The clause forms an important part of the legal machinery of clauses that we have assembled under this heading. Its purpose is to provide some disincentives for those foreign nationals who might choose to try not to comply with the regulation that we put in place requiring them to apply for a biometric immigration document. We have sought to put a number of sanctions in place—in particular, toprovide the Secretary of State with three powers to disincentivise non-compliance.
First, there is a civil penalty regime, which subsequent clauses will set out. Secondly, there is the power to curtail leave, and thirdly, there is the power to vary it. The Secretary of State would, of course, have the discretion to decide which sanction it was most appropriate to apply in any particular case. The intention would be to set out the modus operandi for that judgment to be exercised in a code of practice, but we do not want the Secretary of State to be able to pile up these sanctions, one on top of the other, but to choose between them.
An argument that was rehearsed during the debate on ID cards was about the appropriateness of sanctions to disincentivise behaviour that we wanted to discourage. There were questions about whether people from different backgrounds or those who found themselves in different circumstances might not be able to acquire a biometric immigration document, through no fault of their own, and I want to make a couple of points on that subject.
First, there are substantial incentives for foreign nationals to apply for biometric immigration documents; it is not something that people would recoil from, because biometric documents will make the lives of foreign nationals easier. During the latter part of last year, when I was going round the country holding round tables with local business and public services, I was struck by the fact that some businesses said that they were not interested in employing foreign students, for example, because they did not want to take the risk that they were here illegally.
In an earlier evidence session, National Car Parks mentioned that the transaction burden acted as a disincentive for the company to hire foreign students. Biometric immigration documents will put the minds of many people in the business community at ease, as it will make it easier for foreign nationals to prove their entitlement to be here and their right to work.
Secondly, people who are asked to apply for biometric immigration documents will often already have applied for leave to remain and have been through an application process. Some foreign nationals, such as asylum seekers who have come through the asylum process, will already have deposited their biometric and biographical information with the immigration service. In doing so they will have acquired an application registration card, which is used to manage and monitor the issuing of benefits to those who apply for asylum. Clause 5(3)(d) provides for biometric and biographical information to be rolled over into an application for a biometric immigration document.
We can give the Committee several reassurances in respect of imposing too onerous a burden on certain categories of foreign nationals. It will be a fairly straightforward process and it is important that as part of the legal machinery the Secretary of State has the ability to apply civil penalties, to curtail or to vary leave, to disregard an application, and to refuse an application for a biometric immigration document.
It is worth pausing for a second on the clause. As I have argued in previous debates, the immigration system must be robust, but it must also be fair, and seen to be fair, because public confidence will be restored only if it is both robust and fair.
The Minister will be aware that people are worried that the clause might be used to violate the protections offered by various international conventions to which the Government remain signed up. As we heard in the evidence session, some people believe that we should pull out of the European convention on human rights. I am not conscious that that is yet Government policy, although it is a fast-moving area, but there are genuine concerns out there that the wide powers that the clause gives to the Secretary of State might be used to violate people’s rights under the ECHR, various Community treaties or the refugee convention. It is worth noting clause 7(2)(e), which states that regulations may
“provide for the consequence of a failure to be at the discretion of the Secretary of State.”
That is potentially a hugely wide provision, giving the Secretary of State quasi-judicial powers of a high order.
No such clause should pass the House without its being noted that such powers are potentially dangerous in the hands of an unscrupulous Secretary of State. It is part of the scrutiny role of the House to point out potential dangers, which I am sure are unintended. There are points to be made about the rights of individuals under various conventions. I hope thatthe Minister can reassure us on them; otherwise, the provision will cause deep unease in various parts of the community.