Immigration, Asylum and Nationality Bill

With this amendment, we are also discussing Amendment No. 39, which stands in my name and that of my noble friend Lord Dholakia. What I have to say to some extent echoes what we have already heard from the noble Viscount, Lord Bridgeman, because we have genuine anxieties about the requirements that have been placed on employers by the clause as a whole, and in particular about the obligations in paragraph (e), to which the noble Viscount has made reference. In Clause 15(7) there is an exhaustive list of matters that an order prescribing requirements imposed on the employee under subsection (3) may cover. To that extent it is mere verbiage, and is presumably designed to head off challenges to controversial provisions of any order as ultra vires primary legislation. But this requirement in paragraph (e) that employers undertake repeat checks is particularly controversial. In Commons Committee the Minister said that regular intervals would probably be on an annual basis, certainly not less than that. He went on to say:"““I accept the balance between getting the law right and avoiding undue burdens on businesses, but I do not accept that it is an undue burden to an employer to establish that he is not breaking the law by employing someone whose status here is not legal””." That is all very well in theory, but in practice the obligation is likely to be an extremely difficult one for the employer to perform. The Home Office does not let somebody apply for a variation, including an extension of leave, for more than 28 days before the previous leave is due to expire. Because those applications take a considerable length of time to process, it is probable that when an employer comes to carry out this repeat check at—whatever—an annual interval, the employee will not be able to present relevant documentation because it will be with the Home Office. Earlier copies of the document, which may be in the employer’s possession, will show that leave was due to expire. What happens then? How can the employer discharge the obligation which is being imposed on him by this clause? How can the risk to the employer appearing to breach the law who sacks the employee be avoided? Neil Gerrard noted in the Committee concerning Clause 15(1)(b)(ii), making it illegal to employ someone whose leave had expired, that:"““I am concerned that the sort of cases that I and probably other hon. Members currently see concern people who have temporary permission to be in the UK, perhaps through exceptional leave to remain on a work permit, and have applied to extend it. I know that the Minister will tell me that decision making is improving, but suppose that someone with exceptional leave to remain makes an application for indefinite leave to remain, and the decision takes a considerable length of time and their leave to remain expires before a decision is given, how would they be affected by the measure?””." The Minister, Mr McNulty in response gave him the assurance that he sought, that it would not be illegal to employ such people but noted that,"““although subsection (1)(b)(ii) literally says ‘has expired’, that does not relate to those who apply in time and carry on. We are still considering the practicalities that are in place, not in terms of rules or legislation, but in terms of persuading an employer or anyone else that the other application has been made””." And that is the crux of the matter. While the assurance on the substantive point was welcome, it fails to address the problems that are created by Clauses 1 and 11, that the employer would technically be acting illegally immediately such people are refused, if their original leave to remain had expired because under the Bill as drafted it is going to be illegal to employ them between refusal and appeal. The recognition of the difficulties for employers in practice is also telling. There is the risk of injustice to individual employers who do their best to establish the position but find that impossible. There is a risk of them having to spend a great deal of time trying to establish what the correct position is, and, underlying everything, there is a real risk that if it is made too complicated to employ people who are subject to immigration control or who the employer thinks might be subject to immigration control, then the employment of migrants, both legal and illegal may be jeopardised. The illegal working taskforce regulatory impact assessment for the Bill acknowledged these problems. I will not quote from it but there is a lengthy explanation in paragraphs 53 and 54 of its report, which the Minister no doubt is familiar with. It outlines the theory. How do the Government expect to achieve all that in practice? It is very difficult to find one’s way around immigration legislation. I just had to buy a copy of Margaret Phelan’s new tome, which is about twice the size of its predecessor. The money I spent less than three years ago on Margaret Phelan’s admirable work has gone up in smoke. It is a very expensive new edition, but, as one of my colleagues said, it is worth every penny. Employers may have to find their way through a weighty tome in order to be sure that they are complying with the law, particularly—and we shall come on to this later—as there has been no consolidation since 1971. I do not know why the Minister is pointing at me. I did not want to discuss consolidation this afternoon because it is a separate issue, but I feel that employers do not have any chance of getting this right unless some help is given by the Minister this afternoon. The current employers’ helpline deals with general inquiries but it gives very little indication of how a helpline might work where one rings in to make inquires on individual files. Those who have had occasion to ring the Home Office with a query on an individual case will know that it is quite a challenge to manage and locate the file or to speak with the person responsible for dealing with it. The most one is likely to get—and not very quickly or easily—is confirmation that a case is under consideration. So I hope that the Minister has fully taken on board the difficulties which this clause is going to impose on employers and that she will have a satisfactory explanation of how the Government intend to solve that problem.