Immigration and Nationality (Fees) Regulations 2007

Part of the debate – in the House of Lords at 4:30 pm on 29th March 2007.

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Photo of Lord Avebury Lord Avebury Spokesperson in the Lords (Civil Liberties), Home Affairs, Spokesperson in the Lords (Africa), Foreign & Commonwealth Affairs 4:30 pm, 29th March 2007

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.