UK Borders Bill

Public Bill Committee, 13 March 2007.

Eric Illsley (Labour, Barnsley Central)

I remind Committee members and witnesses that today’s oral evidence session must stay within the scope of the UK Borders Bill. Please try to keep questions and answers concise and in order. This evidence session will last until 11.30 am, at which point I am required to end it. I apologise to whoever is speaking then, as I will be required to interrupt them.

Members of the Committee should be aware that we are using brief No. 2 for guidance. It is available in the Committee room should hon. Members require it. We shall proceed as we have in previous sittings, withhon. Members catching my eye if they wish to ask a question. Hon. Members and witnesses should remain seated during the evidence session, as we are using the desk microphones.

I welcome the witnesses from Migrationwatch UK: Sir Andrew Green, the chairman, Mr. Andrew Dennis, the head of research, and Mr. Richard Norman, executive member. Thank you for coming along to give evidence this morning, gentlemen.

Damian Green (Conservative, Ashford)

One purpose of the Bill is to reduce the amount of illegal immigration into this country. To help put that in context, how big a problem do you see illegal immigration as being? Is it getting worse?

Damian Green (Conservative, Ashford)

Clauses 28 to 35 of the Bill come under the general heading “Automatic deportation”, a phrase over which I and others have cast doubt. What is your assessment of that? Do you think that the deportation procedures under the clauses would be adequate for the purpose of getting rid of people who should not be in this country?

Eric Illsley (Labour, Barnsley Central)

Sir Andrew, I want to stop you there. I ask witnesses only to respond to questions from the body of the Committee.

Eric Illsley (Labour, Barnsley Central)

Briefly.

Liam Byrne (Labour, Birmingham, Hodge Hill)

I was very interested,Sir Andrew, in what you were saying about illegal working in particular. Some of the evidence that we heard in the initial evidence sessions concerned a number of perspectives that echoed that. People felt that illegal working was one of the principal drivers of illegal immigration. Front-line immigration officers have said to me that when they come across people, they very rarely find them accessing benefits but often find them working illegally. I am interested in your perspective on how significant illegal working is as a pull factor for illegal immigrants.

Liam Byrne (Labour, Birmingham, Hodge Hill)

I was struck by some of the evidence that was given by National Car Parks, which is a business that takes its corporate reputation very seriously. The Home Office is indebted to it because of its pioneering work in developing different ways of identifying whether people are here illegally or not.

In his evidence, the director of risk management from National Car Parks called ID cards a very significant step forward. From National Car Parks’ point of view, it found that understanding the validity of 50 or 60 different bits of paper proffered by wayof evidence was expensive and not very reliable. An important part of the Bill is the introduction of compulsory ID cards for foreign nationals to help prove entitlement to work and public benefits. Do you think that that would make any difference to some of these issues?

James Clappison (Conservative, Hertsmere)

Sir Andrew, I believe that I am right in saying that your organisation warned of the problems over deportation that the Government encountered last May and June a little while before those problems arose. It appears to me from the House of Commons Library briefing that you were anticipating the reform of the law and deportation last January.

James Clappison (Conservative, Hertsmere)

One of the points that you made in your proposals for reform was that the approach taken towards offenders who are illegally in the country as opposed to those with legal permission should be stronger than is reflected in the present Bill; is that right?

James Clappison (Conservative, Hertsmere)

You would draw a distinction when dealing with offenders, between offenders with legal permission to be in the country and the illegal migrants, who we were talking about a few minutes ago.

James Clappison (Conservative, Hertsmere)

I believe, from the Library paper, that you also want a tougher regime to deal with repeat offences in the country. As the Bill stands, what is described as automatic deportation would only apply to people who commit offences that result in a sentence of 12 months imprisonment, which leaves the prospect of somebody committing repeated offences and receiving shorter sentences of imprisonment, as, for example, from a magistrates court, where someone can only get a sentence of six months imprisonment. Is that right?

Iain Wright (Labour, Hartlepool)

Sir Andrew, I was interested in what you were saying earlier, particularly in response to the Minister’s question. Last week I was reading a report from the International Monetary Fund about the state of the UK economy. I was particularly struck by one bit:

“To prevent ‘welfare tourism’, the UK has restricted access to social benefits for new A8 immigrants during the first year of employment. That probably accounts for the fact that practically all immigrants hold jobs and the percentage on welfare is much smaller than that of the native population.”

The IMF obviously has robust analysis and interpretation. Do you think that the Bill will tighten up a process that has already been recognised internationally as tight?

Iain Wright (Labour, Hartlepool)

On a slightly broader point, the IMF and recent PricewaterhouseCoopers reports seem to suggest that the UK economy has grown because of migrants coming in—relatively highly skilled young men, plugging domestic skills shortages. As a result, there is a higher tax receipt and the UK economy is growing more than it normally would. Does not the Bill tighten the illegal aspects of working in a positive manner, so that people who want to and are allowed to come here are much more controlled, so to speak? The tighter control regime is to the benefit of everybody—indigenous and migrant—because the migrants have positive reassurance that they can be here. Do you accept that?

Stewart Jackson (Conservative, Peterborough)

Sir Andrew, first I should like to commend your organisation for adding to the debate in an intelligent and rational way, although you would not take that view if you had heard the TGWU last week. There has been debate in this Committee over the past few weeks about the suggestion that this measure is a legislative sledgehammer to crack an administrative nut. Isnot the key issue the unreliability or unavailabilityof accurate data about immigration under this Government, and possibly under former Governments? Do you believe that that can be corrected, for instance by a more robust collection of statistics or even—dare I invite you to comment on this?—by a border agency such as that which this Committee has discussed? How can we rectify the situation so that we know what numbers we are talking about and can make intelligent policy decisions based on those data?

Stewart Jackson (Conservative, Peterborough)

I have read the evidence that you submitted by way of a research paper that the Library prepared. Do you think that the judiciary are letting us down with regard to the deportation of foreign criminals, or would you put the blame for that at the door of the Home Office as we stand now in the post-May 2006 situation?

Joan Ryan (Labour, Enfield North)

Sir Andrew, I am interested in your analysis of the link between illegal entry and organised crime. I am sure that you are aware that estimates suggest strongly that around75 per cent. of illegal entrances are facilitated. Our approach to tackling that involves strengthening the borders, introducing measures to count in and out and to know who individuals are through biometric ID and so on and extending the scope of our powers regarding facilitation, particularly in relation to territoriality. What is your analysis of the link between organised crime and illegal entry? What do you think would be an effective means of tackling it?

Joan Ryan (Labour, Enfield North)

On a different topic, we have seen a drop in other categories of asylum seeker, but the number of unaccompanied asylum-seeking children seems to remain reasonably steady. I am concerned about the numbers, and those who are found not to have a founded case but who cannot be returned because of problems of reception arrangements in their country of origin. Do you think that unaccompanied asylum-seeking children are being used to get a foothold to assist the entry of others? How big do you think that problem is?

James Clappison (Conservative, Hertsmere)

May I return to the judgment of entry clearance officers and the granting of visas? What you have told us today about the granting of visas certainly fits in with what I have been told on visits to posts overseas with the Home Affairs Committee about the importance of the judgment of the person on the spot who is making the decision about granting the visa—their local knowledge, their experience, all the things we rely on them for. Clause 19 appears to be allowing evidence to be given to challenge the exercise of that judgment in front of a tribunal in this country as opposed to at post. That is my understanding of it—it will allow evidence to be given to an appeal tribunal against the exercise of the discretion at the post overseas. How importantly do you think we should value the exercise of that discretion, using as it does the judgment of individual immigration officers, based upon their experience, their knowledge and their work?

James Clappison (Conservative, Hertsmere)

What you have just told us was not contradicted by the evidence that the Home Affairs Committee received about the relationship between appeals tribunals in this country and decisions that were taken in post. We are dealing with the points-based system—

James Clappison (Conservative, Hertsmere)

On the points-based system generally, this will govern applications for work permits for people from outside the EU. How significant a source of migration, and of economic migration, do you think work permits have been in the past few years? That is, work permits from outside the EU carrying a right of settlement in this country.

James Clappison (Conservative, Hertsmere)

Whilst the contribution of economic migration to economic growth may be a matter for debate, do you think that in looking at these proposals we should bear in mind that there can be little doubt that people who do come to this country will want, for example, a roof over their heads, that they will want housing, that they will need to use the infrastructure in this country and that this will have other economic effects?

Eric Illsley (Labour, Barnsley Central)

I remind Members that we finish at11.30 am and I have four Members who wish to ask questions.

Kerry McCarthy (Labour, Bristol East)

You talk about the need for an annual limit on immigration. How do asylum seekers fit into that system?

Kerry McCarthy (Labour, Bristol East)

Okay. Is there not a danger that people would use the asylum-seeking process as another route into the country, rather than coming via the migrant worker route?

Kerry McCarthy (Labour, Bristol East)

May I follow up on what you said about the staffing of the entry clearance posts? Am I right in thinking that you are saying that if there is a British national of Indian origin, for example, they should not be allowed to work at the entry clearance posts in India?

Kerry McCarthy (Labour, Bristol East)

Because you think—basically, you are saying that they are liable to engage in corrupt behaviour.

Kerry McCarthy (Labour, Bristol East)

But that, in effect, means that they would not be trusted to do their job properly, if the effect is of their being corrupt in the way that they do their job.

Kerry McCarthy (Labour, Bristol East)

You are saying that they cannot be trusted. You are not saying that it is for their own benefit, really; you are saying that they cannot be trusted.

Kerry McCarthy (Labour, Bristol East)

I was at the deputy high commission in Mumbai recently, which employs a number of local staff. Presumably, you are saying that it should not employ local people either.

Jamie Reed (Labour, Copeland)

We have touched on the role of employers in this policy area. Do you believe that unscrupulous—and, some would say, parasitic—employers can somehow be excused for employing illegal workers? I think that the answer would not be yes, from the evidence so far.

Jamie Reed (Labour, Copeland)

For the purposes of the debate, it is clear, then, is it not, that the persons undercutting the minimum wage in this country are those employers, not those employees, whether legal or illegal?

Jamie Reed (Labour, Copeland)

Thank you for that.

Jamie Reed (Labour, Copeland)

One of the hallmarks of this debate is that it is coloured, informed and inflamed by a lot of false assumptions. You clearly believe that this whole debate should be based on a factual analysis and empirical data that are beyond question.

Jamie Reed (Labour, Copeland)

On that point, you talked earlier about the cost to the Treasury of illegal immigration being, perhaps, £500 million a year.

Jamie Reed (Labour, Copeland)

You instantly revised that to£1 billion. Which is the correct figure?

Jamie Reed (Labour, Copeland)

Finally, I am a little confused about the point about the dual heritage of entry officers. How far do we take this? Does this apply, perhaps, to people of dual US and UK nationality, to those with an Australian and British heritage or to people with a Canadian and British heritage? How far do we go?

Damian Green (Conservative, Ashford)

I want to return to the enforcement clauses, because you have made the point already that, at the moment, the system has more or less collapsed—I think you used that word—and that you thought that the provisions in the Bill were excellent. Indeed, Conservative Members do not oppose the extra powers. Given the work that you have done internationally, looking at how other countries control their borders more effectively, what extra powers would be useful? As you know, we have proposed an integrated border force, bringing together the various fragmented bodies currently responsible for such matters. We have proposed that because it is what countries with better control over their borders seem to have. From your experience around the world, where have you seen the best practice that this country should adopt?

Damian Green (Conservative, Ashford)

My question was about other countries, and those that seem to have an effective system, even though they are very attractive countries. Whose immigration system do you think works best?

Liam Byrne (Labour, Birmingham, Hodge Hill)

I was very interested in your comments on the single border agency. It reflects things that I have said about retaining an open mind, but questioning whether now is the time to undertake such a reorganisation. From your comments, can I deduce that you are advocating an overhaul of the visa system, if not the family visitor system in particular?

Liam Byrne (Labour, Birmingham, Hodge Hill)

You have personal experience of this next question. In some of the evidence that we heard in the early evidence sessions, we heard about quite wide variations in rates of abuse between different posts. It almost sounds as if you are advocating post-specific variations, if you like, in the kind of resources that are applied and the sort of metrics set and used to manage.

Liam Byrne (Labour, Birmingham, Hodge Hill)

So, measures to lock down successful applicants to a single identity would, presumably, help us to count people in and out; you mentioned that the Sir Andrew who was counted in to America was the same who was counted out.

Liam Byrne (Labour, Birmingham, Hodge Hill)

So, might it actually be a step backwards to shut down that identification system?

Liam Byrne (Labour, Birmingham, Hodge Hill)

Yes. My final question comes back to the point made by Mr. Reed about the range of powers that this Bill puts in place to tackle illegal working. What has been attempted is quite a wide range of powers, such as the power to access Her Majesty’s Revenue and Customs information, or to search personnel records, or to arrest employers who are knowingly employing people illegally, or to seize cash and to dispose of assets that are seized. Are there any obvious gaps in the strengthening of powers to tackle the principal culprits, as I think you have put it—that is, the employers who are undercutting their competitors?

Liam Byrne (Labour, Birmingham, Hodge Hill)

Thank you.

Eric Illsley (Labour, Barnsley Central)

I thank Sir Andrew, Mr. Dennis and Mr. Norman for their attendance here this morning. The Committee will now have a short pause until the witnesses have left, before we resume deliberation on the Bill.

Clause 7

Liam Byrne (Labour, Birmingham, Hodge Hill)

The clause forms an important part of the legal machinery of clauses that we have assembled under this heading. Its purpose is to provide some disincentives for those foreign nationals who might choose to try not to comply with the regulation that we put in place requiring them to apply for a biometric immigration document. We have sought to put a number of sanctions in place—in particular, toprovide the Secretary of State with three powers to disincentivise non-compliance.

First, there is a civil penalty regime, which subsequent clauses will set out. Secondly, there is the power to curtail leave, and thirdly, there is the power to vary it. The Secretary of State would, of course, have the discretion to decide which sanction it was most appropriate to apply in any particular case. The intention would be to set out the modus operandi for that judgment to be exercised in a code of practice, but we do not want the Secretary of State to be able to pile up these sanctions, one on top of the other, but to choose between them.

An argument that was rehearsed during the debate on ID cards was about the appropriateness of sanctions to disincentivise behaviour that we wanted to discourage. There were questions about whether people from different backgrounds or those who found themselves in different circumstances might not be able to acquire a biometric immigration document, through no fault of their own, and I want to make a couple of points on that subject.

First, there are substantial incentives for foreign nationals to apply for biometric immigration documents; it is not something that people would recoil from, because biometric documents will make the lives of foreign nationals easier. During the latter part of last year, when I was going round the country holding round tables with local business and public services, I was struck by the fact that some businesses said that they were not interested in employing foreign students, for example, because they did not want to take the risk that they were here illegally.

In an earlier evidence session, National Car Parks mentioned that the transaction burden acted as a disincentive for the company to hire foreign students. Biometric immigration documents will put the minds of many people in the business community at ease, as it will make it easier for foreign nationals to prove their entitlement to be here and their right to work.

Secondly, people who are asked to apply for biometric immigration documents will often already have applied for leave to remain and have been through an application process. Some foreign nationals, such as asylum seekers who have come through the asylum process, will already have deposited their biometric and biographical information with the immigration service. In doing so they will have acquired an application registration card, which is used to manage and monitor the issuing of benefits to those who apply for asylum. Clause 5(3)(d) provides for biometric and biographical information to be rolled over into an application for a biometric immigration document.

We can give the Committee several reassurances in respect of imposing too onerous a burden on certain categories of foreign nationals. It will be a fairly straightforward process and it is important that as part of the legal machinery the Secretary of State has the ability to apply civil penalties, to curtail or to vary leave, to disregard an application, and to refuse an application for a biometric immigration document.

Damian Green (Conservative, Ashford)

It is worth pausing for a second on the clause. As I have argued in previous debates, the immigration system must be robust, but it must also be fair, and seen to be fair, because public confidence will be restored only if it is both robust and fair.

The Minister will be aware that people are worried that the clause might be used to violate the protections offered by various international conventions to which the Government remain signed up. As we heard in the evidence session, some people believe that we should pull out of the European convention on human rights. I am not conscious that that is yet Government policy, although it is a fast-moving area, but there are genuine concerns out there that the wide powers that the clause gives to the Secretary of State might be used to violate people’s rights under the ECHR, various Community treaties or the refugee convention. It is worth noting clause 7(2)(e), which states that regulations may

“provide for the consequence of a failure to be at the discretion of the Secretary of State.”

That is potentially a hugely wide provision, giving the Secretary of State quasi-judicial powers of a high order.

No such clause should pass the House without its being noted that such powers are potentially dangerous in the hands of an unscrupulous Secretary of State. It is part of the scrutiny role of the House to point out potential dangers, which I am sure are unintended. There are points to be made about the rights of individuals under various conventions. I hope thatthe Minister can reassure us on them; otherwise, the provision will cause deep unease in various parts of the community.

