§ 5.58 p.m.
§ Lord Bassam of Brighton rose to move, That the draft regulations laid before the House on 17th January be approved [6th Report from the Joint Committee].
§ The noble Lord said: My Lords, these regulations are made under Section 9 of the Immigration and Asylum Act 1999. During the passage of the Bill, we offered to consider representations about the position of overstayers who, by virtue of the Bill's provisions, would no longer have a suspensive right of appeal against a decision to remove them from the United Kingdom.
§ The Act provides that a decision that an overstayer is not to be allowed to remain will be implemented by an administrative removal procedure if the overstayer does not depart voluntarily. The decision will not in itself attract a right of appeal before removal. It is expected that this provision will come into force on 2nd October when the Human Rights Act is due to come into effect.
§ Currently, overstayers are removed through the deportation procedure which attracts a specific and suspensive right of appeal. There is a full right of appeal if they have been here seven years or more, and an appeal restricted to the lawfulness of the decision if they have been here less than seven years subject to some limited exceptions.
§ It should be appreciated that many overstayers on whom decisions are taken from 2nd October will in fact have a suspensive right of appeal in any case. Those who have sought asylum or made a human rights claim will so benefit. The right of appeal we are considering here is solely on the deportation issue; that is, whether or not deportation as a process is appropriate (full appeal) or lawful (restricted appeal).58
§ Concern was expressed about the position of current overstayers. It was suggested that many had been here some considerable time and should not be removed without a suspensive appeal. We had sympathy with this view, but could not agree to an open-ended approach. We therefore introduced a new clause to the Bill at Commons Report stage—now Section 9 of the Act. Section 9 sets out a scheme in which those overstayers who make a specific application will have a limited opportunity to take advantage of the right to a suspensive deportation appeal even if the decision is taken after the new appeals provisions come into effect.
§ I must stress here and now that the scheme is not an amnesty for overstayers. Do not be misled by use of the term "regularisation". The regulations are for people whose status here is "irregular". The scheme makes a special arrangement for those who apply to "regularise" their stay during the period, but it gives no promise whatsoever that the application will succeed. Applications will be considered under the normal criteria, and unless there are compassionate circumstances outweighing the public interest, leave to remain will be refused. Unless the overstayer then makes a voluntary departure, deportation will follow, subject to appeal. The scheme simply ensures that those who apply will retain the appeal right if the decision is taken after 1st October.
§ It may be helpful if I explain how applications under Section 9 will be considered. Applications under these arrangements will be considered in the same way and applying the same criteria as in the case of any other overstayer; that is, they will be considered in accordance with paragraph 364 of the Immigration Rules. As that paragraph makes clear, where someone has remained without authority, deportation will normally be the proper course. Each case is, of course, considered on its individual merits, balancing the public interest against any compassionate circumstances. The rules require us to take account of such factors as are known to us; in particular, age; length of residence in the UK; links with the UK; personal history, including character, conduct and employment records; domestic circumstances; any criminal record; compassionate circumstances and any representations we receive on behalf of the person concerned. That is why applicants under Section 9 will be invited to provide those details. But the rules are clear that deportation will normally be the proper course of action. That will not change. This is not an amnesty and cases will not simply be written off.
§ During the passage of the Act, Section 9 was debated extensively. The Opposition did not oppose the introduction of this section then or at any subsequent stage of the Act's passage. We made it clear then—and I make clear now—that those who apply under the terms of this scheme will not benefit from any relaxed criteria. The same deportation criteria which are in force now will be applied to those who apply under the scheme.59
§ Those who are not given leave to remain and who were last given leave to enter more than seven years ago will have a full right of appeal, while those given leave to enter less than seven years ago will have a limited right of appeal confined to whether in law there was power to make a notice of intention to deport. For those whose appeals are dismissed, deportation will be the normal course.
§ Section 9 provides for a "regularisation period" during which overstayers may apply in a prescribed manner. It also provides that the start and finish days will be prescribed. The period is to be at least three months, and the scheme is to be publicised. I shall describe the regulations shortly, but we have done our best to maximise the period which we hope will be very nearly eight months. We are producing a leaflet and poster which will be distributed through the National Association of Citizens Advice Bureaux' network of advice centres, and will be passed on to local community groups. The leaflet will also be available on IND's website. We are arranging further distribution of the leaflet through the Joint Council for the Welfare of Immigrants. The Immigration and Nationality Directorate has an active User Panel. We shall discuss further publicity with it as the scheme progresses to ensure that the message is getting across, but we do intend to make use of the ethnic minority press.
