Clause 4 - Entry clearance
Immigration, Asylum and Nationality Bill
12:00 pm
Evan Harris (Science, Non-Departmental & Cross Departmental Responsibilities; Oxford West and Abingdon, Liberal Democrat)
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.