'(1A) Subsection (1) shall only apply at such time as a review procedure carried out by Immigration Judges on circuit at entry clearance posts is deemed to be operating satisfactorily by the Independent Monitor'.
I shall not repeat all of what I said yesterday about the amendments and their purpose. However, I did say that they probably relate to the majority of the arguments that can be made on the general issue of entry clearance. I shall raise various points now and will not return to them in a lengthy clause stand part debate. I am sure that you, Mr. Illsley, would not allow me to do that anyway.
Clause 4 removes the right of appeal against a refusal for entry clearance abroad from all those who are refused except those who apply to visit specified, although as yet undefined, family members or those who apply as dependants of specific, and also undefined, people. The explanatory notes indicate an intention to specify in regulations those who propose family visits or who seek entry for settlement as family members. The implication is that no students or workers, those on working holidays, ministers of religion, innovators, fiancés, carers, business people, those with UK ancestry, returning residents, investors, applicants under European Community association agreements or any other categories of people would be able to appeal against the refusal of entry clearance, save on the grounds that their human rights had been breached or that they had suffered discrimination on the grounds of race. Currently, some 40 distinct categories of people enjoy such rights under the immigration rules.
Family members with the right of appeal are currently set out in various regulations made under the Nationality, Immigration and Asylum Act 2002. There is nothing to prevent the Government from making changes to the family members who are given right of appeal by issuing yet another set of regulations. Given that the power to make such regulations exists already, the Government should lay those regulations in draft now, so that we can see, before we vote on the Bill, what they propose. That would be a clearer and more transparent way of approaching matters.
The significant change to the regulation-making power in clause 4 is that, under proposed new section 88A(2)(d), which would be inserted into the 2002 Act, regulations may
''make provision by reference to an applicant's purpose in entering as a dependant.''
That is reminiscent of the primary purpose rule, under which spouses could be refused entry clearance because they are unable to prove a negative—they could not show that the primary purpose of their marriage was not immigration into the UK. That rule proved unworkable in practice. Will the Government reassure us that they have considered the danger that the new provision will create similar difficulties to the old rule?
The Government have also stated that they intend to remove the right to an oral hearing in family visitor appeals and that they are reviewing whether to charge for those. From 2000, fees were steadily reduced until their abolition in 2002. No mention is made of those matters in the Bill or the explanatory notes. Before we decide what we make of the overall Bill, and particularly this clause, it would help if the Government issued draft regulations so that we can see what they have in mind, or if they gave a statement of their intention.
When the right of appeal for family visitors was restored, it was argued by the Immigration Law Practitioners Association, among others, that the definition was unduly restrictive because friends, great-aunts or more distant relatives might be emotionally closer than the relatives listed. The new proposals, because they will be based on family relationship rather than on a judgment about closeness, do nothing to redress those problems, and I suspect that they will result in more restrictive provisions. That will call into question whether the Government are serious in their commitment to family and the maintenance of family ties when part of the family is abroad. Indeed, it raises issues relating to article 8 of the European convention on human rights and the need to have regard to family life.
On applicants for entry clearance other than family visitors, other visitors, be they family members already not given a right of appeal by regulations, friends or those coming for pleasure, will have no right of appeal against refusal of entry clearance. That is the case now for those who ask for entry clearance for a course of study of less than six months. Those who do not meet a mandatory category of immigration rules, as we know, also have no right of appeal. Other categories of applicant for entry clearance do so at the moment.
In contrast to the family visitor provisions of clause 4 and clause 1(4), which we have already debated, the Government do not appear to have given themselves the power by regulations to grant any of those people a right of appeal. That includes students coming for a longer course of study, such as those who have been accepted at an educational establishment, innovators, ministers of religion, working holidaymakers and so on. Is it sensible for the Government to tie their hands by not giving themselves regulation-making powers in case they realise, for whatever reason, that that would be a wise thing to do? Perhaps the Minister could clarify whether he believes that the Government still have regulation-making powers to provide that flexibility.
It will not surprise the Minister to know that Universities UK, together with many other education organisations, is seriously concerned about the measures in clause 4 and opposes them. Like other members of the Committee, he will have had information from Universities UK, united with the Standing Conference of Principals, the National Union of Students, the Association of Colleges and UKCOSA: The Council for International Education, urging us to oppose the measures that repeal the right of appeal for all applicants for initial entry clearance except in the categories that I have mentioned—those visiting a family member or coming to the UK as a dependant in certain circumstances, or those appealing on race relations or human rights grounds. Students will have no right of appeal. Universities UK and the other organisations believe that that is wrong, and I share their view entirely, because initial decisions by entry clearance officers are subjective and often wrong.
The Government's own statistics show that 25 per cent. of international student appeals against visa refusals are successful, and we understand that the number of decisions reversed before reaching appeal is much higher—up to 90 per cent. at some institutions. Of course, there are also some people who could have won on appeal but who did not appeal, so 25 per cent. seems to be a floor for the number of successful appeals.
As the Minister said, it can be argued that that does not always mean that the initial decision was wrong, because some things may change and new facts may come to light between the initial entry clearance decision and appeal. However, it is clear that the appeal mechanism is necessary in the interests of fairness, given the high success rate of appeals, and to avoid the cost of people having to reapply as a means of appealing and the deterrent factor that that would have.
Immigration decisions such as the refusal of a visa remain on the record of would-be migrants, and a UK visa refusal could prejudice any future visa applications made by a prospective student. Surely the UK should be doing all that it can to attract international students for economic, social and cultural reasons. The fact that UK universities attract the best and brightest students from around the world is a key factor in the world-class standing of UK higher education. Both universities in Oxford and, in particular, Oxford university, in my constituency, feel that strongly and share my concern. The decisions come at a time when the UK faces increasing competition for international students. The messages that they send, even without the effect that they will have, will be very damaging to the ability of universities in this country to attract applicants. International students make up 11 per cent. of all full-time higher education students and 38 per cent. of students at full-time research postgraduate level according to the figures for 2003–04—the latest available—from the Higher Education Statistics Agency. It also reports that there are 210,510 international non-EU students at universities and colleges in the UK, of a total of about 2.25 million higher education students.
