Immigration and Nationality (Fees) (Amendment) Order 2024

Considered in Grand Committee

16:07:00

Moved by

That the Grand Committee do consider the Immigration and Nationality (Fees) (Amendment) Order 2024. Relevant document: 3rd Report from the Secondary Legislation Scrutiny Committee (special attention drawn to the instrument)

My Lords, this order has been laid to introduce a power to charge a fee for UK visa qualification equivalency and English language proficiency assessment services, and to set the maximum fee that can be charged. For noble Lords’ benefit, I will provide some background to the fee structure we currently have in place. For the Home Office to charge for immigration and nationality functions, the Immigration Act 2014 requires that fees must be set in secondary legislation. The Immigration and Nationality (Fees) Order 2016, an amendment to which we are discussing, sets out the functions for which a fee can be charged and sets the maximum fee that can be charged. Fee levels are subsequently set in separate secondary legislation—the Immigration and Nationality (Fees) Regulations 2018—which is subject to parliamentary agreement through the negative procedure. The fees for the services we are seeking to regulate are for assessments used on certain visa and nationality routes, including family, skilled worker, settlement, and student routes, where that route requires an applicant to demonstrate proficiency in the English language at a specified level or that they have gained a qualification that is equivalent to one obtained in the UK. There are a number of ways in which the English language proficiency test can be taken, using an academic qualification obtained in English and awarded by an educational establishment outside the United Kingdom. Where an applicant is seeking to demonstrate that they have gained a qualification equivalent to one obtained in the UK, or their proficiency in the English language by using an academic qualification obtained outside the UK, these must be provided by Ecctis Ltd. Ecctis Ltd provides these services through a concession contract with the Home Office and has done so for over a decade. It is important to be clear at this point that we are not introducing a new cost for applicants seeking to enter or remain in the UK: the requirement for applicants to use these services has existed for a number of years. Where a visa or nationality applicant uses the services provided by Ecctis, they apply through the website and pay an appropriate fee. The outcome of the assessment can take in the region of 10 working days for the English language assessment and around 30 working days for a qualification equivalency assessment. The maximum fee in this order for the qualification and English language proficiency assessment is set at £400. This will allow the Home Office to set fee levels later this year at the current levels, which are £140 for English language and £210 for the qualification equivalency assessment. By setting the maximum above this level, we have a reasonable degree of headroom to adjust fees if, for example, there is an increase in the cost of providing these services. The Home Office is bringing this order forward today and legislation to regulate these fees now where they have already been charged and where the nature of the service itself, or the requirement in the Immigration Rules, have changed. This is due, again, to the department identifying, in the course of preparing for a reprocurement of the existing service earlier this year, that these fees should already have been regulated, due to the requirement to use the service in respect of applications on certain routes. Having identified this oversight, action was taken immediately to legislate at this earliest opportunity to ensure that the fees have an appropriate statutory footing, although this process was delayed, as indeed was the instrument we dealt with earlier, because of the general election in mid-2024. Noble Lords will be aware that the Secondary Legislation Scrutiny Committee drew special attention to the Explanatory Memorandum that was published alongside this order, and produced a report on 10 October raising concerns that the Explanatory Memorandum did not provide a clear and open statement about why this instrument was brought forward. I fully appreciate the need for transparency. I recognise the committee’s view that further explanation of the context of this legislation was required, and my colleague the Minister for Migration and Citizenship sent a letter to the committee chair, the noble Lord, Lord Hunt of Wirral, on 15 October explaining in more detail why the order was brought forward now and the exploration of the possibility of pursuing retrospective legislation that would put fees paid to date on a statutory footing. I am not yet able to confirm the specific approach to be taken on how we regulate those fees downstream and, given the uncertainty, it is not appropriate or helpful to go into further detail now. However, I emphasise that this department takes its responsibilities on parliamentary transparency seriously. I assure noble Lords that we are taking forward considerations in respect of previously charged fees as a priority and the intention of this order, subject to the approval of this House, is to lay an amendment to the Immigration and Nationality (Fees) Regulations in early December to set the fee levels that we have considered in the order today. I hope noble Lords will accept that we are trying to rectify an oversight that has crossed over from before the general election. We are regulating to close that loophole and I beg to move.

My Lords, I cannot sit at the right desk, so I apologise for being in the wrong place. I thank the Minister for explaining the reason for the order, although I think his description of “an oversight” for fees that have actually been charged illegally, because they were not approved by Parliament, is a bit of an understatement. I am also concerned that we still have no opportunity to see a new Explanatory Memorandum that sets out the record, but I will come back to that. I particularly thank the Secondary Legislation Scrutiny Committee for its careful and thoughtful third report of Session 2024-25. However, before I come on to that, I want to note that this is the second Home Office SI on immigration matters that has come to Grand Committee since the Summer Recess which has not just been problematic. The other one—the Illegal Migration Act 2023 (Amendment) Regulations 2024—corrected policy matters in the Act that meant it could not be enacted because they were wrong, so it was also illegal. Therefore the amendments that the Grand Committee saw—I was going to say last month but it might have been a little before that—were to remove retrospective elements of the Illegal Migration Act that were themselves illegal.

