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On consultation, the Prime Minister announced a review of tier 4 on 12 November last year. On 17 November, some, but not all, of those concerned received e-mailed letters containing the questions and a 10-day deadline for replies. In its reply to that so-called consultation, the UK Council for International Student Affairs (UKCISA), which also gave evidence to the Merits Committee, stated that it was,
- "quite extraordinary for this review to be commissioned and undertaken in little more than three weeks which has given us no proper time to canvass views from our members".
The Independent Law Practitioners' Association (ILPA) states that it was notified verbally about consultation on 25 November at a meeting of the Employers Task Force, but received the questions only on 30 November, after the closing date of 27 November. It submitted its observations on 4 December.
Universities UK told me that it had 24 hours to deal with the highly trusted sponsor details, which were of particular concern to its members. The proposals on the highly trusted sponsor scheme do not appear to be covered by the order, although there is a definition in HC 439, and the scheme itself was published on the UKBA website on 22 March. UKBA told the Merits Committee that 17 sector organisations submitted evidence for the tier 4 review and that more than 300 representations were received from individuals, education providers and related businesses. That is a remarkable score when you look at the timetable. It said that it was not publishing any analysis of those responses because the consultation was not formal. What sort of consultation was it and under what circumstances will such consultation be conducted in future?
The Government's code of practice on consultation prescribes that:
"Consultations should normally last for at least 12 weeks with consideration given to longer timescales where feasible and sensible ... Consultation responses should be analysed carefully and clear feedback should be provided to participants following the consultation".
The code provides that Ministers should have discretion not to undertake a formal consultation exercise, but was ministerial authority cited for the decision in this case, and was any reason given for the "challenging and tight timetable", as it was described in UKBA's letter of 17 November, or for the failure to analyse the responses? In every respect other than timetable, it looked as if it was a formal consultation. If the reason for the haste was to ensure that the process was finished and the statement agreed before the election was called, the Government should have said so at the time. Will the next edition of the code state that Ministers can declare a consultation not to be formal when the only reason for that is to avoid the 12-week obligation?
Speaking about immigration policy last week, the Prime Minister said,
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We can all agree with him on that, but that statement does not stack up with the arbitrary suspension of 60 colleges in the panic of last November. Can the Minister confirm that all but two of them were subsequently restored to the register and the Prime Minister's statement last week that, altogether, 140 colleges were stopped from bringing in non-EU students last year? How many of those were later reinstated, and does not fairness require that investigation of alleged abuse precede rather than follow suspension? What rights of appeal do colleges have against their suspension or removal?
What debate was there before the stopping of all applications under tier 4 from south China, north India, Bangladesh and Nepal from 1 February this year, and is that ban still in force? What was the evidential basis for the decision, apart from an unquantifiable increase in the number of applications at each of the three posts? Where has the UKBA got to with the investigation that was announced as to whether or not the applications at these posts were genuine?
The next thing that happened was that on 7 February the Home Secretary announced on BBC TV that the changes in this statement were to come into immediate effect, though of course that was not true as they had not been through the parliamentary negative resolution procedure that is required by law. Parliament was not told about them until Mr Johnson made a Written Statement the following Wednesday. Why did he not then correct the misinformation that he had given to Andrew Marr and his hundreds of thousands of viewers? As to the substance of the changes, the Prime Minister, speaking in Islington last week, said that,
- "we need to be tougher on those who want to come under tier 4 and who are studying low-level qualifications, and tougher on bogus colleges".
From a document entitled Tier 4 Sponsor Recruitment Practices and marked as a draft, "not for wider circulation", sponsor institutions are being required to undertake a variety of checks on an applicant before issuing a confirmation of acceptance for studies. Looking at the passport to see whether the applicant has been refused leave to enter in the past, verifying the qualifications which are presented with the issuing institution and assessing the difficulty that a candidate may have in adapting to life as a student in the UK, are three examples of good practice in this 21-page document. In the case of the HTS scheme, some of the tests, which are only recommended for institutions of further education generally, become mandatory, raising acute concern for Universities UK. For the rest of the sector, there is uncertainty about the tests they will need to apply, and that really does need to be clarified.
