Statement of Changes in Immigration Rules

Part of the debate – in the House of Lords at 7:36 pm on 25th November 2008.

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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 7:36 pm, 25th November 2008

My Lords, Phil Woolas says, "We have to bloody well talk about immigration", so I am sure he will be pleased that we have managed to secure time for this debate just before Prorogation. There is no shortage of talk about immigration in this House where, although the points-based system was supposed to be a simplification, so far this year already we have had two debates on the fees and this is the second debate on changes to the rules.

An EDM has also been tabled in another place by the right honourable gentleman the Leader of the Opposition disapproving this statement. We look forward very much to hearing the Tories' reasons for their disapproval and to having their company in the Division Lobby at the end of the debate, if any of them are left.

This statement amends the provisions that have already been decided for tier 1, which were agreed with some reluctance by your Lordships last March, and implements tier 2 for skilled workers and tier 5 for temporary workers. It creates a totally new category for business and special visitors who do not belong in any of the five tiers. It amends the general grounds for refusal and curtailment provisions related to sponsorship of tiers 2 and 5, and raises the age for spouses, civil partners and fiancés from 18 to 21. The statement contains 35,244 words, not counting the Explanatory Memorandum. The haste to produce it is shown by the simultaneous publication of an erratum sheet and a page of corrections to the Explanatory Memorandum.

Up to now, this system has been developed below the waterline of formal recognition in law, as ILPA puts it. This is the first opportunity that Parliament has had to look at sponsor licensing under the points-based system. Sponsors, who are largely employers and universities, but include also those who are bringing in sports people and entertainers, have to master the 100,000 words of the Immigration Rules. After reading 130 pages of guidance, they have to fill in an application form of 35 pages and 58 questions. If they make an error of judgment in relation to the candidate, employee or student they risk being fined or ultimately struck off the register. If that happens, anyone else whom they sponsor—not just the candidates who were taken on in error—may lose their job, their student place or contract as an entertainer or sports person.

The London Chamber of Commerce says that the system imposes new burdens on employers who are now being used as the first level of immigration regulation, which is happening at the wrong time, economically and otherwise. The time taken to register as a sponsor and to maintain all the required paperwork is a formidable additional cost which goes straight to the bottom line. London still has particular skills shortages, and yet in spite of the fact that it accounts for 19 per cent of GDP, there is no separate list of skills shortages here as there is in Scotland. The CBI says that the launch on 27 November will be "soft", with,

"plenty of understanding for a couple of months as employers find their way".

Can the Minister explain what this means? How are the rules going to be interpreted in a way that benefits those who have to grapple with the difficulties in the first few months of operation?

Among other concerns, the CBI says that the requirement that every dependant of a tier 2 applicant must hold £533 in a UK bank account for at least three months before their arrival in the UK is totally impracticable for candidates from developing countries and will lead to split families or dependants entering on tourist visas which are inherently less controllable. For the maintenance of dependants, I suggest that the Government should rely on a guarantee by the sponsor, as they do for the principal applicant, and as they have done for years for spouses under Section 113 of the Immigration and Asylum Act 1999.

The CBI is concerned with the drafting of the business visitor proposals as they affect a person seconded from an overseas company which has a contract with its UK opposite number. It creates a two-tier approach with some firms using the business visitor route to bring in people for six-month visits while others have to use the more tightly controlled points-based system because the individual needs a longer period in the UK. The CBI says that business people who enter under tier 5 used to have a fast-track renewal facility under the old rules which is important for staff who travel regularly, but that is not in the statement or in the Explanatory Memorandum. We understand that it is not to be reintroduced until some time next year, leaving those facing renewal in the mean time with the loss of their passport for six weeks, with consequent personal inconvenience and perhaps additional costs from a business point of view.

The term "business visitor" also includes a category described as "academic visitor" which allows the candidate to stay for 12 months. However, Universities UK says that sponsored researchers, who make a vital contribution to our research activities and to international collaboration, will all have to enter under the tier 5 category called the "government authorised exchange route", requiring a third-party organisation to act as the sponsor and not the higher education institution itself, and that it will have to be demonstrated that the mobility is linked to government department objectives. Although these changes come into effect the day after tomorrow, there is still no organisation capable of acting as a sponsor for these sponsored researchers, and it does not make any sense for a new body to be created especially for the purpose, even if that were possible, because the universities themselves are able and willing to do the job as they always have done in the past—without it ever having been suggested that an irregular route into UK employment had been created thereby. Transferring the obligation to a new quango is a criminally stupid piece of bureaucracy and weakens control because the quango will have no direct contact with the researcher, as the sponsoring universities have done until now. Universities UK has asked me to put it to the Government that the implementation of these proposals should be put off until the matter has been sorted out.

Apart from the universities, I invite the Minister to let us know what other organisations are affected by the requirement that a third-party sponsor has to be in place for tier 5 migrants coming in on government authorised exchange schemes. I know that it applies to authorised medical graduates coming here for further training where, until now, the process has been, first, for a check to be made on their qualifications by the relevant royal college, then for them to be registered with the GMC, and finally for the employing PCT to apply for a work permit. Now the PCTs are not going to be allowed to act as sponsors, and the royal colleges are still in discussions with the UKBA on the way forward. They say that there simply has not been time to work this out, and indeed an official from one college told me this morning that they would like to continue with the existing system until a new procedure is agreed.