16:15:00

I raise that because I want to come on to how this mistake—to be generous to it—has lasted so long. By the way, I am going to ask a lot of questions, so if the Minister wishes to write to me I absolutely understand. Can he explain what the process is inside Whitehall for holding departments to account when things like this have gone badly wrong? I appreciate that in the Secondary Legislation Scrutiny Committee report there is reference to the Home Office possibly doing an internal review. There is no detail about when that will happen, how long it will take or whether it will be published. Can the Minister inform the Grand Committee whether the Minister for Migration and Citizenship had been fully informed of all the background to this order prior to her confirming in the Explanatory Memorandum that it met the required standard? It is absolutely obvious that it does not. Frankly, it is a disgrace. Parliament has to be able to rely on frank Explanatory Memorandums, not ones that obfuscate, and I hope that parliamentarians were able to spot the Secondary Legislation Scrutiny Committee report.

However, there is another reason that this needs to be amended, and that is because that Explanatory Memorandum sits there now for all time. If it is not corrected—for those of us who have actually read the Secondary Legislation Scrutiny Committee report—in years to come, people looking at it will read it and not understand that this mistake was first discovered in 2008. That is absolutely clear; the Home Office is not quite sure how long it was there before that. We have had six Governments of all political persuasions overseeing immigration from 2008, but nothing happened. Was that because papers that were shown to the 2008 Minister—assuming that they were—presumably were not shown to the incoming coalition Government in 2010, and therefore Ministers after 2008 were just not aware of the problem? It would be interesting to hear from the Opposition Front Bench whether the former Minister—the noble Lord, Lord Murray—was aware of this problem.

Surely in incidents such as this it must be correct that papers from a previous Administration pertaining to something that was inappropriately brought through or omitted from legislation must be raised with a new Administration, if civil servants are aware of it. I absolutely understand the rules for closed documents after a general election, but surely this must be one of those cases where the rules are different.

Are there any other consequences arising from this? Have there been any investigations to ensure that the “errors”—the term used by the Home Office—or lack of legality in the fee arrangement have not impinged on the legality of the certification of the educational qualifications or their equivalent: that is, for the users, who have come in to jobs in this country, perhaps as doctors and nurses in our health system?

In the Secondary Legislation Scrutiny Committee report at paragraph 16, the Home Office talked about considering

“restitution schemes and retrospective legislation”,

but it is important for Parliament to understand whether there are issues outstanding on this. If the Home Office did not have the powers to make this charge, does that also affect the legality of the procurement contract between the Home Office and Ecctis undertaking the checks on English language proficiency and/or qualifications for equivalency assessments?

I look forward to hearing from the Minister the details of the review. I remain concerned because of some of the references in the Home Office’s reply to the Secondary Legislation Scrutiny Committee; it sounded like it would be an internal review but it should not be. It would be interesting to know whether the Permanent Secretary is the person who would have that power for an independent review of this.

What is the position about the fees at present? The Minister outlined what will happen when this order comes into effect, but the Secondary Legislation Scrutiny Committee asked whether these fees were currently being charged when the Government, or the subcontractor of the Government, had no power to charge them. The answer that the Home Office gave in response to questions from the Secondary Legislation Committee was quite extraordinary; that it

“considers it important that there is consistency in the approach to fees charged prior to appropriate provisions being set in Regulations … Until such a time as that work is completed, fees will continue to be charged as they are currently”.

That does not answer either my question or the question from the Secondary Legislation Scrutiny Committee, which is whether it is legal to do that—because it is not clear that it is.

Finally, the report from the Secondary Legislation Scrutiny Committee ends by reminding your Lordships’ House that in July it said, on a Ministry of Justice instrument that was similarly problematic,

“for a government department to breach the law in this way is an inexcusable error”.

Can the Minister assure the Grand Committee that both he and the Minister in the Commons, Seema Malhotra MP, understand the seriousness of the legal position? Will they undertake to rewrite the Explanatory Memorandum in the light of both the Secondary Legislation Scrutiny Committee report and the comments made by noble Lords during the process of this instrument being debated?

