Immigration Speech

Speech delivered on Tue 13th May 2008

I beg to move that the Statement of Changes in Immigration Rules (House of Commons Paper No. 321), a copy of which was laid before this House on 6th February, be disapproved.

I want to make the case that the Home Office must start again. I shall argue that the rule changes will involve injustice to many individuals, including some child victims of trafficking, whom the Government are pledged to help. The changes will introduce automatic penalties for breaches of rules which, in the view of the Liberal Democrats, will prove to be counter-productive-far from saving official time, they will mean more appeals to the courts. The essential issue is whether people who breach entry rules, perhaps by making a mistake, or whose agents breach entry rules, must pay for that with an automatic-I repeat, automatic-ban on the right to reapply for entry for at least a year and for up to 10 years, regardless of circumstances, regardless of fault, regardless of understanding. As far as I know, the Home Office has yet to win the plain English prize for Government forms.

The Government say in their explanatory notes that this is about penalising deception, but deception implies that the officials concerned understand intention. One of the most difficult things to prove in any court of law is what is going on inside the defendant's head. It is certainly no more possible to infer from a potential immigrant's mistake on a form that he or she is deceiving people than it would be fair for me to accuse Home Office Ministers of deception every time their Department made a mistake. Of all Departments of State, surely the Home Office-found, only this week, to have the lowest capability level of any Department-ought to understand better than most the difference between an honest mistake and a deception.

The proposed change is a serious matter, which will involve injustice and hardship. A mistake will lead to exclusion from this country for one year or more, which may mean separation from family, friends and, in some cases, employment. Imagine someone who has lived in this country for some years with a partner and children. He or she may have overstayed, and may now wish to regularise the stay. His adviser would now say "Come clean, depart voluntarily and reapply on the basis of continuing family life", but he will be excluded for at least one year, and possibly up to 10 years if there has been any previous deception.

What an extraordinary incentive for people to remain undercover and not to regularise. What an appalling prospect for a person's partner and child if he or she tells the truth and comes clean. What a potential infringement of the Human Rights Act, and of article 8 of the European convention on human rights on the right to family life. The Liberal Democrats are waiting eagerly to hear whether the Minister can make a concession on this, at the very least.

The proposed change entirely contradicts the expressed desire of Government policy to be compassionate with victims of child trafficking, outlined by the Minister's colleague, the Under-Secretary of State for the Home Department, Mr. Coaker, in a recent debate on the ratification of the international convention. During that debate, on 18 January, Members in all parties spoke eloquently of the need to tackle human trafficking, particularly child trafficking, and to stand up for its victims.

On 19 February, in evidence to the Joint Committee on Human Rights, the Minister conceded that there might be a need for "carve-outs" to protect children and victims of human trafficking. The Children's Commissioner wrote to request that he include an

"exception for those who were under 18 at the time of the breach".

However, the Minister replied that the concern over trafficked and asylum-seeking children had been answered by the concession that delayed the implementation of the changes until 1 October. That is plainly wrong. How does the concession help children brought here by traffickers, who will in future be subject to re-entry bans for varying lengths of time because they entered the country illegally, although they were effectively kidnapped? They are least likely to be able to afford their passage home, and may therefore be subject to more severe penalties.

What will happen to a person who used to live in the United Kingdom with his or her parents? If the parents overstayed, or used deception in that person's application when he or she was a child, that child will not be able to come and study in the United Kingdom without being subject to a blanket re-entry ban for offences of which he or she is completely innocent. In the extraordinary, discretion-free world that the Government are creating, the sins of the parents, of people-traffickers or of the person who is trying to take a child away from danger to sanctuary in the UK-albeit illegally-are visited on the child. I cannot believe that that is what the Minister intended, and I urge him to amend the rules to exclude offences committed when the person concerned was under 18.

Let me cite another case. Recently, the chief executive of the UK Border Agency told her officials not to be so silly when they were about to remove three students; the students had wrongly filled in their applications to extend their stay, and were branded "overstayers". The lack of discretion in the new rules means that that second chance would now be entirely impossible. Indeed, the mistake may now also be viewed as deception and the students be banned from returning and completing their course, or from undertaking postgraduate studies. That is an arbitrary and extraordinary imposition, and a terrible way to make friends and influence people who may return to their countries and in due course become people of influence and position.

This is likely not just to involve injustice and hardship, but to prove counter-productive in streamlining the immigration procedures. Of course, we can understand the Minister's logic. The Minister is a former management consultant; he understands these problems. Officials are human, and to err is human; therefore, officials err. It is an ineluctable logic-although when it was first expounded I doubt that anyone had in mind the spectacular capacity for human error recently perfected by the Home Office. After all, such a large proportion of decisions are overturned on appeal-in asylum cases, for example-that it must be intuitively appealing for discretion to be removed entirely from the process.

This is immigration rulings by rote; there is no room in these rules for any discretion. It does not matter whether someone has overstayed by one day or 10 years, or whether they have made a typo on a form or they have used false documents. That rigidity and automaticity will not save official time, however. We Liberal Democrats contend that it will prove counter-productive because more and more cases will end up in the courts and there is no evidence that the UK Border Agency is capable of handling them because, extraordinarily, there was an abject failure on the part of Ministers to consult on these matters before tabling their proposals in February, and because, most bizarrely of all, the changes are regarded as too trivial to merit an impact assessment. Why then are Ministers coming to this House and undertaking such trivial changes, and failing to concentrate on serious matters that deserve their attention? If, as we contend, these matters are far from trivial, why is there no consultation and no impact assessment from either the Home Office or the Ministry of Justice, when the courts system may well have to bear the fall-out and sweep up the mess?

The Government should withdraw these changes, at least until those assessments have been undertaken and they know what they are doing. At the very least, we need a provision for the exercise of discretion in cases of minor and inadvertent breaches and we need exceptions for children, people who have been trafficked and asylum seekers.

I have attempted to show that the rules would lead to significant injustice. Children, who most need our protection, would be denied it and potential immigrants would be discouraged from regularising their position because it might mean, de facto, the break-up of their family and the loss of their job. Automaticity will not only prove to be a poor handmaiden of justice, but it will lead to increasing numbers of appeals against arbitrary and insensitive official decisions. We conclude that the measures will not even deliver a reduced burden on the officials concerned, who will find themselves increasingly often in court.

For all those reasons, we beg to move that the measures be now disapproved