More generally, the providers do not like the way that these changes transfer the responsibility for immigration control from the UKBA, acting on behalf of the Secretary of State, to educational institutions, and impose severe penalties on them if they fail to carry out enough of the 21 pages of tests or if more than a small proportion of those granted certificates of approval go absent or fail to complete the course. In the case of the HTS scheme, following a meeting with UUK on 1 April, UKBA has undertaken to review these arrangements and come up with amendments by 15 April, yet a further illustration of,
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which has resulted in what the UUK calls,
What I would like from the Minister as the outcome of this debate is a review of the tier 4 arrangements as a whole in the light of the impact assessment and in full consultation-which did not happen before-with the stakeholders; and an undertaking equivalent to the one given to UUK that amendments will be made to cover the valid objections that have been made. Above all, I am looking for an assurance from the Minister that if the present Government are re-elected on 6 May, they will never again try to push through material changes to the Immigration Rules affecting people and institutions without any of the safeguards that exist to ensure informed parliamentary scrutiny and to prevent flawed legislation. I beg to move.
Viscount Bridgeman: My Lords, I thank the noble Lord, Lord Avebury, for bringing this Statement of Changes in Immigration Rules on to the Floor of the House. The issues that he raises are very significant and we are in agreement on most of them.
Immigration is a very controversial and sensitive topic and we must get the balance right. Running incomplete statutory instruments through this House, which is essentially what we have before us today-with an impact assessment delivered approximately two hours before this debate, and without full consultation responses-is unacceptable, especially in the knowledge that there have been voices of concern in the education sector about the rules this statement will change. Furthermore, the Merits Committee rightly points out in its 11th report that it feels,
I have the same reservations from these Benches.
As we all know, the Statement of Changes in Immigration Rules is being made to tighten up border controls through tier 4, which include but are not limited to implementing a new restriction on the amount of work that can be carried out by students below degree level, and further restrictions on family members of some students. A linked change is to be made in guidance, although not included in this statement, which will require all students below degree level to demonstrate an existing level of English language at just below GCSE standard. The aim of the review by the Merits Committee was to assess whether the suggested policy changes to tier 4 strike the right balance between facilitating the access of genuine students to education in the UK and preventing abuse by economic migrants. As already stated, the committee could not reach a conclusion, and I am in agreement with the stance that it was forced to take.
I do not support the approach that the Government took in the first instance in regard to the handling of student visa immigration loopholes, and I do not believe that this statement will make the situation any better. The student visa system has been the biggest hole in our border controls for a decade under this Government, and the Government still seem to be stumbling around trying desperately to mend their mistakes. We on these Benches are fully aware of the
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However, the Government's immigration policies have failed time and again to address the real problems, while the new English language requirement threatens the existence of hundreds of legitimate businesses. This is the point that the noble Lord, Lord Avebury, has made well. The results of this review include increasing the minimum English-language requirement. This has serious consequences for genuine language schools. If the Government were to adopt this change it could in effect close every language school across the country.
The English language industry is worth £1.5 billion annually in foreign earnings to the UK economy. We should be encouraging legitimate foreign students to come here to learn English, and the Government should not make blanket, knee-jerk regulations that could seriously damage that industry. A number of bodies have voiced their concerns. English UK and Study UK, for example, are unhappy about raising the bar for English language students. They are concerned that publicly funded bodies are likely to have HTS status by default while their private sector colleagues will have to apply, with all the time and expense that that involves. The committee is also aware that the Independent Schools Council-the ISC-believes that the changes may have a number of unintended effects for independent schools, stemming from the lack of a clear distinction in tier 4 between adult students and school pupils. The ISC is pursuing its concerns with the UK Border Agency.
As we have not had time to assess the impact assessment or full consultation responses, none of these concerns has been addressed, and detailed information simply has not been provided even to those who are expected to implement the changes and will have to deal with the consequences. I ask the Minister to explain the Government's justification for withholding this information and how they are addressing the types of concerns that the likes of English UK, Study UK and the ISC have.
