Nicholas Winterton (Macclesfield, Conservative)

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 (Dover, Labour)

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 (Minister of State (the North West), Home Office; Oldham East & Saddleworth, Labour)

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 (Macclesfield, Conservative)

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 (Minister of State (the North West), Home Office; Oldham East & Saddleworth, Labour)

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 (Rochdale, Liberal Democrat)

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 (Minister of State (the North West), Home Office; Oldham East & Saddleworth, Labour)

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 (Shadow Minister, Home Affairs; Ashford, Conservative)

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 (Minister of State (the North West), Home Office; Oldham East & Saddleworth, Labour)

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 (Rochdale, Liberal Democrat)

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 (Minister of State (the North West), Home Office; Oldham East & Saddleworth, Labour)

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 (Shadow Minister, Home Affairs; Ashford, Conservative)

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 (Minister of State (the North West), Home Office; Oldham East & Saddleworth, Labour)

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 (Rochdale, Liberal Democrat)

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 (Minister of State (the North West), Home Office; Oldham East & Saddleworth, Labour)

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 (Gravesham, Conservative)

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 (Minister of State (the North West), Home Office; Oldham East & Saddleworth, Labour)

Do I consider that not to be unlawful?

Adam Holloway (Gravesham, Conservative)

Does he consider it to be unlawful?

Phil Woolas (Minister of State (the North West), Home Office; Oldham East & Saddleworth, Labour)

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 (Macclesfield, Conservative)

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 (Shadow Minister, Home Affairs; Ashford, Conservative)

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 (Macclesfield, Conservative)

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 (Shadow Minister, Home Affairs; Ashford, Conservative)

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.