Borders, Citizenship and Immigration Bill [Lords]

Public Bill Committee, 11 June 2009.

Clause 32

Crispin Blunt (Conservative, Reigate)

I welcome all members of the Committee who have managed to get here this morning. Is the Government Whip concerned about the numbers behind him?

Steve McCabe (Labour, Birmingham, Hall Green)

I can talk all day.

Crispin Blunt (Conservative, Reigate)

I am glad to hear that.

One of the things that make the Minister such an attractive personality in our politics is his ability to explain things in simple, straightforward, layman terms when they might otherwise be presented in the complicated language beloved of bureaucrats and legislators. It is on such a matter that I would like him to assist us on clause 32. I am not entirely sure what the clause proposes, and why it does so, so I have a few questions. It is a sensible principle that a Committee should have a collective idea of what legislation involves before it is passed.

First, what is drawback? Secondly, clause 32(4) provides for commissioners to make payments to the director or the Secretary of State, while the main provision of the clause is to arrange for the director of border revenue to pay money to the commissioners. Under what circumstances is it anticipated that the commissioners will have to start making payments to the director or the Secretary of State? Thirdly, why is there a requirement for subsection (5), which states that subsection (4) applies

“whether or not the reason for a deficiency is or may be that an amount has been paid or retained on the basis of an estimate that has proved or may prove to be inaccurate”?

I do not understand why such clarification is needed, so I would be grateful for an explanation. Finally, when is a payment to be treated as a repayment?

Phil Woolas (Labour, Oldham East and Saddleworth)

Good morning, Miss Begg. I am grateful to the hon. Gentleman for his kind words; I shall take them as a compliment, even if they were not intended as such. The answer to his questions is the all-powerful Treasury, and I will explain why. Clause 32 deals with the payment of revenue to Her Majesty’s Revenue and Customs commissioners, and sets out provisions on the accounting of revenue collected by our officials in the UK Border Agency. That revenue includes duties and taxes that may be paid on goods by passengers who go through the red channel at an airport, a ferry terminal and so on. The second issue is the post. A significant amount of excise and duties work is carried out on goods that come through the post, most of which are legal, although some are not.

The clause requires the director of border revenue—the chief executive of UKBA—and the Secretary of State to pay any money by way of revenue, or security for revenue, to HMRC in accordance with Treasury directions. In other words, it is the Treasury’s money, not mine—I just collect it. The intention is that moneys will be paid directly into HMRC bank accounts, as now, so we are the agent passing the money on. The hon. Gentleman was quite right to pick out subsections (4) and (5).

The clause also provides for HMRC to make funds available to ukba if we need to pay any money back. A ship or a container may drop some of its goods in the UK and then move on. We may charge duty on all of it, but the company will then point out what the manifest shows. There are occasions when we need to pay money back, so the provision authorises HMRC to give us money to do so. It is anticipated that the repayments will be made directly by HMRC, but there might be occasions where it needs to come through us.

Revenue is defined in the clause as including all duties and taxes. It also includes penalties. Your constituents, Miss Begg, might have had their cars impounded at Dover or at other ferry ports, but they are clearly very honest. Some of mine might have come a cropper in that regard and paid penalties. The clause covers those amounts and also the proceeds of forfeiture. If someone has brought something into the country on which they have not paid duty and there is forfeiture, there is revenue from that. The clause is designed to oil the wheels. The reason, to answer the hon. Gentleman directly, is that the Treasury holds the purse strings.

Crispin Blunt (Conservative, Reigate)

Will the Minister assist us on some of the detailed questions about drawback? Why does subsection (5) need to be included? I think I have understood what the repayments will be, but I do not entirely understand why a payment can be treated as repayment, under subsection (7)(b)(ii).

Phil Woolas (Labour, Oldham East and Saddleworth)

I apologise. I did not answer the question about drawback. Drawback is described as a method for repaying excise duty on goods that have not been, and will not be, consumed in the United Kingdom—the goods coming in and going out. Subsection (5) provides that subsection (4) will apply whether or not the reason for the deficiency is, or might be, that an amount has been paid or retained on the basis of an estimate that has proved, or might prove, to be inaccurate. Again, if it is estimated from a ship’s manifest that four containers have been dropped off at Harwich and it turns out that it was only three because the order was changed, the clause allows us to reflect that. I am advised that the clause mirrors provisions in the Commissioners for Revenue and Customs Act 2005. If it were not included, it could be argued that we could not cover such a deficiency. I hope that I have provided the explanation that the hon. Gentleman seeks.

Crispin Blunt (Conservative, Reigate)

When is a payment a repayment?

Phil Woolas (Labour, Oldham East and Saddleworth)

A company might have made a payment to us in lieu of any excise or duty, but the way in which accounts work over a passage of time means that we can identify how much duty was required only retrospectively. The company may bring in a tonne of goods every month, but that is on average over the year—it could be two tonnes in January and half a tonne in February. The repayment in that regard is the refund for the company that paid the duty. I hope that I have explained the situation in clear English—I think that I have.

Crispin Blunt (Conservative, Reigate)

I am extremely grateful for the Minister’s explanation. He has entirely justified the encomium I gave him at the beginning of my remarks.

Clause 33

Crispin Blunt (Conservative, Reigate)

I have a question about clause 33, although I was so overwhelmed by the Minister’s ability to turn these matters into English that I nearly missed the opportunity to ask it.

Subsection (2) states:

“An order under this section may amend or repeal section 32”.

It looks as though the Government intend to move to the scheme set out in clause 33, rather than that in clause 32, which looks to be a temporary arrangement. Will the Minister enlighten the Committee on whether that is the Government’s intention and give a sense of the time scale in which it might be achieved?

Phil Woolas (Labour, Oldham East and Saddleworth)

The short answer is to do with the all-powerful Treasury. The power to require payment into the Consolidated Fund set out in clause 33 provides the flexibility needed to meet any future changes in the revenue accounting arrangements set out in clause 32, which provides for revenue collected by the UK Border Agency to be paid to HMRC. In that sense, there is no timetable.

Should circumstances change, clause 33 will enable the Treasury to require the Secretary of State and the director of border revenue to pay the revenue they collect into the Consolidated Fund. That might be necessary if there is a change in the accounting arrangements by HMRC and/or the UK Border Agency, or if there is a significant improvement in the amount of revenue we collect. We are currently responsible for 5 per cent. of Treasury take through tax and duty. That will change significantly, for example when the Government’s successful economic policy increases trade with the rest of the world. It would also change if, God forbid, with the advent of a Conservative Government, our manufacturing suffered such a collapse that we had to import everything, because duties would then go up.

I will now stop trying to buy time with hypothetical circumstances and read this note. This clause allows flexibility should the amount of revenue change. It mirrors the arrangements in the Revenue and Customs laws; there is nothing new about it. It is there just in case, rather than just in time.

Damian Green (Conservative, Ashford)

May I clear up a procedural point? The Minister is one of the Treasury’s representatives on Earth—I understand that he is a Treasury Minister as well as a Home Office Minister. He says that this is to do with the all-powerful Treasury. Presuming the Bill becomes law, does that mean that one Home Office Minister must necessarily also be a Treasury Minister? Is that a permanent feature of the arrangements that link HMRC and ukba?

Phil Woolas (Labour, Oldham East and Saddleworth)

That is not something of which I remind the Home Secretary often, but it is helpful. The answer is yes, because the director of border revenue, who is the chief executive of ukba, is equivalent to a commissioner for Revenue and Customs in being the accounting officer who is responsible for revenue. The Minister with responsibility for Customs will shadow and oversee the director, just as a Treasury Minister shadows and oversees commissioners. That will be the case for as long as the Customs function remains within the Home Office. In practice, for the enlightenment of the Committee, I am told that I have a private secretary in an office in the Treasury, but I have yet to get across there to find it—[Interruption.] No, not two salaries. On a serious note, this means that the arrangements for and the relationship between duty levels—and VAT levels, in some respects, given the importance of customs to the Revenue—is set out in consultation with the Treasury and as part of Budget preparations. I hope that that explains the situation.

Clause 34

Paul Rowen (Liberal Democrat, Rochdale)

I would like the Minister to clarify a few points about the clause, which amends section 21 of the UK Borders Act 2007 and extends to a larger number of officials the duty of care regarding children in clause 57. Obviously, that applies to those transferring over from the Customs function, but I have looked at the impact statement and I could not see a specific listing about this, although I may have missed something. More than 3,000 staff will be transferring to the Borders Agency; what additional training on child protection issues will they get and where has that been costed? I cannot see that in the impact statement. Given recent concerns in the press about particular people, it is important that the duty of care is reinforced, and that we have evidence that those staff will get the training that they need to deal with minors.

Phil Woolas (Labour, Oldham East and Saddleworth)

I congratulate the hon. Gentleman on spotting an important point. This is slightly confusing, but it is because of our good intent, not because of any desire to hide anything. We think that this is a positive part of the Bill—as indeed are all the other parts. The measures in part 1 are intended to come into force on Royal Assent, but clause 57, which relates to the duty regarding children, will not because we are publishing a consultation on how the new guidelines will work so that the House and wider interest groups will have the opportunity to influence them. Given the importance of this issue, I did not want to bring those new guidelines in on Royal Assent without first having given people the opportunity to consider them. Similarly, I did not want the guidelines to be wrong or deficient in any way because we had rushed them out, or to have unintended consequences. That is what I am trying to do.

The hon. Gentleman asked about training. I have already discussed the overall strategy for training, but he is right to ask for assurances regarding transferring officers who have not had that training but will have related issues in their job descriptions. As he knows, not all the people he mentioned will be engaged in this area, but many will, and we will include in the code of practice the obligations that officials have regarding the care of children and keeping them safe from harm. Indeed, one area covered by the code is staff training.

Keeping children safe is what we refer to in management speak as a three-tier learning and development programme designed to ensure that staff have the knowledge to safeguard children. Tier 1 is an electronic package designed to raise awareness of the issues around children, and is compulsory for all UK Border Agency staff, regardless of grade or department. Tier 2 is a classroom-based course where staff will have regular contact with children or children’s issues, or conduct substantive interviews with them. Tier 3 involves job-specific training for officers.

This is an important point, given that children do come into our care. As ever, it is not the child’s fault, whatever the state or the parents have done. That is why the clause is important. I hope that that reassures the hon. Gentleman.

Damian Green (Conservative, Ashford)

I want to follow up on that briefly. As the Minister rightly said in response to the important point raised by the hon. Member for Rochdale, it is not the child’s fault. Clearly, under the Bill and the general provisions, we would not want children themselves to suffer in any way. Would he take this opportunity to let us know the state of play with funding for local authorities that are particularly affected by being in charge of unaccompanied minors who find themselves in this country?

The Minister will be aware that responsibility falls disproportionately on a small number of local authorities, notably Kent and Hillingdon but others as well. He will also be aware, as I am, that, to put it crudely, they thought that a settlement had been reached about a year ago but it seems to be not quite falling apart but fragile at best. This might be an opportune moment for him to reassure the Committee and, through the Committee, the local authorities concerned about the state of play.

Phil Woolas (Labour, Oldham East and Saddleworth)

I hope you will allow me, Miss Begg, briefly to answer that question. It is related to the clause.

Arrangements are made through the Local Government Association committee, which is helpful and pragmatic. The directors and councillors are very helpful. My answer to the latest parliamentary question on the matter stated that we were satisfied with the arrangements.

I know that Hillingdon in particular has had some concerns. The hon. Gentleman will have seen the recent press reports. I am not denying the importance of the reports, but they relate to a period that was covered by the old agreement. There is a new agreement for the period covering the last financial year and this one.

We have designated officials who liaise with the key authorities. For the benefit of the hon. Gentleman and the Committee, I will check whether there is an outstanding problem. I do not believe that there is, but, if there is, we clearly have an obligation to reach an agreement.

Damian Green (Conservative, Ashford)

I am grateful for that reassurance, and the councils involved will be as well. Could the Minister write to me with the results of his check? That would be helpful.

Phil Woolas (Labour, Oldham East and Saddleworth)

Yes, of course I will do that. We had meetings with Hillingdon prior to the press coverage. To be fair to Hillingdon—I praise its staff and their professionalism—the implication of the press report was not actually the case, as the hon. Gentleman knows. The incidents, serious though they were, related to the previous period. I will write to him.

Clause 38

Clause 39

Damian Green (Conservative, Ashford)

I beg to move amendment 43, in clause 39, page 29, line 7, after ‘person’, insert

‘who came to the UK under the Highly Skilled Migrants Programme’.

Anne Begg (Labour, Aberdeen South)

With this it will be convenient to discuss amendment 44, in clause 39, page 29, line 9, after ‘person’, insert

‘who came to the UK under the Highly Skilled Migrants Programme’.

Damian Green (Conservative, Ashford)

We now move on to a different and—as I am sure the Minister and the Committee accept—much more contentious part of the Bill, within which this is probably the most contentious clause. I know that it is always a crude measure of how dangerous and damaging a piece of legislation is, but judging by the letters and e-mails that I and other colleagues on the Committee have received over the past couple of days, this is certainly one of the most difficult parts of the Bill. Indeed, that is partly because we owe the existence of the clause to the debates and votes in another place.

The clause as it stands, of course, does not reflect what the Government want to happen. The Government have been resisting any kind of protection against the retrospective application of their new proposals on citizenship; indeed, they have tabled an amendment that would delete the clause. I understand that that amendment has not been selected for procedural reasons. At the moment, I assume that the Government still do not want the clause to survive and that they are seeking to return the position to what it was when the original Bill was introduced in the House of Lords. I assume that the Minister will speak to his amendments.

Phil Woolas (Labour, Oldham East and Saddleworth)

It would help the Committee in its proceedings if I indicated that although it is our intent to remove the existing clause 39, it is also our intent to meet the argument that has been advanced at a later stage in the proceedings on the Bill. I will go on to explain our thinking in relation to that at the appropriate time.

Damian Green (Conservative, Ashford)

I am grateful to the Minister for making that clear at this stage. He will be aware of the controversy to which I have just referred and that many people observing the debate will have had some hope restored. It goes without saying, of course, that we have not yet seen the details of the Government’s proposals. Clearly, everyone involved will reserve their position until they know what the Government are proposing. I am grateful that he has accepted the logic of his own position. I confess that I was slightly bemused when I saw that the Government’s amendment had been tabled, because on Second Reading he said:

“The hon. Member for Ashford fairly raised a point relating to the highly skilled migrants scheme; I concede that point, the court has ruled, and we will of course obey.”—[Official Report, 2 June 2009; Vol. 493, c. 236.]

Having heard those welcome words on Second Reading, as I say, I was surprised that the Minister had taken the action he had.

Phil Woolas (Labour, Oldham East and Saddleworth)

The hon. Gentleman is accurately reflecting the position. It might help the Committee and the debate if I were to say that, on advice from my lawyers, the existing wording of clause 39 does not do what was intended. The Government would have tried to change the clause in any event, but in light of the position that he has just outlined, I wish to come back the matter.

Damian Green (Conservative, Ashford)

I am grateful for that. This will, in some ways, be a procedurally difficult debate because it would clearly be sensible for the Minister to make a speech, to which I could then respond. The procedures, within which we have to operate, mean that I shall make a speech first and then the Minister will respond, despite the fact that he clearly has things to say that would set the rest of the debate in context. However, off the top of my head, I am not conscious of the procedural device that we could use—other than the world’s longest ever intervention—to conduct the debate more rationally.

Phil Woolas (Labour, Oldham East and Saddleworth)

I could speak in support of your amendment.