As the committee reported, the Explanatory Memorandum says that an impact assessment of all the changes stemming from the tier 4 review was to be published on the UKBA website in March 2010. That is a point that the noble Lord, Lord Avebury, has made; and in fact, as we know, it has just appeared, as he said, coincidentally today. In response to questioning from the committee, the UKBA said that the impact assessment was being prepared and would be published when the changes took effect. That has just happened. I agree that the committee would like replies to its questions about the correctness of completing an impact assessment after an instrument has been laid, let alone after it has come into effect, which was a point well made by the noble Lord. We do not believe that the UKBA has followed the Government's policy on the use of IAs in this respect and would like the Government to explain their thoughts and how they plan to rectify the situation, if indeed they intend to do so at all.
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6.30 pm
Further information submitted to the committee by the UKBA states that 17 sector-representative organisations submitted written evidence to the review of tier 4, and over 300 representations were received from individuals and individual education providers and related businesses. Meetings were also held with key representative bodies. However, the UKBA says that it is not planning to publish an analysis of consultation responses. We would welcome the Minister's comments on that point.
We have long called on the Government to crack down on bogus colleges and students. However, their new proposals fail to address the real problem. I am sorry to say that I consider this to be yet another quick fix, an ill thought-out policy direction that will do more damage than good in the long run. What is needed is: a proper clampdown on bogus colleges; allowing only institutions that are officially registered to sponsor students; an end to in-country switching between student and work visas; making it a priority for the newly formed national border police, which my party has in mind, to crack down on suspected bogus colleges; and strictly enforcing regulations on illegal working. Abuse of the student visa system is not fair on genuine students or on British taxpayers, and it has created a security loophole that must be closed.
The Earl of Sandwich: My Lords, the noble Lord, Lord Avebury, has covered all the points with his usual clarity, as has the noble Viscount. Like them, I have considerable doubts about the new rules and the way they have been introduced. Overseas students are essential to our economy, and we have to be especially careful about how we handle these arrivals. I, of course, recognise the general need for controls on bogus education, but I suspect that the UKBA's system of monitoring the rules gets choked every time by the arrival of new ones.
I am very concerned about the restriction on the amount of work, which cannot be enough to help poorer students live here. I am concerned about the prohibition on family members. What is the Minister's answer to the points made by the UKCISA about, for example, the effect on women students from the Middle East?
With regard to English language competence, I agree with the noble Viscount that there could be serious consequences for our economy if the requirement for students has to be raised. I wonder whether the UKBA has calculated the effect of such a change. Does the Minister with hindsight agree with the Merits Committee that it was disappointing that the UKBA did not publish an analysis of the consultation responses and did not, until now, complete the impact assessment that might have helped in the debate? Noble Lords put it more forcefully than that.
On the wider issue of student visas, the Government told the Home Affairs Committee in December that:
"The implementation of PBS T4 has placed a particular strain on the system",
last summer, especially in India and Pakistan. Does the Minister think that the new rules will put more or less strain on the system as a whole, including sponsorship?
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Lord Lucas: My Lords, I am glad that my noble friend on the Front Bench does not like these provisions as it is yet another reason for optimism for 7 May. This is a bit of late, decaying government foolishness. They have not taken into account the many adverse effects of the rules they propose. As other speakers have said, international students coming here to learn English are an important contributor to our economy. More than that, it is an enormous contributor to our status in the world and to our long-term financial health that so many people come from overseas, gain a command of English, go back home and-presuming that they have been treated well here, which the vast majority are-are our friends for life. To cut off that part of our future in such an arbitrary and ill thought-out way is entirely unjustified, as is the setting of a bar at GCSE level for English. That is the point at which children come here to study, by and large. You would expect to pick a child up to bring him up to GCSE standard. What is the point of setting the level at GCSE for genuine school-age pupils coming to take part of their school education here? It seems entirely inappropriate.
I also object extremely strongly to the idea that an impact assessment should not be prepared before an instrument is laid. It is clearly part of the standard procedure, as is a proper exposé of consultation responses. There is no reason for the border agency generally or in this instance to be exempt from those requirements. It means that its proposals are not subject to a proper degree of scrutiny by this House, and I hope that the Minister will say that it will never happen again, at least under his jurisdiction.
