Paul
Rowen: I accept the Minister’s point, but the
argument is not about those who have indefinite leave to remain, but
about spouses who have been given temporary leave to remain for two
years and have an expectation that, at the end of those two years, they
will be able to apply for leave to remain. If he can assure us that
that expectation is not going to be affected, I will have no problem
with what he
proposes.
Mr.
Woolas: The hon. Gentleman will, I am sure, be satisfied
in a moment. Let me set out the Government’s proposed
transitional arrangements for migrants who have completed the temporary
stage of their journey at the point of the legislation’s
commencement.
The
arrangements broadly reflect the intention behind 39(b). First, any
application for naturalisation that is received by the UK Border Agency
before the earned
citizenship provisions are implemented, and which remains undecided at
that point, will be considered under the existing arrangements set out
in the British Nationality Act 1981. Secondly,
migrants with pending applications for ILR that have been submitted,
but not decided, before the immigration rules are changed, following
the commencement of the earned citizenship provisions, will have their
applications considered under the existing rules. Members will know
that that is often a point in immigration
law.
Damian
Green: My memory of the ILR application laws, off the top
of my head, is that people are all but forbidden from applying until
they are within 28 days of the end of their temporary leave to remain.
Indeed, they are told specifically that an application made before that
period may well be turned down, or something like that. It sounds as
though this concession will affect a very small number of
people.
Mr.
Woolas: This measure is a building block in the
transitional arrangements, so I hope that the hon. Gentleman will let
me outline the other building blocks, and we can then see whether his
point is
made. Those
applicants will have two years from the date of commencement to apply
for citizenship under the existing
arrangements. Migrants
who already have ILR will be deemed to have permanent residence leave,
as is made clear in clause 50(3). Again, those migrants will have two
years from the date of commencement to apply for citizenship under the
existing naturalisation arrangements.
Concerns have
been expressed about the position of those who are nearing the end of
their temporary leave and who, under the current rules, would be
eligible to apply for ILR. Clause 39(a) attempts to address those
concerns. I assure hon. Members that we have given, and continue to
give, thought to the transitional arrangements for that group. Our
dilemma is how to devise arrangements that are rational, proportional
and reasonable, but that also minimise the operational complexity and
costliness of running two systems concurrently. We do not believe that
migrants, as a matter of course, have a legitimate expectation that we
will not change our policy. However, we would like to give the matter
further consideration and return to it at a later stage.
Amendments 43
and 44 would narrow the clause’s scope, as the hon. Member for
Rochdale has argued, although I am not sure that that is their aim. I
think they were meant to make specific points about the transitional
arrangements for the highly skilled migrant programme. They would apply
the transitional arrangements to a very limited group. People who were
here with another form of leave and then transferred to HSMP would not
be caught.
The courts
have ordered us to protect the position of certain HSMP migrants, and
if the amendments are intended to protect those groups, we agree with
their spirit. The High Court has held that all HSMP migrants who were
admitted before 7 November 2006 are entitled to the benefits of the
scheme, including eligibility for ILR after a qualifying period of four
years. If there are migrants for whom a legitimate expectation was
created
by HSMP, who have not yet moved through the system, we will give effect
to the court’s ruling and deal with their applications under the
current system. I hope that
the Committee will accept our good intent on the HSMP route, and my
argument that there is not in all cases in the other routes a
legitimate expectation of ILR being granted but rather the right to
apply. My proposals on the timings for transitional arrangements for
the three routes through temporary leave—particularly the hon.
Member for Rochdale’s point on the spousal route—will be
subject to the detailed proposals that we will bring back to the House
and the other place in order to meet the principle, although not
excepting automaticity, that has been expressed on both sides of the
House. I refer the Committee to the words quoted by the hon. Member for
Ashford from the letter that Lord Brett issued subsequent to the debate
in the other
place. The
transitional arrangements that we will put in place need to take on
board the tests of reasonableness and fairness without moving the
goalposts for the legitimate expectation of the person with temporary
leave. The intention of the person who has applied for temporary leave
is, of course, a different point that cannot be covered by
statute. On
that basis, and with the guarantee that I have made to the House, I ask
the Committee to consider turning down clause 39 if there is a vote so
that we can have a detailed look at the transitional arrangements. I
accept the spirit of the two amendments tabled by the hon. Member for
Ashford; in any event, we are applying through guidance the court
ruling on
HSMP.
Paul
Rowen: The Minister is being very generous with his time.
I accept the point that he is making, but I seek from him clarification
as to the intended timetable, given that protection is removed from the
Bill if we remove clause 39. Is the intention that regulations will be
published while the Bill is still making its passage through both
Houses? Will there be consultation on them so that we can produce
amendments if
necessary?
