My Lords, the prospect of what I think is the fourth piece of legislation in this field since 1999 does not fill me with a huge amount of excitement. I was secretary to the Church of England's Board for Social Responsibility in the 1980s. A succession of Bills came from the other side of the House, and I remember feeling similarly unexcited by many of them. Surely there must be some limit to what we can achieve through legislative means. We need to consider a wider range of matters.
Those of us who have been thinking about these matters for a long time are aware that, consciously, unconsciously or subconsciously, those who are in politics or in government are responding to public opinion. There is a perception outside that too many people are entering our country, taking away our jobs, or getting social security benefits on false grounds. Those fears have now extended to potential terrorists. All these negative factors which lurk in the background of legislation undermine our capacity as legislators to think about the needs of the people who are directly affected by it. They are often very frightened people, who struggle with our language. They are vulnerable people. Many of them are fleeing tyranny; even more perhaps are fleeing poverty. Sometimes, they have vulnerable children and young people in tow; sometimes, they are on their own.
I am concerned that we respond to what happens. What happens if you withdraw social benefits from people who are caught up in the system? When social provision has not been made, they sometimes land up on the doorsteps of our churches. Having been scattered across the country, they sometimes land up on the doorsteps of local communities which are not very well equipped to deal with them. As a bishop, I can say to the House that I receive an increasing stream of letters from my clergy asking for advice on how to handle people who are asylum seekers or potential asylum seekers. The other week, some people spoke to me personally in a church. They said that they knew that were not here lawfully and asked what they should do about it. One then advises them to work with their parish priest in dealing with the authorities. They are not very well equipped to deal with these matters.
If you keep on tightening the law in this area, you might encourage people to opt out of compliance with the system. There is a perception that we do not know how many people are in this country unlawfully and that we should operate the system more tightly. But if the system is perceived as being more difficult, people will walk around the back of it and local communities will again feel the impact.
This country has a wonderful intellectual and value-based history. Uniquely, we have refused to tear apart what has sometimes been torn apart on the Continent; that is, our Christian-value history and the Enlightenment history in our public life. These two factors have generally held together and provided a moral base for our public life, and, not least, a basis for the very strong systems of volunteering that we have. So our commitment as a free people to justice, transparency and accountability, and our trust in our networks of civil society, are rooted in deep values that we need to hold on to.
My postbag indicates that the present system is under strain. Officials who are trying to work it are under pressure, which sometimes leads to negativity towards individuals and cynicism about the process. We need higher levels of professionalism; stronger training of those involved in the system; transparent codes of conduct; and a clear commitment to ensure that the same structures of justice are available to people seeking residence in our country as we expect for ourselves. The route to order, control and proper management is via the fundamental principles of a free society seeking justice without discrimination. Then, perhaps, fewer letters might go out to people requiring their appearance before tribunals in English when they hardly speak the language and summoning them to hearings hundreds of miles away without any clue or indication of how they will pay for their travel there.
Let me try to be specific about the Bill. I was gratified to catch a glimpse that the Government intend, for example, to strengthen the provision to ensure 100 per cent protection of children caught up in the process, not least children on their own. I would be pleased to hear from the Minister how we will progress that. I reinforce what has been said about the needs of international students and how extraordinary it must be to send people back somewhere else in the world to progress an appeal on the duration of their stay. That cannot be right, but if it is true for international students, why not for everybody else? Why do we draw that group of people out for special treatment? If it is not just for one group of people, what about everybody else?
I note the Clause 52 provision regarding detention and welcome some of the provisions in it. Will the Government report not just on the number in detention but on how long people are held for, who is there, what age ranges there are and whether programmes will be developed for their proper protection when they are caught up in those centres.
At the heart of the Bill is the desire for a massive reduction in appeals. How does that fit with the principles of justice? Surely we will not leave officials and appointees of the Home Office to be the final point of decision-making on what happens to people. Not only do vulnerable people need and deserve better but our officials also need protection by a proper system of appeal. However good the decisions taken by those—and there is cause to believe that we could do better—it is surely a matter of principle that access to independent systems of appeal is a basic right of every person. I would like to hear more on that.
I would also like to hear more about the rationale for the provisions regarding terrorism now added to the Bill. Many of us are cautious about interfering with the Geneva Convention and how it states those matters, and we wonder why we need those provisions. Dare I ask the question: what is the evidence that this is an important field for dealing with issues surrounding terrorism? We need proper evidence.
There are many good features of the legislation. I welcome the style in which the Minister has addressed them. In forming our concerns we must face the human reality that people travel and move around our world. Mobility is part of human life; we must manage it with humanity, transparency and justice.
My Lords, I congratulate the noble Baroness, Lady Anelay, and the noble Lord, Lord Dholakia, on two powerful speeches. The Bill contains issues of concern to this House, and many in the education world outside this House will be grateful for the tenacity with which Her Majesty's Opposition and the Liberal Democrat Front Bench, in both this House and another place, have pursued the concerns expressed by universities and colleges on the Bill's impact on international students. I want to concentrate my remarks on that issue. I declare an interest as chief executive officer of Universities UK.
I should also like to place on record my gratitude to the Government and to the Minister, my noble friend Lady Ashton, for their equally dogged pursuit of improvements to the immigration system. As a member of the Home Office's joint education task force, I can say that there has been a marked change in the vigour with which the Government are now working with the education sector to ensure that there is a much enhanced dialogue about the way to achieve these improvements. I salute the efforts of my noble friend in that endeavour.
That positive climate, however, cannot disguise the fact that many in the education sector are deeply concerned about two provisions in the Bill. The first relates to the creation of a one-stop appeal system for leave to remain and variation of leave applications. There is no disagreement about the principle of introducing a simplified system, although there are some differences of view about how that should be achieved. The scheme proposed by the Government would allow unsuccessful applicants to appeal only once they have left the UK. The scheme also risks making unsuccessful applicants illegal overstayers if they learn the outcome of their application after their existing leave has expired. This cannot have been the Government's intention. I cannot believe it was deliberate. I think that the Government have recognised the problem, and I hope that when these issues are debated in detail in Committee an appropriate solution can be agreed upon.
The other issue will be more familiar to the House. The Bill will abolish the right of appeal for international students, and others, who are refused a visa—or "initial entry clearance", to use the parlance. Universities UK, the Association of Colleges, the National Union of Students, the Immigration Advisory Service, the Council for International Education—UKCOSA—the Immigration Law Practitioners Association and the CBI all take the view that this measure is unjust. That point has been made forcefully by both the noble Lord, Lord Dholakia, and the noble Baroness, Lady Anelay, but I make no apology at all for making it again.
Decision-making in entry clearance cases is often subjective, and often wrong. Universities UK has gathered a large number of examples of inappropriate and subjective refusals, all subsequently overturned. To give your Lordships just a flavour, one university told me that an applicant had been refused because:
"The cost of your tuition, maintenance and accommodation is to be borne by your parents. Funding your education will impose an additional financial burden on them".
That is a totally inappropriate, subjective judgment. In fact, the student was in receipt of a UK Government-funded scholarship covering the whole of his tuition fees, plus a maintenance award of £5,000 a year. The award letters were submitted with his application.
Another university cited a case in which a student was told there was "no reason" for her to experience the British education system. She was refused entry because the entry clearance officer also had doubts about her ability to maintain and accommodate herself, despite the fact that she had a grant from her home government to cover all her costs.
Several institutions have told me about applications rejected on the basis of academic judgment, which entry clearance officers are not qualified to make, and which is not an appropriate basis for refusal. One institution gave the following example:
"Your proposed course of study is unrealistic because it is inconsistent with your previous pattern of study [and] previous job experience and does not represent a progression in your education . . . and you have been unable to give me a satisfactory explanation for this change of direction".
The course in question was actually designed specifically to facilitate a change of career.
I have quoted these examples at some length because I believe it is important that this House understands why the education sector believes that the right of appeal is so necessary. Indeed, although she is unable to be in her place this afternoon, I know that my noble friend Lady Blackstone, herself Vice-Chancellor of Greenwich University, would have added other examples, and would have echoed my concerns.
Yes, there is a point of principle—that the right of appeal is important for reasons of natural justice where there is a possibility that an unfair decision might be made. But just as important, the right of appeal is important in this case and at this time because of the often poor and variable quality of initial decisions in entry clearance cases. We have evidence of that not only of the anecdotal kind which I have just described but also in the form of figures on the number of successful appeals. At the University of Sheffield, 90 per cent of visa refusals are overturned on appeal or before that stage. The Immigration Advisory Service reports at least a 59 per cent success rate. That indicates the scale of the problem. If 90 per cent of decisions are overturned, that means quite simply that a very high proportion of refusals are wrong. Universities, colleges and others protest against the measures in Clause 4. They protest not only because it would be unfair to deprive potential students of the right of appeal when they might have been refused entry for entirely inappropriate reasons; they protest because removing the right of appeal at this time would simply mean that many talented students who might have come to study in the UK will go elsewhere.
The House has debated the importance of international students to the United Kingdom on countless occasions over the past few years. Those debates have been occasioned in large part by a growing appreciation of the benefits that international students bring the UK and of the increasing challenges we face in maintaining our position as a world leader in international student recruitment. In the context of increasing competition for international students and evidence from a great many institutions of a decline in numbers, the fear that large numbers of students who apply to the UK may be prevented from coming by poor decisions by entry clearance officers with no right of redress is deeply troubling. The Minister in her opening remarks talked of the new points-based system and will no doubt echo the views of the Minister of State with responsibility for immigration in another place that the Government plan to introduce this new system and that will solve the problems with the quality of decision-making. That may be so and indeed I sincerely hope it will be so, but the improvements have yet to be fully designed let alone implemented and proven to work.
So I believe that Ministers should introduce the new immigration system and demonstrate that it works before legislating to remove appeals. As things stand, the appeals system is a very necessary constraint on a system that would otherwise fail thousands of potential students and indeed fail the universities who seek to attract them. I hope that the Government will be persuaded to reconsider.
My Lords, it is a particular pleasure to follow the noble Baroness, Lady Warwick of Undercliffe, for reasons which this brief speech will unfold. I speak in this debate under false pretences and I need to get them off my chest immediately, though on the ill-wind principle the debate will be a little shorter because of them.
There are varying motivations to speak in Second Reading debates. One such is the intended, as against unintended, consequence that everyone outside interested in the subject will put you on their individual mailing list for briefings in anticipation of the remaining stages, let alone the Second Reading. Thanks to the admirable synod of interested parties assembled for collective briefing by Amnesty International yesterday under the chairmanship of my noble friend Lady Anelay, who opened this debate so admirably on behalf of the Official Opposition, I now already have a sheaf of briefing papers from at least 10 sources. So the motivation I mentioned a moment ago for speaking was satisfied even before this debate began.
Less felicitously, I managed to leave my locker keys at home this morning, so every piece of paper that I possess on today's subject is immured in the Library corridor, and it is temporarily beyond my power to recover it. When I say, therefore, that I look forward to Grand Committee stage, a phrase with which one often concludes a Second Reading speech, I do so on this occasion with unusual feeling. My remarks at Second Reading will thus be brief.
I said that it was a pleasure to follow the noble Baroness, Lady Warwick, as she and I used to spar two decades ago—she, acronymically, on behalf of the AUT, myself on behalf of the then HMG in general and the DES in particular. Twenty years later I declare an interest as Pro-Chancellor of the University of London, though I am not speaking on its behalf today. But the issues of the Bill as they affect universities were accurately and initially identified by my noble friend Lady Anelay, and the noble Baroness, Lady Warwick, has just amplified them. I shall not repeat what either of them have said, relying instead on the 18th century speech, following a characteristically comprehensive speech by Edmund Burke in the Commons, when the next speaker simply said, "Ditto to Mr Burke".
The noble Baroness, Lady Warwick, invited me in the Summer Recess—I quote this anecdotally to indicate what lies ahead of us in Grand Committee—to chair a fringe meeting at the Conservative Party conference on the very subjects that we are discussing in the Bill. The meeting was inadvertently a little less well advertised than it might have been but a roomful assembled to hear the vice-chancellor of Liverpool, a senior spokesman from the British Council and a shadow home affairs spokesman from the Official Opposition Front Bench in the Commons, and in that hour there was never the faintest likelihood of our running out of questions.
