Borders, Citizenship and Immigration Bill [HL]

My Lords, the challenge posed for the Minister by the noble Baroness about the use of the expression, ““the greatest shake-up of immigration for a generation””, is fully justified when we see that the shortcomings of this Bill have as much to do with what is missing from it as with its actual content. It was a great disappointment to us that the draft Bill, which was published in July and involves a long-delayed attempt at consolidation, has been postponed yet again ostensibly until October, but perhaps for a great deal longer if an election is held in the mean time and a weak incoming Tory Government have different priorities. This Bill makes no attempt to clear up the citizenship anomalies identified in the Goldsmith review, which was requested by the Government. They asked the noble and learned Lord to undertake the work and have now shelved action on his recommendations for eliminating the residual categories of citizenship, particularly for rescuing those whom we have effectively rendered stateless. We shall be tabling an amendment to bring otherwise stateless British nationals overseas within Section 4B of the British Nationality Act 1981. No provision has been made to deal with the appalling hardship faced by tens of thousands of destitute people who are described as ““legacy cases””, as highlighted in the Observer the Sunday before last. Some 200,000 people are still awaiting examination by UKBA, two and a half years after the former Home Secretary, John Reid, promised that they would be dealt with inside five years; I want to know whether that target is being held. There are also the Zimbabweans who cannot be removed but who are prevented from acquiring the experience that would be so valuable in rebuilding their country when it finally becomes safe for them to return. It was intended to select for priority those individuals who pose a risk to the public, those who could be removed quickly, individuals receiving support, and those where a quick decision to grant status was likely. We need to know whether that process was completed, and how the remaining applications from those 200,000 people are being prioritised. The Government have no policy at all for dealing with the estimated 430,000 undocumented illegal immigrants living here in the penumbra of the black economy, and from the Tories there has been only Boris Johnson’s suggestion of an amnesty along the lines, as I understand it, of those in southern Europe which have led to a vast increase in the number of people attempting to enter those countries. Our solution, which we will attempt to insert into the Bill, is that when a person has lived in this country for many years without committing any offence apart from the original entry, he or she ought to be eligible for upgrading on a path to citizenship, subject to conditions like anyone else. More recently, the NAO has commented on the loss of 17,000 case files and the Information Commissioner is contacting UKBA to find out how this happened. It is also asking whether back-up copies were held, but surely the key question is why the physical papers had to be transferred from one office to another within UKBA instead of scanned copies being sent by email. The final item in the list of provisions that are not in the Bill but which should have been involves the people who are currently in the queue for citizenship, which has now risen to 35,830, according to the snapshot given after our meeting with the noble Lord, Lord West, on 23 January. It is claimed that in the year to date, 93 per cent of the applications have been dealt with inside six months, but we know of applications where the persons have been waiting for far longer than that—in one case for almost two years—and no explanation has ever given for the delays. As to what is in the Bill, the reasons for a partially integrated border force are not explained. We accept that there may be a chance for greater working efficiency, although personal data security questions need to be explored. What reduction does the Minister expect in the aggregate number of UKBA and HMRC officials at the borders? What discussions have been held with their representatives? The president of the trade union for senior staff in HMRC, Mr Trevor Cook, wrote in last Thursday’s Guardian of the low morale of his members, which had been noted previously by the Treasury Select Committee and the NAO. We should be careful not to place additional burdens on officials whose work is so vitally important to the economy, particularly, as we have seen lately, in cracking down on tax avoidance. The same goes for the immigration officials who are protecting our borders. The Minister needs to assure us that both groups have been properly consulted and agree with these proposals. In Clause 22 there is an order-making power to apply PACE provisions to the police-like functions of customs officials, as there has been in five previous immigration Acts since 1999. We shall seek ways of making that into an obligation, particularly in relation to the powers of detention in the 2007 Act. In Part 2, seven years after we first tried to equalise the rights of a child born abroad to a British mother with those having only a British father, the Government have finally eliminated this discrimination whenever the child was born. We are also pleased that children born to British Armed Forces personnel will be entitled to British citizenship. There are some children of British mothers living abroad who are content to remain with the right of abode that they have always enjoyed. Under Clause 8 of the draft Bill, an order was to be made granting them temporary permission to enter, subject to the conditions made by the Secretary of State. Instead, Clause 45(3) of this Bill transforms the right of abode into a Commonwealth right of abode and gives the holder the right to apply for naturalisation under Clause 37(2). What happens to the right to enter of those who decide not to naturalise? Are any further changes in their situation contemplated for the simplification Bill, or are we looking at the end of the process here? We have concerns about the arrangements for naturalisation, which make it harder for a migrant to become settled. After a time on temporary leave to remain, which is unchanged, the long-term immigrant can apply for what is called probationary citizenship. But, as the noble Baroness, Lady Hanham, rightly implied, this is merely an extension of temporary leave during which the migrant is