§ In accordance with a general commitment that we gave during the passage of the Bill, I should like formally to state that in my view the provisions of the Immigration (Regularisation Period for Overstayers) Regulations 2000 are compatible with the convention rights as defined by Section 1 of the Human Rights Act 1998.
§ I shall now briefly describe the regulations themselves. Regulation 1(1) provides that they shall come into force on the day after the day on which they are made. Subject to parliamentary approval, this will enable us to commence the scheme as soon as possible.
§ Regulation 2 prescribes the manner of application. An application is to be made in writing, and is to set out certain information and attach certain material. Addresses are given for both postal and personal service.
§ Regulation 2 paragraphs (4)(a) to (c) require basic information to be provided in order to identify the applicant, establish where he may be contacted and who, if anyone, is representing him.
§ Regulation 2 paragraphs (4)(d) and (e) require the applicant to set out what details he can recall of his immigration history: the dates and periods for which he was granted leave to enter or remain. The period spent here lawfully and the length of his stay are vital parts of the applicant's case. There may be no central record of admission, the passport may not be available and so we need some indication of the central basis for the claim.60
§ Regulation 2 paragraph (4)(f) asks for the applicant's Home Office reference number, if known.
§ Regulation 2 paragraph (4)(g) requires that the application must make it clear that it is in fact an application under the scheme. We cannot assume that everyone wants to benefit: some may prefer to be administratively removed in order to avoid what they consider to be the stigma of deportation.
§ Regulation 2 paragraph (4)(h) requires the applicant to tell us the circumstances he would like us to take into account. The circumstances listed broadly follow those set out in paragraph 364 of the Immigration Rules which the Secretary of State is obliged to consider when deciding whether to deport an overstayer.
§ Regulation 2 paragraph (5) specifies the material to be submitted. We are asking for passports used by the applicant, and any documents the applicant considers will support his application.
§ There is no specific application form for the scheme. We envisage that many applicants will be applying for leave to remain under the scheme on the basis of a provision of the Immigration Rules; for example, as the spouse of a person settled here. If that is the case, we may well ask them to complete the form that such a person would normally be asked to fill in if further information is needed.
§ We have tried to achieve a balance which gives us enough information in the first instance to establish whether or not the applicant is in fact an overstayer and to make an assessment of the general merits of the case.
§ Regulation 3 paragraph (1) sets the start of the period as the day the regulations come into force. This will be the day after they are made. We had intended to start on 1st February if the regulations came into force earlier. The reference to 1st February is now redundant. Paragraph (2) sets the end of the period at 1st October 2000. That is the day before the new removal procedure is expected to come into operation, together with the introduction of human rights appeals (Section 65 of the 1999 Act). These are dependent on the Human Rights Act coming into force. Should this be delayed, Section 9(3)(b) of the 1999 Act automatically ensures that the period expires the day before the new system starts.
§ Regulation 4 provides that where an application is sent by recorded delivery post to the specified address, it is taken to have been delivered on the second day after posting, unless received earlier. We recommend that all applications be sent by recorded delivery, thus ensuring that there is a record of posting and proof of whether or not an application has been made in time.
§ Having explained the purpose and content of these regulations, I shall do my best to answer any points that the House may raise. I beg to move.
§ Moved, That the draft regulations laid before the House on 17th January be approved [6th Report from the Joint Committee].—(Lord Bassam of Brighton.)61
§ Lord Cope of Berkeley
My Lords, the House will be grateful to the Minister for his explanation of the effect of the regulations and the detail involved. It is right that overstayers should be brought to account under the immigration controls. However, I accept that a period of grace, as allowed for in the Act, is being properly provided for them to try to regularise their position.
I have only one question arising from newspaper reports that a bond of £10,000 will in future be required in respect of immigrants coming here temporarily from certain countries. That is an interesting and novel suggestion, but I should like to know whether it will apply to people who under the regulations seek to regularise their position in order to stay here beyond October.
