Immigration and Nationality (Fees) Regulations 2007

– in the House of Lords at 4:22 pm on 29th March 2007.

Alert me about debates like this

Photo of Baroness Scotland of Asthal Baroness Scotland of Asthal Minister of State, Home Office, Minister of State (Home Office) (Criminal Justice and Offender Management) 4:22 pm, 29th March 2007

rose to move, That the draft regulations laid before the House on 15 March be approved. 13th Report from the Statutory Instruments Committee and 15th Report from the Merits Committee.

Photo of Baroness Scotland of Asthal Baroness Scotland of Asthal Minister of State, Home Office, Minister of State (Home Office) (Criminal Justice and Offender Management)

My Lords, these regulations are the final step in implementing the new charging model for immigration and nationality services. Before I turn to the detail of the contents, I thank noble Lords for their engagement in the process. In particular, I am grateful to the noble Lord, Lord Avebury, who has made insightful and informed queries, both earlier this month in the House and in subsequent correspondence. I have written to him today seeking to answer many of his points. I hope that that will give him the information he requires.

These regulations relate only to those applications that we propose to charge at levels above normal cost recovery. The fees for the other routes at or below cost-recovery levels are set out in regulations subject to the negative process that were made last week by the Minister for Immigration, Citizenship and Nationality, and which have been laid before Parliament.

The regulations before us cover applications made in respect of: indefinite leave to remain; limited leave to remain for work routes such as a work permit, the Highly Skilled Migrant Programme and investors; the Highly Skilled Migrant Programme approval letters; work permits; naturalisation as a British citizen or a British overseas territories citizen; and registration as a British citizen, British overseas territories citizen, British overseas citizen or British subject, excluding registration as a British citizen under Section 1 of the British Nationality (Hong Kong) Act 1997.

We have set fees in these regulations above normal cost-recovery levels on the basis of the value of a successful application to the migrant or, in the case of work permits, the value to the UK-based employer, in reliance on the power in Section 42 of the Asylum and Immigration (Treatment of Claimants, etc.) Act 2004.

Taking into account the benefits which will accrue in respect of a successful application—which we assess on the basis of entitlements that will accrue—we have decided to seek the greatest contribution to the costs of the end-to-end immigration system from those who are seeking to work in the United Kingdom or to stay here permanently.

The entitlements we believe to be the most valuable include the ability to work; whether dependants can accompany the migrant to the United Kingdom; whether there is a route to settlement; the length of leave granted; access to benefits; eligibility for a UK passport; and the right to vote. We then looked at other factors, supported by extensive research and consultation, to consider whether to reduce the level of over cost charge, and in some cases we have done so. We have also ensured that certain applications such as those for limited and indefinite leave to remain made on the basis of humanitarian protection remain exempt from fees.

Noble Lords will want to know how we plan to treat applications received in the period immediately after the introduction of new fees and, in the case of settlement applications, after we introduce the new requirements to demonstrate knowledge of language and life in the United Kingdom. We recognise that, despite communicating the changes, it is likely that some applications received immediately after the proposed fee changes may be accompanied by an incorrect fee. So that we do not disadvantage applicants for leave to remain, and to ensure they are afforded all opportunity to regularise their stay, we have made specific provision in the fee regulations. In these circumstances we will write to the applicant and request any outstanding moneys. If such moneys are paid within 28 days of that letter having been sent, we will proceed to make a decision. These transitional measures will remain in place until 21 May 2007, after which we believe all applicants should be aware of the new fees.

Applicants for settlement after 2 April will also be required to submit evidence to demonstrate knowledge of language and life in the United Kingdom. Again, some applicants may not be aware of the new requirements and will not qualify for settlement. We want to prevent the situation where they have no valid leave to remain in the United Kingdom. Accordingly, we have introduced proposals to amend the current Immigration Rules so as to treat such applications as being for further leave to remain. Where this occurs, and the applicant has submitted the proposed new fee of £750 for settlement, we will refund the difference between this and the relevant leave-to-remain fee. We will operate this transitional policy until 31 January 2008, by which time we would expect all future applicants to be aware of the new requirements and to have made provision to take the necessary tests.