Clause 8

Paul Rowen (Liberal Democrat, Rochdale)

I beg to move amendment No. 81, in clause 8, page 5, line 26, leave out from ‘information’ to end of line 27 and insert

‘by authorised persons for any matter relating to immigration, nationality, terrorism or money-laundering.’.

Eric Illsley (Labour, Barnsley Central)

With this it will be convenient to discuss the following amendments: No. 23, in clause 8, page 5, line 27, after ‘purposes’, insert

‘in accordance with, and for the purposes of, another enactment.’.

No. 62, in clause 8, page 5, line 27, at end insert

‘but provision must be restricted to matters relating to terrorism, serious organised crime, money laundering and serious fraud’.

Paul Rowen (Liberal Democrat, Rochdale)

Having last week discussed biometric data, we move on to the use to which they can be put and their retention. Amendment No. 81 would alter subsection (2), which is broad and gives the Secretary of State sweeping powers to use information for absolutely anything. Specifically, it states clearly that information may be used for a purpose that does not relate to immigration. Since this is the UK Borders Bill and the Committee is principally concerned with securing our borders, we feel that that notion is far too broad.

The amendment is intended to get the Minister to be a little more specific. We suggest that information be used in connection with immigration and nationality—that is what the Bill is about—and in connection with any issue to do with terrorism, on which there is clearly a need to share information. We do not want to do anything that would tie the hands of the security services. In fact, we hope that one of the consequences of the Bill will be greater co-operation. We also include money laundering, because if there is drug or human trafficking going on we want it to be possible for information to be shared. Later amendments would also deal with that. We seek to be helpful and specific by saying what information should be used for instead of having the broad catch-all notion in the clause.

The amendment is a probing amendment so that we can hear from the Minister what his intentions are. Having heard the concerns expressed in our evidence sessions, we need to ensure that the information collected is used for the right purposes. It is good practice for bureaucracies to be clear about why they are collecting information and what it is used for.

Damian Green (Conservative, Ashford)

I shall speak to the amendments in my name, amendments Nos. 23 and 62. Broadly speaking, they are intended to achieve ends similar to those of amendment. No. 81, which the hon. Member for Rochdale has just moved. We too have worries about the wide powers that regulations could give to Ministers, permitting the use of information for specified purposes that are not related to immigration. The clause is extremely open-ended and will entitle the Government to use information for any purpose they wish.

The point of amendment No. 23 is to stop fishing expeditions. With the Government seeking to introduce an era in which more and more pieces of personal data are held on more and more databases, the dangers of such expeditions become ever greater. We therefore seek to limit the use of the power to circumstances that are already enshrined in legislation and have been discussed, at least in some form, by Parliament. The amendment would limit the scope of information to purposes that are set out in statute by another enactment, so the open-ended fishing expedition would not be a possibility.

We have not had any explanation from Ministers—perhaps we will in a few minutes—of the purposes for which the Government would collect and use the information. As the hon. Member for Rochdale said, it is possible to envisage circumstances in which such information would be useful to law enforcement agencies. I am not saying that it would not be useful; clearly that would be wrong, but we believe that Parliament should be told of the purposes for which the information may be used. There is already adequate scope in existing legislation, under which Parliament has considered what is reasonable in this area.

Amendment No. 62 is similar to amendment No. 81. It provides a list. The Government should have good reason to use for any other purposes data that are gathered for immigration purposes. The amendment lists activities that are dealt with by SOCA, which the Government have already decided are particularly serious and which would cause little controversy between hon. Members on Opposition and Government Benches. The amendment would help the Government to reassure the public that the Bill is not about giving the Government a free ride in collecting data and using them as they wish, but that they would use them in only the most serious circumstances where there is a clear public benefit from doing so.

It would help the Minister’s case to accept the amendments; he would have wide support for the use of the powers created for the immigration system to stop international, serious, organised crime. He will have much less support if there is public suspicion that he or any of successors will be able to use the powers for an as yet unspecified purpose, of which many members of the public might not approve. The amendments would strengthen the Bill by providing a degree of public reassurance that it is not there at the moment, because the clause is so open-ended.

Liam Byrne (Labour, Birmingham, Hodge Hill)

These are helpful amendments, because they have given me pause for thought and deliberation. I shall start by clarifying the scope and orbit of the clause. It is not about the transfer of the information concerned to other parts of Government or other parts of public service. Parliament has already spoken on that matter, specifically in section 21 of the Immigration and Asylum Act 1999, which quite properly put in place a rigorous gateway through which the Home Office would have to go to share information with others. That could be done only in line with obligations already on the Secretary of State set out under the Human Rights Act 1998, the Data Protection Act 1998 and other legislation.

The subject of the clause is how the Home Secretary can share the information with other parts of his business, as it were. How can we ensure that that is not being done inappropriately? Amendment No. 23 would curtail the movement of information to the purposes set out in another enactment. Amendments Nos. 62 and 81 would constrain the use of the information for non-immigration purposes. A helpful starter for 10 has been listed.

I said last week that the purpose of the Bill was not to give unfettered power to the Secretary of State. I know that there are some days when that seems desirable, but in the round it is not. It is important to underline the fact that, even if that were the ambition, it would be a forlorn ambition, because the Secretary of State does not have unfettered power to share information even with other parts of his own operations. The Human Rights Act and the Data Protection Act already provide for certain constraints.

Despite the fact that those constraints are in place, there is a case to be explored for whether further constraint is merited. The amendment has prompted me to begin that exploration. We have to think carefully through a number of issues, the first of which is that amendment No. 23 suggests that the sharing and use of the information be curtailed to a purpose set out in another enactment. That is a valuable place at which to start, but a couple of issues warrant slightly further exploration. Some of the Home Secretary’s powers are exercised under royal prerogative, not under “another enactment”. A good example is the fact that the Secretary of State issues British passports under prerogative to several different types of nationality, including British overseas territories citizenship, British national overseas, British subject and British protected persons. It is possible to envisage a situation in the future when the Home Secretary would want to check biometric information that had been filed as part of a biometric immigration document application, as part of the process of reviewing someone’s application for one of those three or four different categories of passport. That would not be possible under the amendment, because it is a power exercised under royal prerogative, and issuing a passport is not in the strict legal sense an immigration function.

The second issue that needs teasing out is that the phrase “another enactment” may exclude the use of the information under clauses 1 to 4. Given that the phrase used is “another enactment”, it may be that under a strict legal definition, it is not possible for the application to be rendered to the Bill. That would need to be teased through with lawyers.

The third issue that warrants a little exploration is particularly relevant to amendment No. 62. The proposed list does not mention nationality, but it is possible to envisage a situation in which we want to make use of biometric immigration that has beenfiled as part of a biometric immigration document application during the naturalisation process. We might want to validate the individual who is applying for naturalisation and use biometric information that has already been filed and checked.

The fourth issue that needs a little more explanation—I hope the Committee will agree—is in the list of applications, which has been helpfully set out in the spirit of probing our ambitions. The list does not refer to prevention of crime. Immigration officershave a number of criminal investigation powers. They might, for example, investigate crimes of forgery, bigamy, theft and perjury. With such criminal investigation powers come associated powers of arrest, search and investigation. It is quite possible that an immigration officer would seek to use biometric information that has been captured as part of the application process for the biometric immigration document. One can particularly imagine that such a facility might be useful where forgery offences were being investigated.

The amendments are therefore extremely helpful, as there is a real case for us to explore how the Bill should be more specific about the limits on the Secretary of State’s power to deploy the information in other parts of his business. With those words on the record, I hope that the hon. Member for Rochdale will not seek to press the amendment. These have been helpful probing amendments that have certainly started the process of deliberation in my office. Where and if appropriate, I think that we will need to table an amendment of our own to achieve the ambitions that hon. Members rightly have.

Paul Rowen (Liberal Democrat, Rochdale)

With those remarks, I look forward to the new provisions from the Government, and I beg to ask leave to withdraw the amendment.

Clause 9

Stewart Jackson (Conservative, Peterborough)

I beg to move amendment No. 4, in clause 9, page 6, line 12, leave out ‘£1,000’ and insert ‘£5,000’.

Eric Illsley (Labour, Barnsley Central)

With this it will be convenient to discuss the following amendments: No. 63, in clause 9, page 6, line 12, leave out ‘£1,000’ and insert

‘the maximum fine on level 3 of the standard scale.’.

No. 83, in clause 9, page 6, line 13, leave out ‘14’ and insert ‘28’.

No. 5, in clause 9, page 6, line 13, after ‘days’, insert ‘and not more than 28 days’.

No. 64, in clause 11, page 7, line 19, leave out paragraph (b).

Stewart Jackson (Conservative, Peterborough)

In the absence of my hon. Friend the Member for Monmouth, I shall not speak to the amendment.

Damian Green (Conservative, Ashford)

My hon. Friend the Member for Monmouth, who is not here to move his own amendment, is doing his last duty in the Welsh Assembly, where he has been a distinguished Member for some time. He is standing down at the current elections, but he is there today for the last time. He has many talents, but not being in two places at once.

Liam Byrne (Labour, Birmingham, Hodge Hill)

It is their loss.

Damian Green (Conservative, Ashford)

Absolutely. Their loss is the Westminster Parliament’s gain.

Amendment No. 4 and my amendment No. 63 and consequential amendment No. 64 seek to do similar things in proposing to alter the maximum level offine. The Minister had kind words to say about the helpfulness of the previous amendments on clause 8. Amendment No. 63 is also designed to make the Bill more flexible. If the Government’s current proposal stood, the Secretary of State would constantly have to review the appropriateness or otherwise of the £1,000 fine in this area and with regard to this legislation. Immigration Bills, like buses, come along regularly under this Government, but we cannot always assume that that will be the case. The inflexibility of a straightforward fine seems to us less sensible than simply putting the maximum fine on level 3 of the standard scale, which would also have the small but significant benefit of bringing the penalties in the Bill into line with other offences and legislation where the standard scale is used. As I said, amendment No. 63 is designed to help the Minister.

Amendment No. 64 would remove reference to the Secretary of State’s decision in relation to appeals held in court. Since amendment No. 66 has not been selected, the amendment sits slightly oddly on its own, but I am sure that we will be able to return to it, perhaps in a debate on clause 10.

I hope that the Minister will take amendment No. 63 in the intended spirit, which is to make the Bill more flexible and possibly in some small way reduce the burden of future legislation that the House has to pass.

Paul Rowen (Liberal Democrat, Rochdale)

I support the comments of the hon. Member for Ashford. I believe that it is important to future-proof with some flexibility. The amendment standing in my name proposes quite a small addition to that flexibility. It seeks merely to increase from 14 days to 28 the period in which someone must pay a fine. If we are going to increase the maximum fine to take account of the severity of the offence, a small increase in the length of time in which people have to pay the penalty is quite in order.

Liam Byrne (Labour, Birmingham, Hodge Hill)

I always look extremely sympathetically on amendments that seek to unfetter the Secretary of State or lift the cap on the powers that we are seeking. As a result, I look very sympathetically on proposals that seek to increase the civil penalty cap from £1,000 to £5,000, while the effect of subsequent amendments in the name of the hon. Member for Ashford would be to replace the £1,000 cap with a level 3 fine. I was grateful for his clarification of amendment No. 64. I agreed that the effect of that amendment sat oddly here; as it is drafted, and in the context in which it is put, the court would not have to hear an appeal against an objection notice. It appears to seek to remove appeal rights if the Secretary of State has changed his or her decision in the face of an objection. That is one interpretation of how the amendment can be read, but it is a bit unclear and now I understand why, thanks to his helpful clarification. Amendment No. 83, however, would ensure that payment could not be sought until after 28 days had passed. I was not quite sure whether that was the purpose of the amendment.

I want to reassure the Committee on four points. We seek to designate biometric immigration documents once the national identity system is up and running. We are trying to align the civil penalty regime with the penalty regime that was proposed and passed by Parliament under the Identity Cards Act 2006. We did not want a separate scheme in which there would be one kind of civil penalty for non-compliance under the 2006 Act and another that would kick in under the Bill’s biometric immigration document provisions. We therefore wanted to provide a civil penalty regime that was aligned with that approach.

We set the fine at £1,000 because we thought that that was sufficient. We looked quite closely at whether a greater level of fine was wise. The reassurance that I would give is that that fine is not the only sanction that is available to the Secretary of State. There are a number of other sanctions, which for foreign nationals may be much more significant. For example, the power to curtail leave, vary leave and refuse an application are important sanctions that can be invoked if the £1,000 penalty is not thought sufficient.

The reference to level 3 would introduce a degree of legal complexity into the equation. Level 3 works on a points scale in the criminal offences regime, but we are seeking to put in place a civil penalty regime. A degree of legal confusion might therefore arise, and we do not think that a criminal offences regime would necessarily include the right set of sanctions. We think that the civil penalty regime is the right approach.

From the thrust of the remarks of the hon. Member for Ashford, I detected that his ambition is that the Secretary of State should not have to come back to the House constantly to update the civil penalty regime and the level of fines in place. The important reassurance is that under clause 9(6), the Secretary of State is empowered to make amendments

“to reflect a change in the value of money.”

I hope that those reassurances are helpful.

Damian Green (Conservative, Ashford)

I take the point about clause 6, although that provision reflects only a change in the value of money and not other circumstances such as the relative level of offences. However, I am puzzled why the Minister says that civil penalties are more appropriate than criminal ones. Anyone who falls under the provisions of the clause will think that they have committed a crime—it is a statute enacted by Parliament and enforced by the authorities. That sounds much more like a criminal offence than something for civil legal procedures. I am puzzled why he thinks that the latter is more appropriate.

Liam Byrne (Labour, Birmingham, Hodge Hill)

I would not rest my case on that point. It is just a point to note that we are seeking to put in place a civil penalty regime in which civil financial penalties, rather than fines, are incurred. A reference to a fairly well established regime of sanctions set out in criminal law might be a source of confusion. However, as I said, I do not want to overstate the significance of that point. The nub of my argument is that if we accepted the amendments, we would introduce a degree of dissonance between the civil penalty regime under the 2006 Act and that under this Bill, which would be unhelpful, particularly once the cards are designated.

A second key point is that we think that the sanctions provided for are sufficient because the Home Secretary has recourse to others should people persist with non-compliance. I take the point made by the hon. Member for Ashford about changes in the scale of seriousness, but the key points are whether we can adjust the level of the civil penalty in line with changes in the value of money and whether other sanctions are available if people persist with non-compliance—yes, those are available. That is what will be effective in driving compliance.

That is the bottom line in the debate on the amendments before us. How do we encourage maximum compliance? I welcome what I detect is support from Opposition Members for the broad thrust of the measures—the introduction of compulsory ID cards for foreign nationals and ensuring compliance with the regime. However, I think that the sanctions in place, beginning with civil penalties but with recourse to variations or curtailment of leave, are appropriate and will be effective.

Stewart Jackson (Conservative, Peterborough)

Given the undertakings that the Minister has given to the Committee, I beg to ask leave to withdraw the amendment.

Clause 10

Damian Green (Conservative, Ashford)

The Minister commented that there appears to have been an outbreak of consensus. I am happy to report that it is now at an end. We have serious objections to clause 10, which provides for the Secretary of State to consider appeals against penalties for failing to comply with the regulations that relate to biometric immigration documents. We do not believe that it should stand part of the Bill because we do not think that it is a sensible place in which to give the Secretary of State such quasi-judicial powers.

I assume that in a peculiar way, which the Minister did not get round to explaining, the penalties are decided on a civil rather than a criminal scale. However, even after his explanation, I am still confused as to why the creation of what, by any standards, is a criminal offence should be regarded in any way as a civil matter. I can only assume that the provision in the clause to allow someone to object to a penalty measure is in some way based on the view that it is a civil matter between the Home Secretary and the citizen. That does not seem to reflect the reality of the situation. The person involved will assume that the authority of the state is bearing down on him and that if he has committed an offence that constitutes a crime by any normal standards, it is right and proper that his appeal against the penalty for having committed that crime should be considered by the courts. We can argue about the level of the fine, but the matter will clearly be serious enough for people to expect some kind of independent hearing in the courts, or a quasi-judicial procedure, and not simply to be referred back to the Executive, which would then be acting as judge and jury.

As was the case for one of the previous groups of amendments, about which the Minister spoke relatively kindly, we think that it would help if the Government were to take the clause away and rethink it. One of the things that we have discussed in the debates on this Bill has been the level of public confidence. I am sure that public confidence would be improved if there were provisions for proper judicial hearing and redress, rather than decisions made by a single Government Department not only on the introduction and workings of the Bill but on offences committed, penalties imposed and appeals against such penalties.

The clause oversteps the mark—it creates the wrong balance between the Executive and citizen. The Minister would do well not just to think about it again and to promise to come back later, but to withdraw the clause because it imposes unnecessary penalties on citizens and an unfair system of redress in relation to them.

