Immigration (Leave to Enter and Remain) (Amendment) Order 2010

My Lords, I start with the order which facilitates entry, as the noble Lord explained, into the UK by non-visa nationals who are lawfully entitled to enter by extending the automated gate system already in operation at certain UK airports for granting leave to enter. People coming in under this order will get prior authorisation by an immigration officer and will then be granted six months’ leave to enter as they pass through the automated gate. They will no longer receive, as the Minister explained, a printed notice at the time of entry because the printing system currently in use frequently goes wrong and is put out of action for all other entrants until an engineer rectifies it. I shall come back to the question of the printed noticed no longer being made available to the person who is given leave to enter in a few minutes. The assumption, I suppose, is that only people unlikely to abuse the system will get through the checks by UKBA staff— but there will always be some exceptions and if someone remains, for example, beyond the permitted six-month limit and is stopped by the police for a reason not connected with his immigration status, how would the officer be able to verify that he is within his permitted leave to remain? He will no longer have the date on the written statement. There may be other circumstances in which a person is required to prove the, ""manner and date of his entry into the United Kingdom"," as provided by the amendment to Article 9 of the Immigration (Leave to Enter and Remain) Order 2000 made by Article 5 of this 2010 order. Again, it is not clear how this can be done without some kind of record. The amendment to Article 9 treats the legal requirements as if they apply equally well to the new gates as to the current methods of entry. However, in other entry methods the passenger always has either a stamp in his passport or a print-out from one of the old-style gates. This order ignores that difference. If later there is any dispute or query about the person’s entry to the UK, the passenger, like others, is still required to prove the manner and date of his entry in circumstances where, unlike the rest of the entrants, he is given no means of complying. When he comes to reply, I hope the Minister will explain how that problem will be solved. Secondly, why did the UKBA decide on a next-generation scheme based on face images when there is already an iris recognition system in operation at all Heathrow and Gatwick terminals as well as at Birmingham and Manchester? Would it not have been simpler to have one method of verifying a person’s entitlement to enter through automated gates? As I understand it, there will now be two different systems in operation for different categories of entrant. Thirdly, in relation to the IRIS system, the Minister said in the Delegated Legislation Committee in another place that capacity was the reason for requiring re-registration by persons who had not used the system for longer than a given period. That system was due to improve, implying that at some point in the future the requirement could be dropped. Can the Minister give an estimate of when that point is likely to be reached? The £9 million cost of the ACS plus gates was paid for, we are told, by BAA. The Minister in another place told the Delegated Legislation Committee that that was in recognition of the benefits to the passenger. Is there not an inconsistency between making the ACS plus system free when services to providers by the UKBA for all passengers who are not entitled to come through automated gates are charged, in many cases at well over the rate needed to recover the cost of the service itself? If we are now looking to ensure that services enabling qualifying travellers to enter the UK are all self-funding, why exclude the automated gates, which in general are used by those who can well afford to pay? In addition, there was a cost of £1.4 million to install the IRIS system, which was paid for UKBA, plus an amount for the enabling background which is said to be commercially sensitive but which nevertheless the Minister said would be released as soon as possible. Has that moment now been reached? Can the Minister explain why this one element should be kept secret when the other components have all been published? If the IRIS system is highly reliable, as I understand, I underline the question of why we need two different recognition systems to operate at all our airports. I turn to the regulations. We were concerned at the extent of the powers given to the Secretary of State in Section 42 of the 2004 Act, mentioned by the Minister, to prescribe fees that are above the administrative cost of providing the service in question. That has enabled the Government to cross-subsidise to an extent that is unfair for certain users, and Parliament has no controls whatever over the levels charged in practice. We agree with the principle of cross-subsidisation while objecting to a particular charge, but we have to accept the package as a whole or vote against it, as my honourable friend did in another place. We would then have to oppose all the fees that are being charged, while certain of them may be perfectly acceptable. We also deplore the fact that while all fees have risen steeply since 2004, many people are not being given an adequate standard of service by UKBA. If we are asked to approve these fees, there should be some guarantee of service standards, including, for instance, the timeframes within which applications are processed. UKBA continues to fail to meet its own timeframes, and it considers that it has done a good job if it makes decisions promptly over an arbitrary percentage of cases, as set out in the customer charter. The Minister in another place said: ""We are on track to be within all our service standards in all the key areas of work by March".—[Official Report, Commons, Seventh Delegated Legislation Committee, 24/2/10; col. 16.]" but he means a percentage of cases being dealt with inside the timeframe, not 100 per cent. There should be timeframes for deciding 100 per cent of the cases and, if deadlines are missed, there should be refunds to the individuals concerned. A related point is that where a decision is taken after the change in rules on an application made before the change, and the application met the old rule but not the new one, the UKBA should at least refund the fee. Preferably, though, the fair way to handle those cases would be to abolish retrospection entirely and to treat the application as being valid if it meets the requirements of the old rule, despite the fact that it was processed after the new rules had been introduced. Just as the noble Lord, Lord West, said in the context of the fees orders that historical legislation needs to be made easier to understand, the same should apply to the regulations. The Minister said that the consolidated fees regulations were available on the OPSI website, but I was