Immigration: Statement of Changes in Rules

– in the House of Lords at 7:46 pm on 17th March 2008.

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Photo of Lord Avebury Lord Avebury Spokesperson in the Lords (Civil Liberties), Home Affairs, Spokesperson in the Lords (Africa), Foreign & Commonwealth Affairs

My Lords, we oppose this statement on a number of counts, but first and foremost because there has been no consultation with any of the stakeholders. The Immigration Law Practitioners' Association, the Immigration Advisory Service, the Transport and General Workers' Union, the Refugee Children's Consortium and Universities UK—I am glad to see the noble Baroness, Lady Warwick, in her place—all had valid points to make and their views were ignored in the formulation of this statement. The Minister apologised to ILPA in a letter of 29 February and since then there have been discussions with it, but even though officials appear to have acknowledged the concerns expressed, the only way they could have been accommodated was to withdraw the statement and retable an amended version, and they clearly have not been prepared to do so at such a late stage.

HC321 brings into force the tier 1 component of the points-based scheme announced by the Home Office in March 2006, and we fully endorse the criticisms made by the JCHR of the tighter conditions for the grant of further leave to remain, which apply not only to those coming here under the new scheme but to highly skilled migrants who came here under the previous arrangements. Those people came here to settle down and they bought houses and placed their children in schools with the legitimate expectation that if they satisfied the conditions specified, they would qualify for settlement at the end of four years. Now, the carpet is being pulled from under their feet, and the retrospective imposition of additional conditions is seen by the JCHR as a fundamental breach of their right to family life. This matter is being tested in the courts as we speak, and it was wrong of the Government to ask your Lordships to approve these changes until that matter had been decided.

However, our concerns also extend to the general changes that are being made here in dealing with false documents and applicants who previously breached immigration laws. It is to be mandatory to refuse an application for entry clearance or for leave to enter or remain where false representations have been made or false documents submitted whether or not they are material to the application and whether or not they are to the applicant's knowledge, and the same applies to material facts not disclosed.

On Third Reading of the UK Borders Bill, we moved an amendment to allow mistakes or misunderstandings in an application to be corrected. The noble Lord, Lord Bassam, said that under this system appeals,

"will not be an opportunity for applicants to patch up failed applications with new evidence".—[Hansard, 23/10/07; col. 995.]

Thus a clerical error or the wrong document submitted by mistake will lead to mandatory refusal, even where there was no intention to deceive. The applicant can then be prohibited from returning to the UK for one, five or 10 years.

However, the noble Lord, Lord Bassam, confirmed explicitly in an earlier debate that a person whose application for an extension of stay is rejected because of a clerical error or a wrong document would be entitled to have a corrected application considered if it was lodged within 28 days of the expiry of his existing leave. In response to an amendment, the noble Lord said:

"A 28-day grace period will be included in the Immigration Rules as part of the tier 1 process in March 2008 ... This will allow those who send their applications within 28 days of their leave expiring to continue with their application. That is a very helpful approach on our part, which will probably be welcomed, not least by immigration law practitioners".—[Hansard, 16/10/07; col. 661.]

He repeated that assurance later, making it crystal clear that the 28-day period would allow a person whose application had been rejected because of an inadvertent clerical error or the submission of the wrong document to put in a new application within 28 days. When I put that to him, he replied:

"Yes, my Lords, that is what I am saying".—[Hansard, 23/10/07; col. 996.]

Will the Minister be good enough to point to the passage in the statement that gives effect to those undertakings?

In the JCHR hearing on the statement, the Minister was asked about the even more serious case of a woman or child who is trafficked into Britain on false documents and subsequently escapes. He said:

"That is why there has to be an appeal that is attached to these kinds of decisions".

However, there is no discretion in the rules on false documentation, even for asylum applicants who customarily have to produce travel documents to which they were not lawfully entitled, because obviously a Government who are persecuting them do not want them to escape and tell their story in a free country. Will the Minister explain how any appeal can succeed when the law makes no provision for exceptions in those cases?

Paragraph 47 imposes catastrophic penalties on an applicant who commits breaches of the immigration laws, including minor infractions of the conditions attached to his leave. I expect that my noble friend Lord Roberts will deal with the retrospectivity of these penalties, which is particularly abhorrent. Apart from that, a mandatory ban on entry for a fixed time in a given set of circumstances is undesirable, and paragraph 320 of the rules already provides adequate powers to deal with persons who had previously obtained leave to enter by deception, or who failed to observe a time limit or any other conditions attached to a previous stay.