Mr.
Woolas: I am choosing my words carefully to help the
Committee and not in any way to mislead it. It is my intention that
there shall be a new clause 39 or equivalent so that the House can
agree the principle. The regulations that flow from it would be
introduced after the Bill has completed its passage so that the House
can determine the principle and in order to meet my suggestion, which
has been the practice of Governments of all persuasions, to look at the
particulars through the commencement order and the
regulations. The
difficulty is that in making transitional arrangements for people who
have ILR within a period of time, it is difficult to find comparisons
for ILR—by definition, one could say that a transitional
arrangement could be here ever after. But, of course, we have to
provide reasonable expectation and fairness for the people who have ILR
now, and to ensure that the new system does not present greater
difficulties for them than would otherwise have been the case had the
system not been changed. I believe that that is the point that the hon.
Gentleman is making. I understand him, he and I being neighbours in
God’s own county—if I can put it that way.
[Interruption.] I hope that I have explained
myself, and that I have not just lost the vote with that last phrase. I
prompted something, I know not what.
Mr.
Adam Holloway (Gravesham) (Con): I have been out of the
room briefly, so the Minister may have covered this. Does he consider
that applying changes to immigration rules to migrants who are already
on the path towards settlement is not
unlawful?
Mr.
Woolas: Do I consider that not to be
unlawful?
Mr.
Holloway: Does he consider it to be
unlawful?
Mr.
Woolas: I am not going to answer that question because in
my experience, a Minister who claims that something is lawful or
unlawful without sound and strong advice, ends up costing the taxpayer
a lot of money in legal
fees.
1.30
pm I
understand the principle behind what the hon. Gentleman has said. I do
not believe in retrospective legislation, and I do not believe that
Members’ allowances should be changed during the course of a
Parliament. That is retrospective. Where there is retrospectivity, as
there is in a more liberal way in later clauses to do with children,
that is reasonable. However, I do not agree with it the other way
round. The Whip is urging me to get off the issue of Members’
allowances and get on to public expenditure. I ask the Committee to
accept my point of
view.
The
Chairman: Before I call the hon. Member for Ashford, I say
to the Committee that as far as I am concerned, the Minister has
replied to the debate on amendments 43 and 44. He has referred to a
certain amendment that I did not select, as I believed that it was more
appropriate for a stand part debate. However, he has explained his
position. Although I am happy to offer a stand part debate, if the
Committee wishes it, the Minister has clearly established his position
and, from his point of view, a stand part debate would be a repetition
of what he has already said. However, I am in the hands of the
Committee on this matter, and if it is the Committee’s wish to
have a stand part debate, I am happy to permit one. I call the hon.
Member for Ashford to comment further on his
amendment.
Damian
Green: Thank you, Sir Nicholas, I will respond to that. In
my view, we have given this matter a full airing. It is an extremely
important issue, but there is not necessarily much more to be gained
from a stand part debate. Presumably, the Minister has indicated that
he would like a vote on the clause stand part, as he wants to vote
against it. It is not for me to move the deletion of a clause from a
Bill. That would be an unusual constitutional innovation
[Interruption.] I am happy to adopt it. We could
apply it to various clauses in the Bill.
The
Chairman: Order. May I help the Committee further?
Clearly, one of my duties when we have finished debating the amendments
is to put the question that the clause stand part of the Bill. If there
is a negative answer, the clause does not stand part of the Bill. That
is pretty clear.
Damian
Green: It is extremely lucid and clear, Sir Nicholas. The
Minister has made a potentially important concession—I think
that that is how he described it. He has clearly listened to the wave
of outrage that has come
not only from another place but from many bodies and individuals outside
this place. He has given the Committee an assurance that he will come
back with something better and more acceptable in the future. We accept
that his assurance is made in good faith.
I would like
to check with the Minister that the principles on which his new clause
will be adopted are first, that there is a significant difference
between temporary and indefinite leave to remain, and that that
distinction will remain. Secondly, does he agree that those who have
come here under the highly skilled migrants programme are, partly
because of the legal situation, in a different position to those who
have come by other routes? However—this is a very important
point—those distinctions should not necessarily apply to those
who have already been in the country for some time, even with temporary
leave to remain, and who have a reasonable expectation that they were
on a path to citizenship.
The purpose
of my amendment, and of those moved by my noble Friends in another
place, was to say that those who are coming to the end of a period of
temporary leave to remain will have developed that reasonable
expectation. They in particular deserve the protection of the House
against what they see—not unreasonably—as retrospective
legislation. I agree with the Minister that the principle of
retrospection is normally bad in legislation.
