Clause 9 - Continuation of leave
Immigration, Asylum and Nationality Bill
3:00 pm
Humfrey Malins (Shadow Minister, (Assisted By Shadow Law Officers); Woking, Conservative)
I beg to move amendment No. 23, in clause 9, page 5, line 2, at end insert
'including provision for a grace period'.
I shall speak briefly to the amendment. Section 3C of the Immigration Act 1971, which provides that leave to remain is deemed to continue when an immigration application remains outstanding and the last grant of leave has expired until the applicant has exhausted any subsequent appeal rights in relation to the decision, will be removed by clause 9. This measure goes hand in hand with the provisions in clause 1.
Currently, when a person applies for an extension to their visa, their leave to remain is automatically extended until the application has been processed and a decision made. Section 3C of the Immigration Act 1971 provides that if it takes more time to decide an application than the applicant has leave to remain, they are at least able to stay until the decision had be taken and, crucially, they have had an opportunity to appeal the decision.
Clause 9 will remove that necessary protection for an applicant who may well succeed in any subsequent appeal. I think I can see why the Government are taking that approach, since the right of appeal against a refusal to extend leave to remain is exercisable only at the point of removal and a decision to remove an individual can be taken only once leave has expired. Someone who is protected by section 3C of the 1971 Act might conceivably be caught in a limbo in which he could neither appeal nor be removed.
I do not think that this is a satisfactory solution, so amendment No. 23 probes how the Government intend the new scheme to work. A time-limited grace period following the refusal of an application to extend the visa would enable the Government to issue notice of their decision to remove the applicant at the expiry of the grace period, triggering the right of appeal while allowing the appellant to remain in the UK legally.