I doubt if we shall run out of questions in Grand Committee either, especially, if I may say so to the Minister, against the background of Her Majesty's Government ostensibly supporting the further recruitment of foreign students by British higher education institutions. We shall welcome the noble Baroness, Lady Ashton of Upholland, to that same Grand Committee. This is, I believe, the fourth Home Office Bill now running simultaneously, if not concurrently, in your Lordships' House. The Minister has admirably earned the reputation by her performance on past Bills that objective referees on other Benches will always give her the benefit of the doubt on the Treasury Bench, whatever she chooses to say. But she has a further advantage on this Bill: she is potentially less personally embarrassed than are some other Ministers on these subjects by words used in earlier debates, which I fear will haunt the Treasury Bench during the remaining stages of the Bill.
I come to the Bill with the unique experience of Conservative MPs in the 1997 Parliament of having held an inner-city seat with a major immigrant and asylum-seeking population. Indeed, before 1997, I had what might be described as "form" with the Whips in another place on this species of legislation. I am not suggesting that Her Majesty's Government are less competent on these matters than the administrations of other countries. In the late 1960s I had to wait 10 months for a green card to work in the United States, during which I had to assure the American Embassy on behalf of my youngest one year-old son that he had never, at least as yet, lived off immoral earnings.
But that negative qualification of not being worse than others is not enough for this country. In the Soho part of my former constituency there were in 1685 no fewer than 16 Huguenot churches. We pride ourselves on the haven we provide. Such pride demands that our legislation should be the best rather than in the middle of the pack. I am sure the same ambition applies to Her Majesty's Government. But on one of the other Home Office Bills going through Parliament—the Terrorism Bill—the Home Secretary rolled the wicket to opposition Peers in the Moses Room by saying that there had been adequate time to discuss that Bill in the Commons. I do not think the Government can make the same claim on this Bill, at least as yet, as to the amount of time available on Report in the Commons to discuss the new material that the Government introduced at that stage. Just as we are not likely to run out of questions in Grand Committee on higher education issues, so we are not likely to run out of subjects on other aspects of the Bill. I reiterate, from my documentless present, my anticipation of future debate.
My Lords, one of the advantages of specialising primarily in international issues is that I manage to avoid long and complicated Bills, particularly their Committee stages. I intervene in this Second Reading debate to touch on two matters: first the impact on students, which has already been raised by several speakers, and, secondly, to raise some questions on the international context. I, of course, declare an interest as a former member of staff at the London School of Economics who came into this issue when my own students complained to me about the imposition of student visa charges. I stress in particular that there is a problem for students who study for advanced degrees, which, according the regulations of the University of London, shall take between three and six years to complete. It is not easy to design nice, neat student visa lengths and requirements to go home to renew their grants if the students have flexible degree time that require considerable amounts of research. Such work often contributes to the research base of this country, particularly in the sciences.
There are clearly underlying contradictions in government policy, which we have seen on previous occasions, between the Department for Education and Skills and the Home Office, which Ministers have admitted to me in private. The economic cost to the Government of administering the student visa system, narrowly defined, is emphasised. The economic value to Britain is often easily put to one side. My noble friend Lord Dholakia has already mentioned the contribution that staff and students from abroad make to British universities. They make financial contributions, contributions to research and, I have to say as a university teacher, to the quality of education which the rather parochial students we often have in this country get from being forced to defend their view of the world in the presence of students from many other countries.
In this country we are extremely proud of the quality of British higher education. It makes a major contribution to Britain's invisible earnings. Indeed, on one occasion the London School of Economics won the Queen's Award for Export Achievement. The global ranking of British universities is outstanding compared to all other universities except for those in the United States. I should draw the Minister's attention to the Shanghai index on the world's social science institutions, in which, I regret to say, the London School of Economics was ranked only second.
That suggests that we should be careful about damaging our ability to recruit top-class students from across the world. I wish to emphasise in particular students from China and south Asia. South Asia now provides extraordinarily good students, particularly in electronics, engineering and elsewhere but we are conscious that in Pakistan, Bangladesh and India the pressure on entry clearance officers for applications is intense and the likelihood of mistakes being made is high. We all recognise that there is a problem with the abuse of student visas and of overstayers, but we need to go beyond the idea that one system fits all.
Applications from people who have been accepted by language schools and newly founded colleges appear to be treated in the same way as those offered places by top quality universities, after extensive investigation of their qualifications by the application officers concerned. That seems idiotic. Entry clearance officers should distinguish more clearly between institutions that have accepted students, and they should take the quality of the institution and the likely care of examination of the applications into account. The experience of the London School of Economics was that in the half a dozen cases last year when students were refused entry on first application, all their appeals were successful. In one case, the student had been refused because of mistakes made by the entry clearance officer in assessing the documentation. He had suggested that there were anomalies and inconsistencies in the applicant's father's bank statement, which on further investigation was shown not to be the case.
University international offices do a great deal of work on this and there should be common ground between the Home Office, the DfES and the universities out of which we can reach agreement. University international offices, application offices and entry clearance offices could find a way to work together which would avoid damaging British universities. I am confident that common ground is to be found here, and I look forward to negotiations, if necessary.
I wish to raise one other question about the Bill—the absence of context on the international dimension. Immigration policy is, after all, essentially international. However, the assumption in the Bill appears to be that Britain still retains absolute sovereignty and that there is little need to co-operate with others. With great difficulty I found the clause—Clause 39(1)(d)—that refers to co-operation with,
"any other foreign law enforcement agency".
Immigration policy depends entirely on co-operation with other states. Furthermore, the United Kingdom is already caught up in an extensive and formal framework for co-operation on immigration matters with other states—in particular, within the European Union—which includes extensive and formal exchanges of information.
For three years, I was chair of Sub-Committee F of the EU Committee. I recall the discussions that we had about Britain's formal opt-out from the Schengen convention and our informal opt back in to many of its clauses. I recall the existence of at least four common European databases, including Eurodac, the shared fingerprint database. I think that we should be told how far the provisions on fingerprinting in Clause 28 will provide or allow for fingerprints on file to be shared. We should be told with which other states they will be shared and under what conditions—I assume that in a number of instances they are likely to go on to Eurodac. Whether or not we need to amend the Bill, we are at least entitled to much more extensive information on all this. How widely shared will this information be and under what conditions and what constraints?
My other puzzle relates to Clause 60. As always on matters that refer to the geographical extent of the United Kingdom, it is deliberately obscure and ambiguous. I am sure that noble Lords will immediately recognise the meaning of subsection (2). The clause states:
"This Act extends to . . . an amendment by this Act of another Act has the same extent as that Act or as the relevant part of that Act".
I think that means that where the Channel Islands and the Isle of Man have opted in to other bits of other Acts, they are allowed to opt in to the relevant bits of this Act and they can cherry-pick in opting out of the other bits as they like. Clause 60(3) goes on yet again to repeat the timeworn formula:
"Her Majesty may"— but not "will"—
" . . . direct that a provision of this Act is to extend, with or without modification or adaptation", to the Channel Islands and the Isle of Man. I want to mark again that on matters of immigration that is a fairly extensive hole in the Bill, when the number of people who travel in and out of the Channel Islands and the Isle of Man is growing as fast as the number of those who travel in and out of the United Kingdom. Your Lordships should not allow that to go through unremarked as these odd opt-ins and opt-outs so often do with parts of the British Crown which are not apparently part of the United Kingdom.
I look forward to the Minister's reply. I look forward to being provided with much more information on exactly what the Bill implies in terms of the sharing of information with foreign governments. I certainly hope that during Committee there will be some useful exchanges about how we may resolve the question of good students applying and being denied because overloaded entry clearance officers may have made mistakes.
My Lords, I warmly welcome the Minister to the new asylum Bill. She will provide relief to her colleagues who have survived so many already. I hope that she will give a clear answer to the noble Baroness, Lady Anelay. As her right honourable friend said, it is high time that the Government consolidated these Bills into one piece of legislation.
This Bill feels different from its predecessors. The political climate changed after 2001, and public attitudes have moved on accordingly. There is less tolerance, and a new wariness. While I accept, in general, the need to tighten immigration controls, and especially to curb the agents of illegal migration and trafficking, I cannot agree with the continuous erosion of our appeals process, and the ignoring of internationally accepted detention rules. The blurring of lines between guilt and innocence is made even worse by the terrorism clauses, which I suspect will be opposed vigorously by Peers in Committee.
We think of ourselves as a tolerant society, as the right reverend Prelate the Bishop of Chelmsford and the noble Lord, Lord Brooke of Sutton Mandeville, have reminded us. Asylum seekers in any society, however, incur more envy and insult than admiration—unless, of course, they win the Nobel Prize, or demonstrate the economic benefits that the noble Lord, Lord Dholakia, described. There is certainly no sign of a presumption of innocence, even in our own country. I remember that in Thailand, Sudan and Lebanon, many years ago, refugees and those helping them were bitterly resented. The UN had to take account of this, and sometimes fund local groups as well. The host country argument continues to be, "Aren't you lucky just to be here? Why should you expect any more from us?". This attitude is still alive in the UK, although it is more subtle and subconscious.
That is why the 1951 convention lays down an obligation on the host country, recognising that incoming refugees or asylum seekers are the ones who have made the sacrifice, and not we, the recipients. We still have to learn lessons of hospitality in this country, especially in a climate of anti-terrorism which is bound to affect innocent refugees and migrants. In public transport, we are now advised to look more carefully at our fellow passengers and treat people with more suspicion. Minorities suffer when the majority feels threatened. The Government cannot claim just to be housekeeping when they tighten controls—they are also responding to a perception of threat, albeit from a tiny, invisible minority. In scrutinising this Bill, therefore, I hope that we will keep that in proportion.
I have spent some time looking at detention, specifically the position of detainees in our so-called removal centres, and have some experience of Haslar and Oakington. The number in detention is rising, as the right reverend Prelate the Bishop of Chelmsford said. Information about detainees seems to be declining, and proper access to professionals is becoming more difficult. There are fundamental issues, such as time limits, presumption of liberty at bail hearings, written reasons for detention, and lost identity documents, all of which have been in previous Bills and remain a cause of concern. I am sure that they will surface in Committee. If we have to tighten the rules, let us simultaneously maintain and raise standards. The prison inspectorate visits under Clause 45, although long expected, are a welcome addition to the Bill.
At Oakington last month, my noble friend Lord Ramsbotham and I were well received and impressed by the quality of some of the skilled staff. We were underwhelmed, however, by the official attitudes within a detention estate, the managers of which range in experience from private contracting firms to the Prison Service. No one seems to care much about its future.
Oakington is, or was, by immigration standards, quite a grand facility, much trumpeted during the last Bill as the Government's fast-track showcase. However, it is now operating at half capacity, with only about 130 inmates staying, in most cases, for very short periods. It has suffered much criticism in the media and successive inspectors' reports for elements of racism and the inappropriate detention of children. My noble friend Lord Ramsbotham, who was not able to stay for the debate, wanted me to mention that unaccompanied and unaccounted for minors—now in the care of social services in Cambridge and many other towns under the Children Act 2004—are becoming a serious cause for concern. His suggestion is that some responsibility should be laid on area child safeguarding boards. This has been discussed in previous debates on safeguarding children. I hope the Minister will take note of what he said then.
The management at Oakington has been engaged in remedial action much too late, since it is to close within months to make way for new development. No wonder enthusiasm is so muted and its performance obviously impaired. Detainees are shunted around like footballs, I was told. A Congolese woman, recently bereaved, had already been two days at Tinsley House and one day at Yarl's Wood before reaching Oakington. That is three centres in a week after suffering a serious experience. Torture victims are supposed to be screened by the Home Office, but some still reach detention before they are properly referred. There are others less fortunate. I heard of a recent case of a Jamaican refugee, a victim of gun crime, who was refused and removed to a certain death. Because of the speed of fast-tracking, we do not know the details of these cases, but we know that the system is imperfect and that the detention estate is failing them.
On the positive side, the buildings are good and the involvement of health services and refugee agencies on the whole excellent. The inspectors have recognised this. But the Minister must agree that things are not working out and we are entitled to know what is in the Government's mind. It was impressed on us that conditions at Yarl's Wood are much worse than at Oakington—that is no reason for confidence—and that some of the best practice learnt at Oakington, such as the generally good relations between the legal NGOs and the managers, is already being lost before it can be transferred elsewhere.
