My Lords, noble Lords have asked me quite a number of questions and I will do my best to show a techie side to my nature. Where I slip up, perhaps noble Lords will allow me to write. I am aware of the case mentioned by the noble Lord, Lord Ramsbotham. I will have to write to him because I cannot give him an authoritative answer on a point that is not directly to do with the amendments that we are considering today. In any event, I will make sure that I get a letter to him on that issue.
I will speak to Amendments 79F, 81B, 82A, 87ZG, 87ZH and 87ZJ, which have been grouped together. I will not mention Amendment 87ZD because that has not been spoken to.
Amendment 79F concerns fees. It fits slightly uneasily in this grouping, but I am sure that it is something that we want to address. The current legislative framework for setting and amending visa fees is slow and inflexible, and we are experiencing that at the moment. We had a statutory instrument in January, and later on next week we will debate the actual fee levels. This two-part process is not necessarily the most informative. It makes it difficult for the Home Office to respond to identified issues—and opportunities, because this is an important area of income generation for the Government.
For example, it does not allow us to introduce new premium services or amend fees up or down within a particular period. It has also been criticised in this House because the “menu” of immigration and visa services is debated separately from the prices of the things on the menu. As I have said, that seems a funny way of doing things. The fees measures in the Bill are meant to address both of those issues.
I say to the noble Lord, Lord Pannick—who queried transparency on this issue, as did my noble friend Lady Neville-Rolfe—that the whole point of this is to be more transparent and provide information on fees. The mandate to provide fees is an important thing to secure in Parliament. As I said, they are an important factor for the Home Office.
My noble friend Lady Hamwee made a number of technical points and I would like to thank her for advising me of them. The fees order will set out in relatively general terms the types of categories of fees that will be charged for. It will set the maximum and in some cases—although not all—the minimum levels for the fees that fall within each category. The order
will be subject to the affirmative procedure. The regulations will then specify the precise fee for each product, which could stretch to several hundred different fees. This mirrors the current arrangements. For example, the current fees order states that we can charge for,
“a sponsor licence or renewal of such a licence”,
and the fees regulations specify all the different fees for each type of sponsor licence payable by the different categories of sponsor. Thus the detail included in the order and the regulations mirrors the current arrangements set out in Section 51 of the Immigration, Asylum and Nationality Act 2006 except in terms of the introduction of maximum, and in some cases minimum, fee levels into the order.
My noble friend went on to say that Clause 62(2) appears to require a fees order for all fees. She asked whether fees are chargeable outside of the specified functions. All chargeable functions must be set out in the fees order. The only caveat to normal treatment is set out in Clause 64:
“Power to charge fees for attendance services”.
She asked whether “any specified fee” under Clause 62(4) means each fee specified by a fees order. That is correct; it does. She assumed that Clause 62(10)(b) overrides subsection (8)(a)(ii), which requires a fee not to be less than the prescribed minimum, and that is correct. She also asked why subsection (10)(c) needed a failure to pay in the light of subsection (3). The consequences might mean the refusal of a visa in the future. Subsection (10)(b) relates to debt recovery in particular circumstances, such as where a payment is withdrawn once it has been processed and the application considered. Paragraph (c) ensures that we can provide that applications will not be considered if payment is not received. It also states that any other consequences for failing to pay must be set out in regulations. These provisions have been carried forward from current legislation.
My noble friend asked about costs and whether we can give an example of costs. Costs will be incurred by our commercial partners when, for example, providing visa services overseas, and they form part of the costs to the Home Office when providing services or processing applications. On Clause 62(13), she asked whether there are particular arrangements or ways to recover such things as the premium service. Yes, there are such arrangements. This subsection reflects that fees for the same function may vary depending on where and when they are delivered, and the specific service provided. It also reflects the fact that we may, in limited circumstances, charge different fees for the same product in different circumstances. We might, for example, enter into a reciprocal arrangement with another country by which we agree to offer a reduction in the visa fee to nationals of that country.