In the Science and Technology Committee yesterday, the Minister for Science and Innovation, Lord Sainsbury, was questioned on how Britain could remain attractive to overseas students and whether the supply of people applying to study science in this country was adequate to meet the needs of UK plc, as it is sometimes called. Lord Sainsbury argued that he was reassured because there had been an increase in the number of undergraduates applying to do sciences. He also accepted that some of that number was likely to be made up by international students and it is a moot point whether they stay and then contribute to the supply of academic scientists that we need for industry and universities.
By establishing their own 10-year strategy for science and innovation, the Government have recognised the necessity to have thriving science departments in our universities and many of the international students who apply to study in this country want to do science. We are in competition with other universities.
I am listening very carefully to the hon. Gentleman and I have great sympathy with the points he is making, which are similar to those that I made. Will he reconfirm that he is also concerned about the fact that we need 700,000 science students to reach the Lisbon goal and it does not look as if we will do so? We will certainly not achieve that goal if there is a disincentive to international students to come to this country to read science.
I certainly share that view. In respect of the Lisbon agreement, the Government's targets fall short of what was agreed at Lisbon in any event. Whether or not Lisbon is realistic, and although the Government stand by it despite their own provisions falling short, the European Union recognises that to be able to compete a country must have a science base and therefore thriving science departments.
The accuracy of visa decisions is a key point of the amendments. I touched on the matter yesterday, but I want to put on the record some of the remarkable figures in the Library's paper of 30 June. In 2003–04 entry clearance officers and visa processing centres around the world received 76,357 applications for settlement in the UK and 2.1 million non-settlement applications, of which 1.6 million were applications for visitor visas. Overall, 81 per cent. of settlement applications and 82 per cent. of non-settlement applications were approved; 15 per cent. of the 2.2 million entry clearance applications received in 2003–04 were made in three visa offices in south Asia—Islamabad, Mumbai and New Delhi, and in those three there were more than 100,000.
The outcome of appeals to immigration adjudicators by category is remarkable. In 2003, 21,000 principal applicants who had been refused entry clearance appealed to immigration adjudicators, of which 11,000—53 per cent.—were subsequently granted entry clearance. The success rate was considerably higher for asylum and other immigration, non-entry clearance, appeals. The figures for refusal of entry clearance show not just that a significant proportion—more than half—of appeals are allowed but that that proportion is increasing. In 1997, 30.5 per cent. of appeals against refusal of entry clearance were allowed; in 2001 it had increased to 41.1 per cent. and in 2003, which is the last year for which the document from which I am reading has figures, it went up to 52.7 per cent. That is a remarkable figure—it is why there has been so much criticism of the quality of initial decisions. I accept that not all appeals were allowed because the quality of the decision per se was wrong, but the in-depth qualitative studies that have been undertaken by the monitor and by the National Audit Office suggest that there is a problem.
The Immigration Advisory Service in particular is concerned about the problems with family visit and student entry clearance appeals. It has provided data to the Library for two financial years—2002–03 and 2003–04. The overall success rate on appeal for students represented by the Immigration Advisory Service was 38 per cent. in 2002–03 and 49 per cent. in 2003–04, and for family visitors the corresponding figures were 79 per cent.—more than three quarters—in 2002–03 and 83 per cent. in 2003–04.
An analysis was made by the independent monitor, who had received those figures from the IAS, which showed that for Bangladeshi, Ghanaian and Indian appellants the success rate was more than 90 per cent. in 2002–03. We should therefore ask whether it is justifiable, when the overwhelming majority of appeals are allowed, to remove the right of appeal from broad categories, although I accept that some family appeals may still be allowed. Such a removal cannot be right. That is why the clause, as currently drafted, is unacceptable. Does the Minister recognise that the recommendations of the National Audit Office and the independent monitor have to be implemented? No doubt he will explain that the Government are implementing the training programme, which was set out in the letter that I referred to yesterday, which is intended to improve initial decisions and thus reduce the number of successful appeals. If that is the case, surely the Minister should consider introducing a ban on appeals—most of which are successful—only when the Government have solved the problems in the quality of initial decisions on entry clearance that were identified by the independent monitor and the independent audit.
I am following what the hon. Gentleman is reading out from the Library brief which, as usual, is excellent. Had he read on a bit further, he would find that in the brief the point is also made that differences in refusal rates in different posts may be justified by the quality of the applications. In fairness to the Minister and the officials who work on applications, it must be understood that sometimes the quality of applications is less than perfect; they may not explain what is behind individuals' applications. However, in areas where there is a high percentage of successful appeals, closer investigation may be appropriate to determine whether that is due to the standard of adjudication or the fact that the applications are so poor that it is difficult to draw conclusions. I am probably making the Minister's point for him, but we should be fair to those personnel who operate in sometimes difficult and adverse circumstances.
I do not think that there is any question of being unfair. I am referring to qualitative reports by the independent monitor of the quality of decisions. I made the point twice that one could not simply operate on the basis of the number of successful appeals because those figures may not reflect a wrong decision—a decision in error or a poor-quality decision. They may, as I said, reflect extra information that comes to light during the appeal that was not in the entry clearance application. I repeat that it is important—I agree with the hon. Lady—to look beyond the raw statistics at the qualitative examinations that have been undertaken of the figures. The independent monitor has done that. In paragraph 137 of her report, she says that she has concerns about the quality:
''Differences in refusal rates in different Posts may be justified by the quality of applications''—
as the hon. Lady has said—
''but there should not be drastic differences in the percentages of appeals allowed and dismissed.''
If the basis of appeals in a particular area relates to the fact that inadequate information was given, one has to look closer than the raw figures. It may simply be the habit of everyone in a particular place not to give all the information that they need to give initially and then to give it on appeal.
