Immigration and Nationality (Fees) (Amendment) Order 2024

Considered in Grand Committee

Moved by

That the Grand Committee do consider the Immigration and Nationality (Fees) (Amendment) Order 2024.

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.

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.

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”.