Clause 4 - Entry clearance
Immigration, Asylum and Nationality Bill
1:00 pm
Evan Harris (Science, Non-Departmental & Cross Departmental Responsibilities; Oxford West and Abingdon, Liberal Democrat)
This group includes amendments Nos. 78, 83, 84, 90, 91, 104 and 80, in my name and that of my hon. Friend the Member for Manchester, Withington (Mr. Leech). I shall dispose of them quickly; I want to ask only a couple of questions of the Minister.
Amendments Nos. 78 and 90, which offers an alternative wording to that of amendment No. 78, would give the Government more powers to make regulations to allow a wider range of appeals against refusal of entry clearance than just the ones listed in the Bill. It needs to be understood that I do not consider regulations to be the best way to restore people's rights, but given that that is the architecture of the Bill, we are asking the Government why they have chosen to limit the grounds on which they can do that.
Amendments Nos. 83, 84 and 91 relate to three specific groups and prompt questions about those groups. Amendment No. 83 would preserve the right of appeal for those who have already been granted indefinite leave to remain—that is settlement—who are applying overseas to be permitted to re-enter for that purpose. That group of applications currently has a right of appeal, but the Government's stated intention, while removing appeal rights from students and workers, fails to mention that group, which may be an oversight. Only a small number are likely to fall into that category, but the right of settlement that they want to exercise should not be denied to them without good reason after it has been granted. Giving the right of appeal would avoid those applicants feeling that they had cause to pursue human rights claims or judicial review, which would be more expensive and complex and not necessarily the most appropriate way to proceed. I hope that the Minister will think about whether he is willing to consider that small group.
Amendment No. 84 refers to those seeking to gain their rights under immigration rules relating to a provision of Community law. I raised that matter under clause 1 and I will not repeat at length what I said. I asked the Minister to let me know his response to the examples given, preferably by the end of our debate on the proposal. The examples were Swiss nationals, and nationals of countries with relevant association agreements within the EU—Bulgaria, Romania and Turkey—who are seeking to enter for the purposes of businesses or self-employment. There is also a further example: non-European economic area nationals who are the primary carers of children resident here who themselves have rights of residence in accordance with the European Court judgment on the Chen case. Denial of a right of appeal in those cases may bring the UK into conflict with Community law and give rise to more expensive litigation, which could be avoided by providing for a right of appeal in such cases, although that is a narrow point.
Amendment No. 91 would give the right of appeal, or at least the right to be considered for it under regulations, to people
''entering as the dependant of a person authorised to study or seek or take employment or an authorised self-employed person in the United Kingdom, as prescribed by regulations for the purpose of this subsection.''
That would allow a right of appeal against the refusal of applications for individuals who wanted to enter the UK as the dependant of an individual granted entry into the UK.
Amendment No. 104 does not really belong in the group, and I mention it only because I want to return to something the Minister said earlier. He said that he thought that the negative resolution instruments were an acceptable way to deal with the issue—I hope that I am not misrepresenting him. It is not how the Government have always dealt with appeal rights, because section 29 of the Asylum and Immigration (Treatment of Claimants, etc.) Act 2004, in amending section 88, provides for an affirmative order to be the way forward. I shall be grateful if the Minister will clarify what is significantly different in this Bill to enable it to depart from that precedent.
Amendment No. 80 is relatively specific. Its construction is complex, but it would limit the reference to the person in the UK needing to be settled here to cases where the person seeking entry clearance to join them is applying for settlement and not just to visit. An application from a family member of a person who is living lawfully in the UK with permission to stay for a long period, for example, as a businessman, graduate student, researcher and so forth would appear to lose any right of appeal under clause 4 as drafted.
My point is similar to that made by the hon. Member for Walthamstow (Mr. Gerrard). People who are already here are seeking for people to join them. They know how to contact their Members of Parliament and if the clause is accepted as drafted, there will be extensive use of Members of Parliament to raise these matters with Ministers in the immigration and nationality directorate, which is time consuming. Indeed, there may also be inappropriate reliance on human rights claims.
It is not clear that there has been any abuse of this provision at present, as the relatives to be visited will all be lawfully in the UK and most of them will be gainfully employed to the benefit of this country or engaged in higher education. Again that is a specific issue. In the interests of constructive debate, I should be grateful if the Minister could respond to the points that the amendments seek to probe.