Liam Byrne (Labour, Birmingham, Hodge Hill)

The Committee has just agreed that clause 9 should stand part of the Bill. The effect of that decision is that if the Bill completes its journey into statute, the Secretary of State will have the power to issue civil penalty notices to individuals who do not comply with it. As I said, the reason for proposing a civil penalty regime rather than a criminal offence is to ensure a degree of consistency between the Bill and the system of sanctions established in the Identity Cards Act 2006 and approved by Parliament. We would run into serious difficulties once the ID cards of foreign nationals had been designated as ID cards if we had a civil regime for ID cards and a criminal regime for biometric immigration documents. Given that clause 9 will now stand part of the Bill and that the Committee is suggesting that the Secretary of State should be equipped with the power to issue civil penalty notices, it would be problematic if the Committee did not provide for individuals to be able to object to the Secretary of State’s handing out civil penalty notices.

Clause 10’s provisions are quite straightforward. They will ensure that once the civil penalty regime is up and running, it runs fairly. We want to ensure that disputes between foreign nationals and the Secretary of State can be resolved at minimal cost. The clause will not eliminate any right of appeal. It is designed to act in accordance with existing schemes provided for under the Identity Cards Act. The point that I want to underline is that the offence of non-compliance with the provisions in the Bill will not be a criminal offence but a civil offence.

We are suggesting a civil penalty regime because that is how we think compliance can best be secured. A system of criminal offences would be slower—justice would be less swift—and less effective. Having provided for a civil penalty regime, it would be a bit strange for the Committee, and indeed for the House, to remove protections that have long been available in this country and abroad to citizens who disagree with the penalties handed out by the Secretary of State. It is absolutely essential that individuals should be able to object to decisions made by the Secretary of State, backed by the right of appeal if they choose to take the matter to that territory. I commend the clause to the Committee, as it is an essential protection and a consequence of clause 9.

Clause 13

Damian Green (Conservative, Ashford)

I beg to move amendment No. 65, in clause 13, page 8, line 14, at end add

‘at least six months before the commencement of the provisions’.

Eric Illsley (Labour, Barnsley Central)

With this it will be convenient to discuss amendment No. 84, in clause 13, page 8, line 15, at end add—

‘(7) Sections 9 to 12 shall not come into force until the code has been laid before, and approved by a resolution of, each House of Parliament.’.

Damian Green (Conservative, Ashford)

Amendment No. 65 would add to clause 13 the requirement for the Government to publish the code of practice at least six months before the commencement of the provisions. The amendment relates to a recurrent debate about how much consultation is appropriate for such legislation. There is one area of consensus. We have established that we want the system to be robust and fair. We want tostart the long, difficult process of restoring public confidence in a system in which, as we have heard this morning, there is little public confidence. Sir Andrew Green said that, broadly speaking, 80 per cent. of people think that the system is not working. I have heard the large amount of evidence given to this Committee and it is clear that the lack of confidence in the system goes both ways and comes from both sides of the argument: it comes from those who think that there is, broadly speaking, too much immigration into this country and from those who that think that the current system makes it too difficult for certain groups of people. Neither party has confidence in the current system, so it is in the Minister’s interest to try to engage them as much as possible.

A code that was properly discussed before the provisions came into effect would offer not just guidance to those involved, but a degree of reassurance and protection to those on the other side of the counter who were going through the process. Apart from the advantage that that would have in the outside world, laying the draft measures before Parliament and, therefore, before the public would make the Government more accountable for their actions. Although that may, in the short term, be mildly uncomfortable for Ministers, I am sure that the Minister would agree that it would be better to have a rocky consultation period than for enacted legislation to fall apart on the job. Governments of all parties have seen that happen at various stages.

It is good practice, which sensible Ministers should get into especially in difficult and publicly sensitive areas, to consult more and do more in respect of publishing codes and guidelines before the operation of specific pieces of legislation commences. Amendment No. 65 seeks to do that and I commend it to the Minister in that spirit. However, if he does not accept it, as I suspect that he will not, and something goes wrong, he cannot say that he was not warned.

Paul Rowen (Liberal Democrat, Rochdale)

We have just agreed that wholesale powers should be given to the Home Secretary to impose penalties for non-compliance with clauses in the Bill. I do not have a problem with that, because the Bill has a particular purpose and job. However, it is important that a code of practice is subject to consultation and also approved by the House. My amendment seeks to pursue the affirmative process, so that the penalties are subject to public consultation before they come into operation and are approved by the House. Without that surety, as has been said earlier, the immigration system comes into disrepute. Concerns about the system have been raised. The Bill helps us on the way to developing our immigration and nationality policies. However, as we are introducing such wide-ranging penalties and appeals—powers that are solely limited to the Home Secretary—we should at least ensure that that code of practice is approved by the affirmative process in this House. I hope that the Minister appreciates the reasons given by both sides of the House as to why that might be a desirable process if the Bill is to operate efficiently and with the credibility that he wants it to have in the wider community.

Liam Byrne (Labour, Birmingham, Hodge Hill)

I looked at this amendment very sympathetically as well. I understand the ambitions that lie behind it, and those ambitions are entirely sensible. It might be helpful if I say a little about what the clause does and why it is important. It effectively makes provision for a code of practice to be issued, so that the civil penalty regime can operate with a degree of logic, predictability and integrity. In particular, the code will set out those matters that must be considered when the Secretary of State is determining whether to give a penalty notice and what the amount will be. It may also require the Secretary of State to consider decisions that have already been taken. For example,if it has been decided that the right sanction for non-compliance is to vary leave, or curtail leave, or deny an application, the code will set out how some of those matters might be taken into account.

The clause already provides that the code must be published, that we must consult on it and that we must lay a draft before Parliament. In addition, the clause also says that the code will come into effect not by affirmative resolution but by negative resolution. That is where I pause for thought. The reason that we suggested in the Bill that a negative resolution rather than an affirmative resolution would bring the code into force was that we drew on a precedent that was set in the Immigration, Asylum and Nationality Act 2006. In that Act, we provided for a code to be issued that would guide the way that the civil penalty regime would apply to those employers who were caught employing somebody illegally. The Bill contains a set of immigration procedures, so we looked back on precedents in the field of immigration.

There is, however, another precedent that could perhaps have been a more useful guide, which is the precedent set in the Identity Cards Act 2006. In that Act, along with the requirements to publish, consult and so on, we provided that the first time that the code was brought into force there would not be a negative procedure, but an affirmative procedure. Of course, revisions could then be processed by negative procedure, but in the first instance it was felt that the degree of scrutiny offered by the affirmative procedure meant that that would be a wiser route to take. Therefore, having heard the ambitions that have been expressed by Opposition Members, I will examine the clause again to see what space there is to improve it.

Damian Green (Conservative, Ashford)

I am very grateful to the Minister for what he has just said. As I said before, this was one of the amendments that was tabled in a genuinely helpful spirit and if he will consider it in that spirit, it would be churlish not to beg to ask leave to withdraw the amendment.

Clause 16

Paul Rowen (Liberal Democrat, Rochdale)

I beg to move amendment No. 128, in clause 16, page 9, line 15, leave out from ‘State’ to end of line 16 and insert—

‘where it appears that there is evidence that establishes that he is likely to abscond and that such a condition is justified as being necessary in the interests of public order, public safety, national security or for the prevention of crime; and

(v) a condition requiring him to reside at a specified address where it appears that there is evidence that establishes that he is likely to abscond and that such a condition is justified as being necessary in the interests of public order, public safety, national security or for the prevention of crime, provided that such conditions are consistent with the Human Rights Act 1998, the European Convention on Human Rights andthe obligations of the United Kingdom under the International Convenant on Civil and Political Rights 1966.’.

Eric Illsley (Labour, Barnsley Central)

With this, it will be convenient to discuss the following amendments: No. 25, in clause 16, page 9, line 16, at end add—

‘(2) For the purposes of section 3(1)(c)(v) of the 1971 Act any condition imposed upon residence must be reasonable in all circumstances.’.

No. 85, in clause 16, page 9, line 16, at end add—

‘(2) A condition about residence shall not apply if—

(a) the residence is more than 25 miles from the nearest reporting centre; or

(b) for employment purposes, a different location is more suitable.’.

No. 86, in clause 16, page 9, line 16, at end add—

‘(2) The Secretary of State shall lay before Parliament, not more than 12 months after the commencement of the provisions under this section, a report on the operation of these conditions.’.

No. 129, in clause 16, page 9, line 16, at end add—

‘(2) After section 3(1)(c) of that Act insert—

“(d) A condition about reporting or residence under paragraph (c) above shall not apply if the person is under the age of 18.”’.

Paul Rowen (Liberal Democrat, Rochdale)

We have had a good debate this morning, and we have moved forward. I suspect that we will not have the same measure of agreement with regard to clause 16. At first sight it seems inoffensive and small, but its provisions are vital to people’s confidence in the operation of our immigration system. It is about the conditions that the Secretary of State may place on a person who has been granted leave to remain.

We are considering people’s liberty. When a decision has been made that someone has a legitimate right to remain in the country, we may want to place conditions on that right. I am concerned about the open-ended nature of the clause. Amendment No. 128 would insert an important safeguard to ensure that any conditions that the Secretary of State places on someone staying in the country, such as restricting their movement or place of abode, should comply fully with the UK Government’s treaty obligations as set out in the Human Rights Act 1998 and the European convention on human rights and with the obligations that rest with us under the international covenant on civil and political rights. That is important. If the Secretary of State has cause to restrict someone’s movement, there must be clear parameters and it must be stated clearly that the person subject to that curtailment can use those treaties and obligations to argue against the restriction if they feel it unfair and unreasonable.

James Clappison (Conservative, Hertsmere)

I am listening carefully to the hon. Gentleman. What is there in the conditions in the Bill to prevent somebody from arguing their case under the European convention on human rights or other international agreements that this country has entered into?

Paul Rowen (Liberal Democrat, Rochdale)

Much of what we have been doing has been because a lot is left unsaid in the Bill. Being reasonable about the operation of the Bill, we have attempted to specify matters. We are attempting here to make it clear that the Bill will comply with the treaty obligations that this country has entered into. No hon. Member should have a problem with that, because they are policies to which this Government have signed up.

Amendment No. 129 relates to any restrictions placed on someone under the age of 18. I am concerned about children being subject to stringent conditions. Will the Under-Secretary explain why she feels that to be necessary? The bulk of the young people concerned will be in full-time education. We had debates earlier about who the right people are to deal with young people, and I do not see the point of someone under the age of 18 having their education disrupted and having to travel long distances, perhaps with their parents, to travel to a detention or immigration centre. That would be disruptive and could be quite unsettling to a young person. I therefore hope that we can make a distinction for the reporting rights for young people, given that they are highly unlikely to abscond if their parents are subject to reporting.

The final amendment actually tries to take the purpose of this clause further. I am greatly concerned that as the law is currently framed, asylum seekers are not allowed to work while their appeal is progressing. That is expensive and unnecessary; given that many asylum seekers are in this country for a considerable time, and at considerable cost to this country, it would reduce the costs to the Exchequer if they were able to gain employment. It is also good, from a human point of view, for any individual to have self-worth and to demonstrate that by employment.

So, the purpose of amendment No. 130 is to grant permission to any person who is granted limited right to remain,

“to seek employment from two months after an appeal has been lodged”

I do not want to see that being used as an excuse or reason for appeals to be delayed further. We need to ensure that the appeal process is firm, fair and expedited. While this is not an excuse to prolong the appeal, if that person is involved in one then they ought to have the right to work—with any income that they receive being offset against any benefits received. I hope that the Minister can give us the assurances that we seek on the first part of clause 16, and that he will consider extending it to allow asylum seekers to gain employment.

Damian Green (Conservative, Ashford)

It was clear, both in reading the written evidence that was submitted to the Committee and over several sessions of oral evidence that we have taken, that clause 16 was one of the most difficult and controversial in the Bill. In that spirit, I welcome the Under-Secretary of State for the Home Department, the hon. Member for Enfield, North, who will respond to this debate. Clearly, she has been landed with this particular hot potato. Plus ça change, she may well feel.

The three amendments in my name, and that of my hon. Friend, all seek to tie down whether this clause will be practical or unduly onerous on large groups of people. The Committee will have heard what the hon. Member for Rochdale has just said, particularly about its potential effect on children. These amendments look more widely at anyone who would suddenly find restrictions on them that were not there before, as a result of the clause.

On the detail of the amendments, amendmentNo. 25 simply seeks that

“any condition imposed upon residence must be reasonable in all circumstances”.

That reflects the worries, which I am sure the Minister will have absorbed from the written and oral evidence, that the clause’s potential for putting onerous restrictions on people is very great. We have seen not only those fears, but vagueness in other areas around residency requirements. For example, some sex offenders have got round that by putting down patently ridiculous addresses such as “the woods”. No one would want that failure in the system to be replicated in residency requirements imposed by this Bill.

I hope that if the Minister accepts some or all of our amendments it will reassure those who think that the conditions are onerous and too widespread, and encourage the Government to ensure that the regulations are effective. Any accommodation included under the residency requirements must be inhabitable and conducive to the individual’s safety, and I hope that the Minister will address those practical matters.

Amendment No. 85 is a probing amendment of the serious consequences of the clause. At the outer extreme of the fears expressed about the clause is that it could be used for internal control by insisting that some people have to live in certain places simply because of their immigrant status. I dare say that Ministers would regard that as unacceptable; I am aware that one may wish to have strict controls over where certain groups in society can live, but I cannot believe they would wish to apply such controls to anyone who has limited leave to remain in this country. That will include many thousands of people who have lived here for a long time and lead blameless and extremely useful lives. People fear that the clause as drafted would have a serious effect on them, which cannot be the intention of the Bill.

The clause would allow a Government to use the Bill for internal immigration controls. Although reporting to an immigration officer may in some cases be sensible for some categories of people, this blanket approach smacks of an attempt to control the whereabouts of people who lead blameless lives and who are accepted by the authorities as being in this country legally.

It is not too difficult to imagine scenarios in which the clause would have a very serious effect on people’s lives. For example, a person who has secured employment in a distant rural area and is required to report to an immigration centre may find that the nearest one is 50 or 60 miles away. The proposal to set up centres for passport interviews has already provoked resistance in rural areas because of the travelling distance it will involve, the time it will take and the inconvenience it will cause.

The amendment draws attention to the fact that the clause may affect yet another group of people in that respect. Anyone who takes employment in a rural area is statistically unlikely to be highly paid, and therefore unlikely to have access to a car. They will therefore have to rely on public transport in areas where it is least available and reliable. People in rural areas with low-paid jobs who are least able to afford it will have to take days off just to report to immigration centres. The Minister will argue that that is absurd and I agree that it is. During the passage of this Bill we should think about whether we want to impose such conditions.

If the point of the clause is to give the Government the power to follow and track those who give them particular concern, I would have a good deal of sympathy with that policy. But the clause does not say that. It is so widely drawn that it does not restrict itself to that laudable activity but goes well beyond and will affect people whom no sensible Government will want to spend time, resources and effort following round the country or keeping address records for. I hope the Minister can consider those points.

Amendment No. 86 reopens the debate about commencement provisions from the other side. The Minister made the point in a previous debate that he sympathised with the idea of having a proper code of conduct before certain provisions of the Bill are put in place. What we are saying about amendment No. 86 is that the same thing should apply after the legislation is passed. We are aware that there is considerable public concern surrounding these measures—in particular the sweeping powers within the measures that are included in this particular clause. It seems sensible from all points of view that Parliament should be informed how the system is working once it is in operation, which parts of it are or are not functioning and what the Government suggest should be changed. This is good from Parliament’s point of view—it will demonstrate that our scrutiny of legislation does not have to end just because the legislation is on the statute book and that we are actually concerned with the practical impact of this legislation on the daily lives of many thousands of people. But it will also act as a useful corrective for Ministers and their officials, becauseif they know that a public report will have to be made 12 months after the enactment of a particular piece of legislation, that would serve to sharpen up the act of everyone involved in the passage of the legislation and its implementation.

If I may tread on delicate ground, I would suggest that this is particularly appropriate for the Home Office at this stage in its evolution, because—I will not quote the Home Secretary on the IND again, but Ministers will recognise what I am talking about—there is a degree of public doubt about the ability of the Home Office to operate large-scale change effectively. It would be a gesture of self-confidence by Ministers to say that they were quite happy for Parliament to return tothe subject and to have a public report put before it12 months after the enactment. There would be practical consequences as well, because if my fears are realised and certain people are unable to take up work because of the requirements under the residency terms of this clause, Parliament and the British people should know about that because it would be an important feature in the wider debate about immigration.

There has been some public movement on the debate. A few years ago there was a feeling that people were coming to this country to live off benefits; even those who are most hostile to immigration have moved away from that and are now worried about people coming here to work. If we find—as I suspect we may—that we are passing legislation that makes it more difficult for those who are in this country legally to work, it is worth having that reported on as that would be a perverse effect which I am sure the Minister does not want.

There are a number of other human rights points, to which I hope we can return in the clause stand part debate. These specific amendments seek to address some of the fears of the groups that have scrutinised this clause. I hope the Minister can look on them sympathetically.

