highlighted in the Observer the Sunday before last. Some 200,000 people are still awaiting examination by UKBA, two and a half years after the former Home Secretary, John Reid, promised that they would be dealt with inside five years; I want to know whether that target is being held. There are also the Zimbabweans who cannot be removed but who are prevented from acquiring the experience that would be so valuable in rebuilding their country when it finally becomes safe for them to return. It was intended to select for priority those individuals who pose a risk to the public, those who could be removed quickly, individuals receiving support, and those where a quick decision to grant status was likely. We need to know whether that process was completed, and how the remaining applications from those 200,000 people are being prioritised.
The Government have no policy at all for dealing with the estimated 430,000 undocumented illegal immigrants living here in the penumbra of the black economy, and from the Tories there has been only Boris Johnson’s suggestion of an amnesty along the lines, as I understand it, of those in southern Europe which have led to a vast increase in the number of people attempting to enter those countries. Our solution, which we will attempt to insert into the Bill, is that when a person has lived in this country for many years without committing any offence apart from the original entry, he or she ought to be eligible for upgrading on a path to citizenship, subject to conditions like anyone else.
More recently, the NAO has commented on the loss of 17,000 case files and the Information Commissioner is contacting UKBA to find out how this happened. It is also asking whether back-up copies were held, but surely the key question is why the physical papers had to be transferred from one office to another within UKBA instead of scanned copies being sent by email.
The final item in the list of provisions that are not in the Bill but which should have been involves the people who are currently in the queue for citizenship, which has now risen to 35,830, according to the snapshot given after our meeting with the noble Lord, Lord West, on 23 January. It is claimed that in the year to date, 93 per cent of the applications have been dealt with inside six months, but we know of applications where the persons have been waiting for far longer than that—in one case for almost two years—and no explanation has ever given for the delays.
As to what is in the Bill, the reasons for a partially integrated border force are not explained. We accept that there may be a chance for greater working efficiency, although personal data security questions need to be explored. What reduction does the Minister expect in the aggregate number of UKBA and HMRC officials at the borders? What discussions have been held with their representatives? The president of the trade union for senior staff in HMRC, Mr Trevor Cook, wrote in
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In Clause 22 there is an order-making power to apply PACE provisions to the police-like functions of customs officials, as there has been in five previous immigration Acts since 1999. We shall seek ways of making that into an obligation, particularly in relation to the powers of detention in the 2007 Act.
In Part 2, seven years after we first tried to equalise the rights of a child born abroad to a British mother with those having only a British father, the Government have finally eliminated this discrimination whenever the child was born. We are also pleased that children born to British Armed Forces personnel will be entitled to British citizenship.
There are some children of British mothers living abroad who are content to remain with the right of abode that they have always enjoyed. Under Clause 8 of the draft Bill, an order was to be made granting them temporary permission to enter, subject to the conditions made by the Secretary of State. Instead, Clause 45(3) of this Bill transforms the right of abode into a Commonwealth right of abode and gives the holder the right to apply for naturalisation under Clause 37(2). What happens to the right to enter of those who decide not to naturalise? Are any further changes in their situation contemplated for the simplification Bill, or are we looking at the end of the process here?
We have concerns about the arrangements for naturalisation, which make it harder for a migrant to become settled. After a time on temporary leave to remain, which is unchanged, the long-term immigrant can apply for what is called probationary citizenship. But, as the noble Baroness, Lady Hanham, rightly implied, this is merely an extension of temporary leave during which the migrant is excluded from welfare and services to an extent that needs to be clarified. This stage varies in length according to a person’s ability to satisfy the authorities that he has engaged in voluntary activities, the nature and extent of which, like so much else in the Bill, is left to secondary legislation. In Committee, the Minister has promised information about the approved activities but, for the time being, we have to take the scheme on trust. In a note that the noble Lord, Lord Brett, handed to me just before we came into the Chamber, I see that this is one of the key issues being discussed with the design group. We look at the Bill and we ask, “What are these arrangements?”, and we are told that we have got to wait until the design group comes back to the departments.
Are applicants for probationary citizenship going to be charged £750, as with ILR now? I am grateful to the noble Lord, Lord Brett, for the table giving details of the charges made under the present arrangements, but, noticeably, there is no corresponding figure of
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Does the Minister accept that many people decide not to apply for citizenship for perfectly valid reasons, and that in future there will be people who stay on PRL because they cannot afford the fees or cannot pass the tests of English or knowledge of life in the UK? A mother of small children, for instance, may not be able to jump through the hoops, and for those who are not earning the requirement that most learners of English for Speakers of Other Languages are expected to pay half the cost from next year may be an additional deterrent. Is it fair to deny all these people benefits? What consultations have there been on exemptions?
The duty to safeguard the welfare of children in Clause 51 is welcome, but Ministers in both Houses have given undertakings that the UKBA would be placed under an obligation equivalent to Section 11 of the Children Act 2004, as are all other statutory bodies working with children. The Government must now move towards ending the detention of children, as we have argued on previous Bills. The chief inspector, in her latest report on Yarl’s Wood, said:
“Any period of detention can be detrimental to children and their families, but the impact of lengthy detention is particularly extreme”.
The Section 11 obligation, which needs to be spelt out in Clause 51, needs to cover not only the UK but the juxtaposed controls and posts abroad where officials have functions that relate to children. We shall also need to put an upper time limit on the coming into force of that clause, recalling how the Government have dragged their feet on compliance with the Convention on the Rights of the Child.
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