Clause 42 - Procedure

Immigration, Asylum and Nationality Bill – in a Public Bill Committee at 6:30 pm on 25 October 2005.

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Photo of Evan Harris Evan Harris Science, Non-Departmental & Cross Departmental Responsibilities 6:30, 25 October 2005

I beg to move amendment No. 129, in clause 42, page 23, line 22, leave out from ‘paid’ to end of line 24.

The general point that the amendment addresses is whether the requirement for making applications and changes to the procedure should be just administrative or whether those changes should be made in the immigration rules or confined to regulations. Clause 42 is extremely broad, particularly in its reference to

“whether or not under those rules or any other enactment.”

The amendment is probing, and seeks clarification of subsection (2), and what scrutiny will be given to procedures under it, as opposed to the rules under subsection (1). Subsection (2) is troubling. The Secretary of State makes laws on immigration applications and makes the immigration rules. New situations arise that require the development of practices and policies not yet embodied in the rules. In the past, some concessions have been slow to find their way into the rules; one example is the changes and the concession that was made on domestic violence. The concession or policy might be set out in a letter, described at a meeting or noted in policy instructions. Although the latter are available on the Home Office website, it is difficult for members of the public to negotiate it and to seek out that information, especially if they are not legally qualified.

It is therefore not easy in those circumstances for individuals to know what the law is, nor to conform their conduct to it. While it may be embodied in a concession that the Secretary of State requires certain information, it would not be reasonable to give him powers to create a mandatory procedure with serious penalties if it were not followed. If a concession   requires to be formalised in that way, surely it can be incorporated into the immigration rules or regulations.

I am also keen to probe the power in both subsections that makes provision for the consequences of failure to comply. Could an inadvertent failure to comply with a technical requirement by a specified time, result in refusal of an application? The forms are complex, English is often not the first language of the people concerned and access to legal advice is not always what it could be. I should be grateful if the Minister would respond to those points on this probing amendment.

Photo of Dame Cheryl Gillan Dame Cheryl Gillan Shadow Secretary of State for Wales

Because the amendment covers not only the area we are discussing but that of fees—

Photo of Dame Cheryl Gillan Dame Cheryl Gillan Shadow Secretary of State for Wales

The Minister says that it does not cover fees. Clause 42 mentioned fees.

Photo of Tony McNulty Tony McNulty Minister of State (Immigration, Citizenship and Nationality), Home Office

To be fair to the hon. Lady, the proposal is about specified forms and procedures for applications or claims. Fees are more readily considered in substance in clause 43. Clause 42 is in essence about not coming back to the House with a statutory instrument every time that IND wants to change something on a form. I take the hon. Gentleman’s points about the amendment, which I am happy to consider to see whether it can more readily be put into rules rather than being in statute.

There must be some sanction against non-compliance; reality must be impose4 in terms of inadvertent compliance but I am happy to consider whether it should be in the Bill or in regulation In substance, that means that we move away from the present ludicrous position in which every time there is a change to any substantive form available in this area it has to be made under statutory instruments. There is parliamentary scrutiny and parliamentary scrutiny, which is probably not terribly helpful, partly for the reasons that the hon. Gentleman suggested, and for a range of other reasons. I am happy to look at amendment No. 129, but I urge hon. Members to accept clause 42.

Photo of Evan Harris Evan Harris Science, Non-Departmental & Cross Departmental Responsibilities

I am grateful to the Minister for agreeing to consider the proposal. I always look at the statutory instrument list when the title is understandable and is a subject that is in my area, and when I have responsibility for immigration matters I ensure that proposed changes in immigration rules are looked at and if necessary prayed against. That is our right; perhaps it is not used as often as it might be but that is not to say that it is not a right that we would seek to preserve, as opposed to having less scrutiny.

In the light of what the Minister said about looking at the proposal, I beg to ask leave to withdraw the amendment.

Amendment, by leave, with drawn.

Clause 42 ordered to stand part of the Bill.