I am trying
to draw out the distinctions, because I think they are important. As
the Minister has said, the Government will propose a new clause, but it
sounds likely that the regulations, which will inevitably contain
important details, will not be seen by either House until the clause
has been passed. By that time, of course, if we discover that the
regulations make the provision unacceptable, it will be too late, so to
some extent we are being asked to buy a pig in a poke. Will he
establish the principles as clearly as possible, so that we can return
to the matter in later debate? In the expectation that the Minister
will be able to satisfy the Committee on those points, I beg to ask
leave to withdraw the
amendment. Amendment,
by leave, withdrawn.
Clause 39
disagreed
to.
Clause
40Application
requirements:
general Question
proposed, That the clause stand part of the
Bill.
Damian
Green: I want to ask the Minister some brief questions
about clause 40, which deals with the application requirements for
citizenship. I shall focus on the categories of people to which the
requirements will apply.
Under
subsection (11), in order to qualify toward naturalisation, the time
spent in this country has to be spent while resident on a certain type
of visa or entitlement, including ILR, Commonwealth right of abode or
European economic area entitlement. Time spent in the UK on a visa that
is limited as to duration will count only if leave is granted for a
purpose set out in the rules made by the Secretary of State, so it is
impossible to know to which categories of people they will apply. There
may well be large numbers of people on certain visas who do not fall
within the category. I hope that the Minister can clear up who and how
many people will be affected.
Clause 40 also
introduces amendments to the number of days that a person applying for
naturalisation will have to have been present in the UK for each year
of their qualifying period. As things stand, a person intending to
qualify for citizenship can be absent from the UK for up to 540 days
during their qualifying period and for no more than 90 days during the
final year of the period. Barring the final year of qualification,
there are no limits on the duration and timing of other absences, so
the person seeking to qualify for citizenship can spend time away from
the UK as and when they need or wish, within the
limit. Clause
40 seeks to impose stricter rules on absence by requiring that a person
must not be absent from the UK for longer than 90 days in each
qualifying year. In practice, that might mean that a person who
consistently remained in the UK for the first two years of their
qualifying period but was absent for more than 90 days in their third
year, perhaps as the result of a genuine family emergency or work
commitment, would thereby jeopardise their application for citizenship.
The change imposes a much heavier restriction on freedom of movement
and might unfairly discriminate, particularly against those who have a
family emergency. Can the Minister provide some explanation?
The clause
also highlights the desirability of having the secondary legislation
flowing from clauses explained and made visible to the House while we
are considering the underlying clauses. The regulations flowing from
the clause might have dramatically adverse impacts on people. The
Minister may well have a perfectly good explanation, but at the moment
it is impossible for the Committee to take an intelligent view, because
we simply cannot know the facts. At the very least, I hope that the
Minister can provide some kind of explanation at this
stage. Tom
Brake (Carshalton and Wallington) (LD): I want to raise a
number of points with the Minister. I know that he is assiduous and
will have noted that we tabled some amendments—amendments 52, 49
and 50—to the clause. He will have done his homework; he will
have the notes in front of him; and he will be able to respond to my
points. The
first point is in relation to amendment 49. I shall read from an
Immigration Law Practitioners’ Association briefing, which has
helpfully been provided. Those who change their status but remain
legally in the UK will be knocked back as a result of the clause. That
is a matter of
concern: “For
example a worker who ceased to work and did a full time degree (for
example a Masters of Business
Administration)” and
then went back to their original status, would previously have been
able to aggregate the two periods as a contributory period, but now
they will no longer be able to do so. That is my understanding. An
explanation as to why that should be the case is required. If someone
is undertaking further studies, which eventually would be of benefit to
UK plc, it seems regrettable to penalise them for doing that. That is
one point that I hope the Minister can respond
to. Another
point concerns the effect of the probationary citizenship stage on
refugees and those granted humanitarian protection. Might there be
circumstances in which it would not be appropriate for
refugees—perhaps as a result of something that they have
experienced in
their country of origin, or for whatever reason—to undertake
voluntary work as part of their probationary citizenship period? Can
the Minister explain the extent to which flexibility will be provided
in such circumstances? We can all imagine a scenario in which someone
having to undertake that active citizenship role might not be
appropriate. Another
query that I hope that the Minister can respond to concerns clarifying
the position on fees for refugees. My understanding is that refugees do
not currently have to pay fees, but if they want to achieve citizenship
at the earliest opportunity, they would seem be liable for some fairly
substantial fees. I suspect that refugees may be in the worst position
possible for settling such fees. I hope that the Minister can provide
some
clarification. My
final point has been referred to by the hon. Member for Ashford, which
is the question of an excess of 90 days. Our amendment 52 tried to
substitute what I believe is the current
arrangement.
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