unable to find them in the time available, so they are not very easy to access. Perhaps we simply need an improvement on the website concerned. In the impact assessment, the net benefit of the increased charges, after taking into account the expected reduction in the number of applications and the loss of income from migrants who will be deterred from coming into the UK, is given as £109 million. The accompanying text says that the projections made are regularly reviewed. Can the Minister provide a table of previous impact assessments, with the actual changes in the year after the increased charges were imposed, so that we can assess the accuracy of the forecasts that were made? On the particular increases which are now being imposed, how did the actual fees income in the most recent period for which the figures are available compare with the costs of providing the services? Are these increases, which are expected to generate an extra £147 million from immigration and visa fees, intended to restore break-even, as the noble Baroness was inquiring, or is the intention to make a profit on these activities? The fee charged for application for registration as a British citizen of a child born abroad to a UK mother and foreign father is kept for the time being at the £540 set last April. I take it there is no intention to put it up again this year, because it is not mentioned in the regulations. So far, since these children were first allowed to register—but only if they were born after 1983—almost 17,000 of them had done so. If all had been charged the £540 fee currently imposed, it would have cost them a total of £9 million. The children of foreign-born mothers and British fathers born over the same period got their citizenship for nothing. Now, the 1983 cut-off date has been abolished, but those who waited the longest for the gender discrimination in this part of our law to be removed will have to pay the full whack. That is manifestly unreasonable. My honourable friend the Member for Oxford West and Abingdon raised the question of the fee for a dependent relative settlement visa, which is being almost trebled from £585 to £1,680—that is about six times the cost of providing the service. He got no explanation from the Minister as to why the dependant should have to pay two and a half times as much as the head of household when the latter is working and the dependent relative may well not be. Similarly, the fee charged to a dependent relative for indefinite leave to remain is going up from £820 to £1,680—a little under five times the cost of providing the service. In his reply, the Minister said he had to judge which fees should be set at cost, and which should be set marginally above that level. Five or six times the cost is not "marginally above", and we are entitled to a more rational and detailed explanation as to how these enormous increases were calculated. The Minister agreed to look at my honourable friend’s point that more women were dependent relatives than vice versa for the primary applicant. The public sector equality duty in Clause 148 of the Equality Bill, which we have been discussing, applies to the exercise of immigration and nationality functions as defined in paragraph 2(2) of Schedule 18, including the immigration Acts on which these regulations depend. If the Minister’s inquiries show that there is gross gender disparity between primary and dependent visa and ILR applications, how will the Government bring these regulations into conformity with the public sector duty? The Minister has just written to those who took part in the debate in another place. Among other things, he said that this would be explained in the impact assessment, and he gave the relevant web address. However, when I came to look it up I saw that the impact assessment gave no details at all about the relative numbers applying in head of household and dependent relative categories. On page 8, it says that there were no results in the evidence base, and no results were annexed to this impact assessment. I am afraid that the letter from the Minister to my honourable friend in another place was a little misleading. Finally, we are concerned about the absence of any power to permit the waiver of fees in specified circumstances for in-country applications, coupled with the limited classes of exemptions. My honourable friend also raised that matter. It is not a new feature of the regulations, but there is a general power of waiver for entry clearance applications, and there is no logical difference between the two classes. It is estimated that several hundred thousand irregular migrants are living in the UK. Some of them would like to submit applications to regularise their stay on grounds of long-term residence and family connections built up here over the years, but cannot do so because the payment of the fee specified for the application is well beyond the means of anybody who is not working, including those who are prohibited from working. If the person in that category has a job at all, it is in a low-paid and probably casual occupation. If the UKBA catches up with him or her and seeks to deport them, only then can they invoke Article 8 and—if successful—acquire the right to remain without payment of any fee. Surely it is perverse to make the assertion of a human right and the waiver of the application fee conditional on going through arrest and detention while the claim is considered. The Minister, in his reply to my honourable friend on that point, argued that it would be unfair to make the taxpayer foot the bill for applications made by irregular migrants who were advised that they had a good Article 8 case. In fact, the taxpayer will be liable for a much higher bill for the costs of the arrest, detention and court proceedings when the migrant is detected, which might have been unnecessary if he could have tested his right beforehand. The courts have already limited waiver powers in immigration and appeal cases in which the applicant is destitute; the same procedures might be applied in looking for applications for waivers in such cases. There would be severe penalties if a person made a false statement in asking for a waiver, as there are for other statements made by the applicant. In coming forward and asking for the application fee to be waived, a person makes himself visible to the UKBA and—if he does not have a good Article 8 case—for subsequent arrest and detention. More irregular migrants would have been detected and removed as a result of exercising such a waiver, which is supposed to be government policy. Far from wanting to discourage in-country applications, we would like to encourage long-term irregular migrants with solid Article 8 cases to come forward and submit them so that they can get on with their lives, either here if their claim succeeds or in their country of origin if it fails. Either way, it is a better solution for both the migrant and the taxpayer. We urge the Minister to consider that point seriously.