Clause 66 - Ineligibility
Nationality, Immigration and Asylum Bill
5:45 pm

Mr Humfrey Malins (Woking, Conservative)

I beg to move amendment No. 404, in page 35, line 37, leave out paragraph (c).

Mr Eric Illsley (Barnsley Central, Labour)

With this it will be convenient to take amendment No. 405, in page 35, line 39, leave out paragraph (d).

Mr Humfrey Malins (Woking, Conservative)

The clause sets out the categories of persons who are to be denied a right to appeal. It is criticised as extremely vague. For example, the Immigration Advisory Service is worried about the meaning of

''seeking to be in the United Kingdom''.

Will the Minister explain whether that includes people who are appealing from within the UK as well as those who are outside the country? Why is the language different from that used in subsection (2)(d), which refers to a person

''seeking to enter or remain''?

It could just be sloppy drafting or there may be a reason for the different wording.

Amendment No. 405 would remove the prohibition on appeal against a decision that a person is

''seeking to enter or remain in the United Kingdom for a purpose other than . . . in accordance with immigration rules.''

That is a technical point under the law, and I am advised that the provision would remove an appeal right from people who make applications under important concessions outside the immigration rules. Such people include women who have been victims of violence in marriage and want to take advantage of the domestic violence concession; the families of children who have lived for seven or more of their formative years in the United Kingdom; and those who would benefit from the 14-year and the 10-year concessions because of their long residence here.

As subsection (2)(d) precludes such refused applicants from appealing a decision to an adjudicator, they have no option but to appeal via judicial review, which is a slow and costly remedy. It seems more appropriate to allow those who come within the ambit of such concessions a statutory right of appeal under the Bill. The Immigration Advisory Service is another body that regards the category of persons to be denied a right to appeal as being too broad. Can the Minister give an assurance that the Bill as drafted does not exclude asylum seekers who are claming that to remove them would be contrary to the United Kingdom's obligations under the refugee convention in part 2 of the current immigration rules that deal with asylum seekers? Among the people who may lose out under the clause will be those relying on existing policies to enable them to bring in family members to join them, when they have exceptional leave to remain for what may be compassionate reasons. The probing amendments were drafted by persons more skilled than me to tease out answers from the Government to some important questions.

Mr Simon Hughes (North Southwark and Bermondsey, Liberal Democrat)

The hon. Member for Woking and I have the same worries, and those with whom we have discussed the matter have pointed out certain defects that would be dealt with by the removal of subsection (2)(c) and (d).

As the hon. Gentleman said, we have now reached the clauses that deal with exceptions and limitations. There are 12 such clauses, compared with seven clauses that deal with substantive proposals. It is sad that it is not the other way round. Furthermore, we are all suffering from the disadvantage of the absence of a Special Standing Committee. The previous Immigration and Asylum Bill was not perfect, even after deliberations by a Special Standing Committee. However, as my hon. Friend the Member for Sheffield, Hallam said—he is at present discussing a statutory instrument on Home Office business down the Corridor, but will be back here shortly—it was an extremely valuable exercise. Advice could have been taken and proposals tested through such a proceeding. I make a plea that, whenever possible, unless there is an overriding reason why not, we must have a White Paper, a draft Bill and a Special Standing Committee to deal with technical matters before the final version of the Bill is discussed.

Mr Humfrey Malins (Woking, Conservative)

The hon. Gentleman and I strongly agree on that point. Does he further agree that such Bills will be considered properly and carefully only if, as well as Special Standing Committee, a Select Committee can spend time considering the clauses and hearing evidence in the informal way that Select Committees do?

Mr Simon Hughes (North Southwark and Bermondsey, Liberal Democrat)

I agree. I think that I have already said that some EU countries do just that. Their Governments produce Bills that get a formal First Reading, and are then passed to an inquiry body made up of parliamentarians who take evidence. It is only when all parties involved have certified that the Bills have gone through that process adequately that they come back to the Floor of the House for parliamentary scrutiny. I am sure that we can learn from such systems when it comes to modernising our Parliament.

Ms Rosie Winterton (Parliamentary Secretary, Lord Chancellor's Department; Doncaster Central, Labour)

I shall be brief, as I am sure that hon. Members want to move on to other parts of the Bill. I assure them that the clause and those that follow it are largely equivalent to the sections in the Immigration and Asylum Act 1999 that restrict rights of appeal. The clauses, however, are arranged differently to suit the revised layout of immigration decisions and grounds for appeal.

The only further restriction is in respect of cases in which the application is for a purpose that is not permitted under the immigration rules. In those cases, the adjudicator would have very limited jurisdiction. The vast majority of applicants can hope for nothing but a recommendation, which is not even binding on the decision maker.

Let me give some examples of the effects of the amendment. It would remove subsection (2)(c), which removes the right of appeal for persons applying to remain

''in the United Kingdom for a period greater than that permitted... by immigration rules''.

I shall give the example of a working holidaymaker who applied under that scheme to come to the UK for two years, and knew that limit before applying. There is no appeal against not extending that time because the working holidaymaker scheme had finished.