The independent monitor states:
''A post which had a high percentage of appeals allowed ought to be subject to investigation by UKvisas as I believe this would be an indication of poor decision-making.''
I do not know whether the Minister and the hon. Lady seek to substitute their judgment for that of the independent monitor.
The hon. Lady says that that is what she said. Then it is not a question of the independent monitor or me being unfair to the staff at units. The point is that an independent person has been asked to look at the quality and she has a problem with it.
The independent monitor was set up in 1993 to submit annual reports about refusals of entry clearance in cases in which there is already no right of appeal. The current monitor, who submitted in February 2005 the report from which I have been quoting, draws attention to the, in her view, unlawful denial of appeal rights to some family visitors and students. She states:
''Extrapolating from my file samples in 2002 and 2003 I calculate that 28,000 applicants have been wrongly denied rights of appeal in these two years . . . It is gravely concerning that 12 per cent. of those denied rights of appeal are not the applicants whom Parliament intended to be denied such a right. As I mentioned above I urge Parliament to consider this when and if consideration is given to removing further rights of appeal''.
That is a separate point from the quality of initial decision making. It is about the quality of allocation of applications into or outside the groups that are allowed to appeal under the current system. The Minister indicates in statute and in the explanatory notes that there will be some categories for which appeals are allowed, but if such a large number of people are, under the current system, not given their right of appeal when they should be, surely that has to be tackled before the Minister makes even wider the categories into which people who have a right of appeal might be wrongly placed.
The independent monitor listed the following parameters for how the right of appeal was being wrongly denied. First, family visitors were being denied rights of appeal as the entry clearance officer failed correctly to recognise that the family member being visited was on the list of qualifying family members. Secondly, family visitors were being denied rights of appeal on the basis that they were ''not related as claimed'' when that should be an issue within any appeal. Thirdly, family visitors were being denied rights of appeal on the basis that the family member in the UK was not settled. Fourthly, family visitors were being denied rights of appeal when their visit to the UK had a dual purpose. Fifthly, students were being classified as being on a course of six months' duration or less simply because a module of their course, rather than the course itself, lasted less than six months.
The independent monitor's concerns are explicit. I do not think that they are an attack on hard-pressed entry clearance officers any more than the report by the National Audit Office was. We must go beyond that sort of debate and consider the real issues. I want the Minister not only to state what measures are being put in place to improve the quality of decision making but to give an assurance that the Government will make the situation no worse for the individuals whose interests are damaged by the existing measures—that the Government will not introduce this legislation, if they get it through, until such time as it is independently confirmed that they are making progress with the training, the schemes and the resources that are being put in. There is no dispute about whether more resources should be put in; the question is whether that should happen before the situation is made worse.
I certainly agree.
On appeals, the independent monitor states in her report:
''I was particularly struck by the statistics for success in 'paper' family visit Appeals—it is to be noted that 3 per cent. of these are successful. These appeals represent simply a judicial reconsideration of the same papers which were before the ECO. Even if further papers are submitted with the appeal these are reviewed by the Post before the matter is forwarded to the UK for the appeal.''
That makes the point about the problem of a large number of appeals. Extra information might be introduced between the initial application and the appeal, and it is for the entry clearance post to forward the relevant papers to the appeal system. It has an opportunity, which it is supposed to take, to look at that again if new matters arise.
The independent monitor goes on to say:
''It is alarming that in more than one third of cases the decisions are found to be wrong. Further research by the National Audit Office showed that 20 per cent. of a sample of appeals they analysed were allowed because the Adjudicator disagreed with the ECOs assessment of the evidence and credibility of the applicant.''
She also pointed out that, as one applicant stated in a letter to the British High Commission in Lagos,
''The import of the denial of the visa to a qualified person is that, one may in future resort to use of fake papers/claims in case one is desperate for a visa'',
and that forgery detection is an extremely expensive process. Neither the independent monitor nor I are condoning the use of fake papers or the making of fake claims—she, like me, would condemn that. However, she feels that it is worth pointing out an adverse consequence of the existing scheme, which will be made worse by this clause. That will create further problems.
The National Audit Office produced a report in 2004. I will quote briefly from it in the hope that the Minister gets the message about the problems to which I am referring. [Interruption.] I think the Minister, who has been fed papers throughout his ministerial career, is complaining from a sedentary position about people reading from pieces of paper that they have been given; that is a remarkable comment.
Paragraph 19 of the NAO report states:
''There are lessons to be learned from the high proportion of successful appeals. Over the last three years, 50 per cent. of appeals by applicants intending to visit family members in the United Kingdom have led to the initial decision being overturned. The provision of additional evidence which was not available to the entry clearance officer, and the support of the sponsor were often influential in the decision being overturned. But, in some cases, adjudicators raised concerns over the robustness of the original decision. The refusal decision is reviewed again by an entry clearance manager when the appeal is received, and both the initial and adjudicator's decision are based on the balance of probabilities.''
That makes clear the view of yet another independent source about the quality of initial decisions.
That is a point of order, but it is one to which the Chair has only limited scope to respond. It is up to an individual Member to decide how to present his amendments. However, it is not entirely appropriate simply to read the whole of a document into the record, when that document is available to the rest of the Committee and the rest of the House.
I am grateful to you, Mr. Illsley. I want to reassure you that I am reading excerpts, because it is important to put them on record so that members of the public can read the independent criticisms of the existing system. That is a critical point. I take your point, and I shall desist. I shall not read—and I have not been reading—the whole document. It is available.
Many Labour Members must understand that not only Opposition Members feel strongly abut entry clearance. We are talking about the rights of thousands of people who are seeking to come to this country for reasonable purposes. They are currently being denied those rights by not fairly being given a right of appeal. Many of my constituents in the university sector and those who have families abroad oppose a Government proposal to restrict further that right of appeal. Labour Members must understand that the message to be taken from the independent measures of quality is that the Government support both the National Audit Office's investigations and the independent monitor. It is vital that policy is impacted by the findings of those independent systems and that the findings are not ignored.