Damian Green (Conservative, Ashford)

Whatever. In a sense, I am, unusually, more interested to hear what the Minister has to say than what I have to say. I hope that he does not take that as a precedent.

The Government will introduce some new proposals and I am obviously not aware of the level of detail they will contain, although I do not suppose that the Minister will lay out a new clause. Nevertheless, it is worth the Committee considering why the issue has raised such heat and why it is so important. The root of the Government’s worry—and something that infuses the whole of this part of the Bill—is that grants of citizenship are at an all-time high in this country. The number of people granted British citizenship in the UK increased by 7 per cent. in 2007 to 164,635, which is straightforwardly the highest ever number in our country’s history. To put that in some kind of perspective, 10 years earlier, in 1997, only 37,010 people were granted citizenship. That is a significant quantum of increase.

The Minister himself, last December, announced one of his various crackdowns. He said that migrants would have to earn the right to benefits under new citizenship rules. That was the first time the Government had floated the idea, which we will come to in later clauses, of probationary citizenship before earning a British passport. My understanding of the context of the clause is that we are moving away from the current three-stage naturalisation process. That process comprises a period of temporary leave with restricted access to benefits and services, then a definite leave to remain, during which that access is no longer restricted, and finally British citizenship. That has been the system for the past few decades. I understand that the Government’s proposals are for a new three-stage process, which will comprise, first, a period of temporary leave much the same as now, with restricted access to services and benefits. However, there will then be another period of temporary leave, which the Government are calling probationary citizenship.

The Minister knows that that nomenclature was a subject of some controversy in the Lords and beyond. It was felt that the word “probation” gave the wrong flavour to those who are, by and large, working hard and contributing to our society. At some stage somebody might come up with a better name. Finally, after that probationary citizenship period, there is, again, the granting of British citizenship, which gives permanent residence and the access to services and benefits that we all enjoy as British citizens.

Given the figures I have mentioned, I can see why the Government seek to change the procedure and, in some ways, make it more difficult. A new British passport is granted every five minutes, and I share the Minister’s concern that everyone who wants to settle here should be enjoined to play a positive role in the life of this country. The elaborate new procedure that the clause helps to set up might not be the ideal way of doing that. There is a great danger of introducing new layers of bureaucracy. I agree with the Minister that British citizenship is a privilege and not necessarily a right, but significant changes could be made that would more effectively achieve what he wants.

The citizenship test is clearly inadequate for the Minister’s purpose. It is not a real test of knowledge or of commitment to this country. Being able to take the test again and again until you pass it, does not necessarily achieve a great purpose. I suspect that the Minister shares my view of how we need to tighten up marriage loopholes. To some extent, that frames the debate. It is why successive Ministers who have held his position have wanted to put up hurdles to make it more difficult to progress to citizenship. As a result, the House of Lords took out the Government’s original proposal, and it now seems that the Minister will remove its clause and put in a new and better one. At some stage soon we will hear what he has to say.

The purpose of our amendments 43 and 44 is to narrow the debate slightly to those areas where the Government have been embarrassed in the courts: they have been taken to court and have lost. We would all agree that this country benefits from highly skilled migrants, and the amendments are specifically about such migrants. The root of our objections to the Government’s original proposal—objections that were carried through the Lords by my noble Friend Baroness Hanham—was that highly skilled people who had been here a number of years and wanted to stay, and who were working towards citizenship, found the rules changed from under them, retrospectively, in their view. The rules were changed halfway through the game, which they thought unfair, and I agree with them. I feel particularly strongly for those who have come to the end of the process. It is not as though they have just arrived in this country. As a society, we still have to decide on them.

Many of the people most hurt by the original proposal have been in this country for a number of years and have been contributing both to our economy and our society. Changing the rules to make life more difficult for them seems perverse as well as unfair. In many ways, they are precisely the people we should be encouraging to come to this country, although, as the Minister will be aware, Conservative Members believe that the sheer numbers and the scale of change induced in our country by immigration over the past 10 years have been too great and have caused unnecessary stresses and strains. I am conscious that the Minister himself sympathises with that view, which is why he says and does lots of the things that he says and does in his current post.

Nevertheless, in the modern world there is clearly a need for any advanced economy that wants to stay an advanced economy to attract not just its fair share of the brightest and the best from around the world but more than its fair share. We can use the many attractions that there are in coming to this country to attract highly skilled migrants who will help us to create the wealth of the future. As a result of that view, which I cannot believe the Minister disagrees with, we have on principle consistently opposed the retrospective elements of the changes to the rules affecting highly skilled migrants to Britain.

In fact, as long ago as 2007, I was one of those delivering a petition with 4,000 signatures to the then Prime Minister. The petition opposed the Government’s original proposals to increase the qualifying period for indefinite leave to remain from four to five years for highly skilled migrants. As the Minister will be painfully aware, that was a cause that did not restrict itself simply to handing in a petition to Downing street or engaging Opposition parties. The campaigners took the Government to court and won.

The Bill in its original form sought to do exactly that—make changes to indefinite leave to remain. A previous Bill sought to do similar things with those who are close to completing their path to citizenship. People who have made a commitment to the country are having that commitment flung back in their faces. There is a moral aspect, but also a practical aspect, because that sends a signal around the world. If the highly skilled people around the world believe that this is not a country that welcomes them, they will stop coming here. The more highly skilled one is, the more marketable one is in an international context, and the more choice one has about where to live for large parts of one’s working life.

The hon. Gentleman will be aware that, in such terms, we are competing not just with other European economies, but particularly with other English-speaking countries. Many of those people will have English as a second, if not a first, language. Therefore, they can look to Britain, Australia or America—to lots of prosperous, attractive countries where they might want to live out their working lives. That is why we tabled the amendment in the Lords. Our amendments seek to refine that proposal to make it clear that we are talking about highly skilled migrants.

Paul Rowen (Liberal Democrat, Rochdale)

Will the hon. Gentleman explain the difference of approach between the amendment tabled by the Conservative spokesman in the other place, and passed, and this one? The one in the House of Lords applied to all migrants with limited leave to remain. The amendment before us is highly specific, in that it deals with the highly skilled migrant. Indeed, it does not even cover all the categories that were entitled to coverage according to the judicial review.

Damian Green (Conservative, Ashford)

That is a fair point. There are two separate points in the hon. Gentleman’s intervention, the first being why we are amending our own amendment. That is precisely the point that I have been seeking to make. It is hugely important for the future prosperity of the country that we continue to attract, as I said, not just our fair share, but more than our fair share, of highly skilled migrants.

The second point, as the hon. Gentleman knows, is that it was the highly skilled migrants forum that took the case to court. The further refining of the amendment that we moved successfully in the Lords should help to focus the Committee’s attention on the most damaging effects of the policy that the Government have been consistently adopting for several years now, and from which I hope the Minister will tell us that he is about to retreat. Now I have forgotten what the second half of the hon. Gentleman’s point was.

Paul Rowen (Liberal Democrat, Rochdale)

The second point is why the amendment does not cover the length of time that highly skilled migrants were given to apply for permanent leave to remain.

Damian Green (Conservative, Ashford)

That is a fair point. The answer involves those who have got to the stage of having been in this country for a number of years and who are therefore looking to the next stage of their lives. They may have already taken the decision to apply for citizenship, which I take as an indication that they want to reside here permanently, conceivably for the rest of their lives, and never return to their original homeland. Those people will feel particularly let down and that what has been happening is unfair. It is specifically that group that we sought to help with our amendment in the Lords and our amendment here.

I hope that the Committee will accept the logic of what I am saying, which is widely supported by a number of Committees in the House as well as by the many thousands of people who are living in and contributing to this country and who are obviously very concerned about this. As far back as 2007, the Joint Committee on Human Rights said:

“We expressed our concern about the injustice done by retrospective changes to rules which affect migrants’ eligibility to settle in the UK”.

The Joint Committee, chaired by a distinguished Labour Member of Parliament, also said:

“We urge the Government not to repeat the unedifying spectacle of riding roughshod over migrants’ legitimate expectations of settlement, which undermined many migrants’ faith in the UK’s commitment to basic fairness...We recommend that clear transitional provisions are made which meet the legitimate expectations of those already in the system.”

That seems quite a good summary of the test that the Minister’s new proposals will have to meet, if we are to avoid returning to the issue in future.

My noble Friend Baroness Hanham said that those who

“have faithfully adhered to the current rules and thought that they were firmly established on the road to citizenship should not now have the rug pulled from beneath their feet. They have an expectation of a timescale in which their naturalisation will be fulfilled.”—[ Official Report, House of Lords, 25 March 2009; Vol. 709, c. 705.]

That is another key test.

Paul Rowen (Liberal Democrat, Rochdale)

I am listening carefully to the arguments and agree entirely with what Baroness Hanham said. Will the hon. Gentleman tell us how people who came to this country on a work permit rather than on a highly skilled migrant programme visa will be affected? My understanding is that the amendment does not cover them.

Damian Green (Conservative, Ashford)

The hon. Gentleman is right. I do not want to weary the Committee by repeating my explanation, but I want to focus on the most highly skilled, because they are the most valuable resource to this country. I have been getting similar e-mails in which people say that, once someone is here on a work permit, they should have a glide path to citizenship. It has been expressed to me that, if someone is in this country with a work permit, it is a right to have British citizenship. I do not agree. British citizenship is a privilege and not a right to anyone who happens to work in this country. I do not completely agree with those who think that, once people are here, they should automatically be granted citizenship. There needs to be some kind of commitment to this country and, if we can reach that stage, the immigration system will be much more healthily balanced than it has been in the past few years.

I am conscious that the hon. Gentleman is being entirely consistent with what his party has believed for a long time, which is that our immigration laws are much too tough. His party would like much more lax immigration laws and to make it much easier for people who come here, including those who come here illegally, to be given an amnesty so that they can stay, and that all those groups of people should automatically be given British citizenship. I just happen to disagree.

Paul Rowen (Liberal Democrat, Rochdale)

I am grateful to the hon. Gentleman. I will not bother explaining our policy to him, which is not as he has described it. The judicial review touched on the fact that, under current practice, there is an existing path to citizenship, which includes people who have been here for a certain number of years on work visas. Does the hon. Gentleman not accept the logic that, if clause 39 is rejected and nothing is put in its place, the Government will be faced with the present position, because it is existing practice, not what is fairer or whatever? The judges will rule whether it is fair or right. One consequence of his amendment will be a flurry of court cases and judgments that will cost the Government, who will end up conceding anyway.

Damian Green (Conservative, Ashford)

That may or may not be the case. To clarify matters for the Committee, the hon. Gentleman seemed to argue that the judicial review case applied to everyone. On 8 April 2009, Mrs. Justice Cox decided:

“In respect of all persons admitted to the Highly Skilled Migrant Programme as at 7 November 2006, those individuals are entitled to the benefits of the scheme (including settlement) according to the terms (including as to qualifying period) which applied on the date when they joined.”

If the hon. Gentleman believes that the judgment applied to anyone, whether they were on the highly skilled migrant programme or just had a normal work permit, he is wrong. He can argue the case that it should apply, but that is not what the judge said.

Phil Woolas (Labour, Oldham East and Saddleworth)

May I also read into the record for the benefit of clarity the fact that the judgment to which the hon. Gentleman is referring said nothing about citizenship? It dealt with promises made about indefinite leave to remain, which might help his point of view.

Damian Green (Conservative, Ashford)

It is a separate point.

Phil Woolas (Labour, Oldham East and Saddleworth)

Legally, it is a very important point.

Damian Green (Conservative, Ashford)

I know, but it is a separate point. I know from the debate on Second Reading that the Minister would prefer those who have decided to settle here permanently to become citizens. I can see the logic of that position. I take his point about the hugely important legal issues, but I think we agree that, if somebody wants to commit themselves to this country, then in most circumstances we would prefer them to become a British citizen and make that commitment. Factually, about 60 per cent. of them do. We are already at that stage.

One could easily imagine circumstances in which somebody—an American citizen perhaps—would not want to give up their home citizenship. They may spend most of their working life in this country but actually retire to their own country. In fiscal terms, I suspect that that is the best deal that a British taxpayer could get out of someone: their entire working life in this country—creating wealth, paying taxes and so on—and then retiring to their own country. That is not a debate for now.

It is interesting and heartening to hear the Minister say what he has already said. The intervention by the hon. Member for Rochdale would have more validity if the Minister had not already said what he has said. It is clear that the Government want to remove clause 39 and replace it with something else. We can have a substantive debate on the Government’s proposal when the Minister comes back with it. We may well share views about whether that is likely to be satisfactory or not; no doubt we can all look forward to another bombardment of e-mails and letters, when the detail is produced. I recommend that we watch this space.

The Government have been grappling with the issue. Lord Brett indicated in a letter dated 19 March 2009 that some transitional measures were being considered for those who already have ILR or limited leave to enter or remain in the UK but that they would not be finalised until the summer of this year at the earliest. One might have thought that with legislation passing through the House the Government would have finalised that rather important issue first, but that is in parenthesis. He went through various categories of applicant who would benefit from transitional arrangements of one sort or another.

The letter is extremely important not only for this debate but for all future debates on the subject. Lord Brett said:

“Any application for naturalisation which is received by UKBA before the earned citizenship clauses are commenced but which remains undecided, will be considered under existing section 6 and Schedule 1 of the British Nationality Act 1981, i.e. the application will not be affected by the earned citizenship proposals.”

He went on to say:

“Any migrant who has ILR in the UK will be deemed to have permanent residence leave for the purposes of the earned citizenship clauses. They will not need to make an application to be recognised as a permanent resident, or pay any sort of fee and they will continue to have full access to benefits and services, subject to the general eligibility criteria.”

He also said:

“Migrants with ILR when the earned citizenship clauses in the Bill are commenced will be able to apply to naturalise under existing section 6 and Schedule 1 of the British Nationality Act 1981 provided they apply within a set period after the clauses have been commenced. Although we have not yet confirmed this period, it is likely to be for between 18-24 months after the clauses are commenced. We think a period such as this would be fair given that the aim behind our proposals is that we want to encourage more people to become British citizens.”

His final point was:

“Migrants who are currently in the UK and have existing limited leave to enter or remain which is regarded, under the new earned citizenship system, to be a qualifying immigration status, will be able to count that time towards the qualifying period for naturalisation as a British citizen. For example a person here under Tier 2 of the Points-Based System before the earned citizenship clauses in the Bill are commenced will be able to count that time as a type of qualifying temporary residence leave, and therefore count this towards the revised qualifying periods for naturalisation.”

I apologise for reading all that in detail. It is important, because it indicates the Government’s willingness to help. The Government are inching towards some kind of sanity in this regard. [Interruption.] Some kind of sanity.

Clearly, the detail is very important. Offering qualifying periods to people with limited leave to remain, which can count towards their qualifying period for citizenship, is a step forward. The jump that the Government have to make—the steps that they have not yet followed—is what they are going to do to people who are already here, which is clearly the point at issue. The Minister will be aware that the concessions offered by Lord Brett in another place were simply regarded as inadequate. They did not satisfy the House of Lords, and I suspect that they would not satisfy this House, too.

Essentially, every time the Government have put this matter either to a court or to a House full of people who are not necessarily under the lash of the Whips, they have lost the argument. If the Minister is saying that he accepts that they have lost the argument and he will come back with something that we can all find satisfactory, then I would welcome it. I have quoted the Joint Committee on Human Rights, but the Minister will be aware that other groups, such as the Migrants’ Rights Network, have opposed the Government’s proposals on the matter. Moreover, the Home Affairs Committee has looked fairly quizzically at this part of the Bill.