Paragraph 320 provides that such persons are normally to be refused, but allows for discretion so that the punishment can fit the crime. Thus an inadvertent or accidental breach could be overlooked, while deliberate breaches can be treated with appropriate severity. Making exclusion mandatory is to ignore the gravity of the breach so that, for example, a missed attendance for reporting, for whatever reason, or a short delay in advising the BIA of a change of address when a residence condition has been imposed, would mean a one-year ban on re-entry if the person leaves the UK voluntarily at his own expense; a five-year ban if he leaves voluntarily at the expense of the taxpayer; and a 10-year ban if he is deported at the expense of the taxpayer. The European Council is currently looking at a draft directive on returns of illegal third-country nationals and has agreed with the Parliament that the length of the re-entry ban should be no more than five years, except where there is a threat to public policy or to security. There is no mention in that draft of the ability to pay.

When your Lordships considered Clause 16 of the UK Borders Bill, which allows for the imposition of residence and reporting conditions on any person given limited leave to remain, we had no idea whatever that breaches were to be dealt with in this arbitrary and disproportionate manner. Among those who are to be made subject to the conditions are child asylum seekers, for whom the Refugee Children's Consortium has expressed great concern. The degree of responsibility to be laid on a child, whatever her age, for observing conditions ought not to be equal to that of an adult, still less where the child has been trafficked or smuggled into the UK. However, the same procrustean penalties are to be imposed on children as on adults, and in practice they are more likely to suffer the longer ban of five years because they will be less able to pay the fare back to their country of origin.

Last week, Amnesty International and Southall Black Sisters published a report on gender-based violence against women with limited leave to remain. The men who rape, mutilate and starve these women also threaten them with penalties under the immigration rules. In the particular case of domestic workers, on whom conditions are being imposed that prohibit a change of employment, the perpetrators are being handed an additional weapon. In the Government's response to the EU Select Committee report on illegal migrants, they said about a proposed EU-wide re-entry ban that,

"the time limits would be arbitrary in nature and involve considerable administration in monitoring the bans", and that to allow a person to escape the ban,

"simply by paying the costs of the removal would condone the abuse of the control by those who are financially well off, while those without such financial means are excluded".

Is that not what we are being asked to agree to now? Children, abused women, domestic workers and other vulnerable people without means are going to suffer the five-year ban. There is a threat that students may also be added to the categories of those with limited leave to which these penalties will apply. Even worse, as the thousand Zimbabweans now being threatened with deportation will be subject to a 10-year ban, if any of them is the victim of fresh persecution when they arrive back home, they will be unable to submit a new application. Indeed, without an exception to the ban for any person who establishes a claim to have been persecuted for a convention reason, this statement could well be unlawful.

The statement is ill considered, arbitrary, inflexible, unnecessary, out of line with the rest of Europe and contrary to recent government policy. It could have serious repercussions on our commitment to ratify the Council of Europe convention on human trafficking and the UN Convention on the Rights of the Child. The sensible thing to do now is to wait until the reviews on the steps that we need to take for those purposes have been completed, so that the carve-outs mentioned by the Minister in his replies to questions from the JCHR can be incorporated into the rules. That would give time for the process of consultation that has been so grievously side-stepped so far. It is not too late for the Minister to say now that he will not proceed with the changes but will further reflect on what has been said with one voice by the many agencies that made their comments after it had been tabled and by your Lordships here this evening. I beg to move.

Moved, That the Statement, laid before the House on 6 February, be disapproved.—(Lord Avebury.)

Photo of Baroness Warwick of Undercliffe Baroness Warwick of Undercliffe Labour

My Lords, I wish to speak briefly in this debate on the changes in the Immigration Rules. Statement HC321, which the noble Lord, Lord Avebury, wishes to disapprove, will introduce changes to the immigration rules that could cause problems for international students coming to higher education institutions in the UK. I declare my interest as chief executive of Universities UK.

Although I fully understand the Government's need to crack down on illegal immigration, I have concerns that international students and staff, as highly skilled migrants whom we want to come to the UK and who contribute to the high quality of our higher education system, could be caught up in the unintended consequences of this measure. The general principle behind the position of the noble Lord, Lord Avebury, is that the changes proposed in HC321 would retrospectively affect people in unfortunate ways, condemn people for errors made by others or for very minor errors and place those who overstayed for brief periods in what could be very difficult positions.