Different circumstances might apply: suppose that the person became engaged and wanted to apply under the fiancee application in the UK, although the proper thing to do would be to go back and apply from abroad. If that person then wanted to become a student, he or she could apply under that category but not under the working holidaymaker scheme, because there is no way that the appeal could be heard under that scheme.

Amendment No. 405 would remove subsection (2)(d), which removes the right of appeal for persons who apply for leave to

''enter or remain in the United Kingdom for a purpose''

that is not covered by the immigration rules. That could apply to a case in which someone wanted to come and supervise a relative who was studying here but was having difficulty completing their studies.

Under the immigration rules, the relative would not be able to do that, but they might be granted permission by the immigration and nationality directorate at the Secretary of State's discretion. In those circumstances, we would not want an adjudicator to review that discretion, but the decision could be judicially reviewed.

We are talking about cases in which appeals will not be allowed because they, effectively, do not come within the immigration laws. There is nothing sinister about the provision. I accept that the amendments are probing, and I hope that my explanation persuades the hon. Member for Woking to withdraw the amendment.

Mr Neil Gerrard (Walthamstow, Labour)

I understand the logic of saying that it is difficult to have appeals on matters that are discretionary and outside the rules. The answer to some of those problems and to some of the issues raised by the hon. Member for Woking is to start to consolidate within the immigration rules those established concessions that the Home Office has stated would apply. In cases where the concessions were not applied to someone, they would fall within the category of appealable decisions. That is the way to simplify this area, rather than to build complex appeal arrangements around discretionary decisions.

Mr Humfrey Malins (Woking, Conservative)

I raised one little language point in my comments on amendment No. 404. I asked whether the phrase

''seeking to be in the United Kingdom''

includes people appealing from within the UK as well as those who do so from outside. Furthermore, what is the difference between that and the phrase

''seeking to enter or remain''?

The choice of language is odd. Perhaps I have missed a drafting point, but I should be grateful if the Minister let me know what it means.

Ms Rosie Winterton (Parliamentary Secretary, Lord Chancellor's Department; Doncaster Central, Labour)

It is covered by the examples that I used of the working holidaymaker who wanted to be in the United Kingdom for a longer period than permitted by immigration rules, or someone from outside who was applying to enter to look after a relative, or even someone who was in the UK on a visitor's permit for six months and wanted to extend the permit because her daughter had had a baby and she wanted to help look after it. Such a case would fall outside the current rules. The Government agree with the points made by my hon. Friend the Member for Walthamstow, and we intend to take steps to consolidate the concessions.

Mr Humfrey Malins (Woking, Conservative)

In the circumstances, I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Ms Rosie Winterton (Parliamentary Secretary, Lord Chancellor's Department; Doncaster Central, Labour)

I beg to move amendment No. 351, in page 36, line 8, at end insert—

'( ) Subsection (2) does not prevent the bringing of an appeal on either or both of the grounds referred to in section 62(1)(b) and (c).'.

Mr Eric Illsley (Barnsley Central, Labour)

With this it will be convenient to take Government amendments Nos. 352 to 354 and 360.

Ms Rosie Winterton (Parliamentary Secretary, Lord Chancellor's Department; Doncaster Central, Labour)

The amendments ensure the integrity of the immigration appeals process in terms of our obligations under the Human Rights Act 1998 and the Race Relations Act 1976 by providing a right of appeal on race and human rights grounds where appeal rights are otherwise restricted. The clauses covered by the amendments deny rights of appeal essentially in cases in which the appeal cannot succeed or the matter under appeal cannot be regarded as sufficiently important to the applicant to justify the use of the appeal resources involved.

Except in the case of applications to be made for a purpose not covered by the immigration rules, these provisions reproduce existing provisions in the Immigration and Asylum Act 1999. Indeed, most such cases have not attracted rights of appeal since the enactment of the Asylum and Immigration Appeals Act 1993. However, it is clearly inappropriate to apply such arguments against providing a right of appeal if human rights or a complaint of racial discrimination are involved. The amendments make the necessary exceptions for such cases. The exceptions are already provided for in the Immigration and Asylum Act 1999 and the Race Relations Act. As now, we shall not invite an appeal on race or human rights grounds unless the application was made on those grounds. It is obviously not for us to solicit new applications in that way.

Amendment No. 360 covers clause 76. The case is different, as it relates to people whose presence in the UK the Secretary of State in person considers contrary to the public good. Obviously, we need to ensure that a person who is refused leave to enter and who falls under that clause can make an asylum appeal. If necessary, we shall table a further amendment to do that. I hope that the Committee will agree to the amendments.

Mr Simon Hughes (North Southwark and Bermondsey, Liberal Democrat)

The amendments seem to be helpful and in the right direction. I shall not oppose them now, although I shall take advice on the Minister comments. The amendments appear to be sensible extensions of the legislation for the categories involved.

Amendment agreed to.

Clause 66, as amended, ordered to stand part of the Bill.