Coming to the Bill, I am concerned about the new five-year policy. If conditions improve in the home country within five years, refugees are expected to return. In my view, that is a new category of refugee. I understand that no legislation is needed for this policy. Yet five years of uncertainty gives refugees a less settled status than those who had indefinite leave. What will be the criteria of safety? The Bill refers to the cessation clause—1(c)(5)—in the 1951 convention. But the expert opinion at the High Commission for Refugees says that changes in the country of origin must be fundamental.
There must also be serious concern about the monthly rate of removals, which is now supposed to exceed the rate of unfounded applications. We have already heard that reducing the caseload at this speed will affect initial decisions even more. Maximising returns through fast-tracking leaves insufficient time for legal representatives and for the adequate presentation of cases. I question the Minister's statement that the Government are in a "better position" with fast-tracking.
Other measures under the Bill, such as stronger border controls, fingerprinting, electronic checks and more pressure on employers, present problems for NGOs and lawyers because there is a greater overall risk of criminalisation. Others have already mentioned Clause 52. There are further restrictions in the rights of appeal and many people are concerned about the variation appeals, especially in the case of students, under Clause 1. The Constitution Select Committee will look at appeals and the use of secondary legislation and will report before the Committee stage.
I hope the Minister will recognise that, while strong feelings may be expressed, there is still considerable room for compromise by the Government when they give serious consideration to amendments, remembering that we are a complementary House and that many of these issues were not dealt with in Committee in the other place.
My Lords, I welcome the opportunity to participate in this Second Reading debate and want to pay particular attention to the section of the Bill dealing with employment. Let me say at the outset that I understand that any government must have in place policies to deal with large numbers of immigrants, whether they are seeking asylum or economic improvements. However, it is essential that migrant workers are protected from exploitation.
The provisions relating to employers' sanctions are aimed at preventing the use of illegal labour. I welcome the intention to crack down on rogue employers, thereby hoping to protect migrant workers. We have to remember that we are often dealing with poor, desperate and vulnerable people. They are willing to work for low wages, and are frequently not aware of health and safety requirements. They may be in debt to the traffickers who brought them here, and may send part of their earnings home to families who are also very poor. It is not good that migrant workers should become a reservoir of cheap labour. It tends to keep the level of wages low generally. Indeed, the director of the CBI recently remarked with some satisfaction that immigration reduces what he calls "wage inflation". That is not good for labour relations or race relations. So I am surprised that there is not much in the Bill about the need to ensure that employers comply with the minimum wage. There ought to be stronger inspection to ensure that they do.
As to the sanctions contained in the Bill, the Joint Council for the Welfare of Immigrants has expressed concern that employers will effectively become enforcers of immigration control, and the threat of civil penalties, as well as the requirement repeatedly to check documents, will act as a disincentive to employers hiring foreign nationals, including those who are well documented. The council believes that the measures, although well intended, could drive undocumented workers underground and prevent them accessing essential public services, thus increasing poverty and social injustice.
The council urges consultation on a regularisation programme for undocumented workers, based on residence in the UK. The Institute of Employment Rights, of which I am a member, has suggested that those who can demonstrate a two-year presence in the UK through employment or other means should have the right to earn regularisation through a tiered process. That could begin with the right to temporary residence and work permission, and eventually lead to a right of settlement, provided such people demonstrate participation in the formal workforce and co-operation with immigration control. A scheme of this kind is worthy of consideration.
I recently received a letter from a man who has been in this country since 1990. He came when he was 20 years old. He says that he has worked here and paid his taxes and that this country is his home—he knows no other—yet he is facing a court hearing later this month to determine whether he can stay. I have replied to him saying that, while I wish him well, I have no influence in such matters. It does seem unfair that an individual with such long residence here should still have no security and should still have to attend court hearings to establish a right to remain.
There is another aspect of trafficking to which there is little reference in the Bill. I refer to the trafficking of young women for the sex industry. I am sure that most people were glad to learn of the recent police operation that was responsible for the arrest and eventual imprisonment of an Albanian gang that had brought very young women here with promises of good employment and had then forced them into the sex industry, where they frequently had to service up to 20 men a day. There have been a number of such cases, and it is an absolute scandal. One is glad when the criminals responsible for it are caught. However, what happens to the women afterwards? Many are very young, really children. They will have suffered appallingly. They should be covered by the UN Convention on the Rights of the Child. It is often not appropriate for them to be deported back to their country of origin. They could be victimised by members of the criminal mafia responsible for their misfortunes in the first place, or their community might treat them as dishonoured. Rehabilitation and care should be available to them in this country.
Finally, I am concerned about the provisions of Clauses 53 and 54. They deal with the deprivation of citizenship and the deprivation of the right of abode. In both cases, the Secretary of State may, by order, deprive a person of the right to citizenship or the right of abode if he thinks such deprivation is conducive to the public good. I appreciate that there are genuine concerns about terrorism, but deprivation of the rights referred to in these clauses is a very serious matter indeed. The test to be applied seems to be very vague. This is an issue that should be explored further in Committee. Appeal also has to be looked at again in Committee, as has already been mentioned by a number of speakers in this debate. I welcome the opportunity to make these points at Second Reading and we will clearly have to have further discussions about them in Committee.
My Lords, I start by declaring an interest as a member of the Council of University College, London. That gives a clue to what I shall speak about. By rights, at this stage I ought to follow the example of my noble friend Lord Brooke and say, "Ditto", but the desire to have my brief remarks on record is too great. Even though four noble Lords have spoken much better than I can, I still want to say my little piece.
The universities are strongly opposed to the removal of the right of appeal from international students. At this time when all our universities are trying their best to attract students from all over the world, this will have a very damaging effect. How damaging it could be cannot be overstressed. As it is, we are losing ground in the world market. Now we have this, and we have to see how it will affect students who want to come here. Government statistics show that 25 per cent of international students who appeal against visa refusal are successful. The Immigration Advisory Service reports that 60 to 75 per cent of visa appeals that it handles for international students are successful. I suggest that if even 20 per cent of appeals are successful, it is right that there should be a right of appeal.
The Home Office has suggested that unsuccessful students can simply reapply, a point mentioned by my noble friend Lady Anelay. We know that once an application has been refused, a reapplication will be looked at in a totally different way. The stigma of refusal will be on the papers, which will not only create a problem for a person coming to this country, but will affect a person's ability to go to other countries.
The noble Baroness, Lady Warwick, made an important point about the ability of entry clearance officers to judge cases. That also worries me. Many years ago, when the Conservatives were in government, the right of appeal by short-stay visitors was taken away. At that stage, I made the point that we leave everything to the entry clearance officers who are the final arbiters of a person's fate. At that stage, it was agreed to introduce a monitor who would call in 10 per cent of files to see whether there was fairness, conformity and so on. But that is not good enough for students because calling in files to see whether the entry clearance officer has acted properly will be too late for most students.
Some so-called institutions in this country are nothing but a letterhead. The noble Lord, Lord Wallace, touched on this point. We know that they run rackets. It is a racket that so many students come here and pay so much. The students do not start off on the road to coming here as migrants, falsely stating that they are students. They believe that there will be a course for them to attend. They come here, having paid £1,000 or £2,000 in their country of origin, which is an awful lot of money for them, but they find no course and no institution, except a letterhead or an address that is just an address. The point has been made that all the institutions in this country are not the same. If a student has applied to a reputable institution and has been accepted, surely that student should not be subjected to any problems. We need people from other countries in our universities.
For so long, we have been influencing other countries through the people who we send back having been educated here. They take central positions when they return to their countries. I know that, coming from India. That has been happening for decades—centuries, even. It is extremely important that that sphere of influence that this country exercises is not lost. I hope that the matter will be looked at carefully. Clearly there is consensus on how damaging the provision will be to universities, but also to other further and higher education institutions. It will also be so damaging for students who want to come here. There may not be other places to which they want to go. I hope that the Minister will look at this carefully. I know that she is well versed in education issues and I am sure that this overlaps with her personal concerns.
My Lords, I, too, would like to address issues relating to the higher education sector. I should declare an interest as having been an academic for most of my life and still being a visiting fellow at the University of Sussex. I want to speak specifically about issues relating to students in Clause 1, which will remove the right of in-country appeal for international students who are refused extensions to visas; in Clause 4, which will remove the right of appeal to international students who are refused visa extensions; and in Clause 11, which will remove the rights of those whose leave to remain expires while they are applying for a visa extension to remain in the UK until consideration of the application has been completed. Those issues have already been mentioned by several noble Lords, notably, the noble Baroness, Lady Warwick.
It is important to recognise how many applications are involved. In 2004, 51 per cent of the applications for appeal came from students; 30 per cent of all international students need to extend their visas for various reasons. Many of them need to do so because they are writing PhDs and need more time to complete their study. As my noble friend Lord Wallace, said, the length of time taken to write a thesis in this country is relatively variable, we hope. Our research councils put a lot of emphasis on completion within three years, but many students find it difficult to complete their research study and write it up within three years. Four and sometimes five years is a usual time for students to take to write a PhD. It is not predictable in advance. For that reason, students have to apply for extension to their visas when that happens.
Many students come here initially for further education, to complete access courses for higher education and then want to go on from a further education college to a university and, again, need to apply for an extension to their visa. Sometimes a student wants to stay on for a graduation ceremony—for a matter of only three months or so. It is a little hard to have to go home and apply from their home country to come back for graduation. Sometimes students' initial visas are too short. Many students coming over to do PhDs are given only a one-year visa because it is thought that it is more appropriate for them to do a masters degree. Many universities require a masters degree as a preliminary to going on to a PhD. So there are natural reasons why students need to change or extend their visa requirements.
I understand that the aim of Clauses 1 and 11 is to create a one-stop shop in the system of appeal. In the first place, such appeals must be made outside the UK and, secondly, those whose leave to stay expires while they are in the process of applying immediately become illegal overstayers, with all that that implies. As an illegal overstayer, when they leave the country, their passport will be stamped. It will be on record that they have been an illegal overstayer and that will prejudice any future application for a visa. So it is a "Catch 22" situation.
Clause 4, which will remove the right of appeal for all international students on initial entry clearance, with the exception of when they are visiting families or dependent relatives, again presents a difficult issue. The noble Baroness, Lady Warwick, gave several graphic instances of the subjectiveness of decisions made by entry clearance officers. The briefing that we have been given by Universities UK lists several other cases. She cited two personal cases that had come through the UUK system, but there have been cases where the entry clearance officer said that they did not believe that the student had applied for an appropriate course of study; where the entry clearance officer doubted that the student would complete the course or return to their home country; where the entry clearance officer believes that the cost of the course is not commensurate with the benefit that the students will receive; where the entry clearance officer believes that the cost of the course will impose an additional financial burden on the student's family—a case mentioned by the noble Baroness, Lady Warwick—or where the entry clearance officer does not believe that the course is appropriate for the student.
As the noble Baroness, Lady Warwick, said, all those things are highly subjective. We hope that the process by which entry clearance officers judge those things will be improved. We are told that they are being trained and that it will be a much improved procedure. They have already been roundly criticised by both the National Audit Office and the independent assessor for how the system operates. We hope that they improve their procedures, but it is idealistic to think that their procedures will overnight move from being so subjective to being 100 per cent right. Indeed, in the other place, the Minister concerned, Tony McNulty, admitted that 100 per cent objectivity was a fool's errand—it cannot be. Why are we denying those students what I would argue to be natural justice? They should have the right of appeal.
We recognise that there have been difficulties with some institutions—the noble Baroness, Lady Flather, mentioned this—that set themselves up as institutions of higher education, language colleges, or whatever. The Minister should recognise that bona fide universities have no objection to quality assurance processes being required. When universities of high quality say that they have a PhD student who needs an extra six months to complete a PhD, why should that be doubted by the Home Office? Why should it doubt the word of our universities in that way?
