Immigration, Asylum and Nationality Bill

My Lords, I thank the Minister for being as good as her word and letting us have the Home Office consultation on the points-based system before we came to Third Reading, although I obtained a copy only on Thursday evening—I would have liked longer in which to study it and to consult others. A great many questions still remain unanswered, as we have heard from the noble Baroness, Lady Warwick. I do not think that we have enough information to assess how the system is likely to work; nor do I think that anybody could have taken up the Minister’s invitation in col. 534 of the Official Report to submit examples of wrong decisions made under the existing system that would not have been dealt with correctly under the new one. We have still not been told what points will be awarded, except in tier 1 and tier 2. Nor have we been given any details of the financial securities that will be required of applicants coming from certain unidentified countries, particularly those who have certain unspecified characteristics. If the Minister would care to fill in those blanks, we could see what could be done to provide her with comparators. Of course, by that time it will be too late for us to do anything about it. Under the points-based system, decisions on entry clearance and leave to remain are supposed to be based on objective criteria only. As the noble Baroness, Lady Warwick, has said, there is no such thing as total objectivity. In those cases where the decision is made entirely on the facts, the necessity for appeal is eliminated; we concede that. An offer from an approved institution will be a proxy for intention and ability to study, backed by the sponsors undertaking certain responsibilities for the student while in the UK. There is an equivalent duty on employers when the application is for entry clearance to work. That is, as the noble Baroness has said, a marked improvement on the present system, although as we already have a register of bona fide universities and colleges I still do not understand why this scheme could not have been realised in the educational sector by changes to the Immigration Rules, as I suggested at an earlier stage. In the Minister’s letter to me of 23 February, she said that it could not be done until,"““the system of sponsorship is up and running and underlain by certain clearly defined responsibilities for institutions and appropriate monitoring and compliance functions within IND””." If the institutions’ offer of a place is to be treated as a proxy for intention and ability to study—as we agree it should—what more will be required of the institutions? The new document says that pilots are running at 30 institutions, which are required to report non-enrolment or discontinuation of studies by any overseas student to whom a place is offered. I assume that this will include special provisions for recording any who drop out temporarily for reasons of ill health or bereavement, for example. Is it the intention to use this reporting system to identify and return those who use the offer of a place to gain entry for some other purpose? Do the Government have any reason to believe that, with fees at their present high levels, this is a problem? Or are the pilots meant simply to confirm, statistically, that where particular institutions offer places the students normally comply with reporting conditions and complete the courses? The new document does not explain how the two classes of educational institution, A and B, are to be defined, and on what criteria the number of points each will attract is to be determined. There is even greater uncertainty over how the applicant will demonstrate that he has sufficient funds to cover fees and living expenses. The document does not say so but, although an applicant is awarded points for the amount of money that he can produce up front, there must be a subjective element in assessing whether he will be able to sustain himself for the duration of his course. With regard to the financial securities that will be required of those whose personal circumstances or migration route suggest that they present a higher risk of breaching the Immigration Rules, the Government say that they have listened to the objection—raised, for example, by the NUS—that demanding securities will make it harder for students from the poorest countries to come here. They will therefore require securities only where objective evidence shows that taking a particular route or belonging to a particular class means that migrant students are disproportionately likely to breach immigration conditions. It is only too likely that the routes in question will be taken by those from poor countries. Although the procedure may reduce the overall number of students who breach their conditions, it may also skew the overseas student population towards the richer countries. What does the document mean by ““personal circumstances””? Is this related to the financial circumstances of the student or his family, so that if, for instance, he has no bank account or his parents are both unemployed, he will be disqualified? That is one of a great many uncertainties that remain. If the Government insist on introducing these financial guarantees, why could they not do so under existing rules? Rule 57(6) already requires that a student should be able to,"““meet the costs of his course and accommodation and the maintenance of himself and any dependants without taking employment or engaging in business or having recourse to public funds””." At the moment, the published Immigration Directorates’ Instructions add nothing on how to assess the applicant’s ability to satisfy this condition. Here is another area where pilots under the existing rules could have allowed different criteria to be tested before the new system goes live. I would like to know from the Minister why that was not done. An objective test of the student’s ability to support himself could be implemented now; it would enormously reduce the number of appeals under the existing system. That brings me to the question of how long it will be until the points-based system is