Joan Ryan (Labour, Enfield North)

It is a pleasure to speak in this Committee under your Chairmanship, Mr. Illsley, and that of your co-Chairman.

The clause is very important and we hope thatthe measures in it will help to improve contact management and enforce compliance with our immigration laws. The measures are, therefore, important. However, I am pleased to discuss the amendments because scrutiny of those measures is very important. They place conditions and, to some extent, restrictions on individuals and it is right that they should undergo close scrutiny.

I hope that I can reassure Opposition Members about the use of those powers. Clause 16 amendsan existing statutory provision—section 3 of the Immigration Act 1971—by adding two new conditions regarding reporting and residency. There is, therefore, no inconsistency in our approach towards reporting and residency conditions and the other conditions set out in section 3—police registration, employment, maintenance and accommodation—all of which are very important.

We are very clear that the clause will be used to improve contact management with particular categories of people and have indicated the two categories with which we will seek to use these conditions first. However, we consider that there are advantages to a light-touch approach in the legislation, which will allow us to apply the new powers to other categories, should a need for more effective contact management become manifest.

Crispin Blunt (Conservative, Reigate)

Just before the Under-Secretary turns to the amendments, what answer or comfort can she give to Professor Anderson and his colleagues at Cambridge? When giving evidence, he talked about overseas students who might be facing a requirement to go to Bury St. Edmunds as the nearest reporting centre. If he and his colleagues are trying to market Cambridge university overseas and that potential requirement is part of the pitch, it will make their lives rather more difficult. What answer does she have for him?

Joan Ryan (Labour, Enfield North)

The difference between the residencyand reporting restrictions and the distance between places is an important issue that I will come towhen discussing one of the amendments. The hon. Gentleman will be aware that we have not named students with limited leave as one of the categories that we will apply the provisions to at this stage. However, the power is broad and we do not deny that these measures could cover anybody with limited leave. The reassurance that I will give in a moment on amendment No. 85 will probably cover his and Professor Anderson’s concerns should the measures ever apply to students, although it is not envisaged that they will.

James Clappison (Conservative, Hertsmere)

The Under-Secretary says that the provision applies to all people with limited leave to remain. Will she tell us who in particular she is thinking of? If not students, at whom is this provision targeted?

Joan Ryan (Labour, Enfield North)

Indeed, the issue was discussed in our evidence session and I intend to come to the relevant groups. To make it clear at the outset, the two identified categories of people to whom we will seek to apply the conditions—not necessarily including every single person in each category—are foreign national prisoners whom we are unable to remove because of legal barriers and unaccompanied asylum-seeking children. I shall say a little bit more about those two groups in a moment, and I am sure that more will be said about them in the stand part debate.

Paul Rowen (Liberal Democrat, Rochdale)

I am interested by what the Under-Secretary says. Given that she is seeking to apply the measures only to a limited number of cases, why does the Bill not frame the provision in that way? If the Government then want to extend it, it could be extended by an affirmative resolution. Given what she said, does she accept that the clause is very broad and too open-ended for Opposition Members?

Joan Ryan (Labour, Enfield North)

I accept that it is broad, but I do not accept that it is too open-ended. As I said, we shall move on to respond to the amendments and will, I hope, give the reassurance that the hon. Gentleman is seeking.

I opened my remarks by saying that there is no inconsistency between our approach here and the overall approach in section 3 of the ImmigrationAct 1971, which we are amending. The 1971 Act provides three conditions that can be applied to limited leave, with no restriction on what groups within the limited leave category we can apply them to. Equally, I said that we thought that a light touch was appropriate so that we can be flexible. If circumstances change, we will be able to use the conditions as and when they are appropriate.

Amendment No. 25 would require that

“any condition imposed upon residence must be reasonable in all circumstances”.

The Human Rights Act 1998 makes it unlawful for public authorities to act in a way that is incompatible with convention rights. There is also a general legal requirement on public authorities to exercise their powers in a reasonable way. That will apply to the new powers in clause 16. It is perfectly reasonable to ask that we apply our powers in a reasonable way, but the Bill is trying to do so and other legislation already exists to ensure that we do so.

Crispin Blunt (Conservative, Reigate)

While we are on the test of reasonableness, can the Under-Secretary explain why the clause contains the words

“to an immigration officer or the Secretary of State”?

Obviously, immigration officers are responsible to the Secretary of State, as are the police to some degree under the listed requirements to report. Is there some suggestion that people will be required to report to the Secretary of State as individuals? That cannot possibly be correct. What does

“or the Secretary of State”

actually mean? Is it a suggestion that the Secretary of State does not have very much to do and can take on that responsibility?

Joan Ryan (Labour, Enfield North)

I think that I can reassure the hon. Gentleman that the Home Secretary is indeed busy and has plenty to do. A cursory glance at the media on any particular day will reassure the hon. Gentleman of that. As he says, the line of reporting ultimately ends at the Secretary of State, so it is only right that the Secretary of State should have the same requirement.

In terms of reasonableness, there is little point in creating further legislation within the Bill when the Human Rights Act 1998, convention rights and the legal requirement on public authorities to exercise powers in a reasonable way already exists.

Crispin Blunt (Conservative, Reigate)

I did not quite understand. Is that some formulaic use of statute, whereby the Secretary of State has to appear when officers of his Department are named—in this case immigration officers—or is it some sort of cover for an ability to introduce another set of officers to whom people might be required to report?

Joan Ryan (Labour, Enfield North)

I can tell the hon. Gentleman that it says

“report to...the Secretary of State”

so that we can require an individual to report to an IND official who is not an immigration officer. That is the reason; it not in the least Machiavellian, nor are we trying to fit in with anybody’s agenda. Our aim is to keep in touch with certain individuals whom we have an interest in monitoring more closely. There is no need to amend the clause by including fine details that can be left to the policy guidance that is to be published later.

James Clappison (Conservative, Hertsmere)

I see the Under-Secretary’s point about keeping in touch with foreign prisoners who have been released from prison but cannot be deported for some reason. Can she say a little about the other case that she mentioned? She referred to asylum-seeking children, and amendment No. 129 relates to them. Does she require this condition in respect of those children for the sake of their welfare or for some other reason?

Joan Ryan (Labour, Enfield North)

I thank the hon. Gentleman for probing a little more closely on that important category. If he will bear with me, I shall come to it. The protection issue that he raises is integral to our desire to apply such conditions to unaccompanied asylum-seeking children. We will apply reporting and residency conditions to children only when strictly necessary, either for their own welfare or with a view to closer contact management as they approach 18, particularly because, all things being equal, we will seek to remove unaccompanied asylum-seeking children when they reach the age of 18.

We will liaise with local authorities when deciding on the application of the conditions to children in care. Let me remind the Committee—the hon. Member for Rochdale has clearly taken much interest in the matter—that on 1 March we published a consultation paper on unaccompanied asylum-seeking children, “Planning Better Outcomes and Support for Unaccompanied Asylum Seeking Children”. That includes proposals to reduce the disproportionate burden of caring for such children that falls on local authorities in London and the south-east. It proposes concentrating care provision for unaccompanied asylum-seeking children in local authority areas in which special infrastructure exists, and ensuring that care planning takes into account a young person’s immigration status.

Although unaccompanied asylum-seeking children have many needs in common with other children in care, they also have some very different needs and reasons for being in care. Many are much older when they go into the care system, and their problem is that they are separated from their families. It could be that they are not being returned to their country of origin not because they are at risk of harm or in danger because of the circumstances in the country, but because the reception arrangements do not exist, or we cannot establish them in order to return them safely. As the consultation paper indicates, we are working very closely with social workers and local authorities to ensure that specialist care is in place and that communication with social workers is good. It is much improved; there have been problems in the past in that regard and that is why we are taking measures to address them.

Paul Rowen (Liberal Democrat, Rochdale)

Will the Minister give way?

Joan Ryan (Labour, Enfield North)

I will give way in a moment. I understand that the hon. Gentleman wishes to say more on the matter.

Sir David Amess (Conservative, Southend West)

I remind the Committee that with this we are discussing the following amendments:No. 25, in clause 16, page 9, line 16, at end add—

‘(2) For the purposes of section 3(1)(c)(v) of the 1971 Act any condition imposed upon residence must be reasonable in all circumstances.’.

No. 85, in clause 16, page 9, line 16, at end add—

‘(2) A condition about residence shall not apply if—

(a) the residence is more than 25 miles from the nearest reporting centre; or

(b) for employment purposes, a different location is more suitable.’.

No. 86, in clause 16, page 9, line 16, at end add—

‘(2) The Secretary of State shall lay before Parliament, not more than 12 months after the commencement of the provisions under this section, a report on the operation of these conditions.’.

No. 129, in clause 16, page 9, line 16, at end add—

‘(2) After section 3(1)(c) of that Act insert—

“(d) A condition about reporting or residence under paragraph (c) above shall not apply if the person is under the age of 18.”’.

Joan Ryan (Labour, Enfield North)

Welcome to our proceedings, Mr. Amess. It is my pleasure to serve under your chairmanship. I was concluding the first part of my remarks on unaccompanied asylum-seeking children, and the hon. Member for Rochdale was seeking to intervene. Does he still wish to avail himself of that opportunity?

Paul Rowen (Liberal Democrat, Rochdale)

I am glad that you have joined us for our deliberations, Mr. Amess. Does the Minister not accept that far better arrangements could be made than using immigration and nationality directorate officers? She talked about the current consultation. If there is a requirement to deal with unaccompanied asylum-seeking children, would it not be better to deal with them through social services or local authorities, which have expertise in dealing with young people?

Joan Ryan (Labour, Enfield North)

It is important to bear in mind that we are not talking simply about children or children in care. We are talking about children with limited leave, who therefore have a relationship with the immigration service and the IND. I have made the point that immigration officers and IND officials who deal with such children are specially trained. I take the hon. Gentleman’s point on board. It is important that the IND is involved in such situations for the reasons that I have given, but it is equally important that the officers are specially trained.

Current reporting arrangements for asylum seekers do not generally expect individuals to travel further than 25 miles to report. The amendment tabled by the hon. Member for Ashford dealt with that distance. If there is no reporting centre within 25 miles, we will find alternative arrangements—we could, for example, require the person to report to a local police station or other identified location. We anticipate that similar policy currently applying to asylum seekers would apply to those with limited leave who are required to report.

Damian Green (Conservative, Ashford)

I am grateful to the Minister for giving way, and for her clarification of what she expects to happen to those who live far from a reporting centre. Can she give us a rough idea of how many people would be affected by such a policy? How many people does she expect will find themselves reporting regularly?

Joan Ryan (Labour, Enfield North)

That point came up in the evidence sessions. I said that we expect the numbers for foreign national prisoners to be small—possibly tens rather than hundreds. I cannot give an exact figure for unaccompanied asylum-seeking children, because we are not suggesting that every unaccompanied asylum-seeking child will be subject to the conditions, but around 1,960 grants of discretionary leave at initial decision were made for that category in 2005, so the number would be somewhat less than that. I hope that that acts as a guide to the hon. Gentleman.

In terms of reporting residency, it is clearly not in our interests to force individuals to live in an area where they could not report to the IND or where it would be impossible for them to find work. If an individual wanted to find work in another location, the residency condition would ensure that they kept us informed of where they were moving and, in some cases, our approval of the new address would be required. Once they had moved, reporting conditions would be modified accordingly, so that they could report to a reporting centre nearer to their new home.

As to the terms of residency—I am dealing with amendment No. 129 now—we will grant leave with residency conditions only where that is justified by a need for close monitoring of an individual. We have no intention of applying residency conditions to refugees, students or work permit holders, as some non-governmental organisations have alleged. We have already discussed that in relation to students. In the first instance we may apply the residency conditions, as I said, to certain asylum-seeking children, with a view to improving child protection, as well as facilitating their removal at the age of 18.

There is evidence that children go missing from care, and we want not to take on but to complement the valuable work done by social services. Granting leave with reporting and, where needed, residency conditions, should mean that a child’s absence is noted at an early stage. I think that what I have said covers some points that the hon. Member for Hertsmere made about unaccompanied asylum-seeking children. We should be able to notice an absence early, and establish the reason for it, in which case all reasonable steps to locate the child could be taken.

Paul Rowen (Liberal Democrat, Rochdale)

The hon. Member for Ashford has mentioned the distance of 25 miles, but I want to suggest the practical example of an unaccompanied child asylum seeker in Rochdale being required to travel to Salford, where the centre is. I should feel much happier about the amount of disruption to the child’s routine if the immigration officer would come to a centre in Rochdale, rather than have the child travel across the conurbation, with disruption to their education, among other things. Would the Minister consider something like that as an acceptable reporting arrangement?

Joan Ryan (Labour, Enfield North)

I cannot give the hon. Gentleman a yes or no answer for every possible circumstance, but I can, I think, give an assurance that we intend to be, as the law indeed requires, reasonable. We intend to be flexible and we do not intend to create huge disruption and difficulty in the life of a child in the circumstances in question. We would seek to work closely with a social worker and with social services and the local authority, to ensure that we could achieve as smoothly as possible, with the minimum possible disruption and maximum possible protection for the child, our aims of protecting the child and subsequently preparing them for removal, on their becoming an adult. I hope that that reassures the hon. Gentleman. As to the notion of 25 miles, although I understand that the amendment is probably a probing one, we would never put something so precise in the Bill, as I am sure hon. Members realise.

We believe that it is right to maintain closer contact with older children whose leave is about to expire. That will allow us to ensure that appropriate arrangements are made for their removal from the UK, or for further applications for leave. We make no apology for seeking to return young people who no longer qualify for leave when they reach the age of 18. Sending children without genuine asylum claims to the United Kingdom in the hope that they will establish a footing for the rest of the family in this country is an abuse of the asylum system, and is exploitative of the child. Returning those who have been sent in that way, when they reach adulthood, will discourage that unacceptable practice.

We also intend to apply the new powers to foreign criminals, of whom we have said less in debating this clause. They are an important category. I think that monitoring foreign criminals who cannot be removed at present because of legal barriers, with a view to their eventual removal, is clearly in the national interest.

Crispin Blunt (Conservative, Reigate)

Presumably those people will be of some interest to the police, having been recently released from prison. The Government already have powers to require them to report to the police. Would it not be more appropriate for them to do that, and for the police then to inform the immigration and nationality directorate of their whereabouts, so that the police would know where those convicted criminals were?

Joan Ryan (Labour, Enfield North)

The hon. Gentleman makes an important point, and we would indeed always encourage our agencies to work together in co-operation for the best outcomes. It is important that we apply the measures to the group in question sothat we can effect removal as soon as possible. That condition is also important because this period should not count towards settlement—a point that has been little discussed but which is important to the clause and those categories.

James Clappison (Conservative, Hertsmere)

I am with the hon. Lady on that latter point. They should not count towards settlement for the purpose of staying four or five years in this country. With reference to the case just mentioned by the Minister, of foreign criminals and the desirability of having a condition of residence for them, would she tell us what the sanction is for breach of that condition?

Joan Ryan (Labour, Enfield North)

If my memory serves me correctly, the sanctions are a fine of up to £5,000 and a prison sentence. They will operate as an effective deterrent to anyone who seeks to avoid meeting the conditions on their leave.

I know that Liberty has said that residency conditions could breach article 8, “Right to respect for private and family life”, and article 11, “Freedom of assembly and association”, of the European convention on human rights. The hon. Member for Ashford was seeking reassurance on those concerns. I can assure him that that is not the case. Some interference with articles 8 and 11 is permitted when it is in accordance with the law in the interests of the permissible aim of the state and when it is proportionate to that aim. Case law has established that the maintenance of effective immigration control and public safety are permissible aims and that decisions taken pursuant to those aims should be proportionate in all but a minority of exceptional cases.

In response to amendment No. 86, tabled by the hon. Member for Ashford, and the question of reporting to Parliament on the operation of clause 16, I have some sympathy with what he said about the need to report to Parliament on these matters. We intend to be open about the operation of this clause and about the work of the new border and immigration agency as a whole. In this instance, I do not think that effective post-legislative scrutiny would be best achieved by the requirement of an individual report, which, from the wording of amendment No. 86, would be a one-off.

I understand that these amendments were probably written before our new clauses on the independent inspectorate were tabled. The introduction of that inspectorate will ensure that Parliament can scrutinise the work of the new agency. The remit of the independent inspectorate will include a number of key themes relevant to the operation of the border and immigration agency, including practice and procedure in making decisions, consistency of approach, the information it provides and the treatment of those that use its services. The inspectorate will report annually to the Secretary of State, who will have to lay that report before Parliament. Therefore the terms of the independent inspectorate’s remit meet the objectives of the amendment and I hope that, following that reassurance, it will be withdrawn.

Sir David Amess (Conservative, Southend West)

Before I call the hon. Member for Rochdale, I advise the Committee that I am not minded to have a clause stand part debate. I hope hon. Members will bear that in mind when dealing with the conclusion of this particular debate and the next one.

