Borders, Citizenship and Immigration Bill [HL]

My Lords, as the noble Lord, Lord Avebury, pointed out, this amendment replicates the amendment we discussed in Committee. Various comments were made and concerns expressed at that stage. I hope that I can answer them in this reply. I am sympathetic to the spirit behind the amendment. I agree that the requirement that a migrant on the work route must be continuously employed should not be interpreted rigidly; that is why we have the discretion to waive this requirement where appropriate. The Government recognise that it is in no one’s interest to refuse people who for the vast majority of the time have been contributing to the UK if they are subject to a relatively brief period of unemployment. I wrote to the noble Lord, Lord Avebury, setting out details of what "continuous employment" means. I hope that he and the other noble Lords have had chance to read that correspondence. I will summarise the position. This requirement is wholly consistent and underlines the Government’s clear policy that migrants who enter via the work route—for example, tiers 1 or 2 of the points-based system—are here to work or to be economically active. This is what the points-based system makes clear. To respond to the points raised in Committee, I was grateful to the noble and learned Baroness, Lady Butler-Sloss, for raising the point that "continuous" is not same as "continual" and to the noble Baroness, Lady Miller, for reading us part of the UNISON briefing which asserted that "continuous employment" is a specific legal term that means that in the majority of cases an employee must be working for the same employer in order to qualify. The question was asked whether continuous employment means continuous employment with one employer. I confirm that it does not. We are absolutely clear that a person can meet the continuous employment requirement in the earned citizenship clauses where they change job, or types of job, or self-employment during the qualifying period. That will not be a disqualification. Within our guidance, which we are continuing to develop taking into account the helpful points raised by noble Lords in Committee, we will explain that a person need not have had the same employer throughout the qualifying period or have remained in the same business where he is self-employed. We will ensure that any definition of continuous employment takes into account the position of certain groups, such as entrepreneurs who may be company directors and therefore not technically employed. I was asked for further detail on how we exercise discretion to waive the requirements for individuals to have been in continuous employment. I reiterate that we expect that any discretion will be exercised sparingly and in deserving cases. However, as I said, the Government recognise that it is in no one’s interest to refuse people who, for the vast majority of their time here have been contributing economically to the UK. In assessing whether to apply discretion, we would take into account a number of factors, including the person’s overall employment record while in the UK; the length of time for which they have been out of work; and the explanation or evidence offered by the individual. I think that that deals with several points raised by the noble Lord, Lord Avebury, about redundancy and bankruptcy, which is not necessarily anything that the individual migrant worker has any control over. A key point raised in Committee was how overseas domestic workers could be affected by the continuous employment requirements. As we confirmed, continuous employment does not need to be with one employer. We committed in our response to the Visitors Consultation to preserve the current arrangements, which can be summarised as follows. Overseas domestic workers in private households will remain a separate category outside the points-based system, while private servants in diplomatic households are included in the international agreement sub-category of tier 5. So we have two groups: those in domestic diplomatic households, who are covered by an international agreement on tier 5; and a separate category for domestic workers. We are committed to preserving that existing separate route for overseas domestic workers and the protection that it affords; and we will review it as appropriate after two years of operation of the new immigration system. We will also want to allow the anti-trafficking strategy to be properly road-tested. All overseas domestic workers currently have an avenue to settlement in the UK after five years’ continuous employment. Overseas domestic workers in private households will, under requirements for obtaining probationary citizenship in this category, still be able to leave their employer and seek alternative work with another employer. That continues to enable domestic workers from overseas to remove themselves from abusive situations. Clause 39(7) gives discretion to waive the requirement to have been in continuous employment. We will carefully consider the exercise of that discretion, particularly in cases where overseas domestic workers have left their employment due to abuse. I hope that the assurances that I have given noble Lords will allow the withdrawal of the amendment.