HC321 requires that an application for entry to the UK as a student must be refused if the applicant has at some point breached UK immigration law. This could include a period of overstaying in the past. Depending on how the person left the UK previously, this effective ban on his or her re-entry might last for up to 10 years from the time they left. As I understand it, any student application under these proposed rules must be refused if it contains any statement or document that is false, whether or not the individual knew of the falsity and whether or not it is relevant to the application. It is not clear from the rules as formulated whether "false" has the meaning of mere inaccuracy, which is one ordinary dictionary meaning, or whether a deliberate fraud must be attempted.

Universities UK has recent experience of the Home Office applying the immigration rules in unfortunate ways. Last autumn, we became aware that, from 1 September 2007, Border and Immigration Agency caseworkers were operating a policy of automatically refusing all applications from students who had overstayed. This was in contrast to previous practice and appeared to contradict information we had been given in the summer of 2007 by the BIA that students who overstayed for more than 28 days would be automatically refused, but that applications from students who had overstayed fewer than 28 days would be handled with discretion. There was also no communication by the BIA to Universities UK about a change in that policy.

Many students unwittingly became overstayers because of payment problems, when the BIA payment systems rejected valid credit cards. By the time the students had received notice of their rejected payment, they had inadvertently become overstayers. I emphasise that these students were not illegal migrants seeking to disappear into the UK workforce, but people seeking to maintain their regular immigration status through an application and payment of £295 to the BIA. We also know that they are making good progress in their studies, since all applications have to be supported by their institutions. Considerable distress ensued from this rather over-zealous policy implementation, as students were told to leave the country and had their documentation confiscated. Many of these students were nearing the completion of their qualifications and had invested considerable resources in the UK to come here to study.

However, it is not all bad news. Following lobbying by Universities UK and the UK Council for International Student Affairs—UKCISA—we were pleased and relieved when, in January 2008, the BIA announced at the joint education taskforce meeting:

"Applications received within 28 days of the expiry of leave will be considered in the normal way ... those within 6 months in exceptional circumstances, but those outside that period, refused".

It is also welcome news that the BIA has agreed to work with UKvisas to draw up guidance for entry clearance officers to prevent entry clearance refusals solely on the grounds that students had overstayed and therefore had been refused leave to remain as students and so had to return to their home countries at considerable interruption to their studies. I understand that this guidance has now been issued to entry clearance posts by UKvisas.

In conclusion, I seek two assurances from the Minister. First, does the position about the BIA's treatment of overstayers, as stated in the JET meeting in January 2008, still hold true, despite the changes we are considering tonight, which were announced on 6 February to this House? Secondly, will the Minister provide for the House a copy of the guidance about overstayers and their treatment that was issued by UKvisas to entry clearance posts around the world? A positive response to these two requests would certainly go some way to reassuring the higher education sector that the Home Office is listening to it on this important matter.

Photo of Baroness Hanham Baroness Hanham Shadow Minister, Home Affairs 8:00 pm, 17th March 2008

My Lords, when we were considering the UK Borders Bill, the measures to introduce the new points-based system must have been considered reasonably uncontroversial as they were left to be introduced on a negative procedure, which would have happened today had the noble Lord, Lord Avebury, not drawn attention to this matter. He has lighted upon a number of issues, which will be germane not only to the statement we are discussing, but possibly to others which will follow as the other tiers are introduced.

I understand that this statement is primarily about tier 1, which deals with highly skilled migrants who wish to work or become self-employed in the United Kingdom, but those that follow on will take us through the whole gamut of those who wish to come into this country or to stay here, having already arrived. Of course, what will change is the number of points that will have to be achieved, the documentation required and the level of financial support among other requirements. In this process, there will be endless room for error in providing what is required. As the noble Lord, Lord Avebury, has pointed out, it also appears that any fault in the documentation, whether intentional or not, will simply mean failure at once, with little room for appeal or rectification. When we discussed this during the passage of the UK Borders Bill, the noble Lord, Lord Bassam, said:

"The Government believe that the points-based system will provide an adequate remedy for migrants who have made mistakes in their application".—[Hansard, 23/10/07; col. 996.]

I repeat the words,

"will provide an adequate remedy".

I believe that that was a different quote from that given by the noble Lord, Lord Avebury, so we can make sure that we throw it back where it came from. Where in the statement on tier 1 is mentioned the possibility of appeal and any guidance about it?