May I just make it clear that I intervened in an attempt to move the debate on and not because I lack a commitment to the rights of our migrant and refugee communities? I wanted to get to the heart of the matter and to ensure that we have enough time in Committee to debate the Bill properly.
I look forward to hearing the hon. Lady's contributions on the heart of the matter, but, other than clause 1, the key part of the Bill is clause 4. For the Government to seek to remove the right of appeal from all those people who, on the basis of the independently monitored records that we have seen, have every right to come to this country is appalling. I urge the Minister to consider whether there is any way in which he could delay introducing provisions under clause 4 until the Government can demonstrate that they can improve the quality of initial decisions in entry clearance.
Let me make a couple of points to begin with: the record will show that the last time I spoke in Committee I made it clear to you, Mr. Illsley, and to the Committee of my gross discourtesy in having to leave straight after I finished to attend to 200 immigration stakeholders in the Home Office. I said that I would return as soon as I could. I am sorry that that did not come by way of a gilt-embossed apology to the hon. Member for pompous, south, but that is the normal way of doing things. I have full confidence in my hon. Friend the Under-Secretary. One does not need one or other Minister to contribute; it is entirely a matter for the team.
I know that all Labour Members and, I am sure, all Conservative Members do not need exhortations from the hon. Gentleman to read germane information. It would be rather nice were he to stop being so patronising by telling people that they could not read or understand documents unless he reads them into the record. He has done very well, first, in reading out other people's briefings and, secondly, reading out large chunks of the Library papers. If I received similar pieces of paper to read out in my ministerial role—I accept what he says about the ministerial role—I would throw them back. The Committee, on both sides, is far more erudite than that.
The hon. Gentleman has spent the best part of 40 minutes not speaking to the amendment. That is entirely understandable seeing as he did not write it, and I have spoken to its author. The hon. Gentleman began yesterday by saying that it was a probing amendment, which is entirely fair. For the purposes of the Committee, although the hon. Gentleman makes some very germane points to which I shall return should there be—he might have destroyed the chance entirely—a clause 4 stand part debate, in the interests of perversity, perhaps, I will stick to the amendment for now.
I have described the amendment to my officials as the air miles amendment. Its essence is to get all 600 judges, who are slightly busy at the best of times with their work at the asylum and immigration tribunal, to go tootling around 160 foreign posts to see whether they are working adequately. God alone knows what that will do to the growing backlog in the AIT. I am sure that it will help the judges to collect air miles but, by the strictest definition, the amendment, which I thought we were here to discuss, is complete nonsense. That is not to traduce its author. The author's intentions were clearly to get to the point about the quality of entry clearance officers.
I can be just as erudite as the hon. Gentleman in selectively choosing evidence. The National Audit Office report clearly said that, in some 60 per cent. of the cases it looked at, either additional information or clarity on the role of the sponsor were the reasons for the appeal being allowed. I fully accept that the NAO report was limited in terms of numbers, but in 34 per cent. of the cases it looked at, additional evidence was the reason for the appeal being allowed and, in 23 per cent. of cases, it was the role of the sponsors.
I do not want, with the best will in the world, judges to be tootling around anywhere looking at assorted posts. I take the point about quality, which was the import of the author's concern. In view of the effort that he puts into writing such amendments, it would be better for his cause if he found someone else to move them in Committee. Nevertheless, the amendment is wrong. I accept the points about quality; I did yesterday and the day before. We will return to them when we look at clause 4.
I do not want to tempt your anger or irritation, Mr. Illsley, so I will simply say that there is no way in any public policy terms that the thrust of the amendment should be entertained. Our 600 judges, both part-time and full-time, do a very good job in adverse circumstances. I am sure that they would rather like to pop around looking at the quality of all our entry clearance posts, but I am not sure that it is appropriate, either in public policy terms and certainly not in terms of primary legislation. I shall crave your indulgence, Mr. Illsley to return to some of the wider points about quality and timing, but not on these amendments as that would be inappropriate. In that context, I ask the mover, rather than the author, to withdraw the amendment.
I am grateful to you, Mr. Illsley, for calling the Minister to order. Indeed, you would have called me to order had it been inappropriate to mention the general points around clause 4 that the Minister seeks to avoid, at least at this stage in the debate. The Minister shows the Government's disdain.
I have already told the hon. Gentleman to be very clear in his language. I barely sat down having said, with your indulgence, Mr. Illsley, that I should like to return to the points of substance relating to quality on a stand part debate because they are serious. Clearly, that means that I am not seeking to avoid the issues. I am simply trying in my own little head to stay in order and simply address the amendment. The hon. Gentleman cannot get away with saying that I am seeking to avoid the issues when I have just made it clear that this is not the appropriate time to deal with them. Please listen.
The Minister exhorts you to listen, Mr. Illsley, and we are all listening to his bluster. The point is, as the Minister well knows, that if the Chairman rules that a general discussion on the clause is in order, the Minister is in order if he wishes to address those points. I was trying to say that he shows the Government's disdain for the people whose rights—
On a point of order, Mr. Illsley. No member of the Government has shown disdain for these issues. I know that that is not a point of order, but I thought that the hon. Gentleman was not going to yield.
The hon. Gentleman is right; it is not a point of order but a point of debate.
Before the Committee descends any further into arguments about procedure and debates, I can tell hon. Members that in moving what are essentially narrow amendments the hon. Gentleman was technically in order although he took a considerable time to do so. ''Erskine May'' is clear: it is allowable to read extracts and quotations provided that they are reasonably short. Although the Chair cannot be critical of how amendments are moved or how debate is carried out, the hon. Gentleman is limiting the time available for the stand part debate because in moving the amendments he covered a considerable amount of ground on the clause.
