Clause 39
Borders, Citizenship and Immigration Bill [Lords]
9:15 am
Damian Green (Shadow Minister, Home Affairs; Ashford, Conservative)
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’.
Damian Green (Shadow Minister, Home Affairs; Ashford, Conservative)
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 (Minister of State (the North West), Home Office; Oldham East and Saddleworth, Labour)
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 (Shadow Minister, Home Affairs; Ashford, Conservative)
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 (Minister of State (the North West), Home Office; Oldham East and Saddleworth, Labour)
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 (Shadow Minister, Home Affairs; Ashford, Conservative)
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 (Minister of State (the North West), Home Office; Oldham East and Saddleworth, Labour)
I could speak in support of your amendment.
Damian Green (Shadow Minister, Home Affairs; Ashford, Conservative)
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 (Rochdale, Liberal Democrat)
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 (Shadow Minister, Home Affairs; Ashford, Conservative)
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 (Rochdale, Liberal Democrat)
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 (Shadow Minister, Home Affairs; Ashford, Conservative)
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 (Rochdale, Liberal Democrat)
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 (Shadow Minister, Home Affairs; Ashford, Conservative)
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 (Rochdale, Liberal Democrat)
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 (Shadow Minister, Home Affairs; Ashford, Conservative)
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 (Minister of State (the North West), Home Office; Oldham East and Saddleworth, Labour)
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.
Phil Woolas (Minister of State (the North West), Home Office; Oldham East and Saddleworth, Labour)
Legally, it is a very important point.
Damian Green (Shadow Minister, Home Affairs; Ashford, Conservative)
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 (Rochdale, Liberal Democrat)
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 (Shadow Minister, Home Affairs; Ashford, Conservative)
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 (Minister of State (the North West), Home Office; Oldham East and Saddleworth, Labour)
I am not puzzled by Government policy.
Damian Green (Shadow Minister, Home Affairs; Ashford, Conservative)
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 (Minister of State (the North West), Home Office; Oldham East and Saddleworth, Labour)
That will not do much for the country’s image around the world.
Damian Green (Shadow Minister, Home Affairs; Ashford, Conservative)
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 (Rochdale, Liberal Democrat)
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 (Minister of State (the North West), Home Office; Oldham East and Saddleworth, Labour)
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 (Rochdale, Liberal Democrat)
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 (Minister of State (the North West), Home Office; Oldham East and Saddleworth, Labour)
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 (Rochdale, Liberal Democrat)
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 (Shadow Minister, Home Affairs; Ashford, Conservative)
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 (Rochdale, Liberal Democrat)
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 (Dover, Labour)
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 (Midlothian, Labour)
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.