introduced. We have an amendment to Clause 62 saying that Clause 4(1) should come into force on a date to be appointed by affirmative resolution, as my noble friend has already explained. That is to ensure that the transition is properly managed and properly monitored by Parliament. I believe that it has been said that the timing would not be the same for the different tiers. However, if in each tier the proposed tests are first applied under the existing rules, there should be no problem. Tier 1 should be extremely easy to cope with because it does not rely on sponsorship, and tier 2, for skilled migrants with a job offer, could be the next, since there is already a provisional scheme for the points—as we read in the document that we have now been given—which could be read across into the rules. I have a couple of questions about the inclusion of ministers of religion in tier 2. First, would they be required to show competence in English, as in tier 1, and how would that be assessed? Secondly, although the treatment of prospective earnings as a material factor in gaining admission may be appropriate in other occupations, it is not necessarily appropriate for ministers or priests, whose value is not measured by their incomes. How will the system treat Buddhist monks who do not earn or handle money? I declare an interest as a patron of the Buddhist prison chaplaincy. For tiers 3, 4 and 5, it may be a long wait, which is why we on the Liberal Democrat Benches have been so desperately concerned to do something about the shocking defects that have been identified in the existing system by the previous monitor on entry clearances, Ms Fiona Lindsley, as we emphasised both in Grand Committee and on Report. We had hoped to see her final report—the first draft of which she submitted before she left office at the end of November last year—before this debate. The Minister told me in her letter of 23 February that the final draft was submitted in late January—I believe that it has now been narrowed down to 23 January—and that arrangements were being made to lay the report before Parliament. Seven weeks later and after several inquiries behind the scenes, including a personal approach to the noble Lord, Lord Triesman, followed up by a letter the same day and a Question on the Order Paper, Ms Lindsley’s report still has not appeared. I am very unhappy that the Government have avoided a discussion on the recommendations that she has no doubt made on improving the present system, particularly as we now hear that the new system may not be introduced until 2008, which means that we shall have to cope with all the defects in the current system for at least another two years. Finally, I wish to make a couple of remarks about a meeting that the Chinese community had with the Minister, Mr Tony McNulty, about which I heard only just before I came into the Chamber. As your Lordships will recall, on previous occasions we have discussed the particular problems that arose with the Chinese community. I am very grateful to the Minister and her colleagues for the thorough way in which they discussed those with the representatives. However, at the meeting with Mr McNulty, the issue was raised that chefs were unlikely to have any formal qualifications. The Minister said that he recognised that chefs were not specifically addressed in the Command Paper and that it would be wrong to have a system that excluded ethnic cuisine chefs. He said that there would be a skills advisory board specific to each   sector and that the Chinese and Bangladeshi restaurant communities would be consulted on issues of experience and remuneration levels and whether the relevant job was considered a shortage occupation. Incidentally, that is where I got the 2008 date from, because that was what Mr McNulty told the representatives. We had not heard that from any other source, so far as I am aware. It is a pity that we did not know earlier that there would be this long delay before the roll-out. The Chinese community expressed concern that the abolition of the sector-based scheme would create serious problems for the low-skilled workers category. The Minister acknowledged that and said that the solution was for them to talk to his team about the issues of remuneration, qualifications and shortage occupations. He went on to explain that,"““for the new business to the work permit system, then if approved as sponsor, will always be on the A list””." I did not express that very well, but that is how the briefing is phrased. I think that it means that every person on application would be classified as being on the A list until there was any information leading the department to think that they were not reliable employers. Again, that is something that we had not heard before—that new applicants, if they had not been involved in employing people from overseas previously, would always be classed as being on the A list until there was some reason to suppose that they were not reliable. That illustrates that even at this late stage people are still discovering a great deal of the detail about how the points system will work, which we might have been told at an earlier stage to our great advantage. On our amendment, the best that I can do is to quote Mr Donald Rumsfeld, who said, ““We know there are known unknowns; that is to say we know there are some things we do not know. But there are also unknown unknowns—the ones we don’t know we don’t know””. That is why we believe that the Secretary of State should have this power. It may never have to be used if the system is as wonderful as Ministers claim, though one of the knowns is that returning residents who have been abroad for more than two years for legitimate health or family reasons may now be excluded from their homes for ever under this scheme. We say that it is impossible to prove that every decision will be a matter of simple arithmetic. The partial description that we have of the points system leads us to conclude—as the noble Baroness, Lady Warwick, has said—that subjectivity has not been entirely excluded. It is only sensible and reasonable, then, to have this power in reserve.