I echo what has already been said. International students in this country give us a great deal. They help to provide the diversity, the liveliness and the vivacity of our higher education institutions. They bring in a great deal of income for our higher education institutions. The Government are fully aware of that. With the Prime Minister's initiative in 1999 to extend the number of international students, we have been successful and have been celebrating our success in bringing in more international students. But a combination of increasing visa charges, imposing very tough requirements on visa renewals and applications, and denying what seems to be natural justice, will not attract foreign students to this country. Some noble Lords have mentioned that we are falling back and losing students from China and south-east Asia. Knowledge of what is proposed in this Bill has already spread among international students. It will go through the international student grapevine and will do us no good whatever. These clauses should be amended and I hope that they will be.
Finally, as someone who does not normally speak on Home Office Bills, I now find myself wearing my higher education hat involved with two Bills—the Terrorism Bill and the Immigration, Asylum and Nationality Bill. On both counts, there is great tension between the traditions of our traditionally tolerant British society, which over the years has provided a haven for refugees from many persecutions—from the Huguenots, as mentioned by the noble Lord, Lord Brooke, to those fleeing Hitler's death camps in the 1930s. As the right reverend Prelate the Bishop of Chelmsford said, because travel is so easy we have many people knocking on our doors who come from much further afield than before. I echo the words of the right reverend Prelate: we should aim to treat people from other countries as we would expect to be treated; we should accord them natural justice; and we should treat them with openness, transparency and humanity.
My Lords, I support the policy of managed migration that underpins this Bill. However, the introduction of a new system where appeals will not be permitted will clearly create enormous problems that will have serious consequences that the drafters of the Bill had not thought about. Examples of serious consequences were brought to my attention with considerable passion in the past two weeks when I met members of the Chinese community—in particular, people working in the food catering industry and overseas students. I think that this is the first time that the Chinese community in Britain has come to Parliament to object to a government Bill. Clearly, the proposal to remove the right of appeal before improving the quality of decisions for visas to enter and remain in the United Kingdom is, as the noble Baroness, Lady Anelay, said, putting the cart before the horse.
I am particularly concerned that Clause 1 removes the right of in-country appeal for workers in Chinese food catering and for students from China and south-east Asian countries who are refused extensions to existing visas. Clause 11 removes measures which ensure that applicants whose leave expires while they are making an application for an extension to their visa or appealing against the refusal of such an extension can legally remain in the United Kingdom until those processes are complete. The disadvantages of those two clauses have been well described and probed by a number of noble Lords. Clause 4, which removes the right of appeal for applicants wanting to work in the Chinese food industry in Britain and for students from China and south-east Asian countries who are refused visas to enter the United Kingdom, is yet another clause for contention.
I turn now to the employment of foreign workers in food catering. The Chinese food catering industry began in the 1960s and 1970s when people from the New Territories in Hong Kong were invited to set up business here. That led to the development today of about 10,000 takeaway food shops and 5,000 Chinese restaurants. I understand that, together, they make an annual contribution of about £1 billion to Her Majesty's Treasury. That significant contribution to the national economy is in danger of being wiped out if this part of the catering industry is dismantled by the effects of this Bill.
Clause 23(2)(b) gives the Secretary of State the power to issue a discrimination code of practice to ensure that employers do not discriminate on racial grounds when they apply the new law on employment of immigrants. The clause also gives the Secretary of State the right to consult,
"such bodies representing employers . . . [and] such bodies representing workers", as he sees fit under this code of practice. In view of the large number of Chinese and other ethnic-minority-owned small businesses in this country, will the Secretary of State undertake to consult representatives of, for example, Chinese employers and Chinese workers in respect of the code of practice?
Many Chinese food outlets and restaurants now change hands because their owners, who arrived in the 1960s and 1970s, have reached retirement age and their children have no interest in food catering. Noble Lords may be familiar with Ofsted reports which state that more than 70 per cent of Chinese children have obtained five good GCSE grades for the past decade. Almost all Chinese children attend universities or higher education colleges. No more than five in 100 have chosen to work in restaurants or food catering for almost two decades.
In 1987, I conducted a survey of Chinese teenagers on Merseyside. Only five of the 110 children I interviewed wanted to work in food catering, although 98 of their parents were in Chinese food businesses. My report was given to the regeneration agencies that were involved in the renewal of Merseyside. The same findings have subsequently been reported in London, Manchester, Glasgow and Belfast. In 1997, the Fourth National Survey of Ethnic Minorities in Britain found that one in four Chinese men and women possess a university degree. That further reduces their interest in working in food catering.
Because no more than five in 100 Chinese food outlets are taken over by the children of the original proprietor, most of them are sold—mainly to Chinese people from abroad. Usually, the person interested in buying the business comes from China, Hong Kong or south-east Asia and works in that outlet for a year before deciding whether to buy it. As the value of the small business is less than £200,000, these people need visas to work here.
The removal of settlement rights under the five-tier points system will also make the United Kingdom unattractive to workers and prospective proprietors. High-skilled workers currently have a maximum of five years to remain in the United Kingdom without a break. The new Bill will break up that leave to remain into two parts of two years and three years. Therefore, high-skilled workers take a high risk when they decide to work in the United Kingdom because they are very unlikely to be able to settle here. Low-skilled workers will have no settlement rights and their family cannot join them. It is likely that workers in the food catering industry will be classified as low-skilled workers.
If the Immigration, Asylum and Nationality Bill is passed, it could herald the death of the Chinese catering industry in the United Kingdom. When it is fully implemented, the only outlets to remain open will be expensive establishments vying for Michelin star status in our major metropolitan cities, particularly in the West End of London.
I turn now to Chinese students from China, Hong Kong and south-east Asia. As other speakers have said, our universities consider them a significant group of international students that supply brains and finances to support our academic achievements. Ministers are aware that China currently provides between 70,000 and 90,000 students to the United Kingdom. But the increase made earlier this year to visa fees has deterred several thousands from coming, a point which has already been reported. A group of such students met me recently. They also complained that as legitimate visa holders, they seemed to be the only students on their campuses who, on arriving at their universities and checking into temporary summer accommodation, have to report to the nearest police station. They told me that no other groups of overseas students have to do this. That further sours their experience in the United Kingdom. Perhaps the Minister may wish to consider this practice.
The implementation of Clauses 1, 4 and 11 will further reduce the number of overseas students. This will happen at a time when we know from the Independent Monitor of UK visas that the average refusal rate for student visas is 32 per cent—double that for non-settlement applications in 2003. There are 16 posts around the world that have refusal rates for student applications of more than 50 per cent, with a total refusal rate of 73 per cent from Kathmandu. Some 89 per cent of UK refusals are made for the reason that students are not studying at degree level by the time they intend to leave at the end of their visit or they will have completed their studies. An average student visa interview lasts for 10 minutes and the overall success rate on appeals made by the Immigration Advisory Service on behalf of students was 38 per cent in 2002–03 and 49 per cent in 2003–04.
I look forward to hearing the Minister's response to the issues I have raised.
My Lords, I apologise to the House in advance for my absence from the Chamber at the conclusion of this debate due to a longstanding commitment.
The stated aim of the Government's strategy on asylum and immigration is to create a "fair but practical system of controls" for migration. I wholeheartedly support this aim. However, I have some reservations and concerns in relation to a few clauses in the Bill.
This is the latest in a line of immigration and asylum Bills introduced over recent years. Each has removed important procedural safeguards for people seeking asylum in the UK or trying to migrate here. That trend is continued in the current Bill, which promises to limit even further the already restricted application and appeals process. My concerns about this aspect of the proposals have already been expressed by other noble Lords, the Immigration Law Practitioners' Association and Liberty.
I want to concentrate on Clauses 53 and 54. I do not believe that the provisions on counter-terrorism and their likely impact on minority ethnic and religious groups have yet received sufficient attention. The Government introduced the relevant clauses in Committee in the other place. There was very little time available for a proper debate. I hope that your Lordships will thoroughly scrutinise these clauses during the passage of the Bill through this House.
Since the terrible events of 9/11, we have seen an alarming tendency to treat counter-terrorism as a question of immigration control. The Anti-terrorism, Crime and Security Act 2001, for example, sought to address the threat from international terrorism by creating a discriminatory power to detain foreign nationals believed to pose a threat to national security. Similarly, in response to the tragic events in London on
"refuse asylum to anyone who has . . . anything to do with opposing repressive regimes and could be perceived as being involved in terrorism anywhere in the world".
My concerns about dealing with counter-terrorism and immigration in this manner are threefold. First, immigration measures fail to tackle any threat from terrorism posed by British citizens. Secondly, in practice these measures are likely to have a disproportionate effect on minority ethnic and religious groups. They are likely to marginalise certain sectors of the population and may ultimately be counter-productive. Thirdly, removing from the UK those who are suspected of involvement in international terrorism is not an effective way to address the threat. Rather than seeking to export the problem, those suspected of committing terrorist acts should be prosecuted in this country.
Clause 53 would give the Home Secretary the power to remove a person's British citizenship where satisfied that this would be "conducive to the public good". Will my noble friend tell us why this sweeping power is needed? The Home Secretary can already strip a person of their British nationality if satisfied that they have done something,
"seriously prejudicial to the vital interests of the United Kingdom".
As far as I am aware, this power has never been used. I am particularly worried that, in practice, this clause would have a disproportionate impact on ethnic and religious minorities and that it could appear to be an anti-Muslim measure. As a result of international events, social inequalities and legislative proposals, many young British Muslims already feel disenfranchised. These proposals would only compound those feelings, making their "Britishness" seem like a temporary state, removable at will, rather than a permanent part of their identity. This could seriously damage community relations which are already very strained, and ultimately prove to be counter-productive.
Can my noble friend explain how the Government intend to deal with dual nationals, those who have dual nationality with another country on the basis of their parents' or grandparents' birth, if those countries refuse to accept such people? How do the Government intend to deal with the descendants of Anglo-Saxon members of our community, for instance, if they become involved in terrorism?
The Bill will also require a very restrictive interpretation to be made of the definition of "refugee" in the 1951 convention. The interpretation here goes far beyond the meaning given in international law. People who have a well founded fear of persecution could be denied refugee status in the UK as a result of this provision if they had carried out acts of committing or even encouraging acts of terrorism. "Terrorism", for these purposes, has the extremely wide definition set out in Section 1 of the Terrorism Act 2000. As we have seen in the context of the Terrorism Bill, it goes far beyond the ordinary meaning of "terrorism". Not only does it apply to the use of physical violence to achieve an end, but it also covers damage to property and disruption to electronic systems wherever they occur in the world. Under the Bill, these acts would not even be required to constitute a criminal offence in order to justify a denial of refugee status. If a person could not be prosecuted for their actions in the UK, we should not use those actions to deny them asylum.
Yet again we are being asked to consider legislation which seeks to appear,
"tough on terrorism without being tough on the causes of terrorism".
As I said previously when debating the Terrorism Bill, I do not believe that this approach,
"will yield long-lasting peace and community stability".—[Hansard, 21/11/05; col. 1468.]
In fact, I fear that it could have the opposite effect.
My Lords, earlier speakers have tried to count up the number of Bills we have had on this subject. My tally is that Conservative governments since 1987 have produced four and Labour governments have produced a similar number, including this one. So that makes eight Bills in 18 years. One might think that the Home Office imagines that immigration and asylum issues can be solved by legislating. Surely it would be better to improve the administration of what must always be a complex and sometimes controversial subject. The training and continuity in service of those who deal with individual cases should be the permanent priority, and here I agree entirely with the right reverend Prelate the Bishop of Chelmsford.
As regards the protection of refugees, I have said before—and I do not hesitate to say again—the prime consideration must be the quality of the first decision about their status. If this is right first time, everything else falls into place. Wasteful appeals are avoided, while resettlement and rehabilitation can start without delay. If interpretation of foreign languages is needed, this must be of the best quality. If asylum seekers receive correct advice before interview, their cases are far more likely to be well presented. Interviewers should be people free from political or media-inspired prejudice, who are capable of understanding the horrifying experiences through which asylum seekers may well have passed. Their aim should be never to reject as many applications as possible. On the other hand, they should reject an automatic culture of disbelief. Now that immigration for employment is possible, the number of bogus asylum claims should decline.