Baroness Hamwee: My Lords, the whole House has on many occasions had cause to be grateful to my noble friend for bringing issues of immigration to the Floor of the House, and today is no exception. He has answered a question for me. I was unable to find the impact assessment. I read the papers hastily, not having expected to be able to take part in this debate, and went into the UKBA website to look for the impact assessment and got nowhere. It was clearly not yet there, but this is probably the season for rather jerky knees.
As noble Lords have said, these changes stem from concerns about so-called bogus colleges. I think "bogus" is overused in the context of immigration and asylum. As the noble Lord, Lord Lucas, said, there are clear reputational issues around this. We should indeed crack down on bogus colleges that do not offer proper education, but that is because of the reputation of the UK and because it is simply cheating for colleges that do not educate their students properly to be taking money off them. That is something that I feel extremely strongly about. Perhaps the next Parliament will give us an opportunity to consider licensing such institutions.
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So many of the changes that we are considering appear to stem from the guidance rather than from the rules. The rules are complex enough. I refer to just one paragraph that is mentioned: paragraph 245ZZB(c)(iv)(1). One can understand how many changes there must have been to get at such a designation of a paragraph, and it is very difficult for anyone to understand the current position. Many of these changes come in the guidance, and I question whether guidance is the appropriate vehicle for some of this. My noble friend is drawing the House's attention to changes in the Immigration Rules, but the guidance is a step lower in that we cannot even challenge it through the legislative process.
I see from the letter from the UK Council for International Student Affairs that was published in the Merits Committee report that, since the Immigration Rules for tier 4 were first published, just less than 12 months ago-the letter was sent, I think, last month-there have been six versions of the tier 4 policy guidance. That is bad in itself, and it is bad that guidance has assumed such significance in the decisions that are taken in this area and in the futures of the people who are affected by them. The council says that the scheme is becoming quite unworkable because of the number of changes and because the information is published in so many different places and in many cases says different things. The council goes on to say-this worries me very much:
"Where there is a discrepancy between the Immigration Rules and some other document or source of information, we cannot assume that the Immigration Rules will be applied and have to ask on every occasion which version reflects the real policy intention. As the policy guidance is changed so often, there appears to be little legal certainty on which students and advisers can rely".
I was also struck by the level of English that is to be attained. Again, the Merits Committee cites in evidence a letter that states that,
- "it is absurd to require people who wish to come to learn the language already to be competent in it, which is the effect of this proposal".
We have arrived in Alice in Wonderland.
The effect on students and their families of the restrictions on the hours of work has been mentioned. The letter from the UK Council for International Student Affairs to the Merits Committee states:
"It is not clear why the Government wishes to disrupt so severely the family life of students, particularly when family support in a new country can be so helpful in ensuring that students successfully complete their studies".
In short, there are a lot of questions, which I do not need to repeat. The biggest question with which I am left is why the Government have chosen to take what clearly appears, to all the speakers in the debate, to be such a perverse course without having provided material on which there could have been a proper debate. We are having a debate thanks to my noble friend, although we are having it at the 11th hour-indeed the 24th-but it is right at least that we put on record our concerns.
6.45 pm
The Parliamentary Under-Secretary of State, Home Office (Lord West of Spithead): My Lords, I am grateful to the noble Lord, Lord Avebury, for raising
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The changes form part of the measures that were agreed following the Prime Minister's review of tier 4. It may be helpful if I explain the background to the review. Tier 4 is a system that tackles the immigration abuse and reputational damage caused by bogus colleges and bogus students. We have been broadly supported on this journey by the legitimate education sector, which is responsible for securing the UK's place as a world-class education provider. Tier 4 was introduced on 31 March last year. The new system of sponsor licensing has prevented immigration criminals from obtaining licences. The current register has around 2,000 licensed institutions, which is half the estimated number of institutions that were previously active in recruiting international students, but the review showed that, given that the system was new, there was still more to be done.
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