Essentially, the Minister has an enormously widespread coalition assembled against him. If I can give him some comfort, we on the Conservative Benches do not go all the way with those who are saying—as I think that the Liberal Democrats are—that everyone who is here should not have any of the new citizenship tests applied to them. That would be a step too far. A balance needs to be struck and, so far, the Government have struck it wrongly on one side and the Liberal Democrats are striking it wrongly on the other. However, we seem to be moving slowly towards sanity.

Paul Rowen (Liberal Democrat, Rochdale)

I am puzzled by the position of the Conservatives. Again, I shall quote the hon. Member for Salisbury (Robert Key), who said during the Second Reading of the Bill:

“Will he also fight hard to retain clause 39, which was put into the Bill in the other place with the support of our noble Friends?”—[Official Report, 2 June 2009; Vol. 493, c. 184.]

Will the hon. Gentleman do that, and if not, why not?

Damian Green (Conservative, Ashford)

I happily assure the hon. Gentleman that if the Minister were to propose the deletion of clause 39, we would oppose him. However, we already know that the Minister has said that he will not do that. Therefore, the hon. Gentleman is asking me a retrospective hypothetical question, which is fascinating but not desperately relevant. The Minister is looking puzzled.

Phil Woolas (Labour, Oldham East and Saddleworth)

I am not puzzled by Government policy.

Damian Green (Conservative, Ashford)

The Minister should listen to the Immigration Law Practitioners Association, which has said that the Minister’s statements are not clear. It is referring here to Lord Brett and not the Minister before us today. Although I do not always agree with ILPA, this is a reasonable piece of analysis:

“it appears the Government's position is that some element of transitional protection should extend beyond merely those on the HSMP.”

I am not sure whether the Minister wishes to comment on that. The ILPA wishes to see greater clarity from the Government

“as to the commitment intended to be given—which from Lord Brett’s statement appears to be that anyone on ILR at the commencement of the new path to citizenship will be able to continue to citizenship under existing provisions, anyone who has made an ILR application at that time will also be able to continue under existing provisions and that those with outstanding human rights, humanitarian protection and asylum claims at that time will be able to continue under existing provisions.”

If the Minister were to confirm that that is true, it would be an interesting and significant shift in Government policy.

It is worth illustrating the importance of highly skilled migrants—a point that divides me from the hon. Member for Rochdale. I will quote from one of the dozens of e-mails on that topic. Mr. Matt Garner of West Sussex writes:

“When I moved here, my US-based start-up company was acquired by a London-based company who was subsequently awarded a Queens Award for Innovation the following year. My wife has just been notified that she will shortly be profiled as the ‘Innovator of the Month’ in the UK’s national Nursing Times industry paper. We’re active in our communities and have leadership positions in our local church. We’re exceptionally good at what we do. We have job offers on the table from all around the world. We’ve never broken any laws or been in any trouble. As we no longer feel welcome in the United Kingdom, we are taking our skills, our talents and our economic contributions with us to a country that will nurture us, or at least, not mislead or impede us. What’s especially appealing is a country that will give us the right to stay, without indefinitely reserving the right to boot us out at short notice depending on the prevailing political or economic conditions.”

I am sure that the Minister will agree that if such people feel rejected by the Government’s proposals thus far, something is going seriously wrong. I will not bore the Committee by reading out other e-mails, but the hon. Gentleman will be aware that many people in this country are having similar thoughts. Such feelings spread quickly because, inevitably, ex-pats tend to live in their own communities to some extent and talk to each other. In a world where I can receive an e-mail from West Sussex that can go around the world at the same speed, a country’s image can change rapidly.

My final plea to the Minister is that when he reveals the details of his proposal— [Interruption.] I do want a cap.

Phil Woolas (Labour, Oldham East and Saddleworth)

That will not do much for the country’s image around the world.

Damian Green (Conservative, Ashford)

I want a cap just as the Americans and the Australians have a cap. They are two of the most attractive immigrant destinations for highly skilled people anywhere in the world. It does not make a country unattractive. A Government who keep fiddling with and changing the rules and treating people unfairly make a country unattractive to highly skilled migrants. That is the charge laid upon the Minister’s Government over the past few years. A clear and consistent policy that says that we need a limit on the number of people who come here, that those who come are welcome and that we will not mess them around by changing the rules every five minutes makes a country more welcoming than the system of the past 10 years. There has been unlimited migration and people have found their position being changed by successive legislation; that is particularly true for the highly skilled. Every year we have had an immigration Bill that has changed the rules for many people.

The Minister need not be indignant. He knows about the current situation, and I hope that he is about to reveal something to address this problem, which many thousands of people accept is serious. It has been one small-scale disaster of the many disasters in the Government’s immigration policy.

Paul Rowen (Liberal Democrat, Rochdale)

This is probably one of the most important parts of the Bill. Part 2 deals with a new Government policy, and we are generally supportive of the thrust of the measures. We have concerns about the details—how it will work and, more importantly, the transitional arrangements. Given that the Bill has had pre-legislative scrutiny, gone through the House of Lords and had an amendment on transitional arrangements, it is unedifying that the Government and the main Opposition do not have well-thought-out policies on such arrangements. In a sense, that is at the nub of clause 39. It is about dealing with those who have limited, not indefinite, leave to remain. The hon. Member for Ashford, in his amendment, is totally inconsistent with what his noble Friend said in the other place. He is inconsistent even in the category that he is dealing with, in terms of the judgment. His clause would reduce the amount of time that people on the highly skilled migrant programme have to apply for citizenship.

The Government’s position, given that they are the Government, is equally deplorable. I will read the part of the Joint Committee on Human Rights report that the hon. Member for Ashford did not read, because it does not apply just to the highly skilled migrant programme:

“The Bill does not make clear what the effect of the new provisions will be on those whose applications for citizenship are pending on the date at which the Act comes into force, or on others further down the path to citizenship, such as those with limited leave to remain who have not yet qualified for indefinite leave to remain. There are no transitional arrangements.”

That paragraph refers to all those who have come into this country and been granted limited leave to remain, and who expect, under the current policy—the path to citizenship that we now operate is nowhere near as well defined as the Bill seeks to make it—that a few years down the line they will be able to apply for British citizenship.

I will quote from an e-mail of a kind that many of us have received, because it shows how much inconsistency there is, and how clauses 43 and 44 will not work in regard to those who came into this country with a work permit. It says that

“my wife and I are highly skilled individuals who have lawfully been here on a work permit (rather than the HSMP visa) for 4 years and are on the cusp of applying for ILR early next year. When we migrated to the UK in 2005, there was no difference in the time period to qualify for ILR or citizenship irrespective of whether one chose the work-permit route or the HSMP route. Indeed, even today, the UK Border agency aggregates the time one has spent on work-permit and HSMP routes (in the event an individual switched from one route to the other during his stay in the UK)”.

Phil Woolas (Labour, Oldham East and Saddleworth)

The hon. Gentleman’s argument is well-researched and coherent, and I respect the point that he is making, but does that not come to the nub of it? The alleged inconsistencies that he is highlighting between the different routes are based on the premise—and the intention, according to the e-mail that he just read—that a grant for temporary leave for a specific purpose, in this case work, would lead both to indefinite leave to remain and to citizenship. That is the intent of the person whose e-mail he just read. The granting of temporary leave carries no intent that it should lead automatically to indefinite leave or citizenship. Is not that the point that we are debating?

Paul Rowen (Liberal Democrat, Rochdale)

The Minister makes an interesting point that I feel will ultimately be tested in the courts. Mrs. Justice Cox commented on a case on 6 April. Admittedly, it involved the highly skilled migrant programme, but her point, in my view, applies equally to other people. She said that there was

“a substantive, legitimate expectation that the terms on which you joined the HSMP would be the terms on which you qualified for settlement”.

At the moment, the grant of a place on the HSMP in itself does not guarantee indefinite leave to remain. The point that she is making is that there is a substantive and legitimate expectation that it would lead to settlement.

That was why Baroness Hanham moved the amendment in the House of Lords and we are now dealing with clause 39. In my view, she got to the nub of the problem:

“The people who have faithfully adhered to the current rules and thought that they were firmly established on the road to citizenship should not now have the rug pulled from beneath their feet. They have an expectation of a timescale in which their naturalisation will be fulfilled...The Government have already changed the highly skilled migrant programme and applied that retrospectively”.

She also said that

“it is inherently unfair to people who have started on a process to change it suddenly midway”.

—[Official Report, House of Lords, 25 March 2009; Vol. 709, c. 705-09.]

Clause 39 seeks to provide a transitional period.

Phil Woolas (Labour, Oldham East and Saddleworth)

I am grateful to the hon. Gentleman for giving way. He is arguing his point very clearly. The case and ruling that he refers to deal with, of course, the highly skilled migrant route, as distinct from other grants of temporary leave. I accept the judgment, politically and morally, but the difference is that we, as a country, have encouraged highly skilled migrants to come here in the first place. The hon. Gentleman’s second point is that the principle should apply to the other route, and he says that the matter will go to court—it has already been to court. The ruling in the Ooi case was that in the work permit area, there was no promise that the rules would not be changed or that ILR would be granted when the application was made. I accept the point in relation to highly skilled migrants, but I do not accept it in the other areas. However, I do, as I will come on to explain, accept the need for a transitional arrangement in those cases.

Paul Rowen (Liberal Democrat, Rochdale)

I am grateful to the Minister for clarifying that and I would like to give another example of the sort of case that he and I deal with on a fairly regular basis. It has to do with someone who comes into this country as a spouse of a British citizen, is granted the two years’ temporary leave to remain and then, after two years, applies for the permanent leave to remain. As the rules stand now, that period is to be extended. Mrs. Justice Cox’s point was that when the person comes into this country, they have a “substantive and legitimate expectation”. In my role as Member of Parliament for Rochdale over the last four years, I could quote scores of examples of people who have come into the UK with a spouse and now have indefinite leave to remain. There is an expectation in such circumstances.

I accept that clause 39 may not have been properly worded. The noble Lords wanted to do something that the Government had patently failed to do during the Bill’s pre-legislative period and during debates in the House of Lords—come up with clear, and fair transitional rules. They have inserted a measure that provides a period during which people who are on that route can legitimately apply without having to go on to the new system. I hope that when we have the debate, the Minister’s promises will apply not just to the highly skilled migrant programme, but to a much wider range of individuals who have come into this country as migrants, with a legitimate and substantive expectation that they are on a route towards British citizenship and being able permanently to remain here.

With regards to the Conservative policy, I find an overwhelming difference between what Baroness Hanham said and what the hon. Member for Ashford is now saying. I cannot understand what his policy is. It is inconsistent. I quote the hon. Member for Salisbury, because, as someone who deals with this matter, he made the position very clear:

“British immigration policy must be tough, but it must also be fair. Clause 39 refers to exceptions to the application of part 2, which deals with citizenship. In my constituency, there are about 40 families from the Malayali community in southern India. Those people have perfectly respectable jobs as doctors, computer engineers and so on. They have broken not a single rule and are not a burden on the state. They have been working here and they will shortly qualify for citizenship of this country. Under the Bill, unless we keep the amendment that was made in another place, they will not qualify for citizenship because the period of grace will disappear.”—[Official Report, House of Commons, 2 June 2009; Vol. 493, c. 175.]

I hope that the hon. Member for Ashford will not press his amendments because they do not deal with the people whom his own colleagues have said will be supported, and they do not provide a proper, fair, earned route to citizenship. The shadow Home Secretary said:

“We need a tougher immigration system in this country and we need tougher controls, but above all the system has to be fair and welcoming to those who have the right to be here.”—[Official Report, House of Commons, 2 June 2009; Vol. 493, c. 184.]

Damian Green (Conservative, Ashford)

I will wait to hear what the Minister says before I decide what to do. That seems a rational approach.

I want to be clear about the Liberal Democrat position. The hon. Member for Rochdale appears to be arguing eloquently and coherently that anyone who is here on a work permit should have the automatic right to move towards citizenship. Is that his position?

Paul Rowen (Liberal Democrat, Rochdale)

No. We want to see what clause 39 attempted to do, which is to provide a framework from which people can apply. That does not mean that it applies to every category of migrant. It needs amplification, and I accept that the Government should bring out detailed policies setting out how that will be done. The test should be the “legitimate and fair” one applied by Mrs. Justice Cox. I accept the Minister’s point that everyone coming to this country on a work permit does not have an automatic right to move towards citizenship. I also make the point many people who have come to this country have gone on to that system because they have been advised that there is no difference in what they have to do compared to the HSM programme. There will have to be a judgment, and the situation will have to be looked at individually. Those who come here on a spouse visa, and have a legitimate right to complete their passage within a certain period, do not have that protection in the Bill. That is completely wrong.

I hope that the Minister will clarify at this late stage—it is very late—that we will get fair and clear guidance from the Department that ensures there is a proper transitional period for all those people who have started their journey. That is all that we seek. These are people who have come to this country and started a journey towards citizenship, but the rules as they are framed at the moment are virtually being rewritten. If we started playing a football game, and the rules were changed suddenly halfway through, disallowing certain goals or whatever, we would be crying foul.

These people have come into this country legitimately. They have gone through a process by which they thought they would get permanent leave to remain, leading to British citizenship. In my view, they have a legitimate right to have their passage accepted. I fear that if the Government do not come up with fair rules, we will end up with a situation, as with the HSMP, where the programme will be devalued and Britain’s reputation will be damaged because we have not been fair. I look forward to the Minister tabling amendments.

Gwyn Prosser (Labour, Dover)

I share the discomfort of the hon. Member for Ashford, in that we are attempting to respond to measures that we have no real knowledge about. I also share many of the views of the hon. Member for Rochdale and his bemusement at the sudden change in the Conservative party’s attitude to these matters.

Back in 1999, shortly after I came into this place, we had our first immigration and asylum Bill and, in my naivety, I thought that that was going to sort everything out and there would not be another Bill for the next 10 years. Yet here we are, on our eighth or ninth, and there is another one in the pipeline. The basis of that—I had the privilege to be on the special Committee that looked into all these issues—was the overall balance of firmness and but fairness.

In my own dealings in Dover during those times when immigration, including illegal immigration, and asylum were top of the agenda—they dominated all of my correspondence and all of my surgeries to a huge extent—I tried to apply that same rule. I supported quite firm, and some would say draconian, measures that my own Government were taking to crack down on illegal immigration, dealing rationally with asylum seekers, but balancing that, in my own mind at least, by helping and supporting legitimate immigrants and asylum seekers, as I saw them, to see that they got a fair crack of the whip, that their case was heard and that justice was seen to be done.

In this matter, unless we are going to hear something very refreshing and surprising from the Minister, I do not think we have got that balance of fairness and firmness. We are now talking about toughness and fairness, and I could live with that as well, so long as there was that important balance.

The Home Affairs Committee looked at this matter in pre-legislative scrutiny, but at the time the draft Bill was not complete. There was nothing in the Bill about transitional arrangements, but we wholly expected—and the report shows this—that there would be transitional arrangements in place to deal with people already in the pipeline—people who had come into the country properly and legitimately and had a legitimate and substantive expectation that they would eventually get indefinite leave to remain and/or citizenship. Had there been anything about that in the Bill, I am confident that we would have made a firm recommendation that transitional arrangements, in accordance with clause 39, should be made. We have heard what the Joint Committee on Human Rights has said, and I wholly endorse all those statements—I will not go through them again. My view is that even if clause 39 is technically wrong, its spirit should survive in the eventual Act.

