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The Lord Bishop of Ripon: I support the amendment moved by the noble Lord, Lord Cope of Berkeley. It is entirely right that those who fall into these categories should not be prevented by lack of means from making application, and I am sure that that is a principle that we all accept. As to Amendment No. 13 in the name of the noble Baroness, Lady Williams of Crosby, I am in some confusion as to why fees are being charged. The noble Baroness suggested that it was in order to meet the costs of running the system, which may be the case. But I presume that there is a motive other than simply swelling the coffers of the Treasury. Is one possible motive for charging fees to prevent applications without foundation clogging up the system? I recognise that that may be a proper motivation. Clearly, frivolous applications should be discouraged, and if payment of a fee has that effect clearly that is right. But if that is so the four categories spelt out in Amendment No. 13 will always be ones in which matters of great significance are being considered and, therefore, are never frivolous.
The noble Baroness has already argued the case for applications for asylum and applications made under any international instrument to which the UK has given its signature on the basis of conformity with the human rights legislation. However, those two categories and the other two that she mentioned--application to remain with family members for settlement and applications for further leave to remain to continue studies--will always be significant applications and should never be regarded as frivolous. Therefore, I hope that they will not be regarded as applications that require a fee.
Lord Dholakia: I add my support to my noble friend Lady Williams. She gave the interesting example of the extent to which fees have been charged for visas to people who have already entered this country. I have been able to gather some figures to give an indication as to the trend of passing on the cost of immigration control to those who are least able to pay. One is talking
of family members of ethnic minority communities who are already settled here. Of the 44,360 family members granted settlement in 1997, 12,000 were from the countries of the Indian subcontinent, 5,760 from the remainder of Asia and 10,050 from Africa. One believes that they should not have to pay twice for the same family unity.We tend to forget that people who come here to live, particularly adults who have been educated and trained elsewhere, represent a saving to the United Kingdom and make a valuable contribution to society here. I cite the example of the Immigration and Nationality Directorate. It is not clear whether the fees are now in surplus, but certainly some time ago the total of the fees charged for nationality applications was far in excess of the costs incurred. The last thing that one wants to do, in view of the backlog of passport and immigration and asylum applications, is to impose a further restriction and charge fees that create another administrative procedure which will provide a less efficient and effective service to those who require that particular help.
5.30 p.m.
Lord Falconer of Thoroton: The common thread running through all these amendments is that they seek to relieve certain categories of applicant from paying fees for after entry applications. Amendment No. 12 in the names of the noble Lord, Lord Cope of Berkeley, and the noble and learned Lord, Lord Mackay of Drumadoon, would mean that certain children and young persons and those who are less well off should not be required to pay fees. We have already made clear that some types of application will not attract a fee. Asylum seekers will probably be the largest category. But it is not our intention to remit fees because of the personal circumstances of individuals. In general, the immigration rules specify that applicants who seek entry or further leave to remain here can be supported without recourse to public funds and, in many cases, without working. The rules also contain a list of social benefits, recourse to which is incompatible with the grant of leave to enter or remain.
The amendment moved by the noble Lord, Lord Cope, does not define the terms "insufficient means" or "any benefit" and I cannot accept it on that ground alone. But it would be difficult to compile a list of benefits which was not covered in part at least by those set out in the immigration rules. The amendment makes provision for applications to be considered free of charge if the applicant is said to be unable to pay the fee, when the reason for the inability to pay would, in many cases, be inconsistent with the requirements of the rules and would lead inevitably to a refusal of the application. I suggest that it is not right for the Home Office to incur costs in considering a gratis application which is likely to fail in such circumstances.
On a more practical level, my right honourable friend the Home Secretary is keen to ensure that the staff of the Immigration and Nationality Directorate in Croydon should apply their expertise to considering the relevant immigration law requirements in individual cases without being distracted on issues of whether individual
applicants are required to pay a fee. Indeed, the extra time in doing so would increase costs and fee levels. That is in no one's interests.The amendment also includes a proposal that all applicants below 16 should not be charged for their applications. Whether or not such young persons are in this country as part of a family unit or in their own right, I see no reason why the normal policy should not be applied and the costs of processing the applications be recovered.
I now turn to the first amendment on this clause, Amendment No. 14, in the joint names of the noble Lord, Lord Cope, and the noble Viscount, Lord Astor. Amendment No. 14 would relieve students of the requirement to pay fees. The burden of the amendment is supported in effect by Amendment No. 13 in the name of the noble Baroness, Lady Williams of Crosby.
Paragraph 58 of the immigration rules empowers an immigration officer to admit a person for the length of his course of study if the requirements of paragraph 57 of the rules are met. This provision is to the benefit of all genuine students and relieves them of the need to make an application to the Immigration and Nationality Directorate of the Home Office. So, they would not incur any fees under this clause. It has been suggested that immigration officers do not fully apply this paragraph in the rules. I assure Members of the Committee that the vast majority of students experience no difficulty, but there are bound to be exceptions.
Decisions made by immigration officers reflect the particular circumstances of individual passengers and there could be any number of reasons why students are not given leave for the full period of their course. It may be that, for example, the immigration officer is not fully satisfied that the requirements of the immigration rules have been met perhaps because of a lack of full documentary evidence but is not so dissatisfied that an applicant should be refused leave to enter. Leave may accordingly be granted for a period shorter than the period of the course. I assume that Members of the Committee would prefer that course to be taken rather than the student being refused leave to enter or being detained pending further inquiries. In such a situation, it is right and proper that, before any extension of stay is granted, the Secretary of State is satisfied that the full requirements of the rules are met in the context of an application for leave to remain. Surely it is right that, having been given the benefit of the doubt on entry into this country, individual students should meet the additional costs involved in their satisfying the Secretary of State that they qualify for an extension of stay. There is a cost to the taxpayer in that and I see no reason why students should be exempt from the general proposal that they should meet the cost of their application. I emphasise that that is in the context that most students make their application not through the IND but otherwise, and have leave to stay for the whole of the course which costs them nothing. I am talking only about students who, having arrived, need to apply for variation.