It is difficult to know what the status of a newspaper report may be; whether it is a genuine leak, by which I mean an unauthorised disclosure of something that is being considered; whether it is an advance announcement by Mr Campbell of policy that has been agreed and settled; or whether, following Mr Campbell's article in this morning's press, it is speculation with no foundation except within the imagination of the journalist concerned. I suppose that there may be a fourth possible category; that it is a kite; that is, something being tried out on the newspapers to test reaction. However, the immediate point is the status of the proposal as regards the people covered by the regulations.
§ Lord Dholakia
My Lords, we want to raise a number of issues. I was somewhat surprised to hear the Minister say that this was not related to amnesty. I do not recollect anyone from these Benches, or for that matter the Conservative Benches, asking for amnesty in this case. We are talking about the regularisation period during which those who overstay can apply for leave to remain in the United Kingdom and thereby preserve any rights of appeal they may have against any notice of a decision to deport them.
First, we are concerned about whether the Home Office knows the number of outstanding cases, bearing in mind the utter chaos which exists in the Immigration and Nationality Directorate. What is the timescale envisaged to deal with cases which may be the basis of an application by a number of overstayers in this country?
Secondly, the Act provides that the regularisation period should be not less than three months. The regulation is supposed to come into force on 1st February, but the Minister said that that is likely to be delayed. In either case, we know that the end period will he 1st October 2000, when the Human Rights Act comes into effect. We welcome that period within which individual; who are affected by the provision can make an application.
My first concern relates to the regulations which are designed to assist those who want to make an application. However, it does not ensure that overstayers who have already taken steps to regularise their position will not lose their right of appeal against 62 any decision to make them leave the country. Perhaps I may explain what I mean by that. The order provides that people who apply to the Home Office during the regularisation period envisaged, between 1st February and 1st October 2000, will retain whatever rights of appeal against deportation they have at present under the 1971 or 1988 Immigration Acts. But people who have already applied before this period was set up and whose applications are refused after 2nd October 2000 when Section 10 of the Immigration and Asylum Act is planned to come into force, will not keep appeal rights.
It is ridiculous that people who applied not within that particular period but before it will have no appeal rights. I therefore believe that there is a need to be able to amend the regulation so that such rights are preserved. I have in mind a provision to the effect that the Secretary of State shall deem any overstayer who had applied to the Home Office before the commencement of that period, and whose application has not been decided by the end of it, to have applied under the scheme. In other words, it will assist those people who made an application before 1st February 2000.
Secondly, the Human Rights Act comes into force on 1st October 2000. Will the Minister assure us that anyone who fails in his application to regularise the status of his entitlement to enter or remain in the United Kingdom, which is in breach of the Human Rights Act, will be allowed to apply to the adjudicator against that decision?
Under paragraphs 4 and 5, the applicant is required to make the application in writing. One of the pieces of information requested under paragraph 4(c) is the name and address of any representative who is acting on behalf of the applicant. I have no problem with that, but I think that the Home Office will do so. Under Part V, Section 84 of the Immigration Act, no person may provide immigration services unless he is qualified. The immigration commissioner must prepare and maintain a register for the purpose of Section 84(2)(a) and (b). Again, we welcome that. We are against those people who exploit immigrants and asylum seekers by charging them exorbitant fees.
However, we have neither an immigration commissioner nor a list of people who are entitled to provide these services. Yet we know that exploitation takes place. What will happen to a person who makes an application and gives the name of a representative who is not sufficiently qualified to provide the advice? I hope that the Minister will consider such applications sympathetically. It is vital that a list is available to immigrants who are making application under this regulation. If the list is not available, they ought not to be put at a disadvantage. It is not their fault but the fault of the Immigration Service.
My final point relates to the publicity surrounding the regulation. I welcome the Minister's comments about the number of agencies which will be used to publicise the regulation. However, I want to ask some specific questions. Can the Minister produce the requirements of paragraphs 4 and 5 in various ethnic languages? I do not mean merely putting 63 advertisements in ethnic papers or in CABs and so forth. Paragraphs 4 and 5, which require the individual to provide the information, ought to be available to people in their own languages so that they are fully aware. Would the Minister publicise that requirement not only in the ethnic press but on ethnic radio stations and in the media to which ethnic minorities have access? Will he ensure that since the timescale is limited, radio and television is used and that those who provide the service can tell applicants that the information is available in their language?
