Damian Green (Shadow Minister, Home Affairs; Ashford, Conservative)

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 (Carshalton & Wallington, Liberal Democrat)

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 (Macclesfield, Conservative)

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 (Carshalton & Wallington, Liberal Democrat)

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 (Blaydon, Labour)

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

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 (Shadow Minister, Home Affairs; Reigate, Conservative)

Which do not exist.

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

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 (Carshalton & Wallington, Liberal Democrat)

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

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 (Shadow Minister, Home Affairs; Reigate, Conservative)

It is “Gallic”.

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

Well, I misheard then.

David Hamilton (Midlothian, Labour)

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

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.