A number of Members have talked about the tests they would use. I have a much simpler test. My test is sitting in my surgery in Dover, meeting someone in the system who brings out their work permit—I am not narrowing this to highly skilled workers—and says, “Mr. Prosser, it says here that, after four years”—or five years, or whatever it is now—“I can legitimately expect to move from limited leave to remain to indefinite leave to remain, and to citizenship, and now your Government have reneged on that.” They might use the word “promise”, but certainly, there is a commitment. The text, in black and white, gives them expectations that they can remain. If I cannot look my constituent in the face and find a rational, just and fair response, then I think the test has failed.

David Hamilton (Labour, Midlothian)

Is it not just about fairness? In Scotland, I do not face the scale of issues that my hon. Friend deals with, but this is about fairness. If people make a contract and understand an agreement, and that changes, there should be recognition of the agreement that is already in place. If there is to be an extension of or a change to that agreement, the initial agreement should be there, so that people understand that, although we change the regulation, it does not militate against their interests, if that is what they understood when they came in.

Gwyn Prosser (Labour, Dover)

My hon. Friend is absolutely right.

Nicholas Winterton (Conservative, Macclesfield)

I welcome Members to this afternoon’s sitting and I am confident that steady, constructive progress will continue to be made during the next four hours.

Nicholas Winterton (Conservative, Macclesfield)

I remind the Committee that with this it will be convenient to discuss amendment 44, in clause 39, page 29, line 9, after ‘person’, insert

‘who came to the UK under the Highly Skilled Migrants Programme’.

Gwyn Prosser (Labour, Dover)

Before we adjourned, we were talking about what I described as the intrinsic unfairness of using legislation and rule changes retrospectively, particularly when it affects individuals’ real lives. We were discussing the text on the back of work cards and whether it gave people, no matter what category they came under, reasonable expectation—not expectation of a natural, God-given right to indefinite leave to remain or to citizenship, but whether the spirit of the text led them to believe that they would be able to do so.

One issue that we did not touch on was that of a spouse joining their partner. On the website and in letters from the Home Office, there are clear statements that a person is entitled to apply for ILR if they are still in the country after two years. The phrase “apply for ILR” is used, and experience shows us that that would be the case in most instances. It is pretty far-fetched to believe that there is no expectation that spouses or partners would be unable to remain. Similarly on the website, there is a phrase that says in effect that, if a person is still married when their temporary period to remain expires, they are entitled to apply to remain in the country.

I will not detain the Committee any longer except to say that we do our best not to apply laws and rules retrospectively. I do not want to introduce a sour note, but let us imagine that the new rules that the House is now considering with regard to MPs’ allowances and expenses were applied retrospectively. It would give us all a great deal to think about.

Phil Woolas (Labour, Oldham East and Saddleworth)

It is good to be starting the debate so soon after lunch, under these new modern hours. I am not sure why I voted for them, but I can see the point of view of the Minister at the time.

I will try to be helpful and answer the questions on specific points, and then explain the approach we are taking. Before I do that, it is incumbent on me to bring it to your attention, Sir Nicholas, and that of members of the Committee that I have placed an updated impact assessment of the Bill in the Vote Office this afternoon. Quite rightly, it is the Government’s obligation to give the House information that is as up-to-date as possible. There are some revised figures in the Government’s estimate of the implication of the Bill for benefits and I draw that to the attention of the Committee out of courtesy. Members will want to be aware of it.

Nicholas Winterton (Conservative, Macclesfield)

Order. Seeking to be helpful to the Committee, may I ask the Minister whether there is a copy of the document in the room?

Phil Woolas (Labour, Oldham East and Saddleworth)

One copy is in the room because I have it. I will make arrangements for others to be sent. I am trying to be helpful. There is no substantial policy change in the document; there are some up-to-date figures that will inform the House on Report. We will put some reports on the table.

I shall try to answer some of the specific questions that were asked in what has been an interesting and important debate on the amendments. I shall choose my words carefully because others outside the room will read and interpret them. I shall answer the general principle points raised by my hon. Friend the Member for Dover, but the key point is about work permit conditions. It has been tested in the court, as I said before, under the Ooi case. Mr. Ooi was a gentleman of Chinese citizenship. It was stated that a condition of the work permit was that the person could, within four years, apply for leave to remain. The court, in line with our policy, found that was not an explicit and unequivocal representation creating a legitimate expectation. My hon. Friend was talking about the expectation of applying, not the expectation of necessarily receiving. It is an important point, because there is a clear difference between temporary admission for a purpose and indefinite leave to remain.

The hon. Member for Ashford helpfully read out the letter from Lord Brett, following the debate in the Lords. It duplicated the comments the noble Lord had made in the Lords about clause 37. The critical change between what was reported at column 541 of House of Lords Hansard of 2 March 2009 and the subsequent letter was the point relating to migrants with ILR when the earned citizenship clauses under the Bill are commenced. They will be able to apply to naturalise under existing section 6 and schedule 1 of the British Nationality Act 1981, provided that they apply within a set period after the clauses have been commenced. Lord Brett said that, although we have not yet confirmed the period, it is likely to be for 18 months after the clauses are commenced.

Following the debate in the Lords, I looked at that point and made the suggested change to 24 months not 18 months. The hon. Member for Ashford read out a reference to 24 months. My suggestion is dependent, of course, on the House agreeing a commencement date of December next year. That would meet the specific point that has been made.

I come now to the more general points. The hon. Member for Ashford referred to policy and what we were trying to achieve. He made an important statement in respect of Conservative policy. I think that he said it was desirable, and that he agreed with the Government, that the indefinite leave to remain concept should move on, and that we should have a system of temporary leave to remain and moving into citizenship. He is right to suggest that—perhaps for reasons of dual citizenship—people might not want to have to choose. That is recognised, but it is important that people note the statement that has been made.

As for what we are trying to do, our policy is aimed at helping the migrant who wishes to become a citizen of our country to integrate, to better understand our society and the specific community and to better be able to contribute. That is based on the belief that migrants want to contribute and that we should provide a route for them to do that. One can see earned citizenship in a punitive sense as a hurdle that has been put in front of people or as a platform on which to help people build a life. We believe that it is right—I welcome the consensus on this point—that those who wish to become citizens of our country should have an adherence to the commitment to the rule of law and to the English language, and an understanding of our democratic system. During the debate we shall look at how we can define that. The strategy is to try to break the automatic link that is in many people’s minds, and in some cases in statute, between temporary stay and automatic right to citizenship, and to help the migrant to integrate.

Paul Rowen (Liberal Democrat, Rochdale)

Does the Minister not accept that the link already exists? Indefinite leave to remain does not grant one British citizenship. What the Bill seeks to do—in the parts and sections that we support—is to provide a much clearer route to what has to be done for British citizenship. But the change that is being proposed will make the route longer—the point the hon. Member for Dover was making. Under certain categories, someone marrying a British citizen and coming to live in this country will be faced with a longer time period. One can accept the principle of a route, but for those who are already on the route, why should the time to complete it be lengthened?

Phil Woolas (Labour, Oldham East and Saddleworth)

The hon. Gentleman makes a good point. I shall come to the transitional arrangements, but putting them to one side for a moment, I believe that the purpose of the changes has the consensus of the Committee. What the hon. Gentleman says is quite right. I know that he agrees with the other side of that coin, which is that we have created in this country a category of people who have indefinite leave to remain that has no end point, necessarily, at citizenship or otherwise. That is what the provision is addressing.

However, let me turn to the meat of the amendments and the clause, and try to help the Committee find a way forward. The point has been made on both sides of the House that we should not move the goal posts and that it is unfair to legislate retrospectively. Where that expectation is legitimate, I absolutely concur with that point of view. Indeed, the debate in the Lords and lobbying by individuals and Members of Parliament caused me to look at the practical implications of our proposals and alerted me to a potential gap in one or two areas. In particular, I have been in correspondence with a young lady from Croydon. By highlighting her circumstances she convinced me of the case.

We accepted the judgment on the highly skilled migrant programme. The Government’s intention was not to punish, but to create a new system. However, the point was made in the court—the hon. Member for Rochdale quoted from the judgment in this morning’s sitting—and we have put it right. There is not necessarily a read-across to other temporary routes, but there is a principle connection. My hon. Friend the Member for Dover, who knows more about these things than most, made that point as well.

The rights of people who have already been granted ILR will not be affected. The question is: how do we deal with the transition? It is a difficult and complicated question, which is why I suggested to the Committee this morning that, in light of clause 39 being inserted in the other place, and in light of the deliberations, we wish to ask the Committee to reject clause 39 stand part and take out the clause, and the amendments if they are accepted, with the commitment that we will come back with further transitional arrangement proposals. That does not mean that the Government are confused—we have clear proposals—but it does mean that I want to look at them afresh, particularly at the routes that I shall now explain.

Damian Green (Conservative, Ashford)

The Minister says that he is about to explain the substance of his new proposals and that he will come back to them at a later stage. It would be regrettable if the House could not discuss the new proposals. Can he give a commitment that they will come back in a form that can be discussed by the House as well as in another place?

Phil Woolas (Labour, Oldham East and Saddleworth)

The hon. Gentleman is right. I can give that commitment. As this clause has been inserted in the other place, it has to go back there and, if we send it back, it has to return to us anyway. Even if it did not come back, I would want that to be so, because I want the Government’s intention to be understood, for the reasons given by my hon. Friend the Member for Dover and by the Members for Rochdale and for Ashford. This is important; we are talking about people’s lives and their contributions to our country.

As I have already said, clause 39 was inserted following the debate on Report in the House of Lords. I have already quoted from that clause, which intends to set out how the earned citizen provisions impact on certain groups of migrants. The effect of that is to set down transitional arrangements that the Government should apply, the clause argues, when the earned citizenship provisions are implemented.

On Third Reading, my noble Friend Lord Brett made it clear, on behalf of the Government, that we would return to this issue. The Government understand that the intention behind the clause is to allow migrants in three main groups to be able to apply for British citizenship under the existing naturalisation requirements in section 6 and schedule 1 of the British Nationality Act 1981, rather than under the new earned citizenship requirements proposed in the Bill. The Government consider that it is not appropriate to set out details of transitional arrangements in the Bill and I will explain why. Rather, such arrangements should be in the commencement order that would give effect to part 2 of the Bill. That is the right thing to do, given the level of detail needed to be set down. In addition, the clause as currently drafted, does not achieve its intended aims, which means that, even if had not reconsidered the categories, we would ask the Committee to object to the clause in its own interests, as it were. Ministers often make that point.

Let me deal with some of the detail. When the clause was debated in the other place, the Government indicated that we would return to this matter. Committee members will no doubt have noticed that we tabled an amendment in my name to remove the clause from the Bill. We have previously argued that there is no reason why transitional arrangements need to be set out in the Bill. I have outlined my reasons for that, which remain valid. There is a good argument for the commencement order giving effect to part 2 of the Bill being the proper place to set out transitional arrangements. The provisions need to be detailed and will be relevant only for a certain period. Setting out the provisions in a commencement order also gives us scope to update them, should the need arise. However, there are concerns about our intentions. I understand the desire for clarity and certainty that has been mentioned by hon. Members and constituents in recent weeks. Our intention is and has always been to make transitional arrangements that are fair and reasonable, as my hon. Friend the Member for Dover said.

Just to reassure Committee members that I mean what I say and say what I mean, it is my duty as Minister to make Public Bill Committees aware of technical deficiencies, where I have been advised to do so by parliamentary counsel and my officials. Part 2 of the Bill is concerned solely with the acquisition of British citizenship and it cannot in itself affect applications for indefinite leave to remain. The hon. Member for Rochdale made that point and I am just emphasising it. The Bill is about citizenship and it cannot affect applications for indefinite leave to remain, which are made at an earlier stage in the process and are decided under immigration rules. I am asking the Committee to recognise that point by removing the clause.

Paul Rowen (Liberal Democrat, Rochdale)

I accept the Minister’s point, but the argument is not about those who have indefinite leave to remain, but about spouses who have been given temporary leave to remain for two years and have an expectation that, at the end of those two years, they will be able to apply for leave to remain. If he can assure us that that expectation is not going to be affected, I will have no problem with what he proposes.

Phil Woolas (Labour, Oldham East and Saddleworth)

The hon. Gentleman will, I am sure, be satisfied in a moment. Let me set out the Government’s proposed transitional arrangements for migrants who have completed the temporary stage of their journey at the point of the legislation’s commencement.

The arrangements broadly reflect the intention behind 39(b). First, any application for naturalisation that is received by the UK Border Agency before the earned citizenship provisions are implemented, and which remains undecided at that point, will be considered under the existing arrangements set out in the British Nationality Act 1981.

Secondly, migrants with pending applications for ILR that have been submitted, but not decided, before the immigration rules are changed, following the commencement of the earned citizenship provisions, will have their applications considered under the existing rules. Members will know that that is often a point in immigration law.

Damian Green (Conservative, Ashford)

My memory of the ILR application laws, off the top of my head, is that people are all but forbidden from applying until they are within 28 days of the end of their temporary leave to remain. Indeed, they are told specifically that an application made before that period may well be turned down, or something like that. It sounds as though this concession will affect a very small number of people.

Phil Woolas (Labour, Oldham East and Saddleworth)

This measure is a building block in the transitional arrangements, so I hope that the hon. Gentleman will let me outline the other building blocks, and we can then see whether his point is made.

Those applicants will have two years from the date of commencement to apply for citizenship under the existing arrangements.

Migrants who already have ILR will be deemed to have permanent residence leave, as is made clear in clause 50(3). Again, those migrants will have two years from the date of commencement to apply for citizenship under the existing naturalisation arrangements.

Concerns have been expressed about the position of those who are nearing the end of their temporary leave and who, under the current rules, would be eligible to apply for ILR. Clause 39(a) attempts to address those concerns. I assure hon. Members that we have given, and continue to give, thought to the transitional arrangements for that group. Our dilemma is how to devise arrangements that are rational, proportional and reasonable, but that also minimise the operational complexity and costliness of running two systems concurrently. We do not believe that migrants, as a matter of course, have a legitimate expectation that we will not change our policy. However, we would like to give the matter further consideration and return to it at a later stage.

Amendments 43 and 44 would narrow the clause’s scope, as the hon. Member for Rochdale has argued, although I am not sure that that is their aim. I think they were meant to make specific points about the transitional arrangements for the highly skilled migrant programme. They would apply the transitional arrangements to a very limited group. People who were here with another form of leave and then transferred to HSMP would not be caught.

The courts have ordered us to protect the position of certain HSMP migrants, and if the amendments are intended to protect those groups, we agree with their spirit. The High Court has held that all HSMP migrants who were admitted before 7 November 2006 are entitled to the benefits of the scheme, including eligibility for ILR after a qualifying period of four years. If there are migrants for whom a legitimate expectation was created by HSMP, who have not yet moved through the system, we will give effect to the court’s ruling and deal with their applications under the current system.

I hope that the Committee will accept our good intent on the HSMP route, and my argument that there is not in all cases in the other routes a legitimate expectation of ILR being granted but rather the right to apply. My proposals on the timings for transitional arrangements for the three routes through temporary leave—particularly the hon. Member for Rochdale’s point on the spousal route—will be subject to the detailed proposals that we will bring back to the House and the other place in order to meet the principle, although not excepting automaticity, that has been expressed on both sides of the House. I refer the Committee to the words quoted by the hon. Member for Ashford from the letter that Lord Brett issued subsequent to the debate in the other place.

The transitional arrangements that we will put in place need to take on board the tests of reasonableness and fairness without moving the goalposts for the legitimate expectation of the person with temporary leave. The intention of the person who has applied for temporary leave is, of course, a different point that cannot be covered by statute.