The question of errors in documentation is particularly serious in terms of applications which involve children, since they cannot be accountable themselves and must rely entirely on their parents or other adults to submit them on their behalf. Like other noble Lords I have received a briefing from the Refugee Children's Consortium, which is concerned that there is a mandatory refusal of a child's application—as indeed there is with an adult's—if any false document or statement has been submitted or made. Effects flowing from that will effectively ban a child's re-entry to the UK, which could even apply later when he or she is an adult. What consultation was undertaken on these changes, particularly with the Refugee Children's Consortium, and, as the noble Lord, Lord Avebury, has mentioned, other interested bodies? How long was the consultation and when did it finish?

No one is going to condone or suggest condoning the intentional falsification of documents or false information being provided. The concern lies where the matter is unintentional; there could be a minor administrative error—a tip of the keyboard, perhaps—which may be discovered very shortly after the application has been submitted. Will there be any leeway for genuine changes to be made or will any application be automatically turned down, with a consequent refusal of entry in the future?

The statement is clear throughout that at the request of the Department of Health application for entry as a doctor in training will not be agreed. Here I declare an interest as a non-executive member of a teaching hospital. This means that no putative non-EU doctor can aspire to train in this country unless he is here already under previous admission criteria. I suppose that is at least a small step forward, considering that at one stage it looked as though non-EU doctors would be heaved out immediately. Is it anticipated that this will be a permanent prohibition or just one to help us over the extraordinary mess that has been made of doctors' training, with a bulge that will have to be ironed out over the next two or three years? There is a certain irony that for many years we were only too happy for overseas doctors to come here to train and to gain experience either to return to their own countries, which benefited from that training, or to remain in this country to work for our health service. Does the bald prohibition in these changes hide consultation with countries such as India and other Commonwealth nations on this matter?

The points system is now under way. It is therefore important that not only is it clear, but that the explanations are also a model of clarity so that every avenue in the statement is covered. Appeal against refusal, and the process and timescale for it, does not seem to appear. I suggest to the Minister that it should do so on each version of these rules as the tiers are covered. Perhaps he will consider that for future such statements.

Photo of Lord Roberts of Llandudno Lord Roberts of Llandudno Spokesperson in the Lords, International Development, Spokesperson in the Lords, Welsh Affairs, Whip

My Lords, the noble Baroness, Lady Warwick, mentioned concessions, but we cannot find such concessions in the order itself. Possibly the Minister can tell us exactly what these concessions are and how he is going to deal with them. Is there a concession regarding transitional arrangements, especially under paragraph 47, which is a very worrying provision. Without transitional arrangements, many people are going to suffer a grave injustice. We need to recognise the human rights implications, particularly on the right to private and family life for those who have established themselves. Given that, what are our obligations under Article 8 of the Convention on Human Rights? Is this something to which the Minister can say, "Yes, it has been cleared and we are meeting our obligations under the convention"?

We see the difference between old paragraph 320 of the Immigration Rules and the present one. It sets out the general grounds for refusing applications for entry clearance or leave to enter the United Kingdom. "General grounds" means simply that the grounds for refusal apply to any application and are not specific to any category or type of application under the rules. Some of the grounds for refusal are mandatory and some discretionary, but new paragraph 47 tightens up the whole system by listing additional mandatory grounds for refusal. These include where an applicant has previously breached the UK's immigration laws by overstaying. If he has overstayed for 28 days or less and has left the UK voluntarily, not at the expense of the Secretary of State, that is all right, but otherwise an overstay of even a day over 28 days could incur a severe penalty. Another ground is breaching a condition attached to the applicant's leave. What happens there? Then there is being an illegal entrant or using deception in an application for entry clearance unless the deception took place more than 10 years ago. Others are someone who left the UK voluntarily and not at the expense of the Secretary of State more than 12 months ago, someone who left the UK but at the expense of the Secretary of State more than five years ago, and someone who was removed or deported more than 10 years ago. All these new regulations will cause a lot of confusion in certain quarters.

The scheme tries to set out particular behaviours that will trigger a ban and set out the particular circumstances governing the length of the ban. The general intention is that breaches of immigration law should result in a ban on the person returning to the UK for a fixed period in the future. The general intention here is to provide an incentive to those who have breached immigration law to leave voluntarily and at their own expense, in which case their ban is only for 12 months, otherwise the ban will be for between five and 10 years. The one exception is where deception is used, in which case the ban will be for 10 years.