I stress that we continue to welcome legal migrants, who, we all know, contribute significantly to the United Kingdom's economic, social and cultural life. However, in order to operate a truly flexible charging system that provides some degree of protection to those routes that are most price-sensitive, or where wider policy considerations mean that a lower fee is appropriate, we need to set some fees at above cost-recovery levels. We also need to do so to raise additional revenue, which will be used to recover the costs of the step change in enforcement activity and border security set out in the IND review published last summer, but most recently in the comprehensive and radical cross-government enforcement strategy published earlier in the month.

The applications specified in these regulations are the most appropriate from which to seek the additional revenue as, importantly, successful applicants accrue significant benefits. Accordingly, I commend the regulations to the House. I beg to move.

Moved, That the draft regulations laid before the House on 15 March be approved. 13th Report from the Statutory Instruments Committee and 15th Report from the Merits Committee.—(Baroness Scotland of Asthal.)

Photo of Viscount Bridgeman Viscount Bridgeman Deputy Chief Whip, Whips, Shadow Minister, Home Affairs, Shadow Minister, Northern Ireland 4:30 pm, 29th March 2007

My Lords, I am most grateful to the Minister for her explanation. We on these Benches note the work that the Government have put in. I also take the opportunity to express our congratulations to the noble Lord, Lord Avebury. He beat the gun slightly on the previous occasion, and I have no doubt that we shall be treated to a second instalment this evening. However, his work is certainly recognised by us.

In welcoming the regulations, I have some general questions. What revenue will accrue from the new fees? Is there a time limit on the fees? Have the Government in mind a reviewing date? We are concerned to ensure that this increase in fees is not regarded as a stealth tax.

The regulations recognise the different contributions made by different classes of immigrant. We certainly have no problem with the differential charging system that the Government have produced.

I thank the Minister for making the regulatory impact assessment available in the Printed Paper Office. It served as a very good background to the order. I welcome the regulations.

Photo of Lord Avebury Lord Avebury Spokesperson in the Lords (Civil Liberties), Home Affairs, Spokesperson in the Lords (Africa), Foreign & Commonwealth Affairs

My Lords, I thank the noble Baroness most warmly for leaving behind the upheavals taking place in Marsham Street to come here to explain the regulations. I hope that she will still be replying on these matters once the dust has settled, because we value her wisdom and guidance on important questions of immigration and nationality, on which she is so expert.

I thank her also for her long letter to me. Unfortunately, I did not receive it until just now, because I have been sitting here since 11 am. I had an opportunity to look cursorily at it. It would be helpful if it were placed in the Library, because it appears to contain quite comprehensive answers to the questions that I put on the previous occasion which it would be useful for others to know. I only regret that in the Library it is available only to those who seek it out. Perhaps the Minister will find some way of putting the substance of it in a suitable location on the Home Office website.

As the Minister is aware, we on these Benches have serious concerns about the fee increases. I raised them when we debated the paving order on 8 March, when we had had only had some 24 hours to look at the fees, but that was enough to satisfy us that the Government were abusing the powers given to them under Sections 51 and 52 of the 2006 Act. We now repeat that charge, while recognising that, because of the way in which the legislation has been structured, we are powerless to stop what I consider to be extortion and what the noble Viscount has just referred to as a stealth tax. I shall amplify that comment later.

The 2006 Act enabled fees to be charged for any service provided in connection with immigration or nationality, overriding the normal Treasury cost-recovery rules. We had no proper answers to the Government's reasons for doing this in the previous debate, so I ask noble Lords to reflect on the precedent that we are creating in allowing the state to charge whatever the traffic will bear for services of any kind rendered to the public. There can be little doubt that, now that the principle has been given parliamentary sanction, this and future Governments will see it as a new and fruitful means of revenue-raising, which will not be confined to the sphere of immigration and nationality.