There are other circumstances in which the original grant of leave to enter is not an issue. Some applicants seek to switch into student status after being admitted in another category; some students decide to change their course, and some pursue a series of short courses. Under the terms of the amendment, such applicants would not have to pay. But such applications arise out of choices made by the applicants and I am not persuaded that they should not meet the cost of processing their applications. For all those reasons, I regret that I cannot commend to the Committee the amendment relating to students.
I now turn to the second of the amendments to this clause, Amendment No. 15, in the names of the noble Lord, Lord Cope of Berkeley, and the noble Viscount, Lord Astor, which provides that it should be stated on the face of the Bill that no fee should be paid by asylum seekers or those claiming protection under Article 3 of the European Convention on Human Rights.
The amendment of the noble Baroness, Lady Williams of Crosby, also by implication covers the point. She was explicit that that was one of the matters she expressly seeks to be covered. As she forcefully said, the thrust of this amendment was also recommended by the Select Committee on Delegated Powers and Deregulation and in the memorandum prepared by Justice, which many of noble Lords will have seen. Let me say at the outset that the Government's policy is fully consistent with the burden of this amendment. We have consistently made it clear that we do not propose to charge a fee for considering applications from asylum seekers or those claiming protection under Article 3 of the ECHR. I should make clear that that is consistent with the 1951 UN Convention on the Status of Refugees. When an identical amendment was considered in another place, it was not pressed to a vote. But I am pleased to be able to tell the Committee that I am now in a position to accept the principle behind the amendment that the matter should be included on the face of the Bill. The Government would, however, like to consider further the exact drafting of the addition to the Bill and I undertake to bring a government amendment back to your Lordships' House. With that assurance, I hope that the noble Lords will be able to withdraw the amendment.
I move now to Amendment No. 16 which asks for the Bill to include a statement to the effect that no fee will be payable if an application has been occasioned by a mistake of the Secretary of State. This amendment follows from a suggestion made in the report of the Select Committee on Delegated Powers and Deregulation. I think that it will be clear from the memorandum the Government laid before the Select Committee that we are seized of the possibility that errors may occur and that applicants should not incur additional costs as a result of that. If an application needs to be made purely as a result of an error by, or on behalf of, my right honourable friend, we shall not exact a fee for that application. That is only fair and just. But I do not want noble Lords to think there is a large problem here. Clause 4(3) of the Bill already provides power for no fee to be prescribed in certain circumstances. I do not believe that it is necessary for
such a provision to be included on the face of the Bill. This is not generally done. I have made our policy position clear and I should make it clear that the Home Office has no monopoly within the public or the private sector with regard to making an occasional error. We shall ensure that when fee regulations are made, appropriate provision is made to deal with errors which may occur. This would substantially comply with the suggestion from the Select Committee that applicants should not lose out through an official error. I hope that the Committee feels able to accept this assurance from me.Lastly, I turn to Amendment No. 13 in the name of the noble Baroness, Lady Williams of Crosby. I have already addressed some parts of this in the context of other amendments. The facets not already covered involve the suggestion that applications made under any international agreement which the United Kingdom has signed should not incur a charge and that applications from family members should likewise be free of charge. I am not sure whether the noble Baroness has particular international agreements in mind, but our position on those normally involving immigration--the refugee convention and the ECHR--is abundantly clear. For an Act of Parliament to guarantee a service without charge for applications under any international agreement to be signed in the future is, I think, going too far and I do not think that the Committee would wish to legislate along those lines. I submit that it is better for the matter to be left to secondary legislation.
On the question of dependants, this could apply to minors or adults. The general position in the immigration rules is that those seeking settlement as dependants have to be supported and accommodated by their sponsors. One must suppose that there is to be a benefit to both the applicants and their families in their being allowed to stay in this country. If part of the cost of the family members staying here is the immigration application fee, that, I suggest, is a cost which legitimately falls to the family rather than the taxpayer. More importantly, however, noble Lords will want to bear in mind that people who wish to come to this country to settle need an entry clearance for that purpose. Dependants with entry clearances will be granted indefinite leave on arrival and should not need to apply for further leave. So no costs under this clause would apply. It is important not to encourage any circumvention of this requirement by allowing applicants to come to this country in another capacity without entry clearance and then seeking to settle without paying an appropriate fee.
I am corrected by officials in relation to one point. In relation to those students who apply in advance, I said that most students pay nothing. They pay nothing on entry, but some will have paid for an entry clearance either voluntarily or because they are visa nationals and require one. So I should correct myself on that point.
I was asked what the charges will be and whether the full cost of the service will be recovered. It was suggested that it is quite wrong, as a matter principle, that entrants should pay for computer contracts that go wrong, for example. I do not know the answers to those questions, so I will write to the noble Lord.
I invite the noble Lord to withdraw the amendment. I invite the Committee to reject it as the Government will introduce an amendment to place on the face of the Bill the principle that fees will not be required when considering applications from asylum seekers or those claiming protection under Article 3 of the ECHR.
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