On that basis, and with the guarantee that I have made to the House, I ask the Committee to consider turning down clause 39 if there is a vote so that we can have a detailed look at the transitional arrangements. I accept the spirit of the two amendments tabled by the hon. Member for Ashford; in any event, we are applying through guidance the court ruling on HSMP.

Paul Rowen (Liberal Democrat, Rochdale)

The Minister is being very generous with his time. I accept the point that he is making, but I seek from him clarification as to the intended timetable, given that protection is removed from the Bill if we remove clause 39. Is the intention that regulations will be published while the Bill is still making its passage through both Houses? Will there be consultation on them so that we can produce amendments if necessary?

Phil Woolas (Labour, Oldham East and Saddleworth)

I am choosing my words carefully to help the Committee and not in any way to mislead it. It is my intention that there shall be a new clause 39 or equivalent so that the House can agree the principle. The regulations that flow from it would be introduced after the Bill has completed its passage so that the House can determine the principle and in order to meet my suggestion, which has been the practice of Governments of all persuasions, to look at the particulars through the commencement order and the regulations.

The difficulty is that in making transitional arrangements for people who have ILR within a period of time, it is difficult to find comparisons for ILR—by definition, one could say that a transitional arrangement could be here ever after. But, of course, we have to provide reasonable expectation and fairness for the people who have ILR now, and to ensure that the new system does not present greater difficulties for them than would otherwise have been the case had the system not been changed. I believe that that is the point that the hon. Gentleman is making. I understand him, he and I being neighbours in God’s own county—if I can put it that way. [Interruption.] I hope that I have explained myself, and that I have not just lost the vote with that last phrase. I prompted something, I know not what.

Adam Holloway (Conservative, Gravesham)

I have been out of the room briefly, so the Minister may have covered this. Does he consider that applying changes to immigration rules to migrants who are already on the path towards settlement is not unlawful?

Phil Woolas (Labour, Oldham East and Saddleworth)

Do I consider that not to be unlawful?

Adam Holloway (Conservative, Gravesham)

Does he consider it to be unlawful?

Phil Woolas (Labour, Oldham East and Saddleworth)

I am not going to answer that question because in my experience, a Minister who claims that something is lawful or unlawful without sound and strong advice, ends up costing the taxpayer a lot of money in legal fees.

I understand the principle behind what the hon. Gentleman has said. I do not believe in retrospective legislation, and I do not believe that Members’ allowances should be changed during the course of a Parliament. That is retrospective. Where there is retrospectivity, as there is in a more liberal way in later clauses to do with children, that is reasonable. However, I do not agree with it the other way round. The Whip is urging me to get off the issue of Members’ allowances and get on to public expenditure. I ask the Committee to accept my point of view.

Damian Greenrose—

Nicholas Winterton (Conservative, Macclesfield)

Before I call the hon. Member for Ashford, I say to the Committee that as far as I am concerned, the Minister has replied to the debate on amendments 43 and 44. He has referred to a certain amendment that I did not select, as I believed that it was more appropriate for a stand part debate. However, he has explained his position. Although I am happy to offer a stand part debate, if the Committee wishes it, the Minister has clearly established his position and, from his point of view, a stand part debate would be a repetition of what he has already said. However, I am in the hands of the Committee on this matter, and if it is the Committee’s wish to have a stand part debate, I am happy to permit one. I call the hon. Member for Ashford to comment further on his amendment.

Damian Green (Conservative, Ashford)

Thank you, Sir Nicholas, I will respond to that. In my view, we have given this matter a full airing. It is an extremely important issue, but there is not necessarily much more to be gained from a stand part debate. Presumably, the Minister has indicated that he would like a vote on the clause stand part, as he wants to vote against it. It is not for me to move the deletion of a clause from a Bill. That would be an unusual constitutional innovation [Interruption.] I am happy to adopt it. We could apply it to various clauses in the Bill.

Nicholas Winterton (Conservative, Macclesfield)

Order. May I help the Committee further? Clearly, one of my duties when we have finished debating the amendments is to put the question that the clause stand part of the Bill. If there is a negative answer, the clause does not stand part of the Bill. That is pretty clear.

Damian Green (Conservative, Ashford)

It is extremely lucid and clear, Sir Nicholas. The Minister has made a potentially important concession—I think that that is how he described it. He has clearly listened to the wave of outrage that has come not only from another place but from many bodies and individuals outside this place. He has given the Committee an assurance that he will come back with something better and more acceptable in the future. We accept that his assurance is made in good faith.

I would like to check with the Minister that the principles on which his new clause will be adopted are first, that there is a significant difference between temporary and indefinite leave to remain, and that that distinction will remain. Secondly, does he agree that those who have come here under the highly skilled migrants programme are, partly because of the legal situation, in a different position to those who have come by other routes? However—this is a very important point—those distinctions should not necessarily apply to those who have already been in the country for some time, even with temporary leave to remain, and who have a reasonable expectation that they were on a path to citizenship.

The purpose of my amendment, and of those moved by my noble Friends in another place, was to say that those who are coming to the end of a period of temporary leave to remain will have developed that reasonable expectation. They in particular deserve the protection of the House against what they see—not unreasonably—as retrospective legislation. I agree with the Minister that the principle of retrospection is normally bad in legislation.

I am trying to draw out the distinctions, because I think they are important. As the Minister has said, the Government will propose a new clause, but it sounds likely that the regulations, which will inevitably contain important details, will not be seen by either House until the clause has been passed. By that time, of course, if we discover that the regulations make the provision unacceptable, it will be too late, so to some extent we are being asked to buy a pig in a poke. Will he establish the principles as clearly as possible, so that we can return to the matter in later debate? In the expectation that the Minister will be able to satisfy the Committee on those points, I beg to ask leave to withdraw the amendment.

Clause 40

Damian Green (Conservative, Ashford)

I want to ask the Minister some brief questions about clause 40, which deals with the application requirements for citizenship. I shall focus on the categories of people to which the requirements will apply.

Under subsection (11), in order to qualify toward naturalisation, the time spent in this country has to be spent while resident on a certain type of visa or entitlement, including ILR, Commonwealth right of abode or European economic area entitlement. Time spent in the UK on a visa that is limited as to duration will count only if leave is granted for a purpose set out in the rules made by the Secretary of State, so it is impossible to know to which categories of people they will apply. There may well be large numbers of people on certain visas who do not fall within the category. I hope that the Minister can clear up who and how many people will be affected.

Clause 40 also introduces amendments to the number of days that a person applying for naturalisation will have to have been present in the UK for each year of their qualifying period. As things stand, a person intending to qualify for citizenship can be absent from the UK for up to 540 days during their qualifying period and for no more than 90 days during the final year of the period. Barring the final year of qualification, there are no limits on the duration and timing of other absences, so the person seeking to qualify for citizenship can spend time away from the UK as and when they need or wish, within the limit.

Clause 40 seeks to impose stricter rules on absence by requiring that a person must not be absent from the UK for longer than 90 days in each qualifying year. In practice, that might mean that a person who consistently remained in the UK for the first two years of their qualifying period but was absent for more than 90 days in their third year, perhaps as the result of a genuine family emergency or work commitment, would thereby jeopardise their application for citizenship. The change imposes a much heavier restriction on freedom of movement and might unfairly discriminate, particularly against those who have a family emergency. Can the Minister provide some explanation?

The clause also highlights the desirability of having the secondary legislation flowing from clauses explained and made visible to the House while we are considering the underlying clauses. The regulations flowing from the clause might have dramatically adverse impacts on people. The Minister may well have a perfectly good explanation, but at the moment it is impossible for the Committee to take an intelligent view, because we simply cannot know the facts. At the very least, I hope that the Minister can provide some kind of explanation at this stage.

Tom Brake (Liberal Democrat, Carshalton and Wallington)

I want to raise a number of points with the Minister. I know that he is assiduous and will have noted that we tabled some amendments—amendments 52, 49 and 50—to the clause. He will have done his homework; he will have the notes in front of him; and he will be able to respond to my points.

The first point is in relation to amendment 49. I shall read from an Immigration Law Practitioners’ Association briefing, which has helpfully been provided. Those who change their status but remain legally in the UK will be knocked back as a result of the clause. That is a matter of concern:

“For example a worker who ceased to work and did a full time degree (for example a Masters of Business Administration)”

and then went back to their original status, would previously have been able to aggregate the two periods as a contributory period, but now they will no longer be able to do so. That is my understanding. An explanation as to why that should be the case is required. If someone is undertaking further studies, which eventually would be of benefit to UK plc, it seems regrettable to penalise them for doing that. That is one point that I hope the Minister can respond to.

Another point concerns the effect of the probationary citizenship stage on refugees and those granted humanitarian protection. Might there be circumstances in which it would not be appropriate for refugees—perhaps as a result of something that they have experienced in their country of origin, or for whatever reason—to undertake voluntary work as part of their probationary citizenship period? Can the Minister explain the extent to which flexibility will be provided in such circumstances? We can all imagine a scenario in which someone having to undertake that active citizenship role might not be appropriate.

Another query that I hope that the Minister can respond to concerns clarifying the position on fees for refugees. My understanding is that refugees do not currently have to pay fees, but if they want to achieve citizenship at the earliest opportunity, they would seem be liable for some fairly substantial fees. I suspect that refugees may be in the worst position possible for settling such fees. I hope that the Minister can provide some clarification.

My final point has been referred to by the hon. Member for Ashford, which is the question of an excess of 90 days. Our amendment 52 tried to substitute what I believe is the current arrangement.

Nicholas Winterton (Conservative, Macclesfield)

Order. The hon. Gentleman is being pretty clever. His amendments were not selected, because they were starred—tabled too late to be selected for today’s sitting. If he fails to mention the amendment number, I am quite happy for him to refer to all such matters in the clause stand part debate.

Tom Brake (Liberal Democrat, Carshalton and Wallington)

Thank you, Sir Nicholas. Consider reference to any amendment numbers expunged from the record. I would hate not to give the Minister an opportunity to read out the note that his officials have helpfully provided him with on what I shall not call amendments, but points of debate.

I hope that the Minister will be able to provide some reassurances, because the changes proposed in the clause will have substantial impacts on some of the most vulnerable people seeking citizenship. It could impose severe penalties on them, in a way that hopefully the Minister accepts is not appropriate for people who soon will be—we hope—citizens of the United Kingdom and wishing to make a substantial contribution. We should want to welcome them as part of that process.

David Anderson (Labour, Blaydon)

I assure you that I have absolutely no intention of mentioning any amendments, starred or otherwise, Sir Nicholas.

I seek clarity from the Minister on clause 40(2)(e) and the meaning of “continuous employment”, because there is a huge question about the meaning of that phrase. A trade union asked me to ask this specific question: what would happen to people who are working in a workplace who are being harassed, bullied and exploited while they are here on work permits? If they chose to walk away from exploitation rather than remain in that employment, would they rule themselves out of the opportunity to become naturalised citizens?

The concern is that there is only one legal definition of continuous employment. It is spelt out in the Employment Rights Act 1996, which states—very clearly, for the law of this land—that continuous employment means employment with the same employer without a break. Because there is no other definition in law, if people challenge a decision to refuse naturalisation, the reality is that that definition will be used. Is that the case? I understand that the question was raised in the Lords, and that the Minister there said that in certain circumstances individuals could change employers in occupation periods. If that is the case, will the Minister expand on it?

People are concerned about when such a situation might come about. Some time ago, the case of the cockle pickers in Morecambe bay led to the welcome Gangmasters (Licensing) Act 2004. As recently as yesterday, however, a 10-minute Bill was introduced on the Floor of the House by my hon. Friend the Member for Paisley and Renfrewshire, North (Jim Sheridan), which would update the 2004 Act to include construction workers, because of the problems that such workers are facing. Many people who come to work in construction in this country from abroad may, in the long term, become eligible for naturalisation. They are the sort of people we need—as we said earlier, they are highly skilled people—and we want to attract them. We need to be clear that they will not be exploited.

There are lots of problems with temporary workers and the agency workers directive, and people are in danger of being exploited in the real world of work. I had some experience of that when I was a Unison trade union official. A group of degree-level Filipino nurses were working over here on a contract and living four to a room. They were being charged transport charges for using a bike to ride to work. They were under pressure because there was a bond on them: if they walked away from their work, not only would they be liable to pay the money back in this country, but they would be liable to pay the money back to contractors back home. My union got them out of that workplace and got them work in the health service, where they were treated properly. If the Bill goes through as it stands, most people would not want to choose the alternative that my union made possible for those nurses. People could be forced to stay in such workplaces if they want to become naturalised citizens. It is a real issue.

Nobody is unaware what is happening in the world now. There is massive uncertainty because of the recession and there are questions about when recovery will start. In the interval between the end of this morning’s Committee’s sitting and the start of this sitting, I spent three hours on the phone trying to deal with a case that has developed in my constituency as a direct result of the closure of Dairy Farmers of Britain. We are trying to stop the closure of a dairy in my constituency. We know what the situation is, but we need to be clear that we are doing everything we can to ensure we do not make life even harder for people—good hard-working people—whom we want to stay here. As a result of circumstances totally outside their control, they might not be able to comply with the continuous employment requirement.

The Conservatives are committed to 10 per cent. cuts in public services. Many of the people we are talking about—skilled migrant workers—will be working in the health service, education and local government. Their jobs will be under threat and they may well fall outside this provision. Will the Minister please clarify what we mean by “continuous employment” and calm my nerves? Let us get this right and get it sorted.

Phil Woolas (Labour, Oldham East and Saddleworth)

I shall reply to the points in reverse order, not least because the amendments do not exist, and because the number I have written on my notes does not tally with the ones that were submitted.

Crispin Blunt (Conservative, Reigate)

Which do not exist.

Phil Woolas (Labour, Oldham East and Saddleworth)

Which do not exist.

Let me calm the nerves of my hon. Friend the Member for Blaydon. In answer to his question, we have made it clear that to qualify for citizenship, those here on the work routes—in practice, tiers 1 and 2 of the points-based system—must show that they have contributed economically and have paid taxes. If they do not meet those two requirements, they will not normally qualify for citizenship and, would therefore be required to leave the UK. However, the majority of people here to work do precisely that. If they cease to be in employment, they have ceased—with the caveats—to meet the key requirement of their route and so should not be allowed to progress to citizenship. I think we all agree that it would be unacceptable if migrants who have come here specifically to work were allowed to qualify for citizenship despite being economically inactive for long periods.

The continuous employment requirement is consistent with and underlines the Government’s clear policy that migrants who enter by the work route are here to work and be economically active. However, let me reassure the Committee on several important issues related to that requirement.

The Bill requires those who were granted probationary citizenship for the purposes of taking employment to demonstrate only that they have remained in continuous employment. We agree that the requirement that a migrant on the work route must be in continuous employment should not be interpreted rigidly. That is why there is discretion to waive that requirement where appropriate. Continuous employment does not mean employment with one employer; we are clear that people can meet the requirement in the earned citizenship clauses if they change jobs, or types of jobs, or self-employment during the qualifying period. That will be set out in the guidance we publish on that requirement.

I shall answer the more specific points raised in the other place about domestic workers, even though my hon. Friend spoke more generally. The Government are committed to the requirements set out for naturalisation in the Bill, and the expectation is that migrants on the work route must meet all of those requirements. Discretion should not be regarded as a way to avoid the requirements. It is quite different from removing the requirements for a person who has come here to remain in employment continuously.

The Bill includes a power for the Secretary of State to treat people as meeting the continuous employment requirement even where that is not literally the case. Our view is that we should mirror the time period allowed under the points-based system for migrants to secure alternative employment. In other words, we would consider applying discretion where the total number of days of unemployment for the duration of the probationary citizen period is 60 days or less. In some circumstances, we would consider applications where the total is more than 60.