Thank you, Mr. Illsley. That is why, in my opening remarks this morning, I asked whether it was possible to raise stand part issues in this group of amendments, which was my intention, recognising that it limited my ability to contribute to the stand part debate. I believe that the record will show that. It is for the Minister to decide whether he wishes to respond now or later and you will give him leeway to do so, Mr. Illsley. I confirm my agreement with you that it is appropriate to read extracts when they are germane to the debate. They were not repeated; they were relevant. I will take interventions; the hon. Gentleman does not have to make a point of order. I have never refused to take his intervention when he is here.
The Minister shows the Government's disdain for people whose rights are lost when they are not given the right of appeal by resorting to petty insult rather than seeking to address the key points. It is a little unusual for a Minister's response to contain only abuse, which I am happy to take, rather than a reply to the points that I made. Perhaps he will do that later. The Minister must understand that people reading the report of the debate will wonder why he is so sensitive or grumpy that he feels the main issue is to attack individuals.
I take his point about the amendment itself, but he defended the number of successful appeals by quoting as selectively as I did from the National Audit Office report that 34 per cent. of those appeals were upheld on the basis of additional evidence and 23 per cent. on the role of the sponsor. As the independent monitor and the National Audit Office made clear, that additional evidence is seen by the entry clearance posts before they forward the papers to appeal. They have a second chance to correct their decision on the basis of that additional evidence and, I suspect, on information about the role of the sponsor, although I am not certain about that.
It remains the case that when entry clearance decisions are overturned on appeal on the basis of additional evidence, they still point to an omission or failure by the entry clearance post. If the Minister has understood what the National Audit Office said, I am happy to beg to ask leave to withdraw the amendment.
Amendment, by leave, withdrawn.
With this it will be convenient to discuss the following amendments:
No. 73, in clause 4, page 3, line 9, leave out 'regulations' and insert 'order'.
No. 74, in clause 4, page 3, line 12, leave out 'regulations' and insert 'order'.
No. 75, in clause 4, page 3, line 18, leave out 'regulation' and insert 'order'.
No. 76, in clause 4, page 3, line 21, leave out 'regulation' and insert 'order'.
No. 79, in clause 4, page 3, line 24, leave out paragraph (d).
No. 82, in clause 4, page 3, line 37, at end add—
'( ) An order under this section shall not be made unless a draft has been laid before and approved by resolution of each House of Parliament.'.
This group of amendments probes the Secretary of State's future intention on appeal rights. They would ensure that regulations restricting rights of appeal are subject to the affirmative procedure in Parliament. One of the problems with the Bill is that it gives wide discretion to the Minister as to whether the decision can be appealed. The only direct precedent for it at present is the ability of the Minister to specify the family members who may appeal against the refusal of a visit under section 90 of the 2002 Act, which the new clause would repeal. The amendments provide an opportunity to urge the Government to consider whether it is appropriate to deal with matters such as the affording or taking away of a right of appeal through delegated legislation. It would also be helpful if the Government were willing to address the point that I have raised before about whether they will lay draft regulations before Parliament so that it can be seen which groups of people will lose their appeal rights. It does not seem unreasonable for us to ask the Government to provide that information before we debate and vote on whether we should remove, carte blanche, the appeal rights of a huge number of people. That is the purpose of the amendment. I made most of my points about the clause in my initial remarks, so I need not comment further.
As I said to my hon. Friend the Member for Walthamstow (Mr. Gerrard) in the debate on amendment No. 102, we believe that it is more than sufficient in terms of parliamentary scrutiny to utilise the negative route. That is entirely in order. Negative routes are laid, and there is sufficient time for those who object to pray against them. Thereafter, there may or may not be a debate. That has been the custom for a long time in relation to regulations. I know that some people have an aversion to negative rather than affirmative procedures; that is a matter of taste. I do not believe that there is a substantial difference in terms of parliamentary scrutiny, at least during the initial filtering process in which people have to pray against the matter. We do not support the amendments because the negative procedure is sufficient.
Let me make another small point. The NAO report made it clear that the 180 cases studied were all cases that had been determined on appeal after they had left ECO, and in which there had been no chance for ECO to look at any new evidence between the decision and the appeal process. Therefore, it is wrong to suggest that in relation to the elements considered in the NAO report, ECO had had a second bite of the cherry, meaning that the 34 per cent. and 22 per cent. quoted were wobbly. That is inaccurate, and the hon. Member for Oxford, West and Abingdon (Dr. Harris) should either withdraw his comments or at least recognise that he was wrong.
Returning to the amendments, we are comfortable with the negative procedure, there is sufficient scrutiny and I look forward to their withdrawal.
I shall look at the part of the NAO report that the Minister has mentioned, and if it is correct I shall certainly accept what he says, although the key issue in the previous group of amendments still applies in the main. On the amendments, I simply disagree about using a negative resolution to withdraw people's appeal rights, which affect their lives and their livelihoods. That is the sort of point that Labour made all the time when they were in opposition. It is not surprising, therefore, that we should make it now; I think that the Minister accepts that. Points were made by the Labour party in opposition on issues much less important than the removal of appeal rights and the categories of people who should be allowed to appeal. The negative procedure is a ''yes or no'', as are regulation-making powers. It is therefore impossible to amend lists of people included in such resolutions. There is no merit in voting on the issue now, so I beg to ask leave to withdraw the amendment.
Amendment, by leave, withdrawn.
With this it will be convenient to discuss the following amendments:
No. 78, in clause 4, page 3, line 9, at end insert
(c) entering for any other purpose prescribed by order for the purpose of this subsection.'.
No. 83, in clause 4, page 3, line 9, at end insert
(c) entering for settlement as a returning resident in accordance with the provisions of the immigration rules'.
No. 84, in clause 4, page 3, line 9, at end insert
(c) entering in accordance with the terms of any provision of the immigration rules which relates to a provision of community law'.