Turning to the Bill, who was consulted during its preparation? Did the Home Office seek the views of the London office of the UNHCR? Were the Immigration Advisory Service, the British Refugee Council, the Immigration Law Practitioners' Association and the Independent Monitor of Entry Clearance consulted, together with others having daily case-work experience? Were the universities asked about visas for students? If the views of such groups were not given full weight, how can we possibly expect to have a sensible and workable Bill which will not require further amendment in a year or two?
It has long been intended that failed asylum seekers should be returned to their countries of origin. The situation in the country in question governs whether or not this is possible. Quite often the real situation in such countries is unclear or changing, especially in vast countries such as the Congo. The situation even at the airport may be the most critical one. There is scope for much better liaison between the Home Office and the Foreign Office. The recent court judgment about returns to Zimbabwe shows the need for an independent source of country-by-country assessment and advice. Canada has such a system and the Immigration Advisory Service and others have been calling for something similar here. What are Her Majesty's Government doing about this?
The Immigration Advisory Service, an organisation with 35 years of experience and with 20 or so offices in Britain and overseas, has described the Bill as "misconceived and inappropriate". The IAS has commented on 13 specific points. How many of these do the Government accept? I take most seriously the risk that people who have entered legally will be put into limbo. This will occur when they are refused an extension but are perversely encouraged to stay here in order to appeal against a removal notice. During that interval they will be unable either to work or to receive benefits. This limbo is comparable to the plight of those caught by Section 9 of the 2004 Act.
Clause 52, concerning terrorism—which is defined not in this Bill but elsewhere—and its interaction with the new Terrorism Bill will require very careful thought. So will Clause 53 on deprivation of citizenship. The noble Lord, Lord Ahmed, was quite right to emphasise these points. Given the apparent lack of consultation prior to the Bill, your Lordships will have to work very hard to assert best practice and to deal with the reasonable concerns that we are raising today. I therefore urge the Government to provide sufficient time at all stages of the Bill.
I join with other speakers who have welcomed the noble Baroness, Lady Ashton of Upholland, to this subject, which is perhaps slightly new to her. She has shown on previous Bills that she is very capable of listening. I hope and urge that she will be willing to negotiate on particular points.
I have tabled an amendment for next Monday on the Identity Cards Bill, which provides that:
"The Secretary of State, before making an order containing any provision for compulsory registration, must consult on whether, and the extent to which, this requires him to regularise the status of foreign nationals residing in the United Kingdom without entitlement to remain".
I shall return to regularisation in a moment.
On the general relationship between the two Bills, I made some inquiries about where I might usefully table the amendment from a technical point of view. The steer I tended to get when I approached the issue from the point of view of the Identity Cards Bill was that it was more in the territory of the immigration Bill; and when I approached it from the point of view of an amendment in the immigration Bill, people pointed me in the direction of the Identity Cards Bill. I am sure that the left hand and the right hand will be able to hold hands, as it were, in the near future.
The central point of the problem of the crossover between the Identity Cards Bill and the immigration Bill is that none of us knows how many of the 500,000 illegal immigrants are expected to be caught by these provisions. Leaving aside the example given by my noble friend Lady Turner of someone who has been here for donkey's years, running a business or whatever without the right to remain, surely we need some criteria—a procedure or something—to avoid the presumption that all 500,000 people will be asked to go and live somewhere else. Although that is not within this Bill, the build-up of all these tests is clearly and deliberately putting a lot of pressure on certain people and we need criteria with which to regularise their position.
That will come about even before any question of the compulsory stage of the Identity Cards Bill. As we know, the scheme will mean that free public services can be used only by people with identity cards. People will not be forced to carry the card, but they will have to register for a card using biometric data. There will obviously be quite a lot of concern about how all that will tie together in practice.
It was asked earlier today in relation to a Starred Question how easily the Gangmasters (Licensing) Act would sit with the regularisation in a certain way of people under the gangmasters arrangement. Some of the trade union officials whom I know, such as the National Farmers' Union, as well as employers and the food processing industry have worked hard to make credible the rules governing the regularisation of the position of people employed by gangmasters. We have only to look at the case of Morecambe Bay to know that many of those people are in a position that has parallels with that described by the noble Lord, Lord Chan.
Regularisation may yield more in tax and national insurance to the public purse than it will cost in enforcement. There is a trade-off to be weighed in terms of how much the detention and removal of the average illegal immigrant costs. The Government's role is arguably to weigh these factors, but there is a risk of the inspection regime fuelling the informal or black economy. The Gangmasters (Licensing) Act was a response to the horror of Morecambe Bay. We know that many people's net wages are in the same sort of territory. The events of Morecambe Bay led to a demand, widely supported in Parliament, for the position to be regularised, because it was a totally unacceptable method of employment in modern Britain and gave workers no rights.
The informal economy might enjoy a competitive edge by attracting labour which legitimate business will be deprived of if identity and inspection regimes turn migrant worker status into a problem for employer and employee. I echo the point made by the noble Baroness, Lady Turner. The CBI, for once, is wearing its hat as being against too much regulation. However, we want regulation to meet legitimate business benchmarks, and not to ask employers simply to be policemen and to make them somehow criminally liable if they are not. Perhaps the Minister will put me right if I have got that wrong.
I am not approaching this in any spirit of general opposition—on the contrary—but this crossover of legislation needs to be looked at. If the Government want to be seen to be bringing more people into the formal economy, that could be an important consideration.
Regularisation is a potential weapon in the arsenal of national security. It brings more people within the scope of regular immigration control, using a carrot as opposed to a stick, and aids national integration and equality strategies by recognising people's economic contribution and giving them an official stake in UK society.
In conclusion, I am not calling for a general amnesty for everybody who is now in the country full-stop. However, perhaps I may dabble with the word "amnesty", because it is not a very fashionable word. We do not want to put an unwanted question mark over many hundreds of thousands of people, and there is no crude arithmetical answer to the question of who may stay. You cannot say that if you are worth more than £10 million and you have been here more than 10 years, it is okay. We will have to give a lot more thought to the criteria.
I finish where I began. Before making an order containing any provisions for the compulsory registration of people under this Bill or the Identity Cards Bill, the Secretary of State must consult on whether, and the extent to which, this requires him to regularise the status of foreign nationals residing in the United Kingdom without entitlement to remain.
My Lords, I, too, warmly welcome the noble Baroness, Lady Ashton, to her role on this Bill. My remarks will be confined to the clauses that appear at the end of the Bill in a section that is rather disarmingly entitled "Miscellaneous". These are the so-called "counter-terrorism" clauses. I was grateful to hear the remarks of the noble Lord, Lord Ahmed, on them. They were dealt with by the Joint Committee on Human Rights in its report Counter-Terrorism Policy and Human Rights: Terrorism Bill and Related Matters, which was published yesterday. I am a member of that committee and I shall refer to the report's conclusions.
These amendments were tabled in Standing Committee in the other place. I shall comment first on the procedure followed in introducing them. Since they were put forward as an amendment to an existing Bill, there was no ministerial statement of compatibility with the Human Rights Act. The Explanatory Notes accompanying them do not comment on the human rights impact. As the Minister has made a statement of compatibility in introducing the Bill in this House, I should be grateful if she could indicate why she thinks these clauses are compatible with the Act, particularly when she considers the report of the Joint Committee on Human Rights, the comments of the United Nations High Commissioner for Refugees and many other groups.
Clause 53 will introduce a new test for the deprivation of a person's British citizenship. Under the law as it stands, the Secretary of State can take away British citizenship—although I understand that this power has hardly, if ever, been used—if he is,
"satisfied that the person has done anything seriously prejudicial to the vital interests of the United Kingdom or a British overseas territory".
Also, of course, the decision to take away citizenship cannot make the person stateless. In practice, therefore, the deprivation of citizenship can apply only to people with dual nationality, but including those who are born British citizens.
Clause 53 will widen substantially the basis for this deprivation of citizenship. I endorse the remarks of the noble Baroness, Lady Turner, on this point. Instead of the wording that I have just quoted; that is,
"satisfied that the person has done anything seriously prejudicial", the basis for the Secretary of State to deprive a person of British citizenship will be that he is,
"satisfied that deprivation is conducive to the public good".
According to the Minister who spoke in Committee in the other place, the decision whether deprivation is in the public good will depend on whether the person has engaged in any behaviour that appears on the list of "unacceptable behaviours". Does "conducive to the public good" depend on whether one of the "unacceptable behaviours" has been engaged in? The House will know that this list of unacceptable behaviours guides the Home Secretary in exercising his discretion to exclude and deport non-nationals, and that one of them is the highly controversial act of "justifying terrorism". As the noble Lord, Lord Ahmed, has explained, the definition of terrorism in the Terrorism Act 2000 is very wide, and applies to acts committed anywhere in the world.
So many concerns have been raised about the width of this definition in the other place and in this House that the Government's independent reviewer of terrorism legislation, the noble Lord, Lord Carlile, has been asked to undertake a review of it. At Second Reading of the Terrorism Bill in this House, the noble Lord said he had agreed to do so and added:
"I have been given nearly a year to look at eight lines of text".—[Hansard, 21/11/05; col. 1436.]
The Joint Committee on Human Rights also looked at the definition for its report. We concluded that it was unacceptably wide, and recommended that the definition be changed. Deprivation of citizenship is a serious matter. It has a profound impact on the person so treated. According to the Joint Committee's report, the human rights implications of this deprivation could involve the right to be free of inhuman or degrading treatment; the right to liberty; the right to respect for family life; and the right not to be arbitrarily deprived of the right to enter one's own country. What this Bill therefore proposes is that people shall be deprived of their citizenship and subjected to many possible infringements of basic rights, if they are deemed to have justified terrorism using a definition of terrorism that it is agreed is unacceptably wide and needs reviewing.
Of course there is a right of appeal, and the House may feel that is a good safeguard and protection against arbitrariness. However, it is not so reassuring when one sees how difficult it will be to appeal when the Home Secretary need only be satisfied that the deprivation of citizenship is conducive to the public good, and there is no requirement that there be objectively reasonable grounds for his belief. The Joint Committee points out in its conclusion that the new Clause 52 gives rise to a risk of incompatibility with Articles 3, 5, 8 and 14 of the European Convention, as well as Articles 12 and 26 of the International Covenant on Civil and Political Rights.
The points I have made on Clause 52 also have some relevance to Clause 53, which provides for the deprivation of right of abode from certain Commonwealth citizens. Although in the case of Commonwealth citizens with right of abode there is a statutory appeal to a body with full jurisdiction, in the end the same considerations apply—in particular, and here I quote the Joint Committee's report,
"the legal uncertainty caused by the width of the current definition of unacceptable behaviours".
The provisions of the new Clause 51 raise serious human rights problems. The clause lays down a new interpretation of the refugee convention. Article 1F of that convention sets out the categories of people who have ruled themselves out of getting international protection as refugees. Article 1F says you do not deserve international protection if you commit a crime against peace, a war crime or a crime against humanity, or if you have done,
"anything contrary to the purposes and principles of the United Nations".
The new Clause 51 proposed by the Government will include within that definition acts of committing, preparing or instigating terrorism, and acts of encouraging or inducing others to commit, prepare or instigate terrorism, whether or not the acts themselves amount to an actual or "inchoate" offence. That may sound eminently reasonable until we remember, first, the definition of terrorism being used here, and, secondly, that it covers acts wherever they are committed, whether in Uzbekistan, North Korea or perhaps Burma.
I cannot do better than draw to the attention of the House the view of the Joint Committee of Human Rights on this issue:
"To redefine the scope of Article 1F(c) exclusion so as to catch anyone who has threatened damage to property as a means to political change anywhere in the world, and anyone who in the Secretary of State's view has engaged in one of the unacceptable behaviours such as 'justifying' terrorism, is in our view to broaden the scope of the exclusion in Article 1F(c) in a way which is not itself compatible with the Refugee Convention".
It seems to me, although of course I am not a lawyer, that advocating the overthrow of a repressive regime—for example, that in Uzbekistan—and supporting a move to another form of government such as democracy is enough to ensure that you will not get the protection of the United Kingdom, should you be able to flee before the secret police get you. In my view, that is a deeply shaming position for us to find ourselves in, and a long way from the haven for the Huguenots mentioned by the noble Lord, Lord Brooke of Sutton Mandeville.