I said that we had no objection to fees as such, and indeed it would be a bit too late to do so, as some of the fees referred to in the order date back to 1981. I also said that we had no option but to accept the order on which these regulations are based. We would need very strong grounds for voting against any order at this end of the Building—pace yesterday's events in your Lordships' House. I meant that we were allowing the regulations to pass because that threshold had not been reached, even though we had the reservations that I expressed. The Minister was wrong to extrapolate from that that we accepted the fees now proposed, and I hope that she would not assert that my speech on the previous occasion could have been so interpreted.

The Minister, for perfectly good reasons, did not respond to our major reservations. She contented herself by remarking that what I said would be helpful in preparing for this debate. I could have interpreted that as meaning that we should have negatived the previous order, because now we could be held to have approved the idea that the Government have complete discretion to charge whatever they like, the only constraint being the ability or willingness of the applicants to cough up. In this order they intend to recover the cost of enforcement, some of the costs of the appeal system—and we are not told how that element is determined—and the cost of future capital investment in the provision of services. Up to now there have been nine sets of regulations for immigration and nationality applications, and this is the first occasion when the amounts charged exceed the administration costs, as permitted by Section 42 of the Asylum and Immigration (Treatment of Claimants, etc.) Act 2004. The power is exercised only in respect of services for which charges are already made, but the Treasury is certain to be thinking about how to make money from other public services if this order goes through without too much fuss.

The Government's response to the consultation on the new charging regime for immigration and nationality fees, attached to the Explanatory Memorandum, shows that almost all the respondents were employers and educational establishments, which will have to bear the costs themselves—although universities may pass the costs on in student fees. In the case of employers, the regulatory impact assessment shows that, of the £5.7 million that the IND will receive from the new charges, £2.7 million will come from public sector employers, largely from the health service. The exercise appears to have been designed to recover a comparatively small amount, without taking into consideration the cost already incurred by the RIA itself, the consultations or the considerable extra paperwork imposed on the employers and the IND itself.

As the Minister is aware, our main concern is for those who come here to join spouses, or as children or elderly dependants of persons who already have indefinite leave to remain. They have no option but to pay whatever is required if they are to maintain their fundamental right to family life, and there is no elasticity of demand, a term that the Government love but which is so out of place when thinking about family relationships. I see in the documents accompanying the Explanatory Memorandum a graph that purports to describe the elasticity of demand for indefinite leave to remain, showing that if fees exceed £700 the demand will decrease to something like 30 per cent of its previous level. I cannot believe that that could be accurate because most people who come here as spouses or dependent relatives will have to pay the amounts whatever difficulties they have in meeting those charges. It is manifestly unfair to make legitimate immigrant relatives or spouses pay for the appeal system and for the cost of enforcement, and particularly unjust to do so at a time when the Government are doubling enforcement resources. I have no doubt that it is expensive to detect illegal immigration and to detain and return those found to be unqualified, but why should those who exercise their lawful rights to family unity pay those costs, which they have done no more to impose on the taxpayer than I or the Minister have?

As I said, the overwhelming majority of respondents to the consultation were educational institutions, employers, job agencies and representatives of sporting or cultural interests. ILPA, the IAS and JCWI are the only ones in the list of 340 respondents that I could identify as possibly having said anything about family concerns, although I noted from my swift canter through the Minister's letter that another 13 respondents made some reference to spouses and families. I take ILPA as an illustration. It says that,

"these huge fee increases, in particular for settlement and for British citizenship, cannot be justified, and will cause real hardship to many families".

The set questions did not include any that might have elicited reference to family unity. It appears that the Government decided to load the biggest increases on to this category of applicant because they did not object during the consultation and because they had no powerful representatives to speak up on their behalf and cause adverse publicity in the media. As the noble Baroness is aware, Mr J A, a foreign national married to a British woman, writes concerning the £415 increase in the settlement fee,

"this massive ... increase sends a message to potential immigrants that we are not respected; that our hard work and contributions to our adopted country are being taken for granted. Of course, I will pay the fee; I have to".