No. 90, in clause 4, page 3, line 9, at end insert
(c) entering for any other purpose prescribed by regulations for the purpose of this subsection.'.
No. 91, in clause 4, page 3, line 9, at end insert
(c) entering as the dependant of a person authorised to study or seek or take employment or of an authorised self-employed person in the United Kingdom, as prescribed by regulations for the purpose of this subsection.'.
No. 104, in clause 4, page 3, line 10, leave out 'Regulations' and insert 'an order'.
No. 80, in clause 4, page 3, line 20, at beginning insert
'in the circumstances specified in subsection (1)(a) above,'.
I hope that before the hon. Member for West Ham (Lyn Brown) loses the will to live, I might engage her on this group of amendments. While I am not the author of the amendment—I would not have the effrontery to claim that—I hope that what I have to say about it will keep the Committee focused on the issues. If any Committee member would like to intervene with examples, or to support or attack me, I shall take all comers.
Amendment No. 24 is supported by all the organisations that the Minister knows well: Universities UK, the Standing Conference of Principals, the National Union of Students, the Association of Colleges and, of course, the estimable Immigration Advisory Service. We have tried to capture the subject that is arousing some of the strongest feelings in those organisations. I hope that the Minister will pay attention to the amendment and give a little if he possibly can. I feel sure that if he does not, there will be a danger of a filleting exercise in another place. I know that feelings are running high in the other place about the provisions in the Bill.
Under clause 4, all applicants for initial entry clearance would lose the right of appeal unless they were visiting a family member, coming to the UK as a dependant in prescribed circumstances or appealing on race relations or human rights grounds. International students, as we have discussed before, will be caught by that. I do not intend to repeat the arguments that we considered when debating clause 1, but the impact on that group will be serious and it is important.
I want to pick up from where we were when we debated this matter on Tuesday morning, in order to explain why higher education institutes are so worried about the provision. One vice-chancellor who needs to remain nameless, as the Minister will understand, said:
''Our new intake of overseas students is 837 compared with 1084 last year, a 23 per cent. decline. The immediate impact on our bottom line is about £1.9m - about 2.2 per cent. of our income. We shall go into deficit this year for the first time in about 20 years. The main source of the decline is China. There are various factors at work but the new visa regime is undoubtedly one of them.''
He went on to say:
''One notable feature of this year's pattern of applications, acceptances and actual arrivals is the much higher proportion of 'no shows',''
I do not know whether the Minister is familiar with that, but those are students who firmly accepted an offer of a place, often to the extent of paying for the accommodation deal and deposit, but did not turn up to register. He goes on to give an example,
''there are 330 'firm acceptances' by prospective overseas undergraduates but only 259 have registered'',
a considerable drop-off,
''in a typical year the no show rate would be about 6–7 per cent.'',
which he would accept, but it has leapt to 22 per cent. That is a large incremental change. He goes on to say:
''We have little doubt that the reason is that visa applications are being turned down at a higher rate.''
I hope the Minister will accept that that is what is happening.
The fear is that with no right of appeal the number of no shows will go up and the damage to reputation will mean that the number of applications will go down. In 2003–04, there were 225,030 applications for student visas: 65 per cent. were successful and 32 per cent. were refused. There is a considerable body of evidence to suggest that the reasons for refusal are frequently inappropriate or based on a simple misunderstanding of the facts of the case in question. In 2003, we are told that 52 per cent. of all applicants who had been refused initial entry clearance successfully appealed. In cases relating to international students, the official proportion of successful appeals was about 25 per cent., as the hon. Member for Oxford, West and Abingdon has said.
The IAS states that it successfully appealed in 49 per cent. of cases in which it acted on behalf of students. Ninety per cent. of international students who had accepted offers, for example from the university of Sheffield, and were refused visas successfully appealed or, more commonly, UK Visas reconsidered the case before it reached appeal. I know the university of Sheffield well as it is near my family home. Professor Bob Boucher, its vice-chancellor, has repeatedly made the point that without the right of appeal, the incentive for entry clearance officers to reverse a visa refusal following representations will no longer exist. He goes on to echo a point which is now unfortunately familiar to the Committee.
As we know, in 1993 the then shadow Home Secretary opposed a similar measure in the Asylum and Immigration Appeals Act 1993 which removed the right of appeal for rejected visitors and short-term students. He said:
''When a right of appeal is removed, what is removed is a valuable and necessary constraint on those who exercise original jurisdiction . . . The immigration officer who knows that his decision may be subject to appeal is likely to be a good deal more circumspect, careful and even-handed than the officer who knows that his power of decision is absolute.''
What has changed since then? Will the Minister comment on the words of his Prime Minister? Does he think that the leader of his party was wrong?
That is a little unfair. We currently have a leader; we are just making a change so that we have a new and better one.
I do not want to put words into the Minister's mouth, but he may well reply that what has changed is the volume of appeals. I have two points to make to pre-empt him. The first is that there would be fewer appeals if the quality of initial decision making were better. I shall return to that point. The second relates to another quote:
''It is a novel, bizarre and misguided principle of the legal system that if the exercise of legal rights is causing administrative inconvenience, the solution is to remove the right. No doubt that might satisfy bureaucrats and Government administrators in many areas, but it can hardly be a justification for removing rights.''—[Official Report, 2 November 1992; Vol. 213, c. 43.]
They were not my words, but those of the Prime Minister.
What I find extraordinary about the justifications that Ministers have advanced for the removal of the right of appeal is that they apparently rest on the argument that the right of appeal will no longer be necessary because the new points-based immigration system the Government plan to introduce will improve the quality of initial decision making. That is an argument, but it is a thin one. The Government are consulting on plans to introduce the more objective points-based system, but I question the wisdom of abolishing the right of appeal before the system is fully designed.
I do not; I am probing and asking the Minister to comment. It would be far more sensible to have an objective points-based system implemented which is proven to be running smoothly before abolishing the right of appeal, if that is the road down which the Minister intends to go. If the Government think that any new system is going to banish instantly the errors of the existing system, they are a little naive. I hope that the Minister reassures me on that.