excluded from welfare and services to an extent that needs to be clarified. This stage varies in length according to a person’s ability to satisfy the authorities that he has engaged in voluntary activities, the nature and extent of which, like so much else in the Bill, is left to secondary legislation. In Committee, the Minister has promised information about the approved activities but, for the time being, we have to take the scheme on trust. In a note that the noble Lord, Lord Brett, handed to me just before we came into the Chamber, I see that this is one of the key issues being discussed with the design group. We look at the Bill and we ask, ““What are these arrangements?””, and we are told that we have got to wait until the design group comes back to the departments. Are applicants for probationary citizenship going to be charged £750, as with ILR now? I am grateful to the noble Lord, Lord Brett, for the table giving details of the charges made under the present arrangements, but, noticeably, there is no corresponding figure of what is to be charged under this legislation. Those who are already on ILR, as I understand it, will get permanent residence leave, or PRL, free of charge, I assume, but the details will be in the commencement order. It would be useful if an assurance could be given that no charge will be made when they are automatically transferred on commencement. At the moment there must be tens of thousands who remain on ILR permanently because they prefer not to incur the hassle and expense of applying, or because they came from countries that do not allow dual citizenship, as was also mentioned by the noble Baroness, Lady Hanham. Under the Bill a person who does not want citizenship or cannot satisfy the conditions spends an extra two years in the so-called probationary citizenship before graduating to permanent residence leave. It is unfair that he should be deprived of the benefits of welfare and other services for that length of time, and we hope to rectify that in Committee. Does the Minister accept that many people decide not to apply for citizenship for perfectly valid reasons, and that in future there will be people who stay on PRL because they cannot afford the fees or cannot pass the tests of English or knowledge of life in the UK? A mother of small children, for instance, may not be able to jump through the hoops, and for those who are not earning the requirement that most learners of English for Speakers of Other Languages are expected to pay half the cost from next year may be an additional deterrent. Is it fair to deny all these people benefits? What consultations have there been on exemptions? The duty to safeguard the welfare of children in Clause 51 is welcome, but Ministers in both Houses have given undertakings that the UKBA would be placed under an obligation equivalent to Section 11 of the Children Act 2004, as are all other statutory bodies working with children. The Government must now move towards ending the detention of children, as we have argued on previous Bills. The chief inspector, in her latest report on Yarl’s Wood, said: "““Any period of detention can be detrimental to children and their families, but the impact of lengthy detention is particularly extreme””." The Section 11 obligation, which needs to be spelt out in Clause 51, needs to cover not only the UK but the juxtaposed controls and posts abroad where officials have functions that relate to children. We shall also need to put an upper time limit on the coming into force of that clause, recalling how the Government have dragged their feet on compliance with the Convention on the Rights of the Child. We share the concern expressed by the refugee councils on the Government’s intentions with regard to age determination and the proposal to reintroduce the use of X-rays for that purpose, which was abolished in 1981 following a report on the subject by Ted White of my office. After the criticism by the Children’s Commissioner, the Chief Medical Officer, the BDA and others and the Court of Appeal ruling a year ago that the courts have the final say in age-disputed cases, there has been no public debate. I ask for an assurance by the Minister that the use of X-rays for non-clinical purposes has been definitively shelved. The refugee councils and others have expressed concern, which we share, about the provision that the qualifying period on temporary leave begins only when an applicant has been granted asylum—in some cases, many years down the line from their original application. Refugees already have to wait for four years if granted exceptional leave to remain, or six on discretionary leave, and it would be unreasonable to make them hang around for several more years before they can even graduate to probationary citizenship. We will seek to amend the Bill so that a successful asylum application is treated as a qualifying status. My noble friend Lord Thomas of Gresford will deal with the proposal in Clause 50 that the judicial review applications should be transferred from the High Court to the proposed upper tribunal, for which no argument is given in the Explanatory Memorandum. I wonder whether this can be the Government’s response to defeats in the High Court, which they hope to avoid in future by writing the procedure rules for the upper tribunal themselves. My noble friend Lord Smith of Clifton will deal with the common travel area and the advantages of counting people in and out, except over the boundary with the Republic of Ireland, while my noble friend Lord Kirkwood will be dealing with the Scottish issues in the Bill. My noble friend Lord Wallace of Saltaire will discuss the need for the unlimited powers to restrict the education of overseas students. We fully understand the need to deal with bogus educational providers, but we thought that had been settled in 2004 with compulsory registration. If there are reasons for tightening up the criteria for registration we would certainly be prepared to look at them, but there are perfectly legitimate educational reasons why a student may wish to transfer from one course to another or even to another university. The idea of publishing draft legislation for discussion is excellent, but in this case it was followed by a completely different set of proposals of which no warning had been given, with most of the detail left to unamendable orders. This is not the way to get the best out of Parliament, especially in an area as complex and fraught with human rights implications as citizenship and immigration.