New Clause 5
Borders, Citizenship and Immigration Bill [Lords]
1:45 pm

Tom Brake (Carshalton and Wallington, Liberal Democrat)

I beg to move, That the clause be read a Second time.

It is fair to say that, over the past couple of months, the issue of the Gurkhas has received a significant and appropriate airing, both in this place and elsewhere. It is therefore not my intention—and I am sure that you would not allow it, Sir Nicholas—to go back over what has happened in recent years. Members are very familiar with the issue and will know that, in 2004, the Government changed the rules to allow Gurkhas who had served for four years or more to remain in the UK. However, those changes applied only to Gurkhas discharged from the British Army on or after 1 July 1997.

I think that all Members would agree that the treatment of the Gurkhas has not been the finest hour of this or—possibly—past Governments. However, it has afforded us a most memorable piece of cult viewing that, I am sure, is still circulating widely on YouTube. I suspect that, to this day, the Minister wakes up in a cold sweat every night worried about whether Joanna Lumley is going to doorstep him that morning. I even considered threatening him with Joanna Lumley over the Chagos island issue earlier in the debate. I hope he has recovered from his experience, although those who watched the ambush observed how effective it was. All future Ministers need to study what happened, perhaps to avoid similar things happening to them.

I shall not continue along that line of argument, because I am sure that you would cut me short, Sir Nicholas. However, Members might be interested to know that today the 2nd Battalion of Gurkhas were given the freedom of the town of Folkestone; so nationally there is recognition of the very important role that they have played—some 200,000 soldiers, two world wars and so on. We know that the Government have finally responded to the issue, and I understand that the latest Government position is that guidance will be issued to ensure that the Gurkhas are treated fairly.

One of my members of staff has had discussions with the Home Office on that point, however, and I have just come from an event at which a senior civil servant pointed out that guidance can very easily be disregarded. It can very easily be substituted with later guidance. So new clause 5 would enshrine in law what I believe Members of all parties want the Government to do. It would not afford any wriggle room. It would take the action that many Members believe needs to be taken and allow us to take it without further delay. I hope that the Minister will consider it to be a very straightforward and helpful way of ensuring that this issue, which has proved painful for him in particular, is finally put to bed and resolved.

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

I am grateful to the hon. Gentleman for allowing us a quick run round the Gurkha course again. Enough has been said on the subject of Joanna Lumley and on ambushes, but I must say that one of the Minister’s unique places in history, for which he will be immortalised, is as the only middle-aged man in history who looked that uncomfortable that close to Joanna Lumley. [Laughter.] As has been said, it cannot have been his most enjoyable week.

The serious question that I put to the Minister is, what is now happening? It would be useful to know. We had the Sturm und Drang of the parliamentary defeat and the Government U-turn, but there has been a deafening silence ever since, so this is the ideal time for him to at least give the Committee a timetable for putting into effect what the then Home Secretary told the House and explain what the new system will be and how it will work. I appreciate that there are many details to work out, but the Government have had several weeks in which to do that.

It goes without saying that we all admire and respect what the Gurkhas have been doing and still do for this country. We believe that they have done great service that deserves not only our respect, but the reward of being allowed to settle in this country. It would be better, not least for the Minister’s comfort, if there was no sense that the eventual solution was being delayed, because otherwise he will have the Gurkha campaigners on his back again. My friendly advice is that I do not think that that would be a happy or healthy position for him to be in.

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

To the hon. Member for Carshalton and Wallington for tabling the new clause, I say: thanks. I do not know about middle-aged men being uncomfortable, but sometimes in ministerial life it is the worst of two evils to put oneself in that situation, but that is one for the memoirs.

My understanding is that the new clause, tabled by the hon. Members for Carshalton and Wallington and for Rochdale, is intended to remove two requirements from the rules relating to indefinite leave to enter or indefinite leave to remain for former Gurkhas. Those two requirements are: the requirement to be discharged from the British Army in Nepal on completion of engagement on or after 1 July 1997, and the requirement to have been discharged from the British Army not more than two years prior to the date on which the application is made. That would mean that Gurkhas discharged prior to July 1997 could qualify for indefinite leave to enter or remain under the immigration rules.

In response to the new clause’s first provision, I can say that the revised policy announced by the Home Secretary on 21 May 2009 had the same effect in that regard as the new clause, so that provision is already there. The new clause’s second provision would have the effect of removing the time limit for applications for indefinite leave for all former Gurkhas, not just those discharged prior to 1 July 1997. I will explain why we wish, on that specific point, to resist the new clause. The policy announced on 21 May, following consideration, meets the concerns of Parliament on the issue. That led subsequently to new draft guidelines, based on the seminar of the Home Affairs Committee, to which we were very grateful.

The Select Committee fulfilled its role superbly in helping Parliament and advising Government. I was glad that we were able to use that conduit, given that Parliament was suffering severe public criticism. Although I disagreed with the decision of the House, I said that evening that I respected its decision, and I put my shoulder to the wheel to deliver what Parliament had insisted upon. The Select Committee was beneficial in helping with that. The subsequent process was to publish new draft guidelines to meet the requests of the pre-1997 Gurkhas; they were shared with the Select Committee and the Gurkhas’ representatives, including Miss Lumley. Agreement and an understanding were reached.

The criteria for the pre-1997 people were therefore that soldiers must have served for at least four years, but there is no time limit on their application—a critical difference from what people expected. There is not a two-year window, and there are a number of reasons for that. One was a recognition of the practicalities—of how we could inform people in Nepal of their rights. Another was that we did not want to create a rush that we could not handle administratively, which would cause difficulties with housing and so on. For the pre-1997 people there is no cut-off point.

The difficulty with the second implication of new clause 5 for post-1997 Gurkhas is the critical principle called for by their representatives—indeed, hon. Members on both sides of the House argued for it—that they should have parity with other Commonwealth servicemen and women in our armed forces. That would require a two-year cut-off point, after four years of service. In other words, it would give the post-1997 Gurkhas something better than was given to the Commonwealth soldiers. That is not what is being pushed for by the representatives, and no Government would be able to adhere to it because, in effect, it would open up a retrospective right for Commonwealth soldiers. That would be unmanageable, and not required.

I hope that I have answered the hon. Member for Ashford. The new guidance is out, and a statement has been made to the House. I will be bringing my life-size cut-out of Miss Lumley to future meetings, as my recognition rating in my constituency is significantly higher than it was before that episode. I have never been the victim—if victim is the right word—of such jealousy. More seriously, I hope that I have met the point being made by the hon. Member for Carshalton and Wallington.

Tom Brake (Carshalton and Wallington, Liberal Democrat)

The Minister says that the new clause is imperfect, in that it will have unintended consequences in relation to parity with soldiers from the Commonwealth. However, it would have been within the Minister’s remit  to address the issue himself. If there were imperfections in the new clause, he could have dealt with them. He did not deal with the question of guidance being exactly that. I understand that civil servants can disregard guidance. I presume that it can relatively easily be modified—changed, deleted, added to and so on. We have an opportunity in the Bill to address the issue in a more permanent way than that which is currently offered by the guidance. The Government should have taken that opportunity, and I therefore intend to stick with my new clause and not withdraw the motion that it be read a Second time.