The position is not improved by the provision in Clause 7 that requires appeals against deportation on national security grounds to be brought out-of-country. The Joint Committee considers that the failure of the new clause to preserve an in-country appeal on asylum grounds gives rise to a risk of incompatibility with the refugee convention.
I have one more question for the Minister: how do the Government propose to reconcile the work of the noble Lord, Lord Carlile, in reviewing the definition of terrorism in the 2000 Act with the plans to use that definition straight away across such a wide range of new legislation?
My Lords, several concerns have been raised about the impact of Clauses 1 and 4 on international students. Universities UK and other groups, including the Immigration Advisory Service; the National Union of Students; the Council for International Education; the Association of Colleges and others, are opposed to measures that would abolish rights of appeal in entry clearance cases, and where students have been refused leave to remain.
The objection is twofold. First, it is felt that it is manifestly unfair to remove a right of appeal when the decisions taken, particularly in the case of initial entry clearance, are frequently found to be wrong or inappropriate. Secondly, it is feared that the removal of this appeal right would add to the impression already created by a number of recent measures relating to visas, that the United Kingdom is making it harder to obtain a visa to study in the UK.
Universities have asked the Government to reconsider, particularly the measures in Clause 4. They point to evidence that it is becoming harder to attract international students, and that many of our universities are experiencing a downturn in international student recruitment. They also point to the enormous benefit international students bring.
In the context of Northern Ireland, these issues are particularly pressing. The Queen's University of Belfast and the University of Ulster are both seeking to increase the number of international students they attract. That is important not only in terms of income from fees, but also for the contribution such students make to the intellectual resource of the university. In Northern Ireland the student population is largely homogeneous compared to other regions of the UK, so international students add much to the diversity of the student body, which is beneficial not only to the university but also to the wider community.
Economically, the intellectual capital that international students represent is particularly important to Northern Ireland. As in Scotland, where the Government have recognised the need for skilled inward migration and helped to achieve that by focusing on attracting international students through the "Fresh Talent" scheme, Northern Ireland needs international students to help us achieve economic development. So in Northern Ireland, as elsewhere, this is the wrong moment to be putting barriers in the way of the efforts of our universities and colleges to recruit internationally.
The Minister may argue that this is not what the Bill is about, but there is compelling evidence that if the right of appeal is abolished, hundreds and thousands of students will be turned away as a result of bad decisions by entry clearance officers. The evidence is that decision-making is so variable and frequently poor that the system badly needs the safeguard of an appeal mechanism. I shall give one example from Northern Ireland but I am sure the House will hear many others this afternoon. I am told of a student who applied from Cameroon to study at an English language school in Northern Ireland and was informed:
"You have further stated that you intend to study this course in Northern Ireland so that you can also improve your English. If this is your aim and English is not your first language, I do not find it credible that you would choose a school in Northern Ireland to do these studies".
The student was refused a visa in August this year. The case was brought to the attention of the Northern Ireland Department for Employment and Learning. The case was passed to the Foreign and Commonwealth Office for a response. The Foreign and Commonwealth Office replied by admitting that mistakes had been made and that the entry clearance officers were wrong to make judgments about the suitability of particular regions for particular courses. I am told that this is not an isolated example. Indeed, the impression that it is not is borne out by the report published in February this year by the Independent Monitor for Entry Clearance, who said:
"In relation to students I have found both in 2002 and 2003 that ECOs are effectively adding a number of additional requirements under the auspices of the requirements of intending to leave at the end of their studies and being able and intending to follow the course set out in the Immigration Rules. Specifically I find it unacceptable that students should be refused because they have not studied a subject in their own country/should have studied the subject more recently; because they could study the subject in their own country more cheaply; because in the opinion of the ECO they should study in a third country rather than the UK; because they do not 'need' to study and because they have failed to obtain a level of proficiency in their own country by studying there. All these reasons proliferate".
In the light of these examples I have some serious concerns about the abolition of students' right of appeal, given that the entry clearance officer's decisions continue to be made on what appears to be an arbitrary and subjective basis.
I understand that the Government hope that the introduction of a points-based immigration scheme will improve decision-making. I hope so, too. But the Government should bring forward plans to abolish the right of appeal in such cases when and only when they have proved that the safeguards offered by appeals is no longer necessary because no one is wrongly refused a visa. At the moment, appeals are very necessary to the credibility and fairness of the system. I hope the Government will think again.
There are other concerns about the Bill—specifically the way in which Clause 1 operates. Clause 1 aims to create a one-stop appeal system in leave to remain cases. There is no objection to that. But the way in which the Government have chosen to achieve this will mean that a large number of unsuccessful applicants for leave to remain will become illegal over-stayers through no fault of their own and as a surely unintended consequence of the way the Bill is drafted. I hope that we will have time to examine this measure in detail in Committee and that the Government will address the problems with the current drafting.
My Lords, the noble Baroness, Lady Anelay, started this debate four and a half hours ago by entering a plea for consolidation. In that she was echoing the advice that we have been given by the Law Society, and that was the implication of several of the speeches we have heard this afternoon, such as that of the noble Lord, Lord Hylton, who said that this was the eighth measure that had been introduced since 1987. I was trying to calculate how many there had been since 1971 when I came into the House. It would certainly run well into double figures. When we last discussed the subject of consolidation, on the 2002 Act, I made an amendment partially to consolidate the 1971 Act and in particular Schedule 2, which has been patched and altered in most of the Bills since then over the years and is now to have a little more of its cornice knocked off in the repeals under this Bill.
The Minister who replied then, the noble Lord, Lord Bassam, recognised that the case had been made out. He said that he could not proceed until,
"the whole reform package has been perfected and put together".—[Hansard, 15/7/02; col. 1075.]
That means that it will be put off for ever. I hope that when the Minister replies this evening she will be able to give us a little more assurance on the time scale for consolidation. In particular, she might be able to say whether the consultation has begun with the Law Commission, which would be the first step towards consolidation. Would the Government be prepared to agree to the consolidation of Schedule 2 if I tabled that amendment again as a first step towards a more comprehensive exercise?
Every commentator from outside this House, including those who addressed your Lordships upstairs yesterday evening, has been unanimous in their criticism of the reduction of appeal rights. We all know about the disastrous effect that the Bill would have on the ability of the universities to sustain their intake of good overseas students. In particular we heard from the noble Baroness, Lady Warwick, but she is by no means the only one to have majored on this theme this afternoon. I want to quote only one letter which I received from Ms Helen Bagshaw, who is a student at Balliol College and pointed out to me—and I think that these were the figures given by the noble Baroness, Lady Anelay—that 25 per cent of student appeals against refusal of entry clearance in 2003 were successful and that where the applicant received professional help from the IAS in conducting the appeal, the success rate went up to over 60 per cent. But it is not only students who suffer from the low quality of initial decision-making on entry certificates. The noble Lord, Lord Chan, gave us an extremely good example in the case of the Chinese catering industry.
This low quality has been highlighted by the National Audit Office and the independent monitor which was referred to by my noble friend Lady Sharp. The monitor, who addressed us upstairs yesterday evening, said that the use of subjective criteria, inappropriate reasons for refusal and frequent misinterpretation of evidence presented by applicants was a problem. Yesterday, she also said that it was very unlikely that entry certificate officers who were dealing with 40 cases a day, having very little guidance and insufficient training, would attain a good level of fairness and efficiency. As my noble friend Lord Dholakia said, in her current report of February 2005 she points out that 28,000 people had wrongly been denied rights of appeal in 2002–03 under the existing system, and her advice to Parliament was to consider this when, as she correctly anticipated, consideration was given to whittling down the rights of appeal still further.
The one concession that was dragged out of the Minister, Tony McNulty, in another place was that the removal of appeal rights would not come into effect until the points system was fully in place, except for people under tier 1, the equivalent of the present Highly Skilled Migrant Programme. The new points scheme is not in the Bill, but it is not the simple single scheme that has been advertised. I also hope that the Government will find time to debate the report of Sub-Committee F, which did not find that points schemes were inherently superior to work permit systems and said that they were not best at meeting labour market needs because employers may not find what they need among people who are admitted because they possess some general set of attributes, rather than the specific qualities that are sought under the work permit system. Conversely, more people having a particular skill may be admitted than are needed to fill the jobs in the favoured categories. Until we see the small print we will have no way of knowing whether the subjective judgments of ECOs, and therefore the propensity for error in the system, will be reduced by the new scheme.
My noble friend Lord Dholakia made specific mention of the evils that have resulted from Clause 9 of the Asylum and Immigration (Treatment of Claimants, etc.) Act. I wish that my noble kinsman Lord Russell was still with us because I am certain that he would have had something to say about the need to rescue families trapped in destitution as a result of the creation of a new category of "failed asylum seeker with family". The research which is now being conducted by Barnardo's demonstrates that Section 9 is wholly incompatible with the Children Act 1989, that the families affected did not understand the process, and that local authorities felt it was an attempt to shift the burden from the IND to local budgets. My noble kinsman said that the protection of the weak, in one of the 17th century phrases he always had ready to hand, was,
"the keystone which closes up the arch of government".—[Hansard, 26/4/04; col. 659.]
We shall do our best to restore that keystone, with a virtual plaque on it to his memory.
The appearance of Clause 51, which arouses the concern of UNHCR as a,
"skewed and imbalanced interpretation of the exclusion clauses", of the convention, reminded me of the debate we had on the order designating a very large list of offences of varying degrees of severity as being "particularly serious" and therefore automatically such as to exclude a person from being considered as a refugee under Article 33(2) of the convention. The UNHCR guidelines on interpretation require a high threshold to be placed on the interpretation of Article 33; that each case should be assessed individually on its own merits, and that there should be proportionality between the offence and the consequences of a refusal of asylum. Now the Government, having got away with breaching the guidelines on 1F(b), which excludes those who committed serious crimes from consideration as refugees, apply the same logic to 1F(c), which, as we have heard, deals with acts contrary to the purposes and principles of the United Nations, even though the Minister admitted that we had never been obliged to admit someone to the UK as a refugee because we lacked this provision in our law previously.
We are greatly indebted to the Joint Committee on Human Rights, which has once again come up with important warnings just in time, and it is right about the iniquity of Clause 53, which allows somebody to be deprived of his British citizenship, even if born here, if the Secretary of State thinks, for example, that something he has said "justifies" terrorism. There are similar objections against Clause 54, under which a person may be deprived of his right of abode where the Secretary of State is satisfied that it would be non-conducive to the public good, a test which under the 1971 Act has never been subject to proper judicial review.
Regarding Clause 52, which was dissected in some detail by the noble Baroness, Lady Stern, although the Security Council has indeed said in Security Council Resolution 1373 that acts of terrorism are contrary to the principles and purposes of the United Nations, the Government define "terrorism" according to the 2000 Act, extending to any act of violence against persons or property anywhere in the world. The encouragement or inducement of others to commit, prepare or instigate such acts, whether they were actual or threatened, would also bring the individual within 1F(c). This is not the restrictive interpretation required by UNHCR, and it would have caught many heroes of the past, from Harry Hotspur to Cromwell, Garibaldi and Kossuth through Adam von Trott to Nelson Mandela, Isaias Afewerke, Meles Zenawi and John Garang. All those were freedom fighters who would have been debarred from the protection of the convention if this clause had been in operation. We agree with the JCHR that in the context of this Bill a narrower definition of terrorism is needed, and the offences to be covered should be actual rather than inchoate.
Finally, the UNHCR commends the Government for the arrangements being made for the inspection of detention facilities, but it deprecates the absence of an automatic right to a bail hearing, for which the Government made provision in Part 3 of the 1999 Act, but then reneged on in the 2002 Act. In fact, Clause 45 merely puts the chief inspector's existing role in detention centres, short-term holding facilities and escort arrangements within the scope of the Prison Act 1952, another area of the law in desperate need of consolidation. As has been said, the chief inspector does a fantastic job, but her periodic reviews of whole establishments do not remove the need for judicial review of individual detentions. The Refugee Children's Consortium drew our attention to the growing number of children in immigration detention—75 at the end of September, compared with 35 on
On detention generally, although its purpose is said to be the facilitation of removal, one of our witnesses told us that the number being detained was twice the number being removed and that although the number of asylum seekers in detention had gone up to 1,695 two weeks ago, that had not resulted in a proportionate increase in removals. So the propensity to lock up asylum seekers has increased, and one of our witnesses upstairs said that it was a case of filling all the bed spaces available. On Sunday I spoke on the telephone to Miss Amanda Sibiye, a Zimbabwean who has been in Yarl's Wood detention centre since
My Lords, this has been a most interesting if concise debate where strongly held views have been expressed with conviction. I thank the Minister for her clear introduction to the six sections of the Bill which both she and the Explanatory Notes explain build upon the five year plan published this February and the Government's strategic plan published in July last year.