I do not wish to set out the list of those circumstances under which that discretion should be applied, as I was tempted to do. That would be counter-productive, because providing a fixed definition of discretion would mean that—by the very nature of its being fixed—it would cease to be discretionary. We do not want to exclude scenarios that might arise. We are committed to considering each case individually on its own merits, just as we are committed to upholding that principle within the workings of the existing points-based system. I believe that that provides a more transparent and fair basis on which to use discretion.

The Secretary of State would treat people who lost their jobs for a short period as meeting the continuous employment requirement, even if that were not literally the case. The 60-day period is consistent with the points-based system period. To avoid the exploitation of that loophole—that is not quite the right word—by those who are not well intentioned, we wish to provide a clear framework based on the 60 days, which is taken from our definition. That will provide for discretion to meet the point that has been made. That is exemplified in our response to the situation with domestic workers, where special arrangements are in place to avoid exploitation that could take place in any case, but which is more likely in an economic downturn. The rule is strong, but it is not rigid, precisely because of the arguments that my hon. Friend made.

I will respond to the other questions, again in reverse order. The hon. Member for Carshalton and Wallington asked about continuous periods interspersed with purposes other than the initial reason given for the visa. Somebody who spends two periods in the UK with a qualifying immigration status, and who in between is lawfully in the UK with an immigration status that is not a qualifying one, can have the two qualifying periods aggregated. The hon. Gentleman is nodding—he knows what I mean. For example, an applicant who entered under the work route, stopped working after three years to commence a two-year period of study and then resumed work, could count both periods spent as a worker towards the qualifying period.

The Government have set out that only if migrants enter through one of the three key routes—work, protection and family—can it lead to naturalisation as a citizen. We made it clear that only time spent in one of those routes is capable of counting towards the qualifying period for naturalisation. If the period in the middle was spent as a student, which was the hon. Gentleman’s example, it would not count because that is not a qualifying route. However, the work chunks on either side could be aggregated. I hope that I have answered that question.

I was asked whether refugees have to pay fees to get citizenship. Like everyone else, they have to pay. However, unlike other migrants on the path to citizenship, they are not charged at other stages of the process. In other words, when they have been given protection, they become the same as other people on the route. By then, they would be established in our country.

The hon. Member for Ashford asked which categories of people will have qualifying immigration status. There are three main routes. The first is the family route, which involves the family members of British citizens. The second is the work route, which is made up of migrants on tiers 1 and 2 of the points-based system, but not those on tiers 3, 4 or 5. The third is the protection route, which involves refugee status or humanitarian protection, or discretionary leave. Another route is as an EEA entrant; such people will retain the right to naturalise as a British citizen, provided they meet the criteria.

The hon. Gentleman also asked about periods of absence. He meant people going abroad, rather than staying in the UK under another category. I do not support, and I doubt that he does, the idea of an average calculation of absences over the qualifying period. However, we will not examine the requirement when the absences in the earlier part of the qualifying period—that is, at the entry into the probationary citizenship stage—have been examined already. I hope that he is following my logic.

First, we are not concerned about absences from the UK before the start of the qualifying period. Secondly, we want to avoid a system that penalises—for exceeding the time limit by a few days—those whom we might want to remain, or who might have justifiable reasons for their absence. In other words, like my point about continuous employment, we want to put some common sense into the Bill—I always try to do that in legislation, although it is not always straightforward. In recognition of the need for flexibility, the Bill provides discretion to allow the Secretary of State, or his designated officials, to overlook a period of absences exceeding 90 days in a year in the special circumstances of a particular case. We shall, of course, continue to expect migrants to justify large absences, and in such cases we would expect the applicant to demonstrate close links with the UK through length of residence, and presence of home, family and estate in the UK. We would then consider the reasons for an absence. The 90-day rule will apply, therefore, but the discretion will enable the applicant to demonstrate a genuine reason for an absence. That is better than making automatic assumptions.

Tom Brake (Liberal Democrat, Carshalton and Wallington)

Before the Minister moves on to other matters—or, indeed, concludes—may I return briefly to the issue of refugees? Am I right in thinking that the citizenship application costs are about £700? Some refugees might suffer from significant mental health issues—perhaps as a result of torture. Is there discretion within the system to allow those fees to be waived?

Phil Woolas (Labour, Oldham East and Saddleworth)

I understand the hon. Gentleman’s point, but the answer is no. The citizenship fee applies at the point of obtaining citizenship, by which time the refugee will no longer have refugee or protected status. The circumstances that he mentions could apply equally to those who have come through different routes and for reasons beyond their control. So I do not accept his argument—well, he was not making an argument, but asking a legitimate question.

Clause 40 ensures that the rights and benefits of British citizenship are matched by responsibilities and contributions made to Britain. It does so by creating a clear system to determine progress on the journey to citizenship, a clear set of incentives for migrants to progress to citizenship and a clear undertaking that citizenship should be earned. To earn the right to progress between stages, migrants will be required by the Bill, first, to meet English, or Welsh or Scottish—I am looking for help with pronunciation here—“Gar-lic” language requirements. [Hon. Members: “Garlic?”] I kid you not, Sir Nicholas! I am quoting the hon. Member for Perth and North Perthshire (Pete Wishart), who made this point on Second Reading. I always thought that it was “Gay-lic”.

Crispin Blunt (Conservative, Reigate)

It is “Gallic”.

Phil Woolas (Labour, Oldham East and Saddleworth)

Well, I misheard then.

David Hamilton (Labour, Midlothian)

I would say “Gay-lic”. I would like to make one other observation though. Why include Welsh and Scottish Gaelic, but then miss out the Irish? There are four parts to this country. In Northern Ireland, Gaelic—or “Gay-lic”—is also spoken regularly. On an administrative point, the Government might like either to include the Irish or take out the Scots and Welsh and simply refer to English.

Phil Woolas (Labour, Oldham East and Saddleworth)

I am treading into areas about which I know nothing. I accept hon. Members’ pronunciation—I was surprised when I heard the other pronunciation.

Seriously, however, there is a consensus on this matter. In 2001, when my right hon. Friend the Member for Sheffield, Brightside (Mr. Blunkett) and I first made the suggestion, it was met with derision by the commentating class, but now there is consensus.

The second requirement on migrants will be to contribute to the economy and to pay tax, if they are economic migrants. Thirdly, and critically, there is a requirement to obey the law so that criminal behaviour will have certain consequences. In that sense, the word “probation” is right.

The requirement to undertake active citizenship is also included, and the ability of the migrant to progress more quickly by meeting those active citizenship criteria is a sensible change in policy. In my experience, the vast majority of immigrants to our country want to get on. They want to learn to speak English. They want to improve circumstances for their families, and we want to help them to do so. The clause not only helps the migrant, it helps to reassure the wider population that the migrant wants to be in our country, wants to make a positive contribution, wants to obey our laws and wants to learn our language. In the long run that will change the relationship between the migrant and the indigenous population in a wholly positive way. That is why I am grateful for the support of the House for that principle.

Clause 42

Damian Green (Conservative, Ashford)

I beg to move amendment 45, in clause 42, page 34, line 42, at end insert ‘; or—

(c) has participated in activities of benefit to the individual applicant, the host organisation and the wider community.’.

Nicholas Winterton (Conservative, Macclesfield)

With this it will be convenient to discuss amendment 46, in clause 42, page 34, line 42, at end insert—

‘(6) The activity condition can be completed at any point during an applicant’s arrival in this country or the subsequent probationary citizenship stage.”’.

Damian Green (Conservative, Ashford)

The Minister has just helpfully mentioned the activity condition, which is clearly a central new idea that the Government are introducing. The amendment is designed to probe some of the details. At the moment there is a large black hole in the Bill as to what is meant by activity condition. Even those who accept in principle the argument that the Minister made in our most recent debate, have a series of legitimate questions about how this activity condition will be implemented in practice. Yet again, inevitably, the details are not given and are left to be clarified in secondary legislation, but as it is such a significant shift in this country’s attitude to immigration and immigrants, it is worth the House knowing as much as it is possible to know at this stage.

I was grateful to receive an e-mail yesterday—I am sure the whole Committee received it—about the document that had been made available. I was slightly less thrilled when I discovered that the document had been sitting in the Vote Office for 48 hours before the e-mail went out. The Minister looks puzzled, but the document is dated 4 June—

Phil Woolas (Labour, Oldham East and Saddleworth)

It is an evolving document.

Damian Green (Conservative, Ashford)

It may be, but one of the amendments before us is specifically addressed in the document. The document was not publicised to any members of the Committee until after it was possible to table amendments in time for them to be debated now. I do not think that was an organisational triumph. We can deal quickly with amendment 44, which seeks to say that the activity condition can be completed at any point during an applicant’s arrival in this country or the subsequent probationary citizenship stage. On carefully reading the document, I discovered that is the Government’s thought too. I am pleased that in that detail the Minister and I are thinking along the same lines.

Nicholas Winterton (Conservative, Macclesfield)

Order. May I try to be helpful? I think the hon. Gentleman is referring to amendment 45, not 44. We are debating amendment 45, with which it is possible to discuss amendment 46.

Damian Green (Conservative, Ashford)

Thank you, Sir Nicholas. I meant to say amendment 46, not amendment 44. I knew that I wanted to refer to the second amendment in the group. Amendment 46 is covered explicitly in the document and, either by coincidence or some other happy event, the Minister and I arrived at the same conclusion.

The Minister will be aware that in another place, my noble Friend Lady Hanham questioned Ministers carefully on the detail of the activity scheme and condition. She was not satisfied that all the voluntary sector’s concerns had been properly considered, and thought that the practical application of the scheme was still too vague. The document addresses some of the practical issues, to which I shall turn in a minute, because some of the suggestions are dubious and others—frankly—even worse.

The underlying problem is that the proposals for earned citizenship will rapidly create fairly big bureaucracies, and the groups most affected will be in the voluntary sector, which we all hope to support and we all know is most vulnerable to bureaucracy. Small charities and volunteering organisations are the least able to cope with onerous bureaucracy. That would be extremely unfortunate for the voluntary sector, which is keen to help and, by and large, wants more volunteers and would like to serve many of the purposes for which the Minister argues under the activity condition and earned citizenship. Nevertheless, their lives will be a misery if the scheme produces too much bureaucracy.

Many of the underlying problems are summed up in five questions from Volunteering England, which is part of the steering group, so I hope that it is having a significant input to the Government’s thinking. I would like the Minister to respond to the five questions.

First, how does the Minister expect organisations without the financial resources to reimburse volunteers for travel and other out-of-pocket costs to participate equally in the active citizenship scheme? That is a reasonable and practical question. Secondly, many potential applicants will have caring responsibilities and may not be able to rely on family members for the care of children and other dependants. How will he ensure that funds are made available to reimburse participants for costs such as fees for child minding or respite care incurred while fulfilling the requirements of the active citizenship scheme?

Thirdly, does the Minister agree with Volunteering England that every potential applicant should have an equal opportunity to participate in the active citizenship scheme, and what does he propose to do to support those with extra needs linked to disability, or even straightforward lack of literacy in English? Fourthly, a recent national survey on volunteer management by the Institute for Volunteering Research shows that nearly a third of organisations do not have the time or resources to cope with more volunteers. That puts a gloss on the point I have just made that, on the whole, the volunteering sector wants more volunteers, but a third of the organisations cannot cope with more. How will the Minister encourage organisations in that position to open up to new opportunities? In particular, how are they supposed to spend time on the verification arrangements for the active citizenship scheme? I shall return to the verification arrangements, because they pose a serious problem that must be addressed.

Other people have expressed considerable and legitimate fears as to what will happen. There are those, including organisations such as Liberty, who object in principle, saying that the scheme is discriminatory and exploitative. At this stage, it will be useful for the Minister to address that complaint, which I do not share. I can see how the scheme might become discriminatory, but I do not think that it will be discriminatory in principle. Clearly, however, if the Minister wants overwhelming acceptance of the whole idea of earned citizenship, he will have to take that argument head-on. The Minister looks slightly puzzled. I will explain.

There are those who say that in principle, any earned citizenship scheme is discriminatory and exploitative. While I have a small amount of sympathy—I can see how it might be—I do not see any reason why in principle it should be. As the Minister argues the case for the new scheme, he will have to take on that particular argument.

Associated with that is the general point that whereas some migrants will find it easy to contribute, and their lifestyle, skills, work and family position make it fairly easy for them to take on extra voluntary work for the number of hours that the Minister proposes, that will not be true of others. At that point, it is quite hard to argue that it is not discriminatory. The other point, which I think is valid, was made by Liberty. It is unclear how the Government intend or expect to regulate volunteering on that scale.

The document, which I keep referring to, addresses the regulation. Let me move on to it, because it gives rise to some of the most difficult questions that the Minister has to answer if he believes that he will create a good and practical scheme. The document states that the Government

“place the onus on the applicant to tell the truth about their ‘active citizenship’ with their citizenship application, but with a role for a referee and a process to verify the bona fide status of the organisation concerned...The referee would sign the applicant’s form to verify that the details given about their active citizenship were correct. A referee would be defined as someone in a supervisory capacity with personal knowledge of the applicant’s active citizenship.”

So far, it is a bit bureaucratic, but still acceptable. However, the next suggestion is ridiculous.

“Whilst the Design Group felt penalties should fall solely on the applicant the Government’s position is that there will also be penalties for referees who act inappropriately as an additional safeguard. Under Section 46 of the British Nationality Act 1981, someone who makes a false or reckless statement for the purpose of procuring anything to be done or not to be done under the Act can be sentenced to a term of imprisonment of up to three months or a fine of up to £5,000, or both...Both applicants and referees would be subject to sanction”.

The Minister will try to persuade voluntary bodies and well-meaning people all over this country to support the scheme. At the start of it, he will make it compulsory for people to have referees, but he is also saying that the referee will be laying themselves open to a fine of £5,000 and three months’ imprisonment if they themselves are deceived by an applicant. I suggest gently to the Minister that that cannot be a sensible way to start off—it will not work.

The Government Whip is shaking his head at me. I am reading word-for-word from his own document that the Government placed in the Vote Office. He can disagree with it, and indeed I hope that he does, because I disagree with it. That is the burden of what I am saying. That does not seem to be an extremely good way to design a new scheme. I hope the Minister will mount an elegant retreat from it fairly quickly.

I also mentioned the regulatory regime that the Minister is proposing to set up. The document makes the point that some 90 local authorities currently operate a nationality checking service on a voluntary basis. Those services check the details of citizenship applications—for a fee to the applicant—and pass the applications to the UKBA caseworkers in a state ready for immediate caseworking. The thinking of the group is that

“our local authority partners are uniquely placed to offer an accessible service to applicants for British citizenship”.

Again that is arguable, but it seems to be a practical step forward.

However, the document goes on to say:

“Whilst the Design Group’s preferred option was to make use of NCS as a preferred provider, the Government’s initial thinking is that we should aspire to go further than this and make its use compulsory. The Government’s position is that ideally, all applications, particularly those with an active citizenship element, would be submitted through NCS enabling providers to use their local knowledge to assess and verify evidence.”

In other words, wrapped up in all this wording is yet another duty on local authorities. As one would expect, there is no suggestion that any extra funding will be available for this service. The document suggests that local authorities will have to provide this service compulsorily for immigrants in their area, or that immigrants who do not have a local authority that provides this service will not be able to use this method, or that some other compulsion will be operated.