Paul Rowen (Liberal Democrat, Rochdale)

I am grateful for the Minister’s reassurance on some of the amendments that we have tabled today. However, it is a pity that the consultation is, as she said, still ongoing yet here we are dealing with the Bill. It would have helped our deliberations on child asylum seekers if the consultation had been concluded before we considered the provisions.

Damian Green (Conservative, Ashford)

If we are not to have a clause stand part debate, I wish to respond to the Minister’s remarks about my amendments. In a sense, there is a reflection of the problem with our debate on this clause: it is almost happening on twin tracks that do not meet each other. The Minister is dealing with the current Government intention of the clause, which is to deal with foreign prisoners or former prisoners and unaccompanied children, but that is not what the Bill says; as the Minister has honestly admitted, the Bill could be used for different and much wider groups of people—indeed, it could be used for any group of people.

The amendments tabled by the hon. Member for Rochdale and I sought in part to pin down this or future Governments on what this clause could achieve. It is worth pausing to think about that, because the Minister has acknowledged that the provision could be applied to anyone. It has already been stretched; in the original regulatory impact assessment it was supposed to apply only to foreign prisoners, but Ministers then briefed the various interested bodies that it would also apply to unaccompanied asylum-seeking children. So, even before the Bill was discussed the purpose of the clause was being expanded. Who can tell how it will be expanded in the future?

The breadth of the clause means that the use of the powers could not simply be confined to the two particular groups that I mentioned. In their present form, the provisions could be used to impose a curfew requirement on anyone, including someone who is here as a refugee and who has been a model citizen.

Joan Ryan (Labour, Enfield North)

In fact, it is not possible to impose a curfew or, as has been suggested in other places, electronic tagging, because those measures can apply only where we have the right to detain. We do not have the right to detain those granted limited leave. I hope that that helps the hon. Gentleman.

Damian Green (Conservative, Ashford)

I am grateful for that response. I am not sure that “a condition about residence”, which is what paragraph (v) provides for, cannot be interpreted as, “To be at that place of residence at a particular time of day, every day”. I accept the Minister’s assurance, but the Bill does not make that point obvious.

I also wish to consider the practicalities. I do not agree with all the arguments about the clause that the Refugee Council has advanced, but some are powerful, specifically those relating to unaccompanied minors. It makes the valid point that there is no evidence to suggest that minors are more likely to abscond than any other category of non-nationals; on the contrary, it is in their interests not to abscond, as they are overwhelmingly likely to be dependent on support from social services for their daily bread.

Secondly, if, as a result of the review process, a negative decision is made, it would clearly be in the individual’s interests not to abscond in order for them to pursue their appeal. It is difficult to see what additional benefit is gained by the measure we are discussing or how it would significantly expedite removal when the unaccompanied minor turns 18. At best, it may well have no impact on unaccompanied asylum-seeking children and at worst it will harm them.

The Minister will be aware that the Refugee Council argues that if any extension of such powers is necessary, they should accurately reflect their intended targets and the international human rights standards by which the UK is bound. She has assured us that certain articles of the various human rights conventions are not breached by the clause, but she will also be aware that that is a controversial view. It is a general principle of human rights law that where individuals are lawfully within a state, they should enjoy freedom of movement and residence in that state. That principle is contained in article 2 of the fourth protocol of the European convention on human rights and in article 12 of the international covenant on civil and political rights of 1966, which the UK signed and ratified. It is arguable that parts of the clause could stretch those particular protocols if not breach them altogether. The Minister spoke about article 8 of the ECHR, which relates to the right to respect for private family life and home. She has clearly had advice that the provisions do not breach it; I hope that she is right about that, not least for the taxpayer’s sake if we have to fight cases on it.

Finally, I return to the practical point. As long as the intended targets of the measures are not reflected in the clause, we are in danger of allowing through legislation that is wide open to function creep, that unpleasant phenomenon that we have mentioned in several debates. We have seen it happen: section 44 of the Terrorism Act 2000 was infamously used against Mr. Wolfgang, the 82-year-old heckler at a Labour party conference. I am sure that when Ministers passed that legislation, they did not intend to use it against hecklers at Labour party conference or people who shout, “Nonsense!” at Ministers.

Crispin Blunt (Conservative, Reigate)

That is very generous.

Damian Green (Conservative, Ashford)

I am feeling particularly generous this afternoon. I suspect that if they had wanted to, they would have found other means of imposing their will on such people. Indeed, with the vote coming up tomorrow, I suspect that they would end up using those means against their own colleagues.

There is a serious point here. We have seen a notorious example in recent times of function creep in some serious legislation. It is worth the Committee pausing to consider whether we are giving too much power to Governments and laying ourselves wide open to the possibility of the legislation being used against people in ways that Ministers explicitly tell us that they do not intend now. We can see that happening and we should not allow it to happen. We should pass properly defined legislation that aims at specific targets, does what it is intended to do and does not allow these Ministers or any future group of Ministers to do things that the Committee cannot possibly anticipate. On those grounds, I regret that the Minister has found herself unable to accept any of this group of amendments. I know that you feel that we have discussed the issues sufficiently fully not to have a debate on clause stand part, Mr. Amess, but I urge my hon. Friends to vote against the clause.

Paul Rowen (Liberal Democrat, Rochdale)

I beg to ask leave to withdraw the amendment.

Paul Rowen (Liberal Democrat, Rochdale)

I beg to move amendment No. 130, in clause 16, page 9, line 16, at end add—

‘(2) Any person granted limited leave to remain shall be allowed to seek employment from two months after an appeal has been lodged.

(3) Any benefits received by a person granted limited leave to remain shall take account of earned income.’.

So far we have been talking about increasing the restrictions that are placed on people who are granted limited leave to remain. The amendment seeks to improve the situation of asylum seekers who have limited leave to remain. At the moment, an asylum seeker who is granted leave to remain while their appeal is considered is prevented from seeking employment and must rely totally on benefits. It is an important principle that people should have the dignity of being able to support themselves. Engaging them in gainful employment would also offset some of the cost of keeping them.

The amendment would have a number of benefits. We discussed underground employment and people being exploited by unscrupulous employers. That would not happen were asylum seekers able to work legally. Furthermore, it will be much easier to keep tabs on such people if they were in employment—their biometric visas would ensure that details of that employment and other information was recorded properly on the system. That would be far better than having them work unofficially for unscrupulous employers and subject to no control, or not working at all and burdening the state.

We are seeking to ensure that a person could seek employment within two months of their asylum appeal being lodged. That would be welcomed by taxpayers who support them at the moment and by asylum seekers themselves.

James Clappison (Conservative, Hertsmere)

The amendment uses the words,

“two months after an appeal has been lodged.”

Does the word “appeal” mean the initial application for asylum or an appeal against a refusal of an initial asylum application?

Paul Rowen (Liberal Democrat, Rochdale)

I am grateful to the hon. Gentleman. Of course, I was referring to the initial application for asylum. Within two months of the date on which the process is started—when the asylum application has been made and the case is being heard—they could seek employment. Those employment rights would continue until the person was removed.

Joan Ryan (Labour, Enfield North)

I accept that the hon. Member for Rochdale is of the view, policy-wise, that asylum seekers should be allowed to work. However, his amendment refers to persons granted limited leave and so would not apply to asylum seekers. I understand what he is getting at, but this would be the wrong place to make such provision.

Crispin Blunt (Conservative, Reigate)

It would help the Committee if the Minister explained such granting of limited leave to remain. Clause 16 is aimed at people to whom the Government would not want to grant leave to remain, and whom they are in fact attempting to remove—foreign prisoners whom the Government are attempting to deport. Where does their formal leave to remain in the United Kingdom come from and who grants it? Will the Minister explain the legal position so that we can form a view of the merits of allowing such people to work?

Joan Ryan (Labour, Enfield North)

I am happy to provide that clarification, although we have been discussing the matter for a considerable time so I am slightly concerned that Members still are not clear. As we said, one group to whom the limited leave applies consists of foreign national prisoners whom we want to remove—the hon. Gentleman is absolutely right about that—but cannot, owing to legal barriers, usually in relation to the situation in their country of origin. As he said, another group consists of unaccompanied asylum-seeking children, who, for the most part, we cannot return to their country of origin because we cannot establish good reception arrangements. We must put their care and safety first.

Students and a number of other groups also have leave, but not asylum seekers—because they are asylum seekers! Those granted limited leave might well have gone through the asylum process and been rejected or found not to have a founded application. However, for whatever reason, we might not be able to remove them, but must grant them limited leave according to their human rights, and under the convention and other such legislation. However, we want to place restrictions on that leave; and we want to ensure that that limited leave does not count towards settlement. For instance, national prisoners will get six months limited leave if they make a claim under the European convention on human rights. On that basis, they would achieve limited leave, although others would need to satisfy or challenge a number of other legal conditions in order to achieve it.

When moving the amendment, the hon. Member for Rochdale referred only to asylum seekers. As a matter of policy, the Government do not consider that asylum seekers should normally have a right to work. We believe that it is important to maintain a distinction between legal migration for employment, and asylum—the latter being for people who seek protection.

I have already said how the amendment would apply if we were to allow people granted limited leave to remain to seek employment after two months. First, two months seems a rather arbitrary time. I am not sure why it was selected. However, it would undermine immigration control by narrowing the circumstances in which limited leave to remain could be granted, subject to employment conditions. The hon. Gentleman mentioned benefit entitlement. Suffice it to say that that, too, is not really a matter for us but for the Department for Work and Pensions.

James Clappison (Conservative, Hertsmere)

I have some sympathy with the amendment, because some asylum seekers have talents that could be used to the advantage of the country. However, as we were warned this morning by Migrationwatch UK, we need to keep in mind the firm distinction between economic migration and claims for asylum. Is not the real solution to speed up the asylum process as much as possible and then to use the talents of those who have been recognised as having a genuine asylum claim? Is it not regrettable that, for many years now, the process has been so very slow?

Joan Ryan (Labour, Enfield North)

Indeed; and speeding up the asylum system is the key to our approach. In fact, we are having some success. The hon. Gentleman will know that, with the national asylum model, the end-to-end process is much more effective than previously. It has made a substantial difference in the time that it takes for cases to go from initial claim to completion.

May I say to the hon. Member for Rochdale that clause 16 does not introduce any new restrictions on the employment of persons granted limited leave to remain? As I said, the amendment would narrow the circumstances in which leave could be granted, subject to employment restrictions. It could achieve the opposite of what he seeks, although I understand the point that he is making.

Paul Rowen (Liberal Democrat, Rochdale)

I should like to put a couple of scenarios to the Minister to explain when the amendment might apply. At the moment, we have a number of people from Zimbabwe and Iran who, for various reasons, are not able to go back to their own country, but they have not been granted asylum; in the case of Zimbabwe, the process has been frozen. If a nurse or a doctor from Zimbabwe who was perfectly well qualified was in that situation, would it not make sense for them to be able to work and thus be of benefit to this country?

Joan Ryan (Labour, Enfield North)

We do return people to Zimbabwe, and voluntary return is entirely available. However, the hon. Gentleman will know that some key decisions by the courts have been in favour of the Government returning people to Zimbabwe; and we await the outcome of the latest hearing.

Kerry McCarthy (Labour, Bristol East)

On a similar point, there are a large number of people from Somalia in my constituency. We have a situation in which many of those people are failed asylum seekers, but there are few forced deportations to Somalia—about half a dozen over the past few years. The political situation in Somalia gives cause for optimism for a few weeks and then suddenly everything goes drastically wrong again. As the hon. Member for Rochdale said, people who are highly skilled and can make a real contribution are, at the moment, making no contribution at all and are in limbo. In some cases, they have been in limbo for many years. Will the Minister explain what we should do with people in that situation?

Joan Ryan (Labour, Enfield North)

I take the point that my hon. Friend makes, but those with limited leave may or may not be subjected to employment restrictions. As I said, the clause will not in any way introduce new restrictions. There are people who have limited leave who do have the ability to work.

I believe that the amendment would potentially undermine the effective operation of immigration control. Therefore, I say to the hon. Member for Rochdale that I cannot accept it.

Stewart Jackson (Conservative, Peterborough)

I have a certain amount of sympathy with the Minister because she always gets what could be called the hospital passes in the Home Office and the most difficult briefs. I would like to think that she is among friends this afternoon, although not necessarily in the Chamber—as they say, “kind words butter no parsnips”. Obviously, she has comprehensively answered the point made by the hon. Member for Rochdale and has made the point about asylum seekers and unaccompanied children. I would like to press her on the issue of foreign national prisoners with limited leave to remain. What is her understanding of the ability of that group of people to access benefits? I am not clear about what their situation is in terms of benefits.

Joan Ryan (Labour, Enfield North)

The hon. Gentleman raises an important point and I see that the hon. Members for Reigate and for Ashford are smiling. There is a possibility that those with limited leave can access benefits, but, as I said to the hon. Member for Rochdale, that is a matter for the Department for Work and Pensions and has no proper place in the Bill. I hope that I have adequately explained my reasons for not accepting the amendment and that he will withdraw it.

John Hemming (Liberal Democrat, Birmingham, Yardley)

Unsurprisingly, I suppose, I rise to support the amendment. A difficulty raised by the Transport and General Workers Union and the trade unions in the evidence sessions is that employers who are in the twilight zone like to stay there. They like to employ undocumented workers who have no right to work because they have no rights and therefore cannot enforce any employment rights. An issue that has been raised and needs to be addressed is the complex situation that exists in terms of immigration and employment law and the lack of a one-to-one relationship between the two. If we are aiming to introduce legislation on the basis of evidence rather than mere assertion, there is a merit in considering that issue in relation to the people who have a right to be here and work. It is clear that some people have a right to be here to study. Then there are the people about whom we are not quite sure; and then there are the people who should not be here, and obviously if they should not be here, they should not have a right to work. We need to consider this evidence-based question: is it really helpful to tell people, when we do not know whether they have a right to be here or not, that they cannot work? Would it be better to say, “No, let’s not have those people as a burden on the state. Let’s not have the taxpayer look after them. Let’s say, if they can look after—”

Damian Green (Conservative, Ashford)

Before the hon. Gentleman moves off the apparently exhaustive list of those who are here, he missed out one group, which relates to the point made by the hon. Member for Bristol, East: people who have no right to be here, but whom the Government cannot remove from this country. They may well not be entitled to benefits and cannot work and are therefore left to destitution or criminality. I am reinforcing the point being made by the hon. Member for Birmingham, Yardley: the situation is even more difficult than he is making out.

John Hemming (Liberal Democrat, Birmingham, Yardley)

I accept that point. If the Government are going to argue the thesis that people whom we know we cannot remove but whose status is uncertain must depend on the state or be destitute, what evidence do the Government have that the proposal would undermine immigration law?

Paul Rowen (Liberal Democrat, Rochdale)

I have listened carefully to the Minister and I understand her point about the drafting of the amendment. However, I believe that important issues are at stake, although perhaps my amendment does not address them properly. The situation of people who perhaps have no permanent right to be here but who cannot be removed is intolerable. I would like us to be able to grant them employment rights, for the very good reason that, as my hon. Friend the Member for Birmingham, Yardley said, they would then be in the open and not in the twilight zone, where they can be exploited.

We have only to consider the case of the cockle pickers up in Morecambe to see what happens when people whose status is not adequately known are used by shadowy employers. There are no proper controls and they end up losing their lives as a result. I want us to have a system that is regulated.

I accept the Minister’s point about the drafting of my amendment and I will seek leave to withdraw it, although I give her notice that when we return to the Bill at a later stage, I would like to have an amendment that addresses those points, because I believe that there is support for such an amendment. I was a little disappointed that the Minister did not make an offer to the effect that the Government would examine that. I give her notice that we want to return to the issue, because we think, certainly given what the TGWU said to us in the evidence session, that the issue is important and needs to be satisfactorily resolved. I beg to ask leave to withdraw the amendment.

Clause 17

Sir David Amess (Conservative, Southend West)

With this we may discuss amendment No. 87, in clause 17, page 9, line 36, leave out paragraph (b).

Damian Green (Conservative, Ashford)

We have no objection to the clause in principle. The aim is to clear up the problem of failed asylum seekers becoming destitute while awaiting their appeal hearings, which is clearly a sensible course of action. My amendment would allow those who have been given permission to appeal out of time to be treated as an asylum seeker, by leaving out paragraph (b). It seeks to add fairness and some degree of justice to the system, because the clause seeks to exclude from the definition of asylum seekers, and therefore from support, those who have permission to appeal out of time.

I am sure that the Minister will treat the amendment as a probing amendment, because I am puzzled as to how it can be the case that the Government can give someone permission to appeal out of time and yet say that, while they are appealing, they are not seeking asylum. On the surface, that seems contradictory; if there is some legal point that lies underneath the surface, I would welcome clarification from the Minister. However, as it stands the clause appears to be slightly contradictory. The state has recognised that the process on the particular individual’s decision is not completely over, although they are clearly, at this stage, on the last knockings of the appeal process. However, as long as they are recognised as being in the appeal process, it seems, on the surface, to be straightforwardly unfair that they should not be recognised as an asylum seeker. As I say, I wait with bated breath for clarification from the Minister as to why that should be, but as it stands the clause seems to be straightforwardly self-contradictory and unfair.