My noble friend put a question to me about Clause 62(4). This subsection is directed at the factors that the Secretary of State can consider in setting fees, taking into account costs and benefits to applicants. Subsections (4) and (6) are directed at the mechanics of the calculation, so that if the fee is being set out at a flat rate or by reference to an hourly rate, the reference to other factors is to give us flexibility in the future in
order to charge, for example, with reference to a daily rate. My noble friend asked whether the rate is the hourly rate. Yes it is, or there can be other factors. As I have just said, there can be a daily rate as set out above. I was also asked whether the calculation will involve an hourly rate to give the position/grade of the officers for whom a rate is charged. The grade of officers is not a relevant consideration when establishing an hourly rate. Where the grade of staff is relevant in establishing an estimated unit cost, it will form part of the calculation. This level of detail will not be set out in statutory instruments or a fees table.
My noble friend asked whether, where a fee is intended to exceed the cost, this will be made clear in the Explanatory Memorandum to the regulations. We will include the unit costs, as is currently the case. She asked whether the exceptions might allow for increases in a particular class of individuals. No, the exceptions relate to exemptions from payments; that is, waivers. The Home Office currently provides a number of exceptions in regard to fees including, for example, asylum applicants and children receiving local authority assistance, and there is no plan to withdraw the exceptions currently offered. This is complicated and I am sorry to have rattled it off but my noble friend did ask that I put it on the record. I hope the record has noted it and that I have reassured my noble friend.
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Setting out maximum—and in some cases minimum—fee levels in affirmative resolution orders will ensure that Parliament is able to consider the menu of services and pricing at the same time. Setting out fees in subsequent negative resolution regulations will increase speed and flexibility without removing Parliament’s right to set limits on fee levels, meaning that the Home Office will not have a blank cheque when setting immigration and visa fees. I have already reassured the noble Lord, Lord Pannick, and my noble friend Lady Neville-Rolfe that we intend to be transparent in this matter.
The proposed amendment would make all statutory instruments made under the fees measures in the Bill subject to the affirmative procedure, which would act like a double lock and take away the flexibility that the fees measures are meant to introduce. I hope the noble Baroness understands the thinking behind this. The Home Office’s ability to respond in the future to customer demand for new services or to government policy on economic growth should not be diminished in any way by these orders.
It would also mean that Parliament would debate the same thing—immigration fee levels—twice. The measures in the Bill require Parliament to debate and approve maximum fee levels for the services set out in a fees order. A further debate on specific fee levels within the regulations does not make sense. Either it will be unnecessary, because it will merely confirm the conclusion of an earlier debate, which would be the case where the fees in the regulations are approved, or it will be inappropriate, because it will overturn government policy and previous parliamentary approval, which would be the case where a fee in the regulations is rejected even though it is less than or equal to the approved maximum.
I hope I have dealt satisfactorily with the fees situation, and will now move on to other matters, in particular Amendment 81B, which concerns the delegated power in the Bill to amend an enactment in consequence of the Bill. The noble Baroness, Lady Smith, spoke about this, and the noble Lord, Lord Pannick, also mentioned it. The matter was raised by the Delegated Powers and Regulatory Reform Committee, and the Government have already responded to the committee.
Before I turn to that response, I first assure the House that Clause 66(3) is not intended to extend a power to amend future legislation. The Government consider this is sufficiently clear because no words of extension are used. If the intention had been to extend the power in this way, the clause would have used wording such as that in Section 89(1) of the Protection of Freedoms Act 2012 or Section 33 of the Growth and Infrastructure Act 2013, both of which confer powers to amend an enactment “whenever passed or made”. The Government have said in their reply that they are considering whether to amend Clause 66(3) to extend the power so that it can also amend the provisions of an enactment passed after this Bill but in the same Session as the Bill, as for example with Section 99(2) of the Enterprise and Regulatory Reform Act 2013. However, because this Bill is likely to be passed towards the end of the current Session, such a provision may be unnecessary. Although there are some technical points to follow on particular items of legislation, I will move on, but I will keep the noble Baroness informed of our decisions on this matter and whether we will bring forward an amendment. I will be happy to talk her through the provisions of any amendment at that time.