We on these Benches oppose the bans in principle. It is our position that the current rules are adequate in allowing for breaches of immigration laws to be taken into account in relation to any application to come to the UK. In addition to this position of principle, there are several concerns with the scheme. One of the fundamental problems, as already mentioned, is that there are no transitional arrangements. Furthermore, the scheme will provide an incentive for people to do exactly the opposite of what is intended, an issue to which I shall turn in a moment. It will penalise people who have done what the Home Office wanted by returning home to make entry clearance applications before these changes were published on 6 February or before they became aware of the changes. There was no consultation and so these people are in limbo. They have done what they should have done or were unaware of the changes, and now they find themselves in a difficult predicament. The scheme runs a coach and horses through established jurisprudence on which the Home Office has consistently relied, and continues to rely, relating to people with established family life who are unlawfully present in the UK. The problem is that those who were unaware were caught in this transitional period without any special arrangements being made for them.

The Minister appeared before the Joint Committee on Human Rights on 19 February, where he referred to the importance of sending a "very clear signal" to those who use deception on entry clearance applications. However, these statements by the Minister neither explain nor justify the lack of transitional arrangements. If someone has already done something inadvertently, how can you deter that person from doing it when it has already been done? After they have done it, it is too late to be sending a very clear signal to them. We need clear transitional arrangements by which people can abide.

Far from giving an incentive for people to leave, the rules provide an incentive for people to remain in the UK, to pursue appeals and judicial reviews, and, ultimately, if unsuccessful, to be come part of a larger problem—those who have gone to ground and disappeared from the scheme. Once a person has committed a breach, however minor, that person no longer has any incentive to comply with immigration laws. With one minor infringement, such as forgetting to report on one occasion or overstaying for a short time beyond 28 days, the ban comes into force. From this point, the person may well reason, "In for a penny, in for a pound. With no transitional arrangements, why should I abide further by these regulations?".

Those who have returned home will, from 1 April, face a mandatory ban on their return. Neither they nor their advisers could have predicted that they would face such a ban; a ban had not been envisaged when they were advised. If it had, the advice would in many cases have been very different. It is a fundamental injustice that people in this situation should be penalised for having returned to their home country. We need to look again at the arrangements and the rules. As has been mentioned, we know that the Asylum and Immigration Tribunal and higher courts are already having considerable difficulty in thinking about this order.

Photo of Lord Bassam of Brighton Lord Bassam of Brighton Government Whip, Government Whip

My Lords, I am grateful to everyone who has taken part in this short debate; they have raised some important issues. I am particularly grateful to the noble Baroness, Lady Warwick, who gave me advance warning of a couple of specific issues that she wished to raise. I am conscious that noble Lords have spent quite a lot of time researching what I said on the UK Borders Bill last year and I am grateful to be reminded of my fine words at that time. I hope that nothing I say this evening will run in contradiction.

The noble Lord, Lord Avebury, is always assiduous in these matters. I have a great deal of respect for his general approach to these issues and for the courteous way in which he conducts himself. Generally, that is the best way and is in the best traditions of your Lordships' House. It makes for a more interesting and civilized debate. It is clear that noble Lords feel strongly about the changes we are making to the general grounds for refusal, particularly those that require people who have broken our immigration laws in the past to be, in effect, banned from coming back for a period.

Before I respond to the detailed questions, it may be helpful if I explain why we propose these changes First, we wish to deter people from breaching our immigration laws—we take that very seriously—and we do that by imposing a clear sanction on those who do so. Secondly, we wish to give illegal migrants an incentive to go home of their own accord rather than wait for the BIA to remove them. That is why the rules say in terms that if you go home voluntarily, and at your own expense, you will be banned for only one year; but if you are removed, you will be banned for 10 years. That is a very clear, plain, straightforward, simple incentive—and that remains the Government's position.

A number of people have, however, suggested that we will achieve our aims better if we give people who are currently here illegally a chance to leave before the new rules are applied to them. We have listened to their argument and reflected on it, and we agree with them. I can announce that we will not apply the provisions in new paragraph 327B of the Immigration Rules to anyone currently in the United Kingdom who leaves the country voluntarily before 1 October 2008. Those people will be able to apply to come back without being automatically refused under these provisions, although it is possible that they will be refused under other parts of the Immigration Rules.