Joan Ryan (Labour, Enfield North)

I thank the hon. Gentleman for tabling his probing amendment. It would perhaps be useful if I were to explain the situation to the Committee for the purposes of clarity and scrutiny.

The hon. Gentleman knows that the clause seeks to maintain the status quo, whereby we can make available asylum support for those individuals who have had an initial decision refused and are awaiting their appeal. Previously, that was always the case, but it has been called into question in the courts and it is currently stayed in the House of Lords while we are seeking to legislate in order to clarify the position.

If we cannot continue to pay asylum support during that period, we would have to consider making available support under section 4 of the Immigration and Asylum Act 1999, which is accommodation and a voucher method of payment. It has never been our intention that we should move towards that situation while someone is still in the process of an asylum application. That support is aimed at those who have exhausted all means of appeal in the asylum process, but are not able to be removed at that point in time. Clearly, we would not wish for those individuals to be destitute and therefore there is the provision of support under section 4 of the 1999 Act. That support should not apply to people who are between the point of initial application and appeal.

The reason that the amendment is worded as it is, and also with reference to Government amendment No. 109—a technical amendment—is related to the fact that we do not only provide support under section 95 of the 1999 Act. It is also in relation to those who would be covered by schedule 3 of the Nationality, Immigration and Asylum Act 2002, which does not only cover asylum applicants.

Our problem, and the reason for the wording, is that those who are refused at the initial decision have a grace period within which to apply for appeal. That grace period is 10 working days, and if they put their appeal in within that period there is not an issue. We wish to ensure that that applies also to those covered by schedule 3. If it does not, there will be a gap in the system for some who do not put in their appeal. Even if they make an appeal immediately it will take some days to process, so there will still be a gap during which they have no means of support. One can imagine the cost to the system of people having to go through a process of applying for section 4 support for a week before going back on section 95 support. It would be expensive and chaotic and certainly would not provide people with the support that they need on a timely basis.

We need to ensure not only that people apply within the 10 days and that we apply the same 10-day period to schedule 3, under which there is no grace period, but that those awaiting appeal can still be defined as asylum seekers for the purpose of support and that both those receiving section 95 support and those covered by schedule 3 have the grace period of10 working days within which to make their applications. If we were to extend that to out-of-time applications beyond the 10 working days, there could be an indefinite period in which we would be paying asylum support while somebody considered whether to make an application.

Damian Green (Conservative, Ashford)

I am grateful to the Minister not just for giving way but for her explanation of what is, she will agree, a tortuous process. I am still concerned whether those who receive support under one provision or another, or successively under more than one, might fall down any cracks. They may feel that they are legitimately in the system, even if they are not pushing it as she has just described, but find themselves unable to receive support under any of the relevant provisions. If there are people in that situation, are there likely to be many?

Joan Ryan (Labour, Enfield North)

Our clear view is that the clause will cover the situation and that we will not have the problem to which the hon. Gentleman refers. In fact, the clause is about ensuring that such cracks do not exist and that people have appropriate and adequate support.

Government amendment No. 109 would mean that at the end of the process, if an appeal is upheld and it is found that a person should be given refugee status, that person will have a 28-day period in which their asylum support will continue to be paid while they move from the National Asylum Support Service to the usual system and seek accommodation and support by other means. Those whose appeals are not granted will have 21 days in which they will still receive asylum support before they either should make arrangements to leave the country voluntarily or, in some cases, qualify for section 4 support. The clause simply maintains the status quo; it does not seek to achieve anything else. It covers exactly the point that the hon. Gentleman made, and ensures that there are no cracks through which people can fall. It covers the situation for asylum seekers across the board between the initial application, appeal and immediately following appeal.

Damian Green (Conservative, Ashford)

I am happy with the Minister’s explanation, which I think I understand. If it turns out that the clause is defective and there are cracks in the system I will receive letters on the subject, and the Minister will receive even more than I do. We will all know about it quite quickly.

Crispin Blunt (Conservative, Reigate)

On behalf of my hon. Friend the Member for Monmouth, I beg to ask leave to withdraw the amendment.

Sir David Amess (Conservative, Southend West)

With this it will be convenient to discuss new clause 15—Asylum seekers—

‘(1) This section applies for the purposes of—

(a) Part VI (and section 4) of the Immigration and Asylum Act 1999 (c. 33) (support and accommodation for asylum-seekers),

(b) Part 2 of the Nationality, Immigration and Asylum Act 2002 (c. 41) (accommodation centres), and

(c) Schedule 3 to that Act (withholding and withdrawal of support).

(2) In section 94(1) of the Immigration and Asylum Act 1999 (c. 33) (Interpretation of Part IV) and paragraph 17(1) of Schedule 3 to the Nationality, Immigration and Asylum Act 2002 (c. 41) (Withholding and withdrawal of support), for the definition of “asylum-seeker” substitute—

“asylum-seeker” means a person—

(a) who is at least 18 years old;

(b) who has made a claim for asylum at a place designated by the Secretary of State;

(c) whose claim has been recorded by the Secretary of State;

(d) who remains in the United Kingdom following the making of a claim for asylum; and

(e) who is subject to immigration control but does not currently have leave to enter or remain.”.

(3) The following provisions are hereby repealed—

(a) sections 4(2), (3) and (4) and 94(3), (4), (5), (6), (8) and (9) of the Immigration and Asylum Act 1999 (c. 33);

(b) paragraphs 6, 7A and 17(2) and (3) of Schedule 3 to the Nationality, Immigration and Asylum Act 2002 (c. 41); and

(c) section 9 of the Asylum and Immigration (Treatment of Claimants, etc.) Act 2004 (c. 19).

(4) Omit paragraph 4(1)(e) of the National Health Service (Charges to Overseas Visitors) (Amendments) Regulations 2004, No. 614.’.

Paul Rowen (Liberal Democrat, Rochdale)

My proposal deals with the issue of failed asylum seekers, which the Minister touched on earlier. It is important to understand that at present when someone has gone through all the stages, section 95 support ceases, the National Asylum Support Service sends them a letter, they are given notice to quit and then they are effectively left destitute.

I would have no problem if the IND were able to cope with the number of asylum seekers and made provision for them to be removed from this country once their claims had been dealt with. However, the written evidence from the Still Human Still Here group shows that there are about 285,000 failed asylum seekers still in this country who do not receive any support from the Government, and if the present rate continues—we remove one asylum seeker every26 minutes—it will take 14 years to remove them.

We all know of people whose asylum claim has failed, and many of them are hugely tragic cases. There are people in my constituency from Somalia, the Congo, Iraq, Iran and Zimbabwe whose asylum claim has not been successful, for various reasons. Support is withdrawn and the Government use destitution to try to deal with them.

Stewart Jackson (Conservative, Peterborough)

I have some sympathy with what the hon. Gentleman is saying; I, too, encounter such cases in my constituency. If I am being cynical, I sometimes think that the decision to remove people goes in political cycles. A year or so ago, a huge number of Iraqi asylum seekers, some of whom had not even exhausted the appeals procedure, were removed to the St. Ives holding centre in Cambridgeshire and invited to choose their in-flight meal for the journey back to Baghdad without recourse to the system. However, some people have exhausted a very comprehensive legal system. Surely, the hon. Gentleman realises that if they refuse to leave, having exhausted the system at great cost to the Exchequer and to the taxpayer, they are in fact undermining the validity of the system for more deserving cases?

Paul Rowen (Liberal Democrat, Rochdale)

The hon. Gentleman makes a fair point about the extent to which people might have been involved in the system but, with respect, that is part of the problem. As such people have been here for so long, rather than ensure a speedy removal, the Government resort to the quite inhuman tactic of trying to get people removed by forcing them into destitution.

If such people were arrested by an immigration officer and steps were taken to remove them speedily, the argument might have some validity. In my surgery, I have told people bluntly that they have exhausted the system and have no right to remain in the country. That might well be upsetting and worrying for those people, but unfortunately I am only one Member of Parliament and cannot change the law for particular cases, so I have told them that they should be removed. That would be fine if they were speedily removed from the system when a decision is taken.

Generally, this country has high international standards in how we treat people, and a reputation for and record of sympathy to asylum seekers. I object because the tactic—it must be nothing other than that—of using destitution as a means to try and force people back—

Chris Mole (Labour, Ipswich)

I am following with some interest the points that the hon. Gentleman is making, but given that a fair and due process has been pursued, does he not accept that there is ultimately an onus on the individuals to remove themselves as much as on the state to discharge the functions that he describes?

Paul Rowen (Liberal Democrat, Rochdale)

I accept some of what the hon. Gentleman says, and people in my surgery have actually said that they must do that. Equally, two wrongs do not make a right and the state has certain duties and responsibilities in how we treat people. Resorting to forcing people underground and having them sleep rough on the streets, rely on charities, forage through bins or whatever to survive is not an acceptable way to proceed in this day and age.

There are 283,500 asylum seekers whose cases have all been lost with no right of appeal. Given that fact and the IND’s current rate of removal, we need to be doing something on that issue. I cannot believe that the proposed approach would be possible, but it might be acceptable if the Government were to start sorting those cases out right away. What is not acceptable at the moment is using destitution as a technique. In our fair, just and civilised society we should not be practising it.

Kerry McCarthy (Labour, Bristol East)

I want to make a few quick points. I accept the argument that if people have exhausted all avenues of appeal, there is perhaps a pull factor if life is made too comfortable for them here. There have to be some measures that encourage them to return voluntarily. The other day, I met the International Organisation for Migration, which seems to be doing some good work in providing people with resettlement packages in their home countries. I return to the point that I made when we debated the previous clause, about people who have exhausted all avenues of appeal but who come from countries such as Somalia, to which it is difficult for them to return at the moment. We are doing neither forced repatriations there nor voluntary ones, which are also difficult.

I am concerned that the Minister has made several references to people in such situations being entitled to section 4 support, but there seems to be a very low take-up of such support. In response to a question I asked recently, I was told, I think, that the figure was 250 people in the entire south-west region; it may have been 270. That includes not only Bristol, but places such as Plymouth, Swindon and Gloucester, so the number must be a tiny percentage of failed asylum seekers not receiving any support. Why does the Minister think that take-up is so low and what does she think is happening to people who are not getting section 4 support? The answer must be that they have either gone underground and are relying on the charity of friends or family, or have resorted to criminal activity because they have no other alternative.

What analysis has the Home Office done of the idea that destitution encourages people to return voluntarily? I have written to the Minister recently about the work of the Hotham Mission in Australia, which has been taking the opposite approach in assigning caseworkers to work with asylum seekers. Its evidence seems to be that following such heavy intervention, more than 85 per cent. of all asylum seekers who have been refused places leave the country voluntarily on the final decision. The Minister and I are in correspondence about this matter at the moment, but the argument of those involved would be that with such intervention—providing some support and working with families—asylum seekers are much more likely to return home than go underground and escape the system altogether.

Finally, where are we with the section 9 pilot schemes that have been running and in providing support to children rather than families as a whole? I understand that the Department is due to report on the outcome of those pilots soon. It would be interesting to know when the results will be published.

Damian Green (Conservative, Ashford)

New clause 15 gives rise to a deep and important debate on a clash of principles, each of which is entirely reasonable. The first is that one should not use destitution as a tool of public policy. All of us would clearly agree with that. The second is we should not have a system that will create more demand for asylum at a time when we know that the vast majority of asylum claims are not true ones. Anything increasing that demand would itself have bad effects not only in terms of the system clogging up again, but in encouraging evil people such as human traffickers to try to use the asylum system. I recognise the good intentions behind new clause 15, but it is a counsel of despair, because it says that we need to change the law in response to what is an administrative failure. That failure, as the hon. Member for Rochdale rightly pointed out, is the sheer length of time it still takes to get through the system.

In answer to one of the previous debates, the Minister said the Government are doing better than they used to do with the speed of getting applications through from beginning to end. That may be true. In the aggregate, she will know well that in certain individual cases it is definitely not so, in some cases to an horrendous extent. I suspect that we have all encountered in our constituencies people who have been waiting four, five or six years and longer and who seem to have disappeared off the radar as far as the Department is concerned.

Nevertheless, there are only two big competing moral principles. One is to say that the process will always be chaotic and that it will always take so long that people will be forced into destitution, perhaps for long periods. Destitution in this case normally means relying on the charity of good people and good institutions around the country. I am sure we have all met such people. I had a particularly eye-opening day in Leeds with some of the organisations there. I met some people who felt that they had been lost by the system and who wanted work. Some of them, who came from Somalia—this was recognised by the hon. Member for Bristol, East—said that they could not go back home. They wanted to work but were not allowed to; they could not receive benefits, so they were living off charity and doing voluntary work.

Clearly, that situation is unsatisfactory, but the solution is not to pass laws accepting it as a permanent feature. The solution is administrative, not legislative; it means getting down the amount of time involved in getting from the beginning of the process to the end, not just on average but for everyone. I accept that that is not going to happen overnight. As the situation has built up over time to be as catastrophic as it has been in recent years, it will take the current Home Office Ministers some time to make an impact, helped as they are—fortuitously—by the worldwide and particularly Europe-wide reduction in the number of potential refugees. We all know that the peak came in the early years of this century, when the Balkans were in such a terrible state. The end of that Balkans situation has had many good effects, one of which is that far fewer people are seeking asylum across borders inside western Europe.

Nevertheless, however bad the situation is now—and it is bad—I do not think that new clause 15 and the thinking that lies behind it are the solution. The solution should be administrative, not legislative. For once during our consideration of the Bill, I must part company with the hon. Member for Rochdale.

John Hemming (Liberal Democrat, Birmingham, Yardley)

The hon. Member for Bristol, East said that we need to think again. She referred to evidence from Australia. We should be looking for evidence on the most effective way of handling the asylum process. If people are rejected and have been through all the appeals processes, they clearly have no right to remain in the country and should go. Is it best to say to them, “Disappear, we don’t want to see you” or to keep some track of where they are so that they can eventually be removed through an administrative process? At the moment we have a process that says, “Disappear: go and work in the twilight economy or whatever. Do what you want. We want to pretend that you don’t exist.” Then, with a bit of luck, some few years down the track, somebody from the IND might find where a person is and try to get rid of them, although they will probably just zap across to somewhere else in the country.

We need to start looking at evidence. The experience in Australia is that such an approach is not the best way of achieving the outcome that we wish to see: if somebody has no right to stay here, they are not here. From an administrative point of view, the current approach does not work. The issue raised by new clause 15 needs a little more attention than simply saying “It won’t work.”

Stewart Jackson (Conservative, Peterborough)

Like other hon. Members, I have a great deal of sympathy with the sincerity of the views articulated by the hon. Members for Rochdale and for Birmingham, Yardley. However, I think that the issue is one of principle, which is why Conservative Members cannot support the amendment.

Despite earlier comments such as those of my hon. Friend the Member for Hertsmere about the skills of certain asylum seekers, as I have tried to explain throughout our consideration of the Bill, the problem is simply that we do not have enough reliable data and information on which to base a decision as to whether to support such a proposal. I think that the principle is very important. In the absence of hard evidence, rather than anecdote, we cannot reward criminality, which is effectively what the new clause would do. It would reward people who may well be seriously involved in criminal activity such as drug dealing, people trafficking and so on. There has to be a finality in the system. We pride ourselves on the fact that we have a fair, transparent, robust and humane system that people are obliged to go through when they seek asylum—when they are in fear for their lives or in fear of torture.

We have all had such cases. I had a case last year, where a man who was born a Muslim and who had converted to Christianity was being returned to Pakistan. That was a heart-rending decision for many people involved. I felt desperately sorry for him. He had exhausted every avenue and, despite the comments and support of the churches in my constituency, he went back. I prayed that he was safe and able to continue in safety.

These are difficult decisions. However, by agreeing this amendment we would entrench a hard core of people who have exhausted our system at great cost to the taxpayer.

John Hemming (Liberal Democrat, Birmingham, Yardley)

I have a question of principle for the hon. Gentleman. If he were shown, from the Australian experience, that such a measure would make it easier for the IND to remove people who have no right to be here, would he support new clause 15?

Stewart Jackson (Conservative, Peterborough)

The evidence given by the immigration lawyers a couple of weeks ago, during a robust exchange, was that the way to offset this problem was to deport people quickly. I am a fair person. The Government have gone in the right direction, after the calamitous situation in 2002 when we had hundreds of thousands of failed asylum seekers, and they have reduced that number. However, as a point of principle we cannot embed and entrench criminality.

I have no reason to dispute the views expressed by the hon. Member for Bristol, East, although generally the Australian example is a tough one and Australia probably has the toughest immigration laws in the world. I should be interested to see the information that the hon. Member for Birmingham, Yardley mentioned. However, at the moment I support the Government’s resistance to the amendment. There has to be finality in the system and if we do not accept and respect that, we undermine the genuine people who are fleeing from persecution, terror and threats to their life and liberty. No Committee member would want to support that.