I sent the Minister another letter from a British citizen married to a foreign national, Dr R O, pointing out that immigrants are not the only beneficiaries of the immigration system, as the Government acknowledge in other contexts, such as the Treasury estimates cited in your Lordships' European Union Select Committee report Economic Migration to the EU, which show that the UK owes 10 per cent of its growth rate to migrants. Dr R O goes on to say that while some components of immigration may have some resemblance to a market economy, this is certainly not the case with spouses and relatives.

I shall not repeat all the questions that I put to the Minister on the previous occasion, as I am sure that most of them will be answered in her letter, but I hope that it answers the questions about the treatment of applicants denied their lawful appeal rights, and the 18.4 per cent of visa applicants who, according to the entry certificate monitor, are wrongly refused. It really would be outrageous if they were made to pay twice for the errors which persist even after four successive reports by the monitor and her predecessors. I see that a paragraph in the noble Baroness's letter mentions the right of people who are found to have been erroneously refused by the entry certificate monitor to a free application to replace the one that they have lost. That begs the question that the entry certificate monitor examines only a tiny fraction of the cases. Therefore, many more people who are incorrectly and unlawfully refused cannot take advantage of this concession.

The regulations come into effect immediately, leaving no room for the round table discussion which I suggested last time, at which there might have been scope for moderating the scale of the most extortionate increases, notably those applying to visas for settlement, indefinite leave to remain and citizenship. The total of these three amounts is more than doubled from £863 to £1,825. I wish that the Minister, who, I am sure, knowing her, dislikes what she is doing, could think again about the enormous penalty the Government are now imposing on marriage and partnership.

Photo of Baroness Scotland of Asthal Baroness Scotland of Asthal Minister of State, Home Office, Minister of State (Home Office) (Criminal Justice and Offender Management) 4:45 pm, 29th March 2007

My Lords, first, I thank the noble Viscount, Lord Bridgeman, and the noble Lord, Lord Avebury, for their kind comments. Of course I do not know the Prime Minister's mind, but I am very hopeful that in times to come I will still have an occasional appearance on the Front Bench on behalf of the Home Office. If the noble Lord, Lord Avebury, retains his vigour, I am sure that I will. He does not need to respond to that.

I am very happy to put a full response to the questions raised with me by the noble Lord, Lord Avebury, either in the Library or on the website, as he suggested, perhaps in terms of the substance of the information as opposed to directly answering the questions he asked. That may be the most helpful form for others who will read it. I would be happy to share that with the noble Viscount, Lord Bridgeman, and others in the House.

I absolutely understood that the assent given by the noble Lord, Lord Avebury, to the previous order was simply on the basis that it set the framework and not the detail. I expected and accepted that, when we came to discuss the regulations, that would be the appropriate time to have the discussion. There was absolutely no doubt in my mind that he was not agreeing in those terms.

I thank the noble Viscount, Lord Bridgeman, for his agreement to the regulations. The fee level agreement is an annual agreement that is set and renewed annually with Her Majesty's Treasury. The issues will be looked at carefully. Noble Lords will know that a great deal of research went into ascertaining where to set the fee level, so that we could differentiate between the different routes and the different benefits that would accrue to an applicant by virtue of the granting of the necessary visa or permission to stay. That research has been placed in the Library. It has details of both in and out-of-country research. It is very helpful because, not for the first time, it shows a clear methodology to assess where the fee levels should be, and it gives a clear understanding of the factors that were taken into consideration before the levels were reached. The noble Lord, Lord Avebury, and the noble Viscount, Lord Bridgeman, will find that of some help and assistance.

The noble Viscount asked about the revenue from the fees. We are, as I indicated, working within those strict limits. Our forecast for the IND is as follows. We are raising £100 million to fund the forecast enforcement strategy costs for the IND, and recovered fees are about £240 million. Overseas forecast costs are around £350 million, with costs and fees now including the costs of commercial partners. So in future a single fee will be paid by migrants. The total is £655 million, including the £100 million.