The evidence of the current entry clearance system makes it clear that there are two main problems with the decision-making process. First, decisions are often based on subjective criteria. If a decision is based on a matter of opinion, that will always be open to challenge. Secondly, there is clear evidence that ECOs frequently make inappropriate judgments—for example, in the case of international students and their capacity to follow a course. That is basic maladministration and I am worried that the new points-based system will not completely rid the system of that. I am again seeking reassurance from the Minister.
I should like to offer my gratitude to the Minister's Department, which helped to solve the problem in the case that I referred to earlier. A student who had been granted six months to stay for a course—the course in fact lasted 12 months, but the first module was for six months—was asked to leave and on the verge of not being able to attend the course. We got involved, and I am grateful to the Department because the problem was resolved. However, that sort of thing has cropped up a few times and it should be considered.
That is characteristic generosity from my hon. Friend, and I hope that the Minister takes it on board. What he describes is a credit to the Minister and his Department. The Minister is still getting a lot of brickbats, so he will have been pleased to hear that.
I challenge the Minister to produce evidence to support the view that the new points-based system could ever be entirely free from subjective judgment, or that once it is introduced all maladministration and inappropriate decision making will cease overnight. If he has that confidence in the system he is designing, we should hear about it.
When decision making is subjective and often wrong, there must be a right of appeal as a matter of principle. Let me briefly illustrate what I mean about poor quality decision making. My examples are drawn from the higher education sector and have been gathered by Universities UK, to which I owe a debt of gratitude. The examples amply illustrate the problems. I should mention that I am not willing to name the institutions in most of the cases that I cite, on the grounds that I do not want to run the risk of prejudicing any institution's marketing position or reputation.
I fully understand that, but I urge caution. The hon. Lady introduced an earlier example in the same way and went on to say that the institution had 837 students this year compared to another figure last year. I guess that not a whole lot of universities have that specific number of overseas students. I urge her to couch her comments in a different way so that the anonymity remains.
I take the Minister's point and am grateful to him. I was briefed on those figures, so I assumed that there was an element of anonymity. Perhaps I should have added the words ''or thereabouts''. However, I agree with him and shall try to be careful.
I have six examples, and that is about the right number to give us the flavour of the issue. Perhaps other Committee members will have other examples.
Giving six examples of institutions is fine, but we are not dealing with casework. I am keen to urge the hon. Member for Ilford, North (Mr. Scott) not to do casework by Committee, and I am certain that I can exhort the same of the hon. Lady. Otherwise, we might be here even longer than we anticipate.
I know what the Minister means. However, we are privileged to have many hon. Members on this Committee—some, perhaps, serving on a Committee for the first time—and I was trying to encourage them to make a contribution because it is important that we hear from everybody. I was probably using a mother-hen style of management in encouraging people to make a maiden contribution.
On the six examples—[Interruption.] I see that the hon. Member for West Ham is still awake.
Not that hard.
At one institution, an Indian national was refused entry clearance on the basis that his English was not good enough, that the same course was available in India at lower cost and that he could not demonstrate sufficient funding. The appeal was successful on the grounds that the student was due to undertake several months of pre-entry language training at the university's language centre, that the course was sufficiently different from those available in India—not least because of its location—and that the student had paid his course fees in full. That is an amazing turn-up for the books.
At the second university, which is a Russell Group institution, an applicant was refused on the following grounds:
''The cost of your tuition, maintenance and accommodation is to be borne by your parents. Funding your education will impose an additional financial burden on them.''
I am sure that the Minister will agree that that is a pretty ridiculous statement. It is also an inappropriate reason for refusal and a highly subjective judgment. Moreover, in that particular case the applicant was in receipt of an overseas research students award—a UK Government-funded scholarship—covering the whole of his tuition fees, plus a maintenance award of £5,000 a year. To add insult to injury, the award letters were attached to his application.
Another university cited difficulties with students applying for visas to continue studying on a course offered in partnership with a Chinese university. Typically, students on such courses will study for two years in their home country and then spend the final year, or two years, depending on the course, at a UK institution. The university in question reported:
''Last year we found that most of the applications from our partner university were rejected first time round, even though we had a relationship with that university going back over a decade, with no problems whatsoever. On appeal, some 80 per cent. were successful, but as my colleagues''
''point out, the damage to our reputation has been enormous . . . probably too great to recover our former position.''
That is an alarming situation.
Another highly respected university reports that a student was refused on the grounds that the entry clearance officer had doubts about her ability to maintain and accommodate herself, despite the fact that she had a grant from her home Government to cover all her costs. The immigration officers also said that there was
''no reason for her to experience the British education system.''
How pompous is that? It is unbelievable.
Several institutions cited applications which were rejected on the basis of academic judgments, which entry clearance officers are not qualified to make and which are not an appropriate basis for a refusal. One institution gave the following example:
''Your proposed course of study is unrealistic because it is inconsistent with your previous pattern of study''
''previous job experience and does not represent a progression in your education''
''previous employment pattern and you have been unable to give me a satisfactory explanation for this change of direction.''
In that case the student had applied for a conversion course which was specifically designed to enable people to change their career track.
One reason for refusal that is cited again and again is that the entry clearance officer is not satisfied that the applicant intends to leave the UK on completion of their course. That has to be a major factor taken into account by entry clearance officers, both under the current system and, I suggest, the new one. However, determining whether an applicant intends to leave the UK is always bound to be a matter of subjective judgment. How, then, can all subjectivity be removed from the process?
I hope that the Minister addresses those points specifically. If he cannot satisfy the Committee that all subjectivity will be removed from the decision-making process, it cannot be right to remove the appeal right at this stage. My amendment would replace the right of appeal for international students. I am sure that some would say that it does not go far enough. The Minister may think—I do not know whether he will say so—that it is a relatively modest amendment.