Joan Ryan (Labour, Enfield North)

If we agreed to new clause 15, it would replace clause 17 with a different provision. The proposed new clause seeks to end destitution for refused asylum seekers in the UK. I accept and understand the motivation of the hon. Member for Rochdale in relation to that. His proposal is supported by a range of refugee and other organisations. It would also make changes to the health care entitlements of unsuccessful asylum seekers. I shall try to deal with the two matters separately, although I acknowledge that there are strong links between them.

I understand the concerns about asylum support that gave rise to the new clause, as do other Committee members. None of us wish to see people living in destitution. However, the Government cannot support a proposal that would maintain asylum support, potentially indefinitely, for those who have made an asylum claim and had it and any appeal rejected and have chosen not to return voluntarily. In such circumstances, the harsh fact is that people who do not need our protection have chosen to be destitute. Returning home is a clear alternative for them.

Support under section 4 of the 1999 Act is available for those who are taking all reasonable steps to return home, while that return is being arranged. My hon. Friend the Member for Bristol, East asked me about the figures in relation to section 4. The last published figures show that more than 6,500 failed asylum seekers are currently getting section 4 support. That is a not insignificant number. We inform all those whose section 95 support is to be terminated of the availability of section 4 support, but they need to meet the criteria. Those who could make a voluntary return will be supported only if they are taking all reasonable steps to do so. The support is also available where there is some temporary barrier to return.

Those making a voluntary return are also eligible to receive the world-leading reintegration assistance that is provided by the International Organisation for Migration on behalf of the Home Office. Our system of asylum support is fair. It ensures that support is available to asylum seekers who would otherwise be destitute from the moment when they claim asylum in the UK until their claim is determined. It ensures that those who appeal against an immigration decision flowing from the refusal of their asylum claim within the clear statutory limits will continue to be supported during the course of that appeal.

The level of support provided includes adequate accommodation, where requested, and cash to meet essential living needs. It would not be right for UK taxpayers to be asked to fund on a potentially indefinite basis people who are choosing not to return to a home country that has been found to be safe for them to live in.

It might be helpful if I were to give an idea of the sorts of sums that we are talking about. The cost of supporting a single asylum seeker is approximately £106 a week—that takes account of the fact that not all of those who are destitute and seek support require our accommodation—which equates to £5,500 a year. Supporting even an extra 1,000 unsuccessful asylum seekers on that basis would cost an additional£5.5 million per annum; the cost would be an additional £55 million for every 10,000 or so people supported.

That money could be used to fund a variety of other important Government initiatives. Instead, the new clause proposes that we use that money to provide support to people who have been unsuccessful in their asylum claim and who are unwilling to make a voluntary return home. We have a long and proud tradition of granting asylum and humanitarian protection to those who are fleeing persecution and torture. Unquestionably the tradition must be maintained, but the Government believe that, in doing so, it is also our job to preserve the integrity of the asylum system. It is vital that the system does not appear to be the subject of abuse. This is not about meeting a target for the sake of it; it is about doing the right thing, which is working towards the departure from the UK of those who have no right to be here.

We are always looking to improve our processes. That includes doubling our enforcement and compliance resource and expanding our activity by 2009-10. As my hon. Friend the Member for Bristol, East said, we are in correspondence about measures in Australia. We are, rightly, always interested to learn about how things are managed in other countries and about the success of such measures. We are also always willing to learn from them.

Our new asylum arrangements for total case ownership will mean that one named officer will be responsible for the case from the point of claim through to the point of integration or removal. The case owner will be responsible for all aspects of the claim— asylum decision, support, appeal and removal. That does not mean that it would simply be appropriate to provide ongoing asylum support in all cases until removal is achieved. We have clear targets for the case owners dealing with asylum claims that focus on the conclusion of the case, rather than simply on making a decision or on getting a case through the appeals process. Those measures touch on the administrative measures that the hon. Member for Ashford has talked about and demonstrate why we have achieved considerable improvements in the system. Our commitment is to grant asylum to or remove 90 per cent. of new asylum seekers within six months by the end of 2011, having ramped up performance in the preceding years.

That is all part of our work to preserve the integrity of the asylum system. The new clause would certainly not help us to achieve that aim. Furthermore, it might have a damaging effect, given that it would provide a significant pull factor for asylum seekers who come from beyond the European Union and those who enter it illegally and work their way up to the northern states. If a person could make an asylum claim and be supported indefinitely on the basis that they managed to enter this country, that could have a significant impact beyond our borders. We could not contemplate supporting that.

Paul Rowen (Liberal Democrat, Rochdale)

I have been carefully following the Minister’s argument. I thank her for giving way, but cannot let her remark about indefinite support go by. We are clear that it would be support until the person was removed. In our view, the issue is about dealing with the administrative stuff as well as the other issues, not about indefinite support. That is an important principle.

Joan Ryan (Labour, Enfield North)

I accept that the hon. Gentleman does not view the process as never ending. However, support until removal would make a significant change to asylum policy, would have a significant financial impact and would still be a significant pull factor, as point of removal is not determined. The difficulty that I have outlined certainly still applies.

We have talked about some of the solutions—the administrative solutions and the strengthening of our borders. Another key point to bear in mind is how we work in the European Union with our partners; that is also helping us to reduce the number of illegal entrants and, therefore, asylum seekers.

I do not think that it is simply a matter of there being less pressure; circumstances around the world change, but colleagues from Spain and Italy talk about the pressure and illegal immigration problems that they are experiencing on the southern maritime border. We are working with them in Frontex, the European Union border agency, to try to deal with such asylum seeking—not least because large numbers of people at sea in boats are at terrible risk, and some lose their lives. That kind of co-operation is also extremely important.

Across the piece, we have taken clear and determined action to deal with illegal entry and the level of unfounded asylum seeker application. The hon. Member for Rochdale will know that applications are at their lowest level since the early to mid-1990s. Those measures are having an impact and are the ones that we need to pursue to continue to deal with the situation.

I turn to health care, which is an important part of the hon. Gentleman’s new clause. The new clause would change the current entitlement to health care for those who have been unsuccessful in their asylum claims. As announced in our recently published enforcement strategy, we intend to shut down inappropriate access to services—those that are privileges intended for those in the UK legitimately. At its simplest, that is an issue of fairness.

On health care, we will review the rules governing access to the national health service for foreign nationals. We will work with the NHS to ensure that the implementation of the new rules flowing from the review is accompanied by a programme of communication and good practice.

Stewart Jackson (Conservative, Peterborough)

On a very specific point, I wonder how the Minister will collect that information. On several occasions, I have tabled parliamentary question to the Department of Health and other Departments about access by foreign nationals to health services, but I have been told that that information is not collected centrally. How will the Home Office collect that information?

Joan Ryan (Labour, Enfield North)

We will work with the NHS to ensure that the implementation of the new rules flowing from the review is accompanied by a programme of communication and good practice for those who apply the rules, including practice staff, general practitioners and trusts. Clearly, working closely with primary care and hospital trusts will be important. However, despite difficulties, it is important that we tackle that issue.

Given the review, I say to the hon. Member for Rochdale that it would be inappropriate to make changes at the moment. The basic humanitarian needs of failed asylum seekers for health care are met already. They receive free treatment in accident and emergency departments and for many infectious diseases such as tuberculosis. For other life-threatening conditions, and in order to prevent any conditions from becoming life-threatening, they will receive appropriate treatment regardless of their ability to pay. Treatment will not be withheld or delayed. Charging issues will be sorted out subsequently, and trusts have the discretion to write off debts if it would not be reasonable or cost-effective to pursue them.

In conclusion, although I understand the motivation behind the hon. Gentleman’s new clause, we cannot agree to the measure for supporting failed asylum seekers. It would be a dangerous measure that would drive a coach and horses through our policy and desire to deal with the issue using other means that are showing results and must be pursued. As I said, I think that we should await the outcome of the review.

Paul Rowen (Liberal Democrat, Rochdale)

I listened very carefully to the Minister and in particular to her last point about the provision of health care. Nevertheless, we believe that a clear principle is at stake here. The remarks of the hon. Member for Bristol, East are pertinent to the argument. Failed asylum seekers might face a choice between homelessness and destitution, and going back home to face uncertain circumstances that might be life-threatening. In my experience, getting them to agree to go home voluntarily is difficult. I dealt with a case last year in which we persuaded someone to go back to south America—not directly, but via another country, because they were concerned about arriving at the main airport and then being arrested by the police of that country. Through support from the organisations that the Minister mentioned, we managed to get an agreement for the family to return by a circuitous route. That illustrates the point that the hon. Member for Bristol, East, made: one can enable that outcome if one gives appropriate support.

The new clause makes it clear that we are not seeking an open-ended commitment; we want support to be provided until removal. That allows time for the administrative process to sort out the matter. At the moment, there is no incentive for the IND to sort out the process for the huge numbers that will remain in the country, even under the new policy. New proposals are needed, along the lines described by the hon. Member for Bristol, East, to provide that support. I am pleased that more people are using the process, but 5,500 or 5,600 is a small proportion of failed asylum seekers. On that note, I give notice that at the appropriate time, we will want to press an amendment regarding the new clause.

Sir David Amess (Conservative, Southend West)

I should advise the hon. Gentleman that if the Committee agrees that clause 17 should stand part of the Bill, I cannot allow a separate Division on proposed new clause 15, because clause 17 and proposed new clause 15 are alternatives. If one stands, the other falls; if he wishes to vote, he can vote on clause 17 stand part.

Clause 18

Paul Rowen (Liberal Democrat, Rochdale)

I beg to move amendment No. 131, in clause 18, page 10, leave out lines 2 to 5.

Sir David Amess (Conservative, Southend West)

With this it will be convenient to discuss the following amendments: No. 88, in clause 18, page 10, line 3, after ‘officer’, insert

‘designated under section 1 of the UK Borders Act 2007’.

No. 89, in clause 18, page 10, line 3, after ‘the’, insert ‘designated’.

No. 91, in clause 20, page 11, line 15, after ‘officer’, insert

‘designated under section 1 of the UK Borders Act 2007’.

No. 93, in clause 20, page 11, leave out lines 30 to 34 and insert—

‘(f) the designated immigration officer shall deliver the seized cash to a constable within 48 hours of its seizure. The constable shall then treat this as cash seized by himself under section 294 of the Proceeds of Crime Act 2002 (c. 29),’.

No. 133, in clause 20, page 11, line 39, at end insert—

‘(2A) The Secretary of State shall make regulations to make provision about the qualification, training and complaints procedure for a designated immigration officer involved in the seizure of cash.

(2B) The regulations made under subsection (2A) shall be subject to a resolution of both Houses of Parliament.’.

Paul Rowen (Liberal Democrat, Rochdale)

We are now moving on to enforcement procedures. The two amendments that stand in my name seek to deal with those measures, in the first case by ensuring that any officer who attempts to make an enforcement has a proper warrant. This is part of the probing process; I want to establish from the Minister the process by which the provisions will operate. Secondly, I seek to ensure that the officer is properly designated, as we discussed earlier.

The provisions are important. Exercising those powers without the benefit of a warrant would set a dangerous precedent. I want the Minister to explain the purpose of the provision, and I want to ensure that the people involved are properly designated.

Damian Green (Conservative, Ashford)

The amendments standing in my name fall into two categories. Amendments Nos. 88, 89 and 91 are all similar in intent to the amendments tabled by the hon. Member for Rochdale, because amendment No. 88 would require the arresting immigration officer in part 6 of the 1999 Act to be a designated officer under the terms of the Bill. Amendment No. 99 is consequential on that amendment. In relation to immigration officers being able to seize cash, amendment No. 91 would insert “designated” into part 5 of the Proceeds of CrimeAct 2002.

As we have just heard, the amendments take us back to different clauses and earlier arguments about the extension of powers to immigration officers. In particular, they refer to the adequacy of training in what we all acknowledge is a difficult job, the officers’ suitability for the job, and underlying all that, the required level of public confidence in the system. Like the hon. Gentleman, I shall be interested to hear the Minister’s views on whether it would be more suitable to give those enforcement powers to highly empowered designated officers.

Amendment No. 93 addresses a different problem about the cash that can be seized under the clause. The amendment says that

“the designated immigration officer shall deliver the seized cash to a constable within 48 hours of its seizure.”

It would also enable the constable to whom the cash was delivered to treat it as cash seized by him under the Proceeds of Crime Act 2002. In practical terms, it would require an immediate handover of cash from the immigration officer to the police, and its effect would simply be to save taxpayers money.

The police must quite rightly go through tightly drawn and rigorous procedures when handling cash that they have seized during the course of their work. Given those procedures, the expertise of the police and the amount of cash that passes through their hands, few problems arise from such administration, for which we should be thankful. Amendment No. 93 would allow the police to continue the difficult and sensitive work that they do well and in which they are experienced, and the Government would not have to set up a parallel system for immigration officers.

Damian Green (Conservative, Ashford)

As I was saying, the job of handling seized cash is done perfectly competently by the police already and amendment No. 93 seeks to prevent the necessity of setting up a parallel system for immigration officers for two reasons. First, as has been observed, any change is difficult for the Home Office. Secondly, because of the bureaucracy that is inevitably and rightly involved in such a sensitive area of operations, for which proper checks and systems are absolutely vital, it would be expensive and unnecessary to set up a parallel set of checks. I commend amendment No. 93 to the Under-Secretary, as well as the previous amendments about using only designated immigration officers to exercise the new powers.

Joan Ryan (Labour, Enfield North)

Clause 18 will amend the Immigration and Asylum Act 1999 to give an

“immigration officer the power to arrest without warrant a person whom”

he or she

“reasonably suspects has committed an offence undersection 105 or 106”,

which are about seeking to obtain asylum support by making false or dishonest representations. The clause will also ensure that the same powers that allow an immigration officer to enter premises to arrest or search and seize relevant evidence will apply to that type of offence. Giving immigration officers a power of arrest for those offences will enable them to pursue independent operations against asylum support fraud, which is as the Government intend. The measure is an essential part of the immigration and nationality directorate’s deterrence policy against what are, as everyone will agree, serious offences, which can involve a significant amount of money. Immigration officers have held powers of arrest, entry, search and seizure for a number of criminal offences since the introduction of the Immigration and Asylum Act 1999. The powers came into effect on 14 February 2000 so, rather than giving new powers, the clause applies existing powers to offences under sections 105 and 106 of the 1999 Act.

I would like, however, to reassure the hon. Gentleman about the exercise of this power. As I said, it is comparable to existing powers of arrest that are exercised without warrant. For example, officers have the power to arrest for fraud under section 14 of the Asylum and Immigration (Treatment of Claimants, etc.) Act 2004. It is right that an officer can arrest without warrant, because that is a serious offence and in certain circumstances officers need to be able to act quickly.

Only immigration officers who have the appropriate training will be able to exercise the power of arrest. That is a point of concern to Opposition Members, and I wish to reassure them about the level of training that officers receive. It is provided by Centrex, a non-departmental government body that works with the police. That training is therefore undertaken on the advice of the police and with their involvement. I am satisfied that it is appropriate. It consists of a three-week arrest course and equips an officer to search premises and persons and arrest individuals in accordance with the Police and Criminal EvidenceAct 1984. It covers a conflict resolution model and safety training, which must be refreshed annually.

The training presents greater difficulties than hon. Members are perhaps aware of when they suggest that immigration officers are not able to act independently. They are given appropriate powers, training and oversight. Some of the issues that we are discussing are not operational priorities for the police, and the Association of Chief Police Officers is not concerned about the powers being given to immigration officers because there is appropriate training and oversight. It is not as straightforward as it might sound to effect an arrest, seize evidence in order to effect a prosecution and ensure that that evidence is handed over rather than retained by finding the appropriate constable. It might sound straightforward but it can in fact be problematic.

If immigration officers have the appropriate training and the police think the powers being given to them are appropriate—they are not new powers; they are just being applied to the offence in question and the seizure of evidence related to it—we should agree to the clause and ensure that our immigration officers can work effectively against relevant fraud.

As I have said, immigration officers already have fairly extensive powers of arrest for fraud, illegal employer activity, illegal working, facilitation, failure to report, deception, illegal entry and other offences. That is just a sample. About 40 per cent. of enforcement officers are now arrest trained, and a much smaller percentage of immigration officers at the borders have such training. By 2008, we expect all officers to be arrest trained. If not everybody in a team is arrest trained, there must be police support in the team. If all its members have received arrest training, it can operate independently of the police.

Damian Green (Conservative, Ashford)

This is a fascinating practical point. As the Under-Secretary said, there are currently two tiers: those who are arrest trained and those who are not. How much extra training will the arrest trained immigration officers need to become designated immigration officers?