Of course, the burden for this service will fall hugely disproportionately on a small number of local authorities. We do not get an even distribution across the country of long-term immigrants who wish to apply for citizenship. Inevitably, many of the local authorities that will be hardest hit by this extra burden will be those that are not the wealthiest in the country. So I would advise the Minister that if this idea is, as it is described, an “aspiration” of the Government, they might wish to stop aspiring to it very quickly, because it does not seem to be either a practical or a fair aspiration.

I do not wish to read out the whole document, because it is available. However, the third point that I wish to make is about the activities involved: the very basic things that people can do to prove that they are an active citizen—a worthy person to be granted the privilege of British citizenship. The list of such activities bears some examination and indeed it should be changed by the Minister. It starts off with things that I suspect nobody would raise an eyebrow at. They are:

“• volunteering at the local hospital for example helping at a WRVS shop

• volunteering at a health related community education project

• volunteering at a local school for example to raise reading levels of primary school children”.

Of course, that last activity raises questions about Criminal Records Bureau checks, as these people are people who, by definition, have recently come from other countries and we know that CRB checks are much more difficult to carry out on people who have recently arrived in this country, and yet we are actively encouraging them to go to work in schools. Has the Minister thought through the practicalities of that suggestion?

Other activities on the list that are still reasonably good are:

“• volunteering at a lunch club for the elderly”

and

“• volunteering at a soup kitchen for homeless people”.

However, I question whether some of the activities lower on the list have been fully thought through. They include:

“• volunteering for a faith organisation”.

Does that mean any “faith organisation”? Bodies can declare themselves to be a “faith organisation”. Not all self-styled “faith organisations” are necessarily places where one would want to say, “I have worked there for 15 hours and therefore I qualify for a fast track to a British passport”. I put that suggestion to the Minister; he will know as well as I do the sort of organisations that I am talking about.

The list also suggests “trade union activities”. I am not sure that several hours standing on a picket line should necessarily be a qualification for a fast track to a British passport. [Interruption.] I thought that that comment would be controversial across the House.

Phil Woolas (Labour, Oldham East and Saddleworth)

Read the next one.

Damian Green (Conservative, Ashford)

No, I shall read the one before, which is:

“• canvassing for a political party”.

I am happy to say that we do not find it difficult at the moment to find people to canvass for our party. I am conscious that, on the Government Benches, it may be more difficult to find such people than it has been before. However, the idea that people who, by definition, cannot have a vote because they are not citizens yet should be specifically encouraged to engage in some political activity for a party as a way of proving their “active citizenship” gives rise to some quite significant questions about how hard this list has been thought through. The Minister is making a face that makes me think he considers that all kinds of political activity in all circumstances are good.

Tom Brake (Liberal Democrat, Carshalton and Wallington)

The hon. Gentleman has prompted me to rise to my feet, to ask him whether he thinks that delivering “Focus” constitutes an active citizenship activity.

Damian Green (Conservative, Ashford)

It is so long since I have found anyone delivering “Focus” that I cannot really comment. Seriously, though, when people who have newly arrived in this country ask, “What should I do to get myself a British passport to become a citizen?” should we be telling them, “We are the local political party, why don’t you deliver our leaflets?” This measure has not been thought through.

David Hamilton (Labour, Midlothian)

Surely the hon. Gentleman is not encouraging people to get employment and then not join a trade union that would protect their rights? Would he bring that in if he were elected?

Damian Green (Conservative, Ashford)

The hon. Gentleman gives rise to another interesting point, in that this activity will only count if it is unpaid. From the viewpoint of a strong trade unionist, which I guess the hon. Gentleman is, it seems slightly perverse that a person is allowed to work for a trade union, which will qualify them, but then they must not get paid for it. Imagine the perversity of the situation: jobs that could be done by people who are being paid are, instead, being done by people who are unpaid, and the jobs are being done for trade unions. My understanding of trade unions is that that is the thing they hate most of all—people doing unpaid labour displacing people who would otherwise be doing paid labour. This Labour Government are suggesting precisely that as a qualification. There is a significant lack of coherence at the heart of this bit of the proposal.

I am not clear what consultation has been had with the trade union movement about this. I am perhaps less in tune with the motives and motivations of the trade union movement than Labour Members, but even I feel that this measure is a little perverse. A person can help the trade union as long as they do not get paid. The moment that they are paid for their work, it does not count as voluntary activity and does not count as a qualifying activity for the purpose of active citizenship. I hope that the Minister will fully explain the thinking that lies behind the proposal.

Finally, I should like to note the extraordinary power that is to be provided to the Secretary of State by the insertion of the proposed new subsection, which will allow the Secretary of State by regulation to amend the length of the qualifying periods for citizenship. We had a long discussion earlier today about the problems of quasi-retrospection—of changing things in ways that might be challenged by the courts, as they have been under the highly skilled migrant programme. A huge power has been slipped in here by which the Secretary of State can change the length of time of the regulations. I am genuinely not sure whether that has been slipped in in the hope that no one would notice. However, we have noticed, and it seems to be quite a big power given the importance that the Minister is placing on not just the length of time people have to go through to qualify for citizenship but the fact that they can do certain things that reduce that time. He is making it pretty easy for the current or any future Secretary of State to change the conditions under which the length of time can be set.

I hope the Minister can address that wide range of important issues, including the type of activities that would count, the potential burden on the voluntary sector—specifically the fines for referees and the amount of form-filling—and the extra burden on local authorities regarding the nationality checking service and the funding. It is suggested that the migration impact fund would be used to fund some of that activity. Up to now, Ministers have said that that fund is available to local authorities that have been hard hit by unexpected arrivals of immigrants. There is also the potential burden on employers, because many of these people who will be doing this voluntary work will be doing full-time work as well, particularly in the current economic climate. What is suggested here is that employers will be happy to give them time off to do their voluntary work. Clearly, that will be easier for some employers than for others; it will be easier for large employers than for small employers.

The basic point that I am making—I think the Minister will have got it by now—is that even if one accepts the argument for encouraging people to integrate, making them feel that they have to contribute something to the community and giving them a huge incentive for those worthy activities in the form of two years off the period for which they have to be here before becoming a British citizen, it is absolutely a matter in which the devil is in the detail. So far, the detail released suggests that the scheme has not been fully thought through before being introduced into public policy. All experience tells us that schemes introduced in that way and at that speed often end up doing more harm than good. I hope that considerable thought is given to the scheme before it translates into anything in the real world.

Tom Brake (Liberal Democrat, Carshalton and Wallington)

I want to echo many of the queries raised in relation to the amendments, and I will listen carefully to the Minister’s response. There are a couple of other queries that I would like to put to him that I believe are pertinent to the amendments, and I hope he can answer them as well.

I agree entirely with the point about voluntary organisations. What greater disincentive can there be to voluntary organisations than to know that they will be subject to penalties, and possibly a term of imprisonment, if they fail to account correctly for the volunteering activities of people who join their organisation?

The issue of CRB checks was raised. If the Government are going to push people down that route, additional resources will clearly be needed in that area. Like many other Members, I suspect, I regularly receive complaints about the speed with which CRB checks are done. People are actively prevented from securing employment because they are waiting for their CRB check to come through. If we are going to be creating many more requests for CRB checks, additional resources will be needed.

Can the Minister provide us with an estimate of the number of volunteers that he thinks will seek voluntary activities each year after the Bill has been passed? Has Volunteering England identified what demand for volunteers it will be able to satisfy and what support those volunteers will need in order to be able to volunteer? Also, has he heard any representations about the difficulties, already highlighted in the other place, of satisfying demand for places for volunteers, particularly in rural areas? It is much easier in an urban area; there are probably many more voluntary organisations, or at least many more that are easily accessible, than in a rural area.

Instead of raising the issue in a clause stand part debate, I will ask the Minister one final question on volunteering for young people. I had an amendment that I did not table in time and to which I therefore cannot possibly refer, Sir Nicholas, but I understand that it would not have achieved what we wanted it to even if I had. It would have sought clarification from the Minister on whether children would be required to undertake volunteering activities for their citizenship, and whether that would place an undue burden on, for instance, children whose first language is not English and who might be trying to combine studying English with learning in their own language. They might, therefore, have less time available to undertake active citizenship activities. I hope the Minister will respond to those very specific queries.

Phil Woolas (Labour, Oldham East and Saddleworth)

We have put forward the document on the work of the design group, to whom we are very grateful indeed. The background to this is that in July 2008 we published a document entitled “A Path to Citizenship: next steps in reforming the immigration system”. I always like documents that say what is actually inside them—it is much better.

We set out our proposals in our response, to create the new path to citizenship. The design group’s document contains the work that it has done so far. We set the group up last summer. It has representatives from the voluntary sector, including Volunteering England, which was referred to by the hon. Member for Carshalton and Wallington. Local government is represented as well. The group’s remit was to advise on the most effective way to operate the active citizenship process in practice. We have now agreed a proposed model for accrediting and verifying active citizenship, but I emphasise—and I do not think it is a weakness—that we are embarking on a very significant policy change. We are evolving and consulting on it extensively. This is not on the face of the Bill and one would not expect it to be—to put it there would render it inflexible.

We would be the last to say we are perfect, but let me try and answer some of the specific points that have been raised so far. The idea of active citizenship has been around for some time. Its definition takes us into difficult areas. I challenge anyone to put forward a set of proposals that would get unanimity, perhaps even consensus—certainly at first stab. I hope the Committee recognises the common sense of what I am saying.

At its core, I ask the Committee to consider the point that active citizenship and what we are discussing here is a way in which probationary citizens can speed up the time period for becoming a citizen. For migrants who have come to the UK as a worker or a refugee and European nationals, the default qualifying period for application for citizenship will be eight years. For migrants who have come to the UK as the family member of a UK citizen or someone with permanent residence here, the default qualifying period will be five years. So none of these are requirements for citizenship; they are a way of incentivising and speeding up citizenship, and from the wider community’s point of view are a way of benefiting from that application.

Let me turn to the specific answers to the questions. On the question about children asked by the hon. Member for Carshalton and Wallington, an application under section 6 of the British Nationality Act 1981 can only be made by a person of full age. It is not envisaged that a child would be able to do this programme. He asked about the number of volunteers. Volunteering England has looked at that as well. We have, on advice from the design group, assumed that there will be a 5 per cent. increase in volunteering among the migrant population who are eligible for the probationary citizenship each year. It is assumed that 4,000 migrants per year will undertake volunteering. I confess to the Committee that that is a finger in the air. One has to make working assumptions and have the ability to revise them as policies roll out. That is why it is sensible not to put things in the Bill. That is the best advice that we have.

Tom Brake (Liberal Democrat, Carshalton and Wallington)

Presumably the Minister is not saying that 5 per cent. of people seeking citizenship will opt for active citizenship to minimise the length of time before they are awarded citizenship.

Phil Woolas (Labour, Oldham East and Saddleworth)

This is the assumption that we have been working on. It is the advice that we have. First, it is an increase in volunteering; there is a substantial amount already. It is based on an assumption of the number of applications, of course. Therefore, it is assumed that 4,000 migrants a year, in addition to those who already do, will undertake volunteering. The range of assumptions runs up to 10 per cent. but that is per year, so as time rolls on there will be more people. I give that as information to the hon. Gentleman; I am not suggesting that it is exact or a science. I refer him to the impact assessment, which contains further analysis of those figures.

Damian Green (Conservative, Ashford)

The Minister has the exact guess, as it were, of 4,000. What proportion of each cohort are the Government assuming will participate? Intuitively one feels it will be a very high figure. Has that figure been assessed?

Phil Woolas (Labour, Oldham East and Saddleworth)

Yes it has, but I do not know what it is. I am being frank with the hon. Gentleman. The previous impact assessment made reference to it.

I shall answer questions in random order. The hon. Gentleman asked about resources for volunteering organisations. This was looked at. We recognise that people and groups have expressed concern about this and the design group looked at it for us. It worked with the voluntary sector and had voluntary sector representation on the committee. There are opportunities for funding to address any cost impact. The hon. Gentleman mentioned the migration impact fund. There is no policy decision on that; it is a suggestion from the design group. There is also the European integration fund, which may be able to assist. There is a concern that national bodies will receive a lot of requests for funding, so clearly there is work to be done in this area. I am not signalling that the migration impact fund will be used for other than the purpose it has been set up for. The hon. Gentleman picked me up on that point, as do the local authorities, for understandable reasons.

On applicants with special needs, there is the flexibility in the system to take into account special needs. The hon. Gentleman mentioned disabled people and raised the important point about carers. It is not policy that there should be any financial compensation for taking part—or remuneration, as he said on his trade union point. It therefore is incumbent on the system, in fairness, to take into account the fact that people have caring responsibilities. Without being too rigid it is incumbent on me to point that out. We do not believe there are any equality and human rights implications. We have looked at that point, of course, not least because this is voluntary, not compulsory.

The hon. Gentleman asked about the minimum time requirement. We considered that point. Migrants will be able to demonstrate active citizenship at any point of the route. That will allow them to plan activities in line with work and family commitments. We are also looking at what the time commitment should be for active citizenship. Again, does one want a rigid number of hours a week or an average over a period of time? I do not envisage people clocking in and clocking off in relation to this.

The hon. Member for Ashford made an important point, as did the hon. Member for Carshalton and Wallington, about the critical passage at the beginning of the document about whether there should be financial penalties. The hon. Member for Ashford expressed amazement at that. I sometimes think he lives in a different world from the one in which I live. It is, undoubtedly, sadly the case that individuals will attempt to exploit any new system. Not all voluntary organisations are what they appear. Therefore, the challenge is to ensure that we get genuine organisations to participate but that we do not create a cottage industry of abuse and fraud, which could well happen.

Recently, there have been newspaper reports about exposed bogus colleges, which I am proud to have brought to the public’s attention and clamped down on. I confess that that should have been done years ago by Governments of both parties. That illustrates the type of problem with which I am dealing. The fine, or the punishment, can only exist where the person has intentionally and knowingly falsified. In relation to the example that the hon. Gentleman gave, if the applicant misleads the sponsor and the sponsor is inadvertently misled, of course, that would be covered. He is right about that. I have very helpfully been handed something with the word “recklessly” on it—knowingly, intentionally or recklessly are the criteria.

A key strength of the points-based system and this new system is that it puts an obligation on the sponsor in the case of the points-based system. That is a very effective tool in controlling visa overstayers. In this case, an obligation will be put upon the referee to ensure that the information is valid, so that we can avoid the circumstance whereby some cowboy might sign a document in which he says, “Yes, this person has been volunteering in my community welfare advice centre,” when no such centre exists.

Damian Green (Conservative, Ashford)

I take the Minister’s point. Of course, he is right: any opportunity such as this will be an opportunity for fraud. We have seen such things happen a lot in the past. However, in these circumstances, I am not sure that I accept his point that one can read across from sponsors, who gain a direct benefit from sponsoring an immigrant, to referees. Although he might deter fraudulent referees with these draconian penalties, they will also deter genuine potential referees, particularly in relation to small charities or rural areas—as the hon. Member for Carshalton and Wallington mentioned—where there are lots of small charities. There is an unpleasant combination of extra bureaucracy and extra risk that will put off small charities. Members on the Government Benches are looking shocked by that.

The most important conversation I have had about the voluntary sector was with the Connexions service in Kent, which said that many small charities find it difficult to fill in its forms and as a result do not get enough money, and that it had therefore set up an officer to teach them how to fill in forms. As a prime example of how not to do anything, that is ideal. In five years’ time, I do not want Government bodies setting up and paying new officers so that they can train small charities in how they can become effective referees for people trying to earn citizenship. That is what I fear will happen.