Amendment No. 78 would give the Secretary of State a much wider power to name other categories that would retain the right of appeal. I am doubtful that it would be sensible to replicate the provisions in clause 1(4)(fb), which relegates the power to decide who retains or loses right of appeal to secondary legislation, but I understand the thrust of the amendment.
My amendment No. 24, however, relates to international students only. The Minister will be familiar with its wording, and will realise where it came from: it is the negative of the current provisions. My amendment would reinstate appeal rights only for those on courses lasting more than six months—following the pattern set down in the 2002 Act—who have accepted a firm offer of a place at a UK institution on the approved list.
I must press the Minister on the approved list. I am sure that he will be aware of the problems with it. As I understand it, education institutions have made many representations on the subject. There are bona fide colleges and universities that are not on the list, including, I understand, some colleges of the university of Cambridge; the Minister may be able to confirm that. Also, some organisations on the list probably ought not to be there.
I am sure that every member of the Committee is familiar with Tesco's well known and excellent ''computers for schools'' programme. There can be no old—or even new—Member here who has not been invited to present a Tesco computer to a school in their constituency. If the Minister will forgive me for asking, I would like to know whether Tesco is still on the list of approved education providers. I understand that it was, along with furniture stores and other bodies that had apparently been given funding for the provision of education and training at some point, and that were therefore categorised as education providers. Much as I love shopping in Tesco, it cannot by any stretch of the imagination be described as an education provider.
It should not be beyond the wit of man or woman to resolve these difficulties, and basing immigration decisions on the approved list would surely be a sensible way forward, particularly if we could get an approved list that was comprehensive, and that missed out some of our better known retail outlets.
I want to try to anticipate some of the arguments that the Minister may use in rejecting this amendment—as I predict he will, unfortunately; I have been watching his face carefully. However, I live in hope. He might argue that appeals take too long, and that it is in the interests of applicants to reapply rather than wait for an appeal. I agree that appeals take too long, but why should a bona fide applicant, who has submitted all the correct documentation, and who has been refused on spurious or subjective grounds or as a result of a misunderstanding, believe that on reapplication they are likely to be more fortunate? And why should an applicant pay several application fees when the evidence suggests that a high proportion of refusals are due to maladministration? Furthermore, as previous visa refusals are frequently, if inappropriately, cited in the reasons given for turning an applicant down, there is a real danger of applicants being unfairly stigmatised, and of refusal prejudicing future visa applications.
The Minister has already argued that because our competitors, such as Australia, do not generally provide a right of appeal against refusals in such cases, there is no need for us to retain it. I disagree; the absence of a right elsewhere is certainly not a compelling argument for removing it where it does exist.
Nor was it intended to be. Quite the opposite: I am implored by those who argue against our position to accept that the existence of the appeal here, and not in rival countries, is the absolute pull factor that brings people here. That is what I was traducing, not the other way round.
As the Minister says, that is where we disagree. He has also suggested in the past, including in this Committee, that the education sector is shooting itself in the foot by continuing to publicise its opposition to visa changes. That is no doubt true, but what is the education sector to do? What choice does it have? It is caught between a rock and a hard place. I accept that it cannot remain silent, as the Government bring their proposed scheme before the House for debate, especially when the sector believes—I certainly do, having been convinced by its arguments—that there is a good chance that we could mitigate the damaging effects of the proposal. For the Government to argue that the education sector should keep its mouth shut is not the best route for them to take.
With the best will in the world, I must say that I have not said that on any occasion. I have said clearly that we understand the education sector's concerns. We understand the quality of its product and, through the joint education taskforce and other means, we are trying to work closely with the sector. All I have said is that it should understand that there is a fine balance between arguing against particular or proposed legislation and doing the work of its competitors by doing down what remains a high-quality product. I have not exhorted the sector to keep its mouth shut.
I stand corrected. However, the Minister's view is certainly not the feeling that is held out there. Although his words will reassure the sector that he is listening carefully to it, actions speak louder than words and the taking of some ameliorating action on the provisions as drafted would provide the greatest comfort to the sector rather than any joint working with educational taskforces or other quangos and bodies.
There is an argument that I find difficult to take. It is along the lines of, ''Don't worry about the loss of appeal rights. We know that the quality of initial decision making is poor, but we'll sort that out. Don't worry, we are putting in more training. In another couple of years, a better system will be in place and there will be no need for the right of appeal. It will all be put together in a five-year plan. We have laid it out. It will take us time. Trust us.'' It is difficult to trust the Home Office when the independent monitor's report makes it plain that, when there is no right of appeal, applicants are frequently wrongly refused visas with no right of redress. It is difficult to go down the road of trust when more than 25 per cent. of student appeals are successful under the current system. It is difficult to go down the road of trust when the university of Sheffield says that it currently overturns visa refusals in 90 per cent. of cases.
I need to know what is in the Minister's mind and what makes him imagine that, given the scale of the problem that I have outlined, he will be able to remove all the errors in a couple of years. I hope that he will accept the argument that is advanced predominantly by Universities UK and others that it is not possible to remove all subjectivity from the decision-making process. Does he not realise that, as he is proposing to remove the right of appeal before introducing a better and more robust system, Opposition Members would be irresponsible if we did not challenge the logic of that move?
The Minister could offer us a lot of comfort by proving that the new system will work, by demonstrating that the entry clearance monitor is satisfied with it. After providing such proof, he could return to the House with proposals to abolish the right of appeal. His argument might then be seen to be credible and might find wider favour than it has so far with the interested bodies outside the House. I hope that the hon. Member for West Ham is wide awake, given that she has not felt the necessity to intervene. The Committee is poorer for her lack of intervention. I hope also that the Minister will now give us a full reply to the issues that have been raised so well by those who briefed me outside the Committee.
It being twenty-five minutes past Eleven o'clock, The Chairman adjourned the Committee without Question put, pursuant to the Standing Order.
Adjourned till this day at One o'clock.