Statement of Changes in Immigration Rules

My Lords, I hope that I will not be accused of putting a withering load of Questions on the last day of Parliament by the Minister who will answer this debate, as the noble Lord, Lord Davies of Oldham, accused the Conservative Front Bench of doing in the previous debate. It is unfortunate that there are a lot of questions to be answered on the Statement of Changes to the Immigration Rules, but it is not my fault that it comes up on the last day of this Parliament. As I shall attempt to illustrate, that is a product of the whole sequence of events that led up to the changes that affect tier 4 of the Immigration Rules under the points-based system, dealing with non-EEA students, and the changes that they provide are intended to make it harder for students taking courses at lower than degree level, whether they are genuine or not. The matter reaches us on the last normal day of this Parliament by the most extraordinary and irregular process, as I shall attempt to explain. The context is the concern expressed, notably by the Home Affairs Committee of another place, about the prevalence of bogus colleges and the number of pretended students who were getting into the country before the points-based system was introduced. The committee found that 2,200 colleges formerly on the register of education providers either did not apply or were not accepted for the new register of sponsors, but it was also told that tens of thousands of illegal entrants might have got in under the old system. There were reasons to suspect, also, that insufficient checks had been made on the remaining 1,600-odd colleges and that leaving approval of colleges largely to accrediting organisations of varying competence and reliability was not the answer. A review of those organisations was being undertaken, and I hope that we shall hear from the Minister what conclusions it reached. According to UKBA’s November 2009 document, Simplifying Immigration Law—a misleading title when you consider that the rules dealing with the points-based system alone occupy 44 pages of 10-point type—a minimum of 12 weeks is usually allowed for external consultation on changes to the rules, and impact assessments and equality impact assessments may be produced, depending on the nature of the changes. The National Audit Office states that the Government are committed to conducting formal impact assessments of the need for and impact of new regulations. They are said to be mandatory for all government interventions that impose costs on businesses, as this statement definitely does. However, in this case, an IA was conducted when it was far too late for it to have any practical effect. The IA, which stems from the tier 4 general review, encompassed the changes in the present statement and in HC 439—yet another statement, which was produced a couple of weeks ago, which we are not dealing with today. That may explain why, although the Merits Committee was told in February that the IA would be published "in a couple of weeks", the deadline was amended almost instantly to some time in March and now, coincidentally, to this very day. Your Lordships may think that it might not have appeared at all until after the dissolution if this Motion had not been tabled. The Merits Committee, ""questions the policy development merit of completing an IA after an instrument has already been laid, let alone having come into effect. The House may wish to satisfy itself that UKBA has followed the Government's own policy on the use of IAs in this respect"." We look forward to the Minister's response to that comment and to the Merits Committee’s report in general. That is not the committee's only complaint. There is no separate equality impact assessment, as there should be for provisions that have a differential impact on married students, for example. Marriage and civil partnership is a protected characteristic in the Equality Bill, which is about to become law, and the Home Office may be in breach of the public sector duty under Clause 1 that it should, ""when making decisions of a strategic nature about how to exercise its functions, have due regard to the … desirability of exercising them in a way that is designed to reduce inequalities of outcome which result from socio-economic disadvantage"." Clearly, inequalities of outcome between single and married students result from socio-economic disadvantage which are being aggravated by the rule changes. I understand from talking to a Home Office official that the equality impact assessment had been conducted in parallel with the IA, and was to be published with it today. I received it at seven minutes to three o'clock, so I have not had time to study it in great detail, but it states that there may be negative effects on equality, but that will be because they arise from strong policy reasons. It then considers individual types of equality and states that, in fact, no impact arises. How can those two statements be reconciled? There is no point in carrying out these exercises if the Home Office sails on merrily with an order and does not give Parliament concrete assurances, which I now seek, that the matters raised in the EIA, including those regarding any of the protected characteristics, will be addressed: to begin with, in a Written Statement, and, if necessary, as soon as the opportunity arises, by an amending statement of changes. On consultation, the Prime Minister announced a review of tier 4 on 12 November last year. On 17 November, some, but not all, of those concerned received e-mailed letters containing the questions and a 10-day deadline for replies. In its reply to that so-called consultation, the UK Council for International Student Affairs (UKCISA), which also gave evidence to the Merits Committee, stated that it was, ""quite extraordinary for this review to be commissioned and undertaken in little more than three weeks which has given us no proper time to canvass views from our members"." The Independent Law Practitioners’ Association (ILPA) states that it was notified verbally about consultation on 25 November at a meeting of the Employers Task Force, but received the questions only on 30 November, after the closing date of 27 November. It submitted its observations on 4 December. Universities