As many of your Lordships have indicated, there is a hint of "Groundhog Day" when it comes to immigration and asylum Bills. As noble Lords have pointed out, this is at least the fourth Bill this Government have presented in eight years. One would have hoped that the system could have been made simpler, clearer and more robust through these past Acts, thus making further primary legislation superfluous. Instead we are faced with a situation where the number of failed asylum seekers is growing at a much faster rate than the level of deportations, with only one in 15 being deported last year. The noble Lord, Lord Avebury, reminded us that four hours ago my noble friend Lady Anelay called for a clearer way through this legislation. The debate today has shown that we are not on that clear way yet.
Be that as it may, it is clear that there is support for the main thrust of the Bill across the House. The debate has, however, highlighted important issues that need to be thrashed out in Committee on a Bill that the Refugee Council claims,
"doesn't really address the fundamental problems of the asylum process".
I welcome the Minister's recognition that migration presents undeniable benefits to this country—of that there can be no question—and that the Government want to maintain the valuable contributions that overseas students make to our education institutions. We expected a strong showing from the universities' apologists and we have not been disappointed. It was led by the noble Baroness, Lady Warwick, who spoke on this issue in depth as a representative of Universities UK. I am sure it is a subject close to the hearts of the various university chancellors in this House.
As such, I will not reiterate what has been said, but I hope that the Minister's remarks will indicate that we may work together towards a workable solution to our concerns, with the Government proposing changes to the appeals process and the knock-on effects that there might be on foreign students.
The noble Lord, Lord Wallace, my noble friend Lady Flather and the noble Baroness, Lady Sharp, have all spoken about the one-size-fits-all problem and have highlighted the very considerable differences in different cases. We must all sympathise with the experiences of the noble Lord, Lord Laird, and the implication that the English spoken in Northern Ireland is not the real thing. Some have called the changes to appeals hasty, and as my noble friend Lady Anelay has already highlighted, they will occur before the Government have implemented their containing points system, let alone assessed its success. That is the cart before the horse criticism. While we are pleased that the Prime Minister has altered his views on appeals since 1992, we will push the Minister to explain in detail in Committee the proposed alterations to the processes. We will also raise the need for improved quality of decision procedure in asylum and immigration cases. A strong case has been made here and in the other place for the retention of in-country appeals in some specific categories. I hope that the Minister will continually have before her the reproach of the high level of statistics of successful applications from those appeals.
The tragedy at Morecambe Bay last year brought the attention of the public to the problem of people employing illegal immigrants. There was an interesting contribution by the noble Baroness, Lady Turner of Camden. It is a problem that all sides of the House have condemned. However, as my noble friend Lady Anelay has stated, the sanctions to tackle such exploitation are already available under the Asylum and Immigration Act 1996. We need to look at why those measures have not been used and whether the Government-proposed changes will have a better, fairer and more efficient effect. I am sure that the Minister will agree that we do not want to inadvertently increase discrimination in employment. The noble Lord, Lord Chan, gave a most informative account of the demography of the Chinese community as businesses change. I hope that the Minister will address the criticism that he made about the need to report to the police and whether that is a unique problem for that community.
Finally, the report by the Joint Committee on Human Rights that the noble Baroness, Lady Stern, spoke about has come at a most timely point in this debate. I hope that we will hear some comments from the Minister on that, possibly tonight, but certainly in the later stages of the Bill. The debate has been marked by an almost wholly contributing and constructive spirit and a real will to improve this very difficult but absolutely basic subject. I look forward to the Minister's remarks.
My Lords, I begin by thanking all noble Lords who have participated in the debate. A number of noble Lords referred to whether this is the fourth, fifth, or sixth Bill introduced by the Government in this area. I had done for me a summary of previous immigration, asylum and nationality legislation going back to 1971. I would be happy to share my summary with noble Lords who have been involved, as I found it extremely interesting. Noble Lords will appreciate that while for many of them it may be their fourth, fifth or sixth Bill, it is my first Bill in this area. I hope that I bring a reasonably fresh pair of eyes to it, but it does mean that once again I am at a huge disadvantage to the experience that there is in your Lordships' House.
I say to the noble Lord, Lord Brooke, that I did not steal his locker key, although I now think that it probably would have been a good idea. There is a degree to which I felt that I was coming home as I listened to the contributions of the noble Baroness, Lady Sharp, with whom I spent many a happy hour debating education, my noble friend Lady Warwick, who is a good friend to me, although I recognise that I have caused her some difficulties with this legislation, the noble Lord, Lord Brooke, and others. I take very seriously the comments made by the noble Lord, Lord Chan. I will endeavour to answer his points, if not this evening, in correspondence with him. He made me feel hungry during his contribution.
I am sad that I was not invited to the meeting upstairs. I hope that the organisations which discussed these issues with noble Lords will do me the honour of discussing them with me too. It is important as I take this Bill through its stages in your Lordships' House that I get the benefit of their input in the way that other noble Lords have.
My Lords, as the person who was invited to chair the meeting—and we had responses from around the House—I am disappointed that the Minister's office did not pick up the invitation, which was put on the Whip for all Peers. We would have welcomed her presence, and no discourtesy was intended towards her.
My Lords, none was taken. Perhaps in another sense it is sometimes easier to have some discussions without the Minister being present, and I appreciate that too. However, I should like to meet the organisations, and perhaps through the noble Baroness, Lady Anelay, and others, I can put that invitation to those organisations. I would welcome their contributions.
I am grateful for the cautious welcome—but none the less there it was—to the Bill. I agree wholeheartedly with the sentiments expressed by the noble Baroness, Lady Anelay, and the noble Lord, Lord Dholakia, and I thank them for their kind words. It will be a privilege for me to do business with them in seeing this Bill safely on its way and recognising the important contributions that have been made. I have already said that, as always, I will reply later to any points that I fail to answer in my response— some because I simply do not have the answer and others because I am conscious of time and of not keeping your Lordships unnecessarily. Some clear, overarching issues have come to light. There is the whole question of in-country appeals, their scope and their process. Particularly relevant to your Lordships' House, not surprisingly, has been the whole question of students. A range of issues have come from those concerned about the employment clauses and the details of those clauses dealing with terrorism. Other issues raised include Europe, detention issues and children. I will try to deal with as many of those as I possibly can.
The noble Lord, Lord Avebury, asked me about consolidation of this legislation. I gather that my colleague the Minister in another place said that there was a case for consolidation, a point to which the noble Lord referred. The Government are willing to consider it. I will, if I may, pursue that separately, because I am not familiar with how far we have got on that issue, and I will come back to the noble Lord. The noble Lord, Lord Hylton, as a precursor to that, asked about consultation before publication of the Bill. As I said in my opening remarks, this is implementing the five-year strategy on asylum and immigration and those points that require legislation. In the normal course of policy-making, the Government always seek to have those conversations with our customers and our stakeholders, and this strategy reflects that dialogue. I am sure that there will be organisations that do not agree with what is in the strategy, and some may not feel that they were consulted as much as they might have been. Again, my door is open to those who wish to come and talk about the legislation, but it is part of our work to have that ongoing dialogue. As I have already indicated, it is part of our manifesto commitment, and I am sure that all noble Lords present here and many organisations will be deeply familiar with what was in the manifesto.
I am going to deal with this in three big chunks. I will start with appeals. The right of appellants will be protected by providing an in-country right of appeal, as I have stated, where a removal decision has raised human rights or asylum issues. I have listened to the arguments about the need to broaden and think further about the range of cases. I say straight away that in Committee I will look carefully at the proposals that might come forward. I am particularly inviting suggestions from your Lordships that might identify an alternative approach that creates what is central to this part of the Bill—an effective, one-stop appeals process but one that might confer in-country appeal rights on a wider range of cases. I was particularly struck by what the noble Lord, Lord Wallace of Saltaire, said about flexibility on students. The noble Baroness, Lady Sharp, made the same point, as did other noble Lords. I am willing to look at that. The objective is to create a one-stop appeals system. We are open—I am anyway—to looking more fully at what else we might do. I hope that noble Lords will approach the Committee in that spirit. I value very much contributions and discussions outside of the formal processes, and I am very keen to hear from noble Lords about that. It is within the principle of getting a one-stop appeals system in the best possible way. I hope that that covers some of the points which my noble friend Lady Warwick was concerned about. She was particularly concerned about students accidentally doing something illegal.
Part of the rationale behind the provisions is to allow the refusal and curtailment decisions to be made simultaneously. Under Clause 13, someone who has been the subject of a removal decision will not be committing an offence during any time when an appeal against removal from inside the UK could be brought or is pending and will not be liable to have their passport endorsed on embarkation if they have complied with the terms of their leave. Anyone who has had leave refused or curtailed and embarks within any time that an appeal in-country could be brought, which is within 10 working days, would not be committing an offence. However, I shall look very carefully when we are in Committee to make sure that we have covered this point. It is not the purpose of the Bill to make people do something illegal accidentally. Its purpose is to deal properly with issues of immigration, asylum and nationality. We believe we have captured that properly but I am very comfortable about making a commitment to make sure that we are clear about it.
The noble Baroness, Lady Anelay, was keen to make sure that we look at the points system in the context of the appeals system. We want to ensure that this works properly, so we are looking to phase in and phase out in some logical, coherent and consistent way. I hope that in Committee I can give noble Lords more information about how that will work and that that will allay some concerns. I think that the noble Lord, Lord Laird, will be interested in that point.
Noble Lords have placed great emphasis on the quality of the initial decision-making, and gave lots of statistics and anecdotes. I will not even attempt to say which statistics are right or wrong, but in Committee I will give noble Lords what we believe to be the latest and most accurate statistics. That would be helpful; it may do nothing for the case to be made but at least we will be operating on the basis of the same set of statistics.
A great deal of work has gone into making the process as good as it can be. The plan is to make the independent monitor a full-time position. We have regional operation managers operating overseas; we are making sure that there is managerial oversight and good quality control and, as far as possible, that decisions are taken properly. I will say more about students when I discuss that subject. I will be happy to talk in detail about the processes; the noble Lord, Lord Avebury, was keen that we deal with that properly.
I recognise the issues about temporary staff, which the noble Baroness, Lady Anelay, mentioned. Of course we will make sure that all the entry clearance officers, whether temporary or permanent, attend training courses in the UK prior to taking up their assignments overseas. They are recruited from the Immigration Service and those with no previous experience of entry clearance will attend a three-week training course. Quite a lot of work is done to ensure that the decisions are all that they can be. However, we recognise that we have to do more, as the noble Lords, Lord Dholakia and Lord Hylton, pointed out. We must make sure that we demonstrate not only how good the work is already but how much better it can be.
We are looking carefully at the way in which the processes will be introduced at the same time as developing the system. Therefore, we hope to deal with some of the issues that underlie noble Lords' concerns.
The right reverend Prelate the Bishop of Chelmsford asked about unaccompanied minors and whether I would reiterate what my honourable friend said in another place. Tony McNulty said that former unaccompanied asylum-seeking children will have a separate right of appeal against refusal or curtailment of leave. I am happy to discuss that further with the right reverend Prelate, and we will raise it in Committee.
The noble Earl, Lord Sandwich, talked about the role of safeguarding boards, and some noble Lords raised the issue of children more generally. I take a great interest in our children's policy and I need to discuss children's safeguarding boards with Ministers in the Department for Education and Skills to see whether that is appropriate. I am also delighted that the Constitution Committee is looking at appeals; it did me great service during the passage of the Higher Education Bill in helping me work out a number of different ways in which we might deal with appeals. I look forward to its contribution.
I say to the noble Lord, Lord Dholakia, that we are making sure that people who appeal against removal on the grounds that it would breach their human rights can do this in the UK. That includes some of the categories that the noble Lord was concerned about, such as people connected with families, covered by Article 8 on the right to family life.