The Minister will obviously require the judgment of Solomon in some of his decisions on deportation. For example, paragraph 4(a) deals with the strength of the applicant's connections with the United Kingdom; his personal history, including character, conduct and employment record; his domestic circumstances; and any compassionate circumstances. No one objects to that, but it will be to the advantage of the Home Secretary and the Home Office to set up a committee of representatives of minority groups which can advise him on interpreting some of the information. The ethnic minorities are now mature enough to offer sound advice to the Minister. I hope that he can make use of such information because at present many decisions are taken without due consideration of the impact, not only on the individual, but also on the community.
§ Lord Bassam of Brighton
My Lords, I am grateful to both noble Lords for their contributions to this short discussion. I shall try to be as helpful as I can in response to their points. Furthermore, I should like to reiterate exactly what we are trying to achieve with these regulations.
First, I should emphasise that there is no relationship between the very limited scheme permitted by Section 9 of the 1999 Act and the new appeals system contained in Part IV of the Act. What the scheme under Section 9 will achieve will be to preserve the current rights of appeal for those who apply under the scheme for leave to remain during the regularisation period. That point must be underlined and made clear.
I also wish to make it clear that the word "regularisation" should not be taken to mean that the simple act of application will result in an applicant being granted leave to remain. I believe that that point needs to be repeated. All applications will be considered very carefully against the criteria for deportation set out in the Commons Standing Committee debate. If deportation appears to be the proper course, the application will be refused.
Both noble Lords raised several questions. The noble Lord, Lord Cope, asked about the visitor's bond. This will be introduced on a trial basis. It will not be brought into effect in time to affect anyone applying under this scheme. The proposal itself is contained in Section 16 of the 1999 Act.
64 The noble Lord, Lord Dholakia, raised a question relating to the powers under Section 9. As we understand the legislation, under Section 9 of the 1999 Act it will be only those overstayers who make a specific application during the prescribed period and in the prescribed manner who will benefit from the scheme. Section 9 makes no provision for applications to be made outside the prescribed period or for applications to be deemed to have been made.
The noble Lord also raised a question about human rights appeals. Applicants will of course be able to bring judicial review proceedings raising points of human rights after that legislation is introduced on 2nd October. The noble Lord asked about lists of approved representatives. At this stage we cannot provide such a list. The relevant section of the Act is not yet in force and therefore we are unable to do so. The noble Lord made the point that Ministers may get into trouble if they need to exercise the judgment of Solomon. I take the point made by the noble Lord, but the factors listed by the noble Lord are to be found in the immigration rules and must be exercised daily by caseworkers in the IND and by immigration officers. Our staff are making difficult judgments. On their behalf, I am happy to accept the compliment paid to them by the noble Lord.
We have introduced this scheme in response to understandable concerns about the position of overstayers when the new removals procedure commences in October of this year. It has been welcomed, although some feel that it does not go far enough. Unless there has been a misunderstanding, I must return to the point that there is no provision for amnesty. While I do not in any way imply that noble Lords have raised this issue, it has been raised elsewhere. I should like to clarify that this is an appeals process, put in place in recognition of an issue raised by Members of all parties during earlier debates on the legislation. We shall make no distinction in favour of those who apply.
Overstaying must be seen as an offence. It is just as unlawful as illegal entry. While I recognise that some overstayers may deserve sympathy for their plight, or perhaps even admiration for their contribution to the community, many have no place here and we have no intention of rewarding them for failing to comply with our immigration legislation. The purpose of the scheme is simply to allow overstayers after 1st October to preserve the rights of appeal to which they are currently entitled, if they so choose. For those reasons, I commend the regulations to the House.
§ Lord Dholakia
My Lords, before the Minister sits down, I have put to him specific questions about the number of applications he envisages receiving from overstayers, what will be the time factor, and further questions in relation to those who have made an application before 1st February. Why do they need to make a further application under these regulations? However, perhaps the Minister would prefer to read 65 Hansard tomorrow and send me the appropriate answers. That will enable me to deal with any further matters at a later stage.
§ Lord Bassam of Brighton
My Lords, I am grateful to the noble Lord. Obviously some parts of the information the noble Lord seeks are more readily to hand than are other parts. The question of the number of overstayers is difficult to calculate because people 66 do not necessarily declare themselves as such. Those figures and statistics are not easy to gather. However, I shall be more than happy to study Hansard and take up with more precision the points raised by the noble Lord.
§ On Question, Motion agreed to.
§ House adjourned at twenty-six minutes past six o'clock.