UK told me that it had 24 hours to deal with the highly trusted sponsor details, which were of particular concern to its members. The proposals on the highly trusted sponsor scheme do not appear to be covered by the order, although there is a definition in HC 439, and the scheme itself was published on the UKBA website on 22 March. UKBA told the Merits Committee that 17 sector organisations submitted evidence for the tier 4 review and that more than 300 representations were received from individuals, education providers and related businesses. That is a remarkable score when you look at the timetable. It said that it was not publishing any analysis of those responses because the consultation was not formal. What sort of consultation was it and under what circumstances will such consultation be conducted in future? The Government’s code of practice on consultation prescribes that: ""Consultations should normally last for at least 12 weeks with consideration given to longer timescales where feasible and sensible … Consultation responses should be analysed carefully and clear feedback should be provided to participants following the consultation"." The code provides that Ministers should have discretion not to undertake a formal consultation exercise, but was ministerial authority cited for the decision in this case, and was any reason given for the "challenging and tight timetable", as it was described in UKBA's letter of 17 November, or for the failure to analyse the responses? In every respect other than timetable, it looked as if it was a formal consultation. If the reason for the haste was to ensure that the process was finished and the statement agreed before the election was called, the Government should have said so at the time. Will the next edition of the code state that Ministers can declare a consultation not to be formal when the only reason for that is to avoid the 12-week obligation? Speaking about immigration policy last week, the Prime Minister said, ""how we conduct this debate is as important as the debate itself"." We can all agree with him on that, but that statement does not stack up with the arbitrary suspension of 60 colleges in the panic of last November. Can the Minister confirm that all but two of them were subsequently restored to the register and the Prime Minister's statement last week that, altogether, 140 colleges were stopped from bringing in non-EU students last year? How many of those were later reinstated, and does not fairness require that investigation of alleged abuse precede rather than follow suspension? What rights of appeal do colleges have against their suspension or removal? What debate was there before the stopping of all applications under tier 4 from south China, north India, Bangladesh and Nepal from 1 February this year, and is that ban still in force? What was the evidential basis for the decision, apart from an unquantifiable increase in the number of applications at each of the three posts? Where has the UKBA got to with the investigation that was announced as to whether or not the applications at these posts were genuine? The next thing that happened was that on 7 February the Home Secretary announced on BBC TV that the changes in this statement were to come into immediate effect, though of course that was not true as they had not been through the parliamentary negative resolution procedure that is required by law. Parliament was not told about them until Mr Johnson made a Written Statement the following Wednesday. Why did he not then correct the misinformation that he had given to Andrew Marr and his hundreds of thousands of viewers? As to the substance of the changes, the Prime Minister, speaking in Islington last week, said that, ""we need to be tougher on those who want to come under tier 4 and who are studying low-level qualifications, and tougher on bogus colleges"." From a document entitled Tier 4 Sponsor Recruitment Practices and marked as a draft, "not for wider circulation", sponsor institutions are being required to undertake a variety of checks on an applicant before issuing a confirmation of acceptance for studies. Looking at the passport to see whether the applicant has been refused leave to enter in the past, verifying the qualifications which are presented with the issuing institution and assessing the difficulty that a candidate may have in adapting to life as a student in the UK, are three examples of good practice in this 21-page document. In the case of the HTS scheme, some of the tests, which are only recommended for institutions of further education generally, become mandatory, raising acute concern for Universities UK. For the rest of the sector, there is uncertainty about the tests they will need to apply, and that really does need to be clarified. More generally, the providers do not like the way that these changes transfer the responsibility for immigration control from the UKBA, acting on behalf of the Secretary of State, to educational institutions, and impose severe penalties on them if they fail to carry out enough of the 21 pages of tests or if more than a small proportion of those granted certificates of approval go absent or fail to complete the course. In the case of the HTS scheme, following a meeting with UUK on 1 April, UKBA has undertaken to review these arrangements and come up with amendments by 15 April, yet a further illustration of, ""the inadequate and incomplete consultation on the proposals with the university sector"," which has resulted in what the UUK calls, ""poor quality and unclear documentation"." What I would like from the Minister as the outcome of this debate is a review of the tier 4 arrangements as a whole in the light of the impact assessment and in full consultation—which did not happen before—with the stakeholders; and an undertaking equivalent to the one given to UUK that amendments will be made to cover the valid objections that have been made. Above all, I am looking for an assurance from the Minister that if the present Government are re-elected on 6 May, they will never again try to push through material changes to the Immigration Rules affecting people and institutions without any of the safeguards that exist to ensure informed parliamentary scrutiny and to prevent flawed legislation. I beg to move.