My Lords, I welcome this amendment order, which proposes to adjust the fees in relation to certain immigration and nationality services, and in particular the English language qualification process. It is one of the features of the complexities of the system that these kinds of situations arise, and I am not going to be critical of the Home Office for laying an amendment order in these circumstances. It is obviously right that the Secondary Legislation Scrutiny Committee has picked up on a perception that Explanatory Notes did not set out in enough detail the purpose of the instrument. Perhaps the Minister could let us know whether it is proposed to provide revised Explanatory Notes and, if so, when. Perhaps he could also reassure the Committee on the quality of Explanatory Notes, which I know officials in the Home Office strive hard to ensure are accurate and detailed. I am sure that the Minister will take back to the department the message that crystal clarity is required in Explanatory Notes. Of course, the fees structure is essential in maintaining a secure system of immigration control, and indeed provides an element of being self-funding. That, of course, itself achieves the kind of immigration system that we wish to see and strengthens British immigration policy. Therefore, I welcome the order and would be grateful for an answer in relation to Explanatory Notes.

I am grateful to both opposition Front Benches for their comments. I find myself in the genuinely strange position of moving an order to rectify something that happened when we were nowhere near the legislation that is being rectified. I hope that both opposition Front Benches will recognise the fact that my honourable friend Seema Malhotra bringing forward this order in the Commons and me doing so in in the Lords are attempting to rectify an issue that was spotted prior to the general election, which would have been brought forward had the general election not been held in July. I genuinely cannot say with any certainty why the fees for the services were not regulated when they were first set out. The rules relate to the historic nature of the issue and potential changes in a complex interaction of regulations at the time. I do not know why that happened but I am grateful that previous Ministers, with the advice of civil servants who have reviewed this as part of the procurement exercise that commenced earlier this year, have noticed a gap and therefore have asked Ministers to sign off the measures that will close that gap. Minister Malhotra, who is the lead Minister for this area in the Commons, and myself as the responsible Minister here in this House, have both agreed to take this order through accordingly. I say to the noble Baroness, Lady Brinton, that there are no issues on the quality of the education and training provided under the orders. I am not aware of a slew of complaints about the fee levels in the past. This is simply an order to rectify what was seen to be an illegality. The Committee should welcome that and understand that that is why this order is being brought forward. The regulations are being laid at the earliest opportunity to begin the process of rectifying the issue that has been identified. I want to assure this Committee that structures and processes are in place to ensure that the fees for new visa routes and requirements are captured in the immigration and nationality fees regulations when associated changes are made to the Immigration Rules. As has been mentioned, we are hoping to bring forward at an early opportunity, we hope before Christmas, the revised fee structure to rectify where we are currently. That will, I hope, set those fees on a proper legal footing and rectify the challenges that we have had to date. Again, the noble Baroness, Lady Brinton, mentioned the sharing of information between Administrations. I find that hard. I was in Parliament in 2008. I was in the Ministry of Justice then, not the Home Office, but to be honest with her, I cannot really answer on what happened in 2008 in the Home Office with this order and its background at that time. I can simply say to her again that it is unusual for previous Administrations’ paperwork to be passed to a subsequent Administration. It did not happen in 2010 and it is not happening now. I can ask questions of officials and get good responses about issues but there is not an automatic assumption of access to previous papers. That might be something to be considered but that is a far greater sandwich display than we have before us today, if I may put it that way. I note and take the noble Baroness’s point. However, we have to reflect on the fact that this measure is brought forward as a joint enterprise between two Administrations handing over a baton to rectify a particular problem identified previously, which this Administration are now taking forward. Both noble Lords asked about the Explanatory Memorandum. Again, it is important to recognise that it was not the best Explanatory Memorandum in place. It is what it is now. The noble Baroness, Lady Brinton, asked about a review. For the Home Office, and for other departments, given the view of statutory instruments and the importance of SIs to both Houses of Parliament, the new Government have asked for a Minister to be appointed in each department with oversight of the statutory instrument process. I am that Minister now in the Home Office, and I have to look at, clear and be held to account for the SIs that come through any part of the Home Office department. They will have to be cleared and signed by myself. That does not guarantee—because we are all human—that something that I see and clear is going to be perfect. But I hope it gives oversight to that process, which we have not had before. The Leader of the House of Commons, Lucy Powell MP, has been clear that both Houses of Parliament need to up their game on the Explanatory Memoranda, the oversight and the accountability of SIs to both Houses. Four months into the job, I ask the noble Baroness, Lady Brinton, to give me space but to hold me to account in due course, as I know she will, on the performance on SIs particularly. If there are further points that I have missed, I will reflect on them with colleagues and respond in writing, certainly to the noble Baroness, Lady Brinton. I hope that we can agree this order today and rectify the gap that has been identified. I look forward to bringing forward future SIs to continue that process in relation to the meat of this order.

Motion agreed.