I emphasise that that does not mean that those people will automatically be allowed to come back. They will need to meet all the other requirements of the Immigration Rules. The BIA will also, as now, have the discretion to refuse them if they contrive in a significant way to frustrate the Immigration Rules; for example, by contracting a bogus marriage, which we know happens. They will not face a period of automatic refusal under paragraph 327B, however, if they go home after 1 October. That gives those who are currently here illegally a clear incentive to go home and, as I mentioned earlier, it promotes the Government's objectives. We cannot withdraw the Immigration Rules in order to make the change, as I have outlined, since many of them are already in force. The change will therefore take effect as a time-limited concession outside the rules. I hope that noble Lords will find themselves able to support that concession.

Noble Lords have taken the opportunity to raise a number of issues, and I will go through those in turn. The noble Lord, Lord Avebury, started his commentary by asking why we did not consult immigration practitioners before putting forward the initial proposals. It is normally the practice that we would go through fairly rigorous consultation arrangements, but it is not always possible to consult everyone who might have an interest in the subject before changing the Immigration Rules. However, we have subsequently had some extremely valuable meetings with the Immigration Law Practitioners Association, a very respected body, since we proposed our changes, and that dialogue continues to be of value to us.

The noble Lord asked about appeals. Other questions were also asked about appeals, to which I shall come. In essence, the noble Lord asked how appeals could succeed if refusal is mandatory. It is possible to bring an appeal on human rights grounds if keeping the applicant out would breach their human rights, the right to family life and so on. If they succeeded on appeal, that would lead to them being admitted. The noble Lord asked about our objection to the EU re-entry ban. The main reason for our declining to take part in that instrument was that it is a matter best dealt with by member states, and that is essentially what we are doing with this set of proposals.

My noble friend Lady Warwick mentioned a number of points, one of which was about false documentation. She asked what we meant by a "false document". We mean a document that is forged or has been altered to give false information. If people submit such documents, our belief is that they should be refused. It will be for the BIA to prove that a document is false, and the standard of proof has to be very high.

My noble friend asked whether we could confirm that people who apply within 28 days of their leave expiring will be dealt with as normal under the points-based system. The answer to that is simple: yes. That was an undertaking we gave when Section 19 of the UK Borders Act 2007 was before the House; in fact I made it, and plainly so. These rules deliver on that. They do not require a points-based applicant to have existing leave. Consequently, applicants whose leave has expired can be granted as normal under the points-based system; that is what the rules say.

My noble friend also asked whether we could make available a copy of the guidance on overstayers and place it in the Library. There is no specific guidance on overstayers. The position of overstayers is dealt with in the guidance that covers each individual category of the Immigration Rules—those that cover students and those that cover spouses. That guidance is already in the public domain on the BIA website. To make it easier for my noble friend, I shall ask our officials to provide her with a copy. If other noble Lords want a copy, I shall happily make it available to them.

My noble friend asked whether the position of student overstayers as announced to the joint education taskforce was still valid. The answer to that is yes: students who overstay up to 28 days will be considered as normal; those who overstay for between 29 days and six months will be considered in exceptional circumstances.

Photo of Lord Avebury Lord Avebury Spokesperson in the Lords (Civil Liberties), Home Affairs, Spokesperson in the Lords (Africa), Foreign & Commonwealth Affairs

My Lords, I have already asked the Minister to point to the passage in the statement which states that an application will be considered within 28 days of the expiry of a previous leave to remain. Where does it say that?

Photo of Lord Bassam of Brighton Lord Bassam of Brighton Government Whip, Government Whip

My Lords, I cannot give the precise reference this evening, but I shall ensure that the noble Lord has the references that work.

The noble Baroness, Lady Hanham, repeated the point about consultation. It is worth making it clear that we said in our statement of intent on tier 1, which was published in December last year, that we would use general grounds to refuse those people with a bad immigration history. That has attracted fairly general and widespread support. It is an important point.

The noble Baroness also asked about the adequacy of the remedy for tier 1 general applicants and the possibility of appeal. There is no appeal for those applying to come to the UK under the points-based system, but a person refused entry can apply for an administrative review of the decision of the entry clearance officer if they believe that an honest mistake has been made. This review will be carried out by an official who is different from the official who made the original decision. So there is a measure of distance between the original decision-maker and an effective review of the case. If people are dissatisfied with the outcome of an administrative review, the possibility of a judicial review remains clear.