The National Campaign for the Arts tells me that in the case of orchestras, theatre troupes and entertainers the sponsor is the organisation that arranges the visit and, where there are multiple venues, there is provision for group sponsorship. This sounds a lot simpler but it says that the process of negotiation with the UKBA has been very frustrating. The last meeting it had with the UKBA was a week ago—with two days to go there are still many unanswered questions—and it is constantly picking up things that are incorrect or out of date, particularly in the guidance.

A week ago, a Welsh arts organisation trying to register as a sponsor reported being asked for evidence of submitting returns to the HMRC Foreign Entertainers Unit even though it had had an e-mail from the Home Office on 7 October saying that this was no longer mandatory. Even the UKBA cannot fight its way through its own documentation. To save time, I have sent a document which the NCA e-mailed me this morning so that I do not have to go through all the points that it has raised.

One of the requirements for a person to be granted leave to enter as a business visitor is that he intends to carry out a "permissible activity", but the definition of this at the bottom of page 5 of the statement states that it means,

"a business activity of a type listed in United Kingdom Border Agency guidance specifying the activities that a business person may undertake during a short-term business visit to the UK", and if you search the UKBA website you will find a page on business visitors which states that full details of permissible activities will be available shortly. That is not the only reference to UKBA guidance which does not yet exist, making it impossible for users to know whether their intentions are lawful.

There are two other examples that I shall give briefly—a person who intends to take part in sporting events and those intending to employ a tier 2 migrant, who must offer only allowances specified as acceptable in UKBA guidance which is still to see the light of day. In sub-paragraph (b) at the top of page 26 there is a reference to this guidance that does not exist.

In these cases, employers will have issued a certificate of sponsorship in good faith, but when the worker gets to the port or when the UKBA subsequently pays the employer a compliance or audit visit, it may transpire that the certificate of sponsorship was incorrectly issued. If users do not have the guidance, or even know when it was issued, how are cases under this heading going to be determined?

The TUC also has cogent objections to the scheme. It points out that when an employer who breaks immigration or company law can be refused a licence, those with a track record of worker abuse or exploitation cannot. The Home Secretary has given some assurances that exploiters might have their licences revoked, but there is nothing in the rules about that. In Australia, as the TUC points out, the employer must demonstrate that he is of good standing, including compliance with immigration law and good workplace relations, before he is issued with a licence.

The TUC and Kalayaan expressed concern about the changes affecting domestic workers and particularly those employed by diplomats. Kalayaan was a referral body on the Home Office pilot scheme to detect human trafficking for forced labour held between May and September this year. Of the 12 referrals it made, three were domestic workers who had accompanied diplomats to the UK. The competent authority for the pilot decided that there were reasonable grounds to believe that all the referred individuals had been trafficked for domestic servitude. Surely this demonstrates that we need to strengthen the protection of domestic workers generally and those employed by diplomats in particular. Kalayaan says that the undertaking given by the former Minister, Liam Byrne, in June that the protection of migrant domestic workers would be maintained outside the points-based system until the two-year review should be upheld and that domestic workers in diplomatic households should have the same rights to change employer as all others.

One final concern is about religious workers, particularly those coming to stay in monasteries. I declare an interest as patron of the Buddhist Prison Chaplaincy Organisation, whose spiritual director, the venerable Ajahn Khemadhammo, OBE, is also chair of the Theravada Buddhist Sangha UK and abbot of a monastery in Warwickshire which from time to time hosts visiting monks from Thailand. There has never been any problem with monks coming to Theravada monasteries here, but now abbots are having to plough through reams of paperwork to become sponsors, a severe distraction from their lives of meditation and teaching the Dharma. The Sangha was not consulted until we prompted the Minister last April, and the guidance on Tier 5 shows that UKBA still has not understood that Buddhist monks are not employed.

It looks as though monks can enter, either as ministers of religion under tier 2, or as temporary religious workers for up to 24 months under tier 5. Tier 2 requires fluent English, and that is not usually spoken by monks when they first arrive from south Asian countries. But under tier 5, they are barred from engaging in many of the normal activities of monks, such as chanting at funerals, or any pastoral duties, including counselling. It may be very hard for monks to qualify at all if these restrictions are interpreted rigidly.

At the only meeting that the Theravada Buddhist Sangha UK had with UKBA on 15 July, it was apparent that there was no scope for varying what had already been decided, including the fees, which will hit small monasteries very hard. It costs £400 for the licence for tiers 2 and 5 and £175 for each certificate of sponsorship, plus the cost of the visa.

The introduction of this phase of the points-based system should be postponed. In its present form, it is a labyrinth of anguish, expense and errors both for users and the UKBA. We hope that the Government will agree with our Motion, giving themselves time to iron out the worst of these problems, only some of which I have been able to identify this evening. I beg to move.

Moved, That the statement, laid before the House on 4 November, be disapproved.—(Lord Avebury.)