Phil Woolas (Labour, Oldham East and Saddleworth)

I give way to the hon. Member for Carshalton and Wallington on the same point.

Tom Brake (Liberal Democrat, Carshalton and Wallington)

Voluntary organisations might want some reassurance that the legal terminology of intentionally, recklessly and so on that is used will ensure that they will not be put in a position where perhaps the quality of the active participation—the volunteering activity—is being challenged. I can think of examples—I am sure other Members can, too—when work experience students have come to us and, a couple of months later, we have received a request to fill in a form saying that they did the job properly and always turned up. Sometimes it is difficult to recall who they were and whether they did, in fact, play an important role. Is that sort of thing ever likely to be challenged?

Phil Woolas (Labour, Oldham East and Saddleworth)

The hon. Gentlemen are raising a perpetual point of public policy that all local and national authorities face—the balance between ensuring due probity in the voluntary sector and not stifling it with burdensome bureaucracy. Getting that balance right is the challenge; that is what the Office of the Third Sector and the covenant address themselves to. In my constituency one of my welfare groups complained that it was overcome with burdensome forms; we released the burdens upon them and the organiser ran off with the money. We have to get the balance right.

To be fair to the design group, which we all want to be, the point about the penalties refers to section 46 of the British Nationality Act 1981. This is not a new principle being applied; it is an old one in new circumstances. I take the point that is being made; this is why it is right to scrutinise these things in detail.

Moving on to the duty on local authorities, the hon. Member for Ashford was speaking against a potential new burden being placed on them. Around 80 local authorities have signed up to the nationality checking service. There is an opportunity for local authorities: I would not over-egg it, but this is a potential source of income. We envisage that some local authorities will develop an expertise and may act on behalf of areas in their proximity. We do not want to make it compulsory; we think that would backfire. The local authorities are keen members of the design group and there is no duty on them.

Damian Green (Conservative, Ashford)

I want to check that the Minister said he did not want to make it compulsory. That contradicts what is in the document.

Phil Woolas (Labour, Oldham East and Saddleworth)

Which?

Damian Green (Conservative, Ashford)

I will read it out:

“the Government's initial thinking is that we should aspire to go further than this and make its use compulsory.”

Does he want it to be compulsory or not?

Phil Woolas (Labour, Oldham East and Saddleworth)

The hon. Gentleman is picking up on point 3 of the document, I think. It should be compulsory for the applicant to register through the nationality checking service, but not for the local authority to provide that service. That is the question we are looking at. I have raised further doubt in the hon. Gentleman’s mind; he should read the paragraph at the bottom.

Damian Green (Conservative, Ashford)

Will the Minister give way?

Phil Woolas (Labour, Oldham East and Saddleworth)

Let me move quickly on. The proposals on local authorities are being discussed. The views of the Committee are important to that consideration, of course.

Hon. Members asked a number of other questions. The document lays out our thinking on those. We are creating this structure so that active citizenship can become real and meaningful in the United Kingdom. We have laid out some of our ideas in the document. I think that trade union activity is a legitimate part of active citizenship. Of course, the trade unions are dependent on voluntary activity—full-time officials are paid for their work, but voluntary activity from the shop floor is essential. I was interested in the debate about whether party political activity should be considered a legitimate part of active citizenship; a dividing line opened up on that issue. My view, which will not count in the long run, is that we should encourage political parties. We should encourage the idea that politics is part of citizenship. Excluding it from the regulations would send the wrong message; it would imply that participating in a political party does not contribute to civic society. I would argue that my party helps immensely and the hon. Gentleman’s does damage, but I suppose he would argue the opposite.

Crispin Blunt (Conservative, Reigate)

Is there not a possibility of some degree of exploitation? Immigration provides a substantial amount of any Member’s case load. People will come to us on their route to citizenship to seek our assistance when things have gone wrong in the handling of their case by the Home Office. As with applications to get children into faith schools, people will try to create circumstances to advance their case for citizenship. One obvious way to do that is for them to get their Member of Parliament to assist with their immigration case and, at the same time, provide voluntary assistance to that Member of Parliament’s political party. I am afraid that the opportunity for exploitation is all too obvious.

Phil Woolas (Labour, Oldham East and Saddleworth)

Were such a Member of Parliament to knowingly and intentionally, or recklessly, to sign a certificate, they would be imprisoned under—

Crispin Blunt (Conservative, Reigate)

That is not the point at all. How are Members of Parliament meant to differentiate between those coming before them seeking help, and those enthusiastically endorsing their political party and all that they stand for and wanting to rush out and deliver leaflets? That could be “Focus”, if that happens to be in the constituency of the hon. Member for Carshalton and Wallington, “In Touch”, if it happens to be in Reigate, or whatever passes for Labour propaganda today.

Phil Woolas (Labour, Oldham East and Saddleworth)

I take the point. Such activity, whether it be for a political party or one of the other bodies that have been referred to—or others referred to in the future—would have to be recognised as part of the scheme and be certified by the accrediting body. It would not be a simple matter of self-certification. This is the challenge that active citizenship puts before us. The hon. Member for Ashford made a point about faith organisations. Defining a genuine faith organisation is a challenge that the Charity Commission, local authorities and others face all the time. Again, the proper superstructure would have to be in place to ensure that things were working.

Damian Greenrose—

Tom Brakerose—

Phil Woolas (Labour, Oldham East and Saddleworth)

I will give way once more, but I am conscious that we are talking about the design group’s work, not the clause.

Damian Green (Conservative, Ashford)

I am interested in the important point that the Minister just made about a superstructure for checking. That sounds like another licensing authority to decide what is an appropriate body to provide the imprimatur of proper active citizenship. We all agree that the opportunities for exploitation, fraud and unpleasant things happening are considerable. The Minister is right that if we go down this route, there will need to be a checking body. What will that body be? Will it be the local authority, national Government or another new regulatory body? Has any thinking evolved around that yet?

Phil Woolas (Labour, Oldham East and Saddleworth)

Yes, indeed it has. The document from the design group mentions the national checking service that I was talking about, for which 80 local authorities have volunteered. Clearly one needs local input. There cannot be a national top-heavy superstructure. It has to be based on local knowledge, and that is how we envisage the scheme.

I sense impatience in the Committee. I have spoken at length to try to answer questions, but have not talked about clause 42 and the amendments. I hope that I have covered the points that have been raised and justified the desirability of the clause. I resist the amendments and support the clause.

Damian Green (Conservative, Ashford)

I can assure the Minister that there was no impatience on this side of the Committee. Conservative Members think that this is a hugely important part of the Bill—in some ways it is the most radical. One reason why there were so many interventions and questions was because the process is clearly imperfect. We are at a relatively advanced stage of the Bill’s proceedings. The Bill has already gone through another place. It is in Committee here, yet we are still groping for details of how the system will operate. The document from the design group that we have been discussing is full of caveats. I do not blame the group at all; it is trying to get to grips with an entirely new system. It is perfectly clear to anyone who reads the document that it is not very far down that road.

I do not intend to press the amendment to a Division, but I hope that the debate has sent up a warning flare to the Minister that an awful lot of additional work needs to be done on the clause before it is put into effect. It is possible that the unintended consequences of what is not an ignoble idea could cause severe damage. He sat down thinking that he had talked for too long, but I disagree with him on that—[Interruption.] I do not want him to take that as a precedent.

The Minister’s speech was so long and there were so many interventions precisely because the more one thinks about the details, the more problems—and, frankly, ambiguities—emerge. He responded to my point about the checking arrangements for bodies with the nationality checking service, but I understand that that service is to check whether individuals are doing the appropriate thing. I am talking about the bodies with which the individuals will volunteer. The Minister is quite right to say that some of those will be big, established charities while others will be small charities that we would all recognise as such. At the margin, however, there will be some bodies that are not recognised as charities or as volunteering bodies. Beyond the margin, there will be organisations set up specifically for getting people involved, but that are basically scams whereby they can fulfil their requirements and get citizenship two years early or, even worse, organisations that are actively of unpleasant intent and see a new source of potentially vulnerable, and perhaps slightly ignorant, recruits to exploit.

The regulatory regime for bodies is therefore hugely important, but I detect no sign, from either what the Minister said or the document, that that regulatory regime will be in place, or that how it will operate has been thought through. Although this might be a good idea that could go forward, it is also potentially a hugely dangerous idea, and I hope that Ministers will take that on board in the remaining stages of the Bill’s passage.

Tom Brake (Liberal Democrat, Carshalton and Wallington)

Does the hon. Gentleman agree that the one question that the Minister must be able to answer is how someone anywhere in the country will be able to check whether a voluntary organisation is a legitimate organisation that can provide a genuine active citizenship opportunity? If that cannot be answered, I am not sure where the scheme is going.

Damian Green (Conservative, Ashford)

The hon. Gentleman touches on an important point. There are clearly bodies that could do that, such as the charity commissioners, which register charities. However, the activity is so important, and almost open-ended as new people arrive, that whoever does it will find themselves having to devote considerable resources to it. It will therefore be costly in terms of money, time and staffing. That point is not remotely trivial.

The more we think about it, the more we agree we need proper regulation, but then the more difficult, expensive and time-consuming that regulation will become. Ministers should have thought through what that might entail, not least in terms of possible public expenditure. I detect very little sign that that work has been done, which, frankly, is slightly worrying.

I hope that on Report, and perhaps when the Bill goes back to another place, Ministers will have something much more concrete with which to reassure us. I beg to ask leave to withdraw the amendment.

Phil Woolas (Labour, Oldham East and Saddleworth)

I am not quivering. I rise briefly to answer the points that have been made. I give reassurance by referring to clause 42(5), which states that regulations, whether alone or with other provision,

“may not be made unless a draft has been laid before and approved by a resolution of each House of Parliament.”

I take the point made by the hon. Member for Ashford that the regulations and what I have described as the superstructure are evolving. I am aware of his caution. There has been a lot of work, but I accept that these are the emerging thoughts of the design group. The issue is extremely important, which is one of the reasons why the proposed commencement date is what it is.

Clause 43

Phil Woolas (Labour, Oldham East and Saddleworth)

I am sorry, I quivered, Sir Nicholas.

Nicholas Winterton (Conservative, Macclesfield)

No, you rose.

Phil Woolas (Labour, Oldham East and Saddleworth)

Clause 43 rights what some see as a wrong and is consequential to clause 47. The reason that clause 43 appears earlier than, but is consequential to, clause 47 is because it relates to sections of the British Nationality Act 1981. Section 1(1) of the 1981 Act currently provides for a person born in the UK or a qualifying territory to acquire British citizenship automatically at birth, if born to a parent who is either a British citizen or is settled for nationality purposes in the UK or qualifying territories.

Section 1(3) of the 1981 Act currently provides for a person born in the UK to register as a British citizen if, while they are a minor, their father or mother becomes either a British citizen or becomes settled for nationality purposes in the UK. Under subsection (1), a person born in the UK to a foreign and Commonwealth parent who is currently serving in the UK armed forces acquires British citizenship automatically at birth, or, under subsection (3), they may register as a British citizen because the parent is recognised as being settled in the UK for nationality purposes. Section 50 in part 2 of the 1981 Act sets out the definition of settled in the UK or qualifying territory for nationality purposes, which requires the person to be ordinarily resident and to be free from immigration time control.

The Home Office lawyers have advised that the application of that definition to foreign and Commonwealth members of the UK armed forces is now ambiguous following changes to Ministry of Defence recruitment and training practices, which means that those foreign and Commonwealth persons eligible for recruitment to the UK armed forces are no longer expected to have indefinite leave to remain in the UK. However, since 1997 members of the UK armed forces continue, as before, to be exempt from immigration control while subject to service law during the period of their service in the UK armed forces.

The Government wish to maintain the current rights to citizenship of children born in the UK or a qualifying territory to a parent who is, or who becomes, a foreign and Commonwealth member of the armed forces. That is because the right has existed in law and has been asserted by this class of person since commencement of the 1981 Act. It is also because the Government are committed to improving the lives of service personnel, their families and veterans, as outlined in the MOD Command Paper from July 2008, “The Nation’s Commitment: Cross-Government Support to our Armed Forces, their Families and Veterans”, by amending section 1 of the 1981 Act to accommodate that group of persons. The current ambiguity in the application of the definition of “settled” to that group will be removed and the existing rights will be maintained. This is therefore a good opportunity to clarify the law in relation to those who serve in the armed forces.

Damian Green (Conservative, Ashford)

I thank the Minister for that explanation. The change is welcome and necessary, and I can imagine the pleasure with which he makes it, given his recent brushes with the interaction between our armed forces and our immigration law. I can see that he would like to get over this ground very lightly, and I am glad that he has done so.

Nicholas Winterton (Conservative, Macclesfield)

Although he rose very positively to his feet to do it.

Clause 46

Phil Woolas (Labour, Oldham East and Saddleworth)

It is a great shame that the hon. Member for Carshalton and Wallington has left the room, because these changes were brought about in the other place because of his arguments. [Interruption.] No, do not tell him, Sir Nicholas. We concur with the other place, again, on this point about descent through the female line, and we accept that we should right that wrong.

The change essentially brings into line the position of a certain category of person covered by the British Nationality Act 1981, whose citizenship has been passed on. At the moment there is a cut-off date of 1961, but we are righting that wrong. In short, at the moment, if one had two daughters who were born in 1959 and 1962 respectively, the younger one would have rights and the elder would not, so we are putting that right on advice from the other place.

Nicholas Winterton (Conservative, Macclesfield)

I am going to use my discretion and courtesy and call the hon. Member for Carshalton and Wallington to speak.

Tom Brake (Liberal Democrat, Carshalton and Wallington)

Thank you, Sir Nicholas. I can imagine what the Minister said when I was called outside, so I welcome what I believe he has said. I heard him complete his confirmation that he would address that omission. He might have given an explanation for the original omission when I was not present, but I wonder why it happened and so is having to be addressed now.

Damian Green (Conservative, Ashford)

To add completeness to the debate, let me say that we, too, welcome the change. I am sure that many hon. Members will have had a small number of constituency cases on this issue, and that we have all wondered how this law has subsisted in this completely irrational way, under many successive Governments, for getting on for 50 years. It is incumbent on this House to pay tribute to the other House for pointing out the problem in such a strong way, and I am glad that Ministers have finally acceded to the apparently ineluctable logic.

Phil Woolas (Labour, Oldham East and Saddleworth)

I have asked myself the same question. I believe we would have taken the opportunity to do this in any event, but it was highlighted in the other place.

The 1981 Act was meant to limit citizenship to those with a close and continuing connection with the UK. One of the underlying principles of the Act was that an adult seeking to become a British citizen should be able to demonstrate his or her personal connection with the UK. Section 4C differed from other sections in that it allowed for registration on the basis of a mother’s connection with the UK, and it was originally the Government’s intention that it should be limited in its scope. On 7 February 1979, the then Home Secretary, Merlyn Rees, announced that he would exercise his discretion in favour of any child of a UK-born mother who applied for registration before his or her 18th birthday. Section 4C was intended only to cover those people who might have been unaware of the 1979 concession and did not benefit from it. Persons born before 7 February 1961 could not have benefited from the concession in any event.

My noble Friend Lord Filkin said:

“British women did not acquire the right to pass on their citizenship until 1983. One can only go so far towards righting the wrongs of history before the number of ‘what ifs’ to be taken into account becomes unmanageable.”—[Official Report, House of Lords, 31 October 2002; Vol. 640, c. 295-296.]

My view is that it is manageable. The short answer to the question is that the measure reflects changing attitudes towards women and descendancy rights from the mother as well as the father—and, in my view, it is about time.