Clause 3 - Grounds of appeal
Immigration, Asylum and Nationality Bill
6:30 pm
Cheryl Gillan (Shadow Minister, (Assisted By Shadow Law Officers); Chesham and Amersham, Conservative)
I rise to put points that have been raised by the Immigration Law Practitioners Association, an eminent body with which I assume all members of the Committee are familiar. The association has prepared a briefing note, and I want to take the opportunity to ask the Minister to respond to its concerns.
A person who loses their right to appeal against a variation—including extension—of leave by the operation of clause 1 will instead be able to appeal against the decision to remove them from the UK. The effect of clause 3(2) is set out in the explanatory notes, which state:
''Clause 3 works with clause 1; subsection (2) ensures that a person affected by the removal of a right of appeal by Clause 1 has the earlier decision taken into account in an appeal against the later removal decision.''
By virtue of new section 84(1A) of the Nationality, Immigration and Asylum Act 2002, as inserted by clause 3(2), the person appealing against the decision to remove them would also be able to raise grounds of appeal against any decision that
''gave rise to or facilitated''
the decision to give removal directions against a person. The decision that gave rise to or facilitated the decision to give directions for a person's removal for having stayed beyond the time limited by their leave might be the previous decision refusing to vary his or her leave—I hope that the Minister is following this. In other words, in appealing against the decision to remove them, the person should be able to challenge the original refusal to vary their leave and the merits of that decision.
The ILPA thinks that that will be scant comfort to a person who has already become an illegal overstayer, who has had to stop working or studying, who has been forced to leave the UK and who has had it noted in their passport that they were an overstayer. The association believes that the provisions will be of even less comfort than the explanatory notes suggest and that the Bill will not necessarily achieve the objective of allowing people to raise a complaint about the variation decision in an appeal against any subsequent and consequent decision to remove them from the UK.
The ILPA goes on to say that the reasons for that are rather complicated and technical, and I must admit that I tend to agree. First, clause 3 does not appear to have the effect of allowing an appeal if the tribunal finds that a decision that
''gave rise to or facilitated the making of the appealable decision''
was wrong. There is the provision that
''a decision against which the appeal is brought or is treated as being brought was not in accordance with the law . . . or a discretion exercised in making a decision against which the appeal is brought or is treated as being brought should have been exercised differently.''
That is from section 86(3) of the Nationality, Immigration and Asylum Act 2002, with which I am sure the Minister is familiar.
ILPA states that the clause appears to need to be amended to ensure that a person could win their appeal against the decision to make removal directions on the basis that the original refusal to extend their leave was wrong. It suggests that that could be achieved by providing expressly that
''for the purpose of section 86(3) such other decision is to be treated as a decision against which the appeal is being brought.''
ILPA would also like the Minister to clarify that it is the Government's intention that the decision to refuse to vary leave in the circumstances envisaged by clauses 1 and 3 is always to be treated as a decision that
''gave rise to or facilitated''
the decision to remove. ILPA wants to be absolutely clear that people will not be denied the opportunity to call into question the merits of the original refusal to vary leave on a technicality. I know that the Minister will be anxious to respond to ILPA's points, and I look forward to hearing what he has to say.