Applications to come to the UK for work or study do not raise the fundamental issues that justify a full right of appeal, as one might expect under the Asylum and Immigration Tribunal. Section 4 of the Immigration, Asylum and Nationality Act 2006 removes the full right of appeal for those who apply from abroad to come to the United Kingdom under the points-based system. The legislation will take effect as each points-based system tier rolls out. Appeal rights will be abolished in all the highly skilled subcategories except where the appeal is brought on human rights or race discrimination grounds.

Photo of Lord Roberts of Llandudno Lord Roberts of Llandudno Spokesperson in the Lords, International Development, Spokesperson in the Lords, Welsh Affairs, Whip

My Lords, the administrative review is just a piece of paper in front of a judge; it is not a hearing in any sense. Is that right?

Photo of Lord Bassam of Brighton Lord Bassam of Brighton Government Whip, Government Whip

My Lords, it is an administrative review carried out by officers who consider the cases. It is not a judicial process, though, as I have made clear to the noble Lord, if there is a disagreement over the effect of the review, there is a possibility of a judicial review. Perhaps that helps the noble Lord.

I was asked whether sufficient checks will be in place to ensure that we are making the right decision. The clearer and more specific the requirements, the easier it will be for entry clearance officers and caseworkers to make correct decisions that are unambiguously in accordance with the rules. Overseas, there will be 100 per cent internal review of all refusals prior to their being issued to applicants, and the role of the independent monitor for entry clearance refusals without a right of appeal has been extended to cover all points-based system applications. Our training covers the entire overseas network, which will help to ensure that entry clearance staff understand clearly the changes, how to implement them and manage the quality decisions locally.

The noble Baroness, Lady Hanham, made some points about the health service, doctors and the impact of this measure on those wishing to come to work and train in the United Kingdom. In essence, she was asking why we are doing it. It costs roughly £250,000 to train a doctor up to the point at which they reach specialty training. Because they are competing with international medical graduates from outside Europe, many of our UK-trained medical graduates lose out. The taxpayers' investment in their training can be wasted as a result.

The noble Baroness said that we deliberately recruited from abroad in the past, and we could ask how we got to this position. For most of its history the NHS has relied on the contribution of doctors who trained outside Europe. International medical graduates have played a valuable role in providing services across the UK, and we appreciate the important contribution that they have made to our health service. The aim has been for the National Health Service to become much more self-sufficient and less dependent on the migration of health care professionals from outside the EEA. The aim is to have NHS services delivered by trained doctors rather than doctors in training.

As I am sure the noble Baroness will recall, back in 1997 when we came into office, we decided to increase substantially UK medical school places, and as a consequence four new medical training schools were established. Medical school places in England increased from just under 3,800 in that year to nearly 6,500 in 2007 to achieve that greater level of self-sufficiency. More UK graduates, coupled with the high number of international medical graduates means that there has been a large number of applicants for speciality training places. We are grateful for the crucial role played by international doctors in the health service for all of its 60-year history, but nothing we are doing prevents them from working as NHS doctors. We are seeking to control access to post-graduate and speciality training posts only. That does not prevent international medical graduates from working as doctors in any other NHS post. The noble Baroness asked whether the provisions preventing work as a doctor in training will be temporary. That is our intention while we seek to create a more permanent solution to the work-flow problems that led us to impose these conditions.

I think that I have answered most of the questions, except for the reference sought by the noble Lord, Lord Avebury. I am grateful to noble Lords for their interest and concern on this issue. As I said at the outset, I realise that it has raised concerns. The amendments to the rules that we have laid before the House represent the latest step in the Government's overhaul of the immigration system—perhaps the most radical overhaul for several decades. The points-based system will enable us to select the migrants that our economy needs, to keep out those whom we do not require and to make more, improved and transparent decisions. While I hear the criticisms of noble Lords, they should appreciate that over time, the points-based system will ensure that there is greater public confidence in how migration is managed. I am sure that it will be widely understood as it is clearly a much more transparent process. Over time, despite some of the difficult adjustments involved, noble Lords will see benefits of these changes in the much greater confidence than there has been in the past in the migration flows into the United Kingdom.

We value greatly the work that migrants do in the UK. We know that they make a tremendous contribution to the quality and colour of our life. I hope that the noble Lord will feel able to withdraw his Motion, having heard my explanation and the responses that I have detailed to the House this evening.

Photo of Baroness Hanham Baroness Hanham Shadow Minister, Home Affairs

My Lords, I asked whether the appeal system would