Student workers and ministers of religion will continue to be able to appeal on the grounds that a decision breached their human rights or was racially discriminatory. I have already indicated the importance of the role of the independent monitor. That will be particularly important, given the point made by the right reverend Prelate and the noble Lord, Lord Dholakia: if you know that your decision will be reviewed, you make a better decision. The independent monitor will be there much more quickly than a review would be and will give rapid feedback on entry clearance. We hope that that will be an important part of the process.
The noble Lord, Lord Hylton, asked what we were doing about the need for an independent source of country-by-country assessment. His concern was highlighted in the court judgment about people returning to Zimbabwe. The recent decisions did not criticise the Home Office's country of origin information on the general human rights questions in that country. The view was expressed that we should take a more active role in monitoring the treatment of failed asylum seekers once returned. The Home Office is considering whether there is anything that might usefully be done. But we return people only when they are considered not to be at risk and, as I am sure the noble Lord recognises, there are limits to what one can do in monitoring non-British citizens in overseas countries. More generally, the country of origin information provided by the Home Office is subject to the independent Advisory Panel on Country Information, which has made a lot of constructive comments over the past two years. It draws on reports by the UN High Commissioner for Refugees, NGOs, the US State Department, the Foreign Office and the media. It is an important part of the process.
In concluding this part of my reply, I shall be looking at in-country appeals within the single appeal process and am willing to comment further on the phasing in and phasing out elements.
On education, I disagree with my noble friend Lady Warwick in one sense. The debate implied that the appeals process was a real factor in the decision that people take in coming to this country. I do not quite accept that. I take the point that you cannot look at what other countries do and say that because they do it, it is right. Of course, countries such as Australia, New Zealand and Canada do not have an appeals process. I agree wholeheartedly with everybody who says we want to be the best in the world and to attract as many students as possible. That is great for our economy, for our institutions, and for exporting a bit of Britain. It is also very important for globalisation. As the noble Baroness, Lady Flather, said, it goes wider than universities. We do not disagree on the principle, but I am not sure that I accept that the appeals process is a factor, or much of a factor, in what people do. However, I accept that if we are to sell to overseas students, we need the best system possible.
The number of applications for entry clearance to study has risen dramatically, from 99,540 in 2000 to 254,000 in 2004, excluding student nurses. Data from 2003, which includes student nurses, shows that the majority of applications were granted—an appeal-allowed rate of 28 per cent. That means that 1 per cent of students gained entry to the UK as a result of an allowed appeal.
I was glad that the Chancellor announced a package to help the higher education sector benefit from the opportunities of globalisation. That was welcomed by Universities UK. I wanted to say to the noble Lord, Lord Chan, that a new UK-China university partnership scheme has been announced to support scholarships and to encourage academic exchanges and collaboration between centres of excellence in science and technology. I shall happily obtain more details for the noble Lord, but I wanted to make sure he was aware of that.
I agree that we need to do more and everything we can to attract international students. It is important that we make sure we are the best. We think that the new objective tests will be better placed. I accept all the comments and anecdotes that noble Lords have raised—and I have heard many more—about what can go wrong. But we also hope that the relationship that we will develop between the institution and the student, and the sponsorship role, will enable many of those issues to be dealt with. The ambition is to ensure that we focus our resources better, and make sure that as many students come here, but we also want to ensure that students are genuinely coming to study. So the relationship between the institution and the student is critical, for all sorts of good reasons, not least the support that they can give the student.
My Lords, I thank the Minister for giving way. Does she accept that top quality universities in this country have a lengthy application process; they check qualifications and often have staff in the countries from which the students are drawn. My own institution has a full-time permanent representative in Beijing, for example—thus there is a careful process before an application is made. So there is room for a degree of closer co-operation between universities application offices and the application process for visas. I hope that we may explore that further.
My Lords, I would be delighted to explore that further. The noble Lord is absolutely right. When we get the institutions and the students collaborating more we will get better results in all sorts of ways. That is important. Students can reapply at the end of the process. It is not a case of, "That's it; they can never reapply"—they can. But we are also looking for an administrative review—although I am not sure what I should call that. Regarding the forceful points made by noble Lords about administrative errors, such as a university not existing or the wrong name being provided, something within that process will enable such cases to be reviewed quickly without the need for appeal. I hope that that will go some way towards dealing with much of the anecdotal evidence I have received. We want a combination of good decision-making, objective ways of approaching cases and stronger links with universities, students and other institutions, because noble Lords will accept that while this does not apply to universities as much, where good processes are already in place, we need to look more at the grey area of institutions where people apply for courses that we are not sure exist. But there is much that we can do for the students that the noble Lord, Lord Wallace, was concerned with. An administrative "review" combined with the fact that students can reapply will mean that we can get where we need to be without having to do everything that the noble Lord might think was necessary.
We are repealing the previous legislation regarding illegal working because it was unwieldy and it did not provide us with flexibility. We are trying to ensure that for employers who genuinely do their best, but are not putting the right processes in place, we have a series of appropriate sanctions that we can bring to bear. So there will be a maximum fine of £2,000 per illegal worker. It may not be used in all cases. We may caution people if they collaborate and are co-operative, we might, for example, reduce that sum. However, it is fair to say to an employer, "When you employ someone, you have a responsibility to check". That means checking at the beginning and may mean checking again later. A code of practice is being issued to employers that will make the process as simple and as straightforward as possible—but the sanctions are realistic.
For those who genuinely and knowingly employ illegal workers, there are further sanctions that include imprisonment. That is the reason for what we have done. This is a better, more appropriate, more flexible way. We do not want to put burdens on employers, but they must recognise that they have a responsibility to make sure that what they are doing is right. We are keen, as some noble Lords have said, to ensure that employers do not discriminate against workers, which would be utterly against the grain of what we want to achieve.
The noble Lord, Lord Dholakia, asked how many enforcement officers there are—we have some 1,200 in the UK and we are seeking to increase the level of arrest-trained staff. That is important. We shall return to the question of employment in greater depth, but I hope that noble Lords will accept that as a brief description of what we are trying to do.
The noble Lord, Lord Wallace of Saltaire, talked about my favourite subject, Europe. As the Minister responsible for European civil justice, having had a huge triumph last week, I could talk for a long time—but I will not. It is very important that we work closely with our colleagues in the European Union. The Home Secretary was impressive last week in obtaining agreements in Brussels on data retention. We went to the wire, but we got there. It was important for matters such as the European arrest warrant that we have that collaboration. Fingerprints of asylum seekers are already being shared with EU member states through the Eurodat database, which has been operation for about two years. The "Dublin regulation" has successfully enabled us to remove approximately 200 asylum applicants per month to the EU state responsible. I hope that that is useful to the noble Lord, Lord Wallace of Saltaire.
The right reverend Prelate the Bishop of Chelmsford asked whether we monitor people kept in detention. Yes, we keep quarterly statistics on how many people are detained and for how long, but do not include their ages.
My Lords, regarding detention, will the Minister consider a system whereby magistrates could visit detention centres, perhaps weekly, to see whether the original detention was justified, whether it should be continued and whether each person that might get bail can get it? That would comply with suggestions made by the UN High Commissioner. I should have mentioned that point before, but I hope that it can still be considered.
My Lords, I was going to reply to that anyway, because the noble Lord, Lord Hylton, sent me a note. It was to be my next point. I presume that what the noble Lord seeks is consideration of the lawfulness of immigration detention. Mechanisms already exist for those who wish to challenge that, either through traditional review or habeas corpus. We have no plans at this stage to alter the existing arrangements, but detainees must be advised of right to legal advice, and how they can obtain it, within 24 hours of their arrival at a removal centre. Every removal centre has an independent monitoring board for treatment of detainees. I will write more fully to the noble Lord on that, too, to make sure that I have covered his point. I was grateful for the welcome given by the noble Earl, Lord Sandwich, for the inclusion of Clause 45 regarding the inspection of detention facilities.
I conclude by dealing with the very important issues raised by the Joint Committee on Human Rights, which we shall consider in much greater depth, as the noble Baroness, Lady Stern, indicated,. I have had a chance to look at some of some of the issues that it raised. The noble Baroness asked how I could claim that the Bill was compatible with human rights. We believe that it is compatible, not least because there is no human right, as such, to citizenship, which the JCHR accepts. Full appeal against deportation can be made either to the asylum and immigration tribunal or to SIAC. Deportation cannot be carried out until the appeal is finally determined. We believe that the framing of the Bill is compatible with human rights. We also believe that Clause 7 is fully compatible with our obligations under the European Convention on Human Rights. We anticipate this working alongside the memorandum of understanding that we have agreed with the governments of Jordan and Libya and are currently negotiating with the governments of Algeria and Lebanon. Those memoranda are for obtaining specific assurances on the individual treatment of a person who is to be returned. It is about ensuring that those who threaten our national security can be removed, but in full conformity with our international obligations. It is for the courts, not the Government, to decide in each case whether that assessment is correct—that is important.
We do not accept that Clause 52 defines terrorism too widely. We believe that we have dealt effectively with compatibility with the refugee convention. In these clauses, we are seeking to make explicit what we believe Article 1(F)(c) implicitly requires us to do.
Noble Lords asked what the current criteria are for deprivation of British nationality. As they will know, the two grounds are acts seriously prejudicial to the vital interests of the United Kingdom and nationality obtained by deception. That information may be implicit in Article 1(F)(c) of the convention but it is not stated explicitly. It refers only to acts contrary to the purposes and principles of the United Nations, but, as noble Lords—in particular, those on the committee—will be aware, the resolution on the interpretation of that article states that,
"knowingly financing, planning and inciting terrorist acts", as well as the commission of terrorist acts, constitute acts,
"contrary to the purposes and principles of the United Nations".
We have looked at other resolutions, such as Resolution 1624, to try to put into the Bill as accurately and appropriately as we can our interpretation of Article 1(F)(c).
The noble Baroness asked whether we are proposing to rely on the existing definition of terrorism in the Terrorism Act. That is the current law. The review by the noble Lord, Lord Carlile, is very important, and while it is ongoing, we will use the current law. The noble Baroness rightly raised the whole question of unacceptable behaviours and asked whether the deprivation of British nationality and right of abode is correctly framed. She will know that on
My Lords, between now and the later stages of the Bill, can the Minister tell us what, in reality, deprivation of citizenship means and what it includes? In relation to the right of abode, the noble Baroness mentioned that a person can be deported from this country, but where to? No other country would accept responsibility for a person who had a British passport which the British Government had taken away.
My Lords, we have made it clear that we would not make anyone stateless under our international obligations. Therefore, the provision would apply only to people with joint nationality—not, I hasten to add, to those who are entitled to joint nationality, such as Jewish people, who are automatically entitled to be members of the state of Israel but choose not to be. However, the noble Lord makes a good point and, if I may, I shall come back to it in Committee and discuss in greater depth the relations between individual nation states and how the measure would work. But we would not make people stateless—an important point raised by the committee.
I recognise that the committee is clearly saying to us that the public good test is too vague. I look forward very much to discussing the whole issue with the noble Baroness and others. As always, I take very seriously what the committee is telling us.
My final point relates to the gangmasters legislation—an issue raised by my noble friend and the noble Viscount, Lord Bridgeman. We believe that the provisions in the Bill are complementary to those in the Gangmasters (Licensing) Act, which provides a basis for better regulation of gangmasters. We hope that the provisions in this Bill will ensure that all employers are clear about their responsibility to check on the status of their employees.
I will write to my noble friend Lord Lea about ID cards. As noble Lords know, I am not currently involved in that legislation and I would not wish to give noble Lords anything other than an accurate answer.
My Lords, will my noble friend write to me on the issue of regularisation—a matter also raised by my noble friend Lord Lea—and also about not deporting women who have been trafficked for the sex industry?
Indeed, my Lords. I was about to make the point about regularisation. As I indicated at the beginning, if I have missed any points raised by noble Lords, I shall ensure, as I always do, that I cover every point in correspondence.
I am very grateful to noble Lords. This has been a fascinating and interesting debate. We are very clear on the areas that we need to debate in detail in Committee. I give noble Lords a commitment that we will do so properly and that we will make the Bill as good as it can be.
On Question, Bill read a second time and committed to a Grand Committee.