Joan Ryan (Labour, Enfield North)

The hon. Gentleman refers to designated immigration officers. That might be where there is a problem in the drafting of his amendment. I am not clear whether it is unintended or not. It says

“‘designated under section 1 of the UK Borders Act 2007.’”

If his amendments applied, the only immigration officers who could have these powers would be those who are designated to detain at port. Whereas the immigration officers that we are talking about, and the powers we wish them to be able to use in relation to asylum support fraud, are not necessarily at port at all. According to the Government, the designation is that they will be designated as arrest trained.

Those exercising the power of seizing evidence would also undergo training with the Assets Recovery Agency. We need to be cautious about not confusing the use of the term “designation.” Those officers will be arrest trained in the manner that I have just explained as they are to exercise exactly these powers in relation to the other offences that I outlined. However, according to these amendments, and as we have discussed previously, only those officers

“‘designated under section 1 of the UK Borders Act 2007’”

could carry out this power of arrest, which are those designated to detain at port. That would not make sense.

Damian Green (Conservative, Ashford)

We could argue that point. However, is the Under-Secretary saying, in response to my original intervention, that the designated officers can just be designated and that if they are already arrest trained, they do need any extra training to become designated officers at port?

Joan Ryan (Labour, Enfield North)

No, I am not referring to designated officers at port with the ability to detain. The provision refers to teams of immigration officers who carry out enforcement activities, not necessarily at a port at all and who are able to arrest in relation to an immigration offence.

In terms of officers designated at port, the purpose of that designation—as I understand it—is that they can detain individuals for up to three hours who are not necessarily being detained in relation to an immigration offence and who may be a British citizen. That is somewhat different. If the hon. Gentleman is asking about the training for officers at ports who are exercising the powers that he refers to under clauses 1 to 4, I would have to undertake to write to him. That is not the same as the powers being discussed in this clause nor would these immigration officers receive the same training.

John Hemming (Liberal Democrat, Birmingham, Yardley)

It shows an element of confusion in the drafting of the Bill that a person needs to be designated for the purpose of clause 2, but not for the purpose of arresting. There is no statutory distinction. Each of those are functions for which one is trained. One presumes that one is a superset of the other; that designation is a superset of arrest. However, one would expect some clarity from the Government on that.

Joan Ryan (Labour, Enfield North)

I do not think that there is any confusion in the drafting of the Bill. It is meant to be read clause by clause and section by section, and if that is done, it is not in the least confusing.

Designation at port relates to the power of an immigration officer to detain an individual at port—not necessarily in relation to an immigration offence and not necessarily a foreign national. That is the significant difference between the powers of immigration officers and the powers of the police in relation to the issue that we are discussing. The offences relate to immigration matters, not to anything else. The only situation in which the powers might be applicable to a British citizen is when somebody somehow facilitates fraud relating to asylum seeker support. There is a significant difference in the powers and they do not overlap in the way that the hon. Gentleman was concerned about.

Limiting cash seizure powers to officers designated under regulations would restrict the application and use of the powers. In particular, amendment No. 91 would limit the exercise of the power to designated immigration officers at ports in England, Wales and Northern Ireland. In effect, unless someone was at a port, the amendment would make it impossible to seize the evidence relating to the offence.

Damian Green (Conservative, Ashford)

The Under-Secretary has either just confused me or illuminated an extraordinary point about the first part of the Bill. I assume that once someone has been designated an immigration officer at a port, they do not stop being designated just because they are not working at a port. Presumably, it is not true to say that a designated officer will never be away from the port when they could still possibly be making arrests and seizures of cash.

Joan Ryan (Labour, Enfield North)

The officers to whom I am referring are not designated officers at port; they are immigration officers who have been specially trained in arrest procedures. That is not necessarily the same as being a designated officer at port. A designated officer at port may well have had arrest training, but an arrest trained immigration officer operating outside the port is not necessarily a designated officer at port. Designation as a term does not apply outside the port, as outlined by clauses 1 to 4, which the Committee discussed earlier.

John Hemming (Liberal Democrat, Birmingham, Yardley)

The question being asked is why we have a statutory designation for someone who is trained for one function and not for someone who is trained for another function with which I argue that there is substantial overlap.

Joan Ryan (Labour, Enfield North)

The hon. Gentleman will know that we are significantly increasing enforcement activity and that is why, across the board, we want all our enforcement officers to be arrest trained so that that they can undertake specified activities and the required level of enforcement.

There are a number of safeguards in relation to the powers that will give some reassurance to the hon. Members. For example, subject to regulation made under section 4 of the Police and Justice Act 2006, the powers will be subject to regulation and scrutiny by the Independent Police Complaints Commission. That is a strength. The Immigration (PACE Codes of Practice) Direction 2000 will also apply to the use of the powers. A strong safeguard and scrutiny process is therefore in place. As I said, only officers who have had the appropriate training will be able to exercise the powers, and safeguards will be employed to ensure that they are used correctly. The powers will enable us to continue to ramp up our enforcement activity, ensure that it is effective and meet our commitment to deal with fraud of this kind. That probably covers all the points that I wish to make.

As I said, it is important to bear in mind that we are not giving new powers to immigration officers, but simply applying them to a different set of offences. The powers have operated well and without problems since 2000, which means that we should be confident to move forward and allow immigration officers to use the same powers in relation to this offence.

Paul Rowen (Liberal Democrat, Rochdale)

I am grateful for the Minister’s explanation of the operation of the clause. Our initial concern was whether it enhances the powers of immigration officers without ensuring that the relevant training and support is in place, and I am pleased that she has reassured us that the training already takes place. We are merely seeking to extend the use of trained officers in this area.

I agree with the hon. Member for Ashford that there is a little confusion about designation. I understand the point about clauses 1 to 4, but what safeguards are there to ensure that any immigration officer involved in a seizure, arrest or search has gone through the required training? I thought that the point of the term “designated” in clauses 1 to 4 was to ensure that those safeguards were in place, and I think a similar provision would have been pertinent in this clause, albeit for a different reason. However, I am happy to accept the Minister’s assurances. I beg to ask leave to withdraw the amendment.

Clause 19

Paul Rowen (Liberal Democrat, Rochdale)

I beg to move amendment No. 136, in clause 19, page 10, leave out from line 23 to line 11 on page 11 and insert—

‘(5) The Secretary of State shall lay before each House of Parliament regulations setting out exceptions that may be considered on appeal.

(6) Regulations shall only be laid under subsection (5) after full consultation with all interested bodies.’.

Sir David Amess (Conservative, Southend West)

With this it will be convenient to discuss amendment No. 132, in clause 19, page 10, line 38, at end insert—

‘(d) there is clear evidence that the applicant was unclear about the conditions required; and

(e) a failure to consider new evidence would be in clear breach of natural justice.’.

Paul Rowen (Liberal Democrat, Rochdale)

We now move to the points-based application, a different aspect of the immigration process and a relatively new section of immigration law that is not yet fully operational. I understand the reasons for having a points-based application, which will clarify matters for people who submit an application to come to this country. They will know from the operation of the points system whether their application will be successful.

However, I am concerned that because the proposal is so new it virtually excludes any exceptions, except in one very narrow sense. As members of the Committee are aware, however tightly something is set up in law something or someone will always find a way around it. Rather than the proposals setting out that there will be no new appeals and a very narrow basis on which an exception might be allowed, in tabling amendment No. 136, I am seeking to ensure that the Secretary of State reflects on how the clause might operate, and then, having consulted and discussed it with relevant bodies, comes forward with what the allowable exceptions might be.

When dealing with a new system that is not yet in operation, it is good practice before shutting the door to consider what sort of exceptions might be allowable. If we do not do so, the end result may be that new case law drives a coach and horses through what the Government intend. In that case, we might need another immigration Bill because of not dealing properly with earlier measures. A later clause on the sale of assets comes readily to mind; in previous immigration legislation, the Government allowed themselves the power to seize assets but not to dispose of them. That is being dealt with in the Bill, but there could nevertheless be exceptions.

Amendment No. 132 is slightly different. In my experience of dealing with applications to enter the country it can happen, for genuine reasons, that the applicant is unclear about the operation of the system and does not provide the necessary evidence in a form that allows the officer to make a decision. I readily admit that even though a case may have been formally determined, once one asks an officer to reconsider it, especially if it is at a port, he will do so if one can demonstrate that the applicant has not presented all the required information. The problem is sometimes that the many people who make money offering advice about completing the forms are the least able to advise properly; they take lots of money from people and then give them poor advice.

Amendment No. 132 would allow natural justice to apply if there was evidence that what was needed had not been explained properly or not fully made clear. Another example comes to mind. The Department for Education and Skills keeps a list of what might be deemed allowable UK courses for those coming into the country to study who have qualifications from their own country. I have come across cases in which the course for which the applicant is qualified is not on the Department’s list, but once one engages in conversation with the Department, it concedes and accepts that the course is allowable.

I accept that that may well come under the narrow point about exceptions in clause 19, but amendment No. 132 would allow a little leeway so that people can demonstrate in a positive way that they meet the criteria. I do not want them to be admitted if they do not meet the criteria. I merely want to ensure that when people submit applications, they are given every opportunity to put forward their best case. Otherwise, as usually happens, they will be forced to make another application, and if the increases in costs go through it will be a considerable burden to those seeking to come here to study.

I hope that the Minister will take the amendments in the spirit in which they were intended. I seek to ensure that the new system is allowed to operate properly before being overtaken by events.

Joan Ryan (Labour, Enfield North)

As the hon. Gentleman said, the Bill is intended to make much clearer the points-based system by which people can apply for extended leave to remain or the right to come here to work or study. I understand his points about clarity, but perhaps I can offer him some reassurance.

The hon. Gentleman’s amendment would extend the circumstances under which a tribunal would be prohibited from considering new evidence, although that might simply be a problem with the wording—I accept that it is a probing amendment. I think that his intention was to allow the tribunal to consider evidence that was not submitted with the original application if the applicant was

“unclear about the conditions required”

and if the

“failure to consider new evidence would be in clear breach of natural justice.”

Why is that problematic? Because it would make the evidential rules in points-based system cases very vague. The key consideration would be what the applicant knew, so different rules of evidence would apply to different applicants. That approach could be seen to reward applicants who could show that they did not know what the rules required, while penalising those who took care when making their applications. Any applicant who did not supply evidence on time could claim that he was unclear about the requirements. That would present a difficulty with the whole aim of the system. People could take a chance on the judge believing them and letting them submit further evidence with their appeals. We are trying to ensure that appeals are not simply an extension of the application process, but the intention behind the hon. Gentleman’s amendment means that late evidence could still be submitted at appeal.

Under the system, the majority of people will apply online. We will stipulate what evidence is required so that it is clear and there can be no misunderstanding as to what is needed. If an applicant is unable to provide a piece of evidence, in exceptional circumstances, we will give advice as to what evidence can be submitted instead. That should not present a problem with late evidence. With online applications, there will be tick boxes and if applicants cannot tick them to say that they can submit what they need to, they will be told that there is a problem and that they need to submit a certain document. If they are unable to do that, they will be told to take different steps or to make contact. It will be clear what evidence is required, what replacement evidence can be provided when the necessary evidence cannot be produced and what to do if there is still a problem.

Paul Rowen (Liberal Democrat, Rochdale)

I am grateful for the Minister’s explanation, but given what we learned in the papers last week about the operation of a similar system for medical graduates, I am not sure that this system will take account of all the circumstances. I return to the example that I gave about qualifications. When the relevant box is ticked, the system does not necessarily accept the stated qualification. What route would an applicant then take to prove that that qualification was acceptable? If the computer is not satisfied with the application, it will reject it.

Joan Ryan (Labour, Enfield North)

As I have said, it will be clear exactly what is required for each tier. If an applicant still has difficulties it will be possible, ultimately, to make contact, but we want a clearer, more streamlined system. We want to stop the situation in which the appeals process is simply an extension of the application process.

If it is very clear what evidence should be submitted with an application, I do not think that there can be a reason that is acceptable at appeal for an individual to appear suddenly with the evidence that they were asked to submit at application. Of course, that will not stop people having the ability to reapply, as long as they are in time to do so. If they submit an application but do not provide the evidence that is requested and have their application refused, if they are in time they can submit a further application and that application will not be prejudiced by the outcome of the previous application. That is the appropriate measure, as long as it is absolutely clear to the applicant what is being asked of them.

Of course, we want to ensure that there are a number of safeguards and clause 19 already contains a number of safeguards that will ensure that we do not cause an injustice, which covers the hon. Gentleman’s other point.

Where IND case workers believe that a document is not genuine or valid, the applicant will be able to submit evidence to try to rebut that allegation and thus clear their name. In those circumstances, for example, it is possible to submit further evidence. However, where an applicant is trying to demonstrate that they meet the clearly stated requirements, it is not appropriate that further evidence should be given at appeal. Application is about deciding, on the evidence that the applicant has submitted, whether a decision can be made. Appeal is about deciding, on the basis of the evidence that the applicant has submitted, whether an unfair or wrong decision has been made. At the moment, appeal is often used simply to submit evidence that should have been submitted with the initial application and we want to move away from that situation. In order to do so without creating injustice, we want to make it absolutely clear to applicants exactly what evidence they need to submit.

Regarding the point that the hon. Gentleman raised about difficulties with different qualifications, he will be aware that in tier 1, for instance, which is for highly skilled migrants, the only measure is the qualification at degree level. So, it is absolutely clear; if you are a highly skilled migrant, the qualification is a degree, and what is the level of the degree? In tier 4, for students, qualifications are assessed by colleges themselves, not by the IND.

The hon. Gentleman asked about people who apply to study at colleges that are not on an approved DFES register, but which are added to the list after an application is made. That question seems to be connected with applications for entry clearance. If an applicant was using the pre-checking online system prior to making an application, it would be clear to them that their application would be refused. In that situation, the applicant would be clear that they should not be applying until the college is added to the register. That is the way that the system should work. So the pre-application online system will assist individuals in not submitting an application that will be refused, by making it absolutely clear whether or not they meet the criteria.

Paul Rowen (Liberal Democrat, Rochdale)

I am grateful for the Under-Secretary’s explanation, which is important to the operation of the system, because hon. Members need to understand how it will operate. If I may, I shall give her two other examples of cases that I have dealt with in which the current system allowed the appeal and therefore allowed migrant workers to come into the country. In one case, which I dealt with last year, a number of stonemasons were allowed into the country to carry out some work. They were allowed in because they were to be working on a local mosque and we were able to show that although a British stonemason might have the qualifications to be a stonemason, they would not be able to carve the Arabic words that were wanted on the front of the mosque. That to me was an example of a case in which the qualification is there and is equivalent to a qualification that exists in this country, but someone could say that extra evidence has to be shown, which is the ability to do that—

Sir David Amess (Conservative, Southend West)

Order. Interventions should be brief. Perhaps the Under-Secretary will reply now.

Joan Ryan (Labour, Enfield North)

Thank you, Mr. Amess. It is not the intention of the points-based system that where there are skills gaps and specialist skills are needed, we are unable to avail ourselves of those specialist skills. Of course that will be possible through the points-based system and we would want to ensure that that was the case. There are situations in which individual skills are required and we need to be able to and will take account of those.

Amendment No. 136 would mean that instead of being laid down in primary legislation, the circumstances in which new evidence would be excluded in an appeal would be contained in regulations. Parliament could not amend such regulations, so there would be a significant reduction in parliamentary scrutiny of the proposed changes to the appeals process. Also according to the amendment, we would have a statutory obligation to consult stakeholders before regulations could be laid.

Secondary legislation would make the appeals system more complicated; our long-term goal is to simplify legislation. Parliamentary procedures, as we have seen during proceedings on this Bill, give interested parties plenty of opportunities to make their views known throughout the legislative process. The involvement of stakeholders is possible at a number of points in the process. For instance, Ministers met representatives of the Immigration Law Practitioners’ Association before the Bill was introduced, and ILPA, along with other interested organisations, gave evidence at the recent public evidence session at which the hon. Member for Rochdale was present. Such groups can also lobby MPs, expressing their views on proposals in a Bill and offering amendments.

We have shown in the course of proceedings on this Bill just how much involvement stakeholders can have, so I see no additional benefit from the latter aspect of amendment No. 136. Overall, the amendment would reduce parliamentary scrutiny of the changes to the asylum and immigration tribunal’s jurisdiction, without improving the opportunities that stakeholders have to contribute to the law-making process. I hope that the hon. Gentleman has had sufficient reassurance that he feels able to withdraw amendment No. 136 and not to press amendment No. 132.

Paul Rowen (Liberal Democrat, Rochdale)

I am grateful for the Under-Secretary’s response. However, our debate has demonstrated that we have not had sufficient chance to discuss how some of the measures will apply. Clearly, many more issues will arise when the Bill is put into operation. By tabling the amendments, I sought to give the Government a little longer to consider some of the issues. I am happy to withdraw them, because I think that case law will instead be made through the AIT. The Government might think that they have produced a cast-iron case that does not allow any exceptions, but I suspect that the reality will prove to be otherwise. I beg to ask leave to withdraw the amendment.