Turning to Amendment 82A, I should explain that Section 76(2) of the Nationality, Immigration and Asylum Act 2002 currently only applies a power to revoke the leave of persons who have obtained indefinite leave by deception where the person is non-removable. This is because, for those who are removable, the removal decision itself, under the current Section 10 of the Immigration and Asylum Act 1999, automatically invalidates any leave that the person may have been given. As the legislation stands, there is no need for revocation to extend to removable persons.
However, the changes we are making in the new Section 10, as set out in Clause 1, mean that it does not have this same effect of invalidating extant leave. It simply allows us to remove a person who already has no leave to be in the UK. As a result, we need another mechanism for cancelling indefinite leave obtained by deception. It is therefore necessary to extend Section 76(2) so that revocation also applies to those who obtained leave by deception but are removable. This does not alter the current position that those who cannot be removed for legal or practical reasons may have their leave revoked, nor does it mean that we will be able to remove those persons who previously would have had their leave revoked because they could not be removed from the UK. I hope that has explained why this provision is in the Bill.
The noble Baroness talked about the transitional arrangements in respect of health charges. I am having some difficulty finding the exact part of the Bill to
which she referred. We have discussed health charges. I am very happy to research the particular points that she made but I am not able to help her today, except to say that while the Home Office is responsible for collecting the health surcharge, the health service is the provider of the service and needs to satisfy itself that the records are in place that someone should not be charged. The computer program Spine, on which I have been briefed, is in place to provide that database.
I know that my noble friend Lord Howe is very keen to talk to noble Lords about the health service reforms, which are not part of the Bill but go closely with it, and the importance of health charging for the health service, which I think noble Lords will understand is an important facet. I hope we will be able to clear that up, and I will certainly write to the noble Baroness on the particular point that she raised.
Amendment 87ZG relates to the repeal of Section 87 of the Nationality, Immigration and Asylum Act 2002. The power of the tribunal to give directions, when an appeal succeeds, to give effect to its decision is repealed because the Bill means that the range of decisions that the tribunal can make will be much more limited and their consequences clearer, so will not need to be defined when the tribunal gives its decision.
Currently, someone can appeal against the refusal of a work visa and raise Article 8—family life—in their grounds of appeal. The tribunal could allow the appeal for one of three reasons: that the work visa application should have succeeded; that the appeal succeeds on Article 8 under the Immigration Rules; or that the appeal succeeds on Article 8 outside the Immigration Rules. It is this type of case in which a direction from the tribunal is needed to make clear the basis on which the Secretary of State should grant leave. However, appeals on a number of very different grounds will no longer take place owing to the changes to appeal rights in Clause 11. The outcome will be simpler and therefore a power for the tribunal to give a direction to the Secretary of State is no longer necessary. That is the reasoning behind this part of the Bill.
Amendment 87ZH would retain a definition of leave to enter or remain in Part 5 of the 2002 Act, which relates to appeals. This definition is no longer needed, as this Bill provides that there is no appeal right against refusal of leave to enter or remain.
Amendment 87ZJ would require the Secretary of State to specify the ongoing duty to notify her of changes of circumstance in a notice served under Section 120 of the Nationality, Immigration and Asylum Act 2002. I am happy to assure the Committee that we will make this duty clear to those affected, but the detailed contents of this notice are a matter of operational procedure and, as such, it is not appropriate to include this requirement in the Bill.
I was asked a couple of questions by my noble friend Lord Avebury. He made the point that many of the changes in Schedule 9 are not consequential but substantive and should be positioned in the body of the Bill. The changes in Schedule 9 relating to appeals are consequential for the reasons that I have explained. The changes made to appeals in Clause 11 mean that the changes in Schedule 9 are necessary and consequential.
The noble Lord asked: if no direction can be given about how to implement a successful appeal against deprivation of nationality, how can it be implemented? The Secretary of State implements the judgment of the tribunal in accordance with law. Where a person has succeeded in appealing against the deprivation of nationality, the Secretary of State will implement that judgment. I am satisfied that the outcome of such an appeal is sufficiently self-explanatory that the tribunal does not need to give directions as to how effect should be given to it. This has been quite a long contribution from me, but I hope that it has helped noble Lords better to understand this section of the Bill.