I know that the noble Lord, Lord Avebury, is concerned that this could somehow be distorted into a general way of raising revenue to meet those fees. The new powers will not be used to generate unlimited fee income. They can be used only for immigration and nationality applications listed in Section 42 of the Asylum and Immigration (Treatment of Claimants, etc.) Act 2004. There has to be a relationship to the cost. It is not in our interest to see volume fall. I agree with the noble Lord that migrants are hugely beneficial to our country and we have been advantaged by them.

Photo of Lord Avebury Lord Avebury Spokesperson in the Lords (Civil Liberties), Home Affairs, Spokesperson in the Lords (Africa), Foreign & Commonwealth Affairs

My Lords, my suggestion was that if the Treasury found that there was no vociferous objection to this provision in the treatment of claimants Act, it could easily adopt the same practice in other areas of public services that are provided, where it could charge over the odds to recover some costs that were not directly associated with the service in question.

Photo of Baroness Scotland of Asthal Baroness Scotland of Asthal Minister of State, Home Office, Minister of State (Home Office) (Criminal Justice and Offender Management)

My Lords, although I appreciate what the noble Lord is saying, the reason I said that it is unlikely that it can be done is that the framework constructed for the laying of the fees directs those fees to the service they provide. We are discussing the fees relating to over-cost recovery. Other fees are below-cost recovery and we do not make any charge for them. So we must look at the system as a whole and identify the cost of maintaining a system. The noble Lord will know, as will the noble Viscount, Lord Bridgeman, who is also familiar with this issue, that we have to do better on enforcement if we are to allow applicants who legitimately want to come here to do so safely and appropriately.

One of the other advantages is that, as we have improved the process, we have improved its efficiency. As we improve the efficiency, there is a better chance of reducing the cost to make it faster and cheaper; so we will be able to monitor those issues. I understand why the noble Lord is anxious about the matter, but the process that has evolved in setting the fees is very interesting and successful. It has been predicated on good, solid research; it has very broadly engaged stakeholders; it has tried to better understand the market and the different migration flows; and it has tried to build within it sufficient measures to prevent disincentives occurring in areas where we would very much wish to encourage migration flows.

We think that there is a real coherence—and I will not say "for once"—in the overall research and pattern of how this has been structured. I am very grateful for that. As noble Lords should know, a number of agencies have contributed here. A number of noble Lords have participated in the consultative group and have really honed the model to make it much better than it would otherwise have been. Although I understand the noble Lord's concern, I say that the concern is reduced as one looks at the matter in greater detail.

The noble Lord asked whether the model would give unlimited powers. It does not, because IND and UKvisas operate within the strict limits that I mentioned to the noble Viscount, Lord Bridgeman.

The other issues mentioned arise from the same theme. I am happy to include in my more comprehensive account which is to be put on the website the detail underpinning the general statements I have made. The public consultation took account of a broad spectrum of issues. It was very extensive and ran from 30 October to 22 December last year. The document was sent to over 3,000 people, and all of the 340 responses received, including those from ILPA, were included in the overall assessment of the proposed policy on fees, and nearly 86 per cent of the responses were in favour of the current proposals. The consultation was broad-based. We think that the outcome is fair and balanced. This is not a penalty but a recognition that a real benefit flows from it.

Indefinite leave to remain fees can be justified at levels above cost recovery on the basis of the entitlements that will accrue to the applicant. We therefore believe that the fees are justified and that it is a lawful expense.

I know that the noble Lord rightly will continue to express concern about these issues and I anticipate that he will continue to scrutinise them. I thank him because, by virtue of that scrutiny, we look with ever-growing care to ensure that we are in a position to give him cogent answers. So, if I may respectfully say so, it has a beneficial effect. I know that others will quake at the fact that I have said that, but it is the truth.

I hope that, as a result of what I have said, noble Lords will be content to approve these regulations. As the House is almost empty, I thank them for staying on the last day of term and I wish them a very happy and peaceful Easter.

On Question, Motion agreed to.

House adjourned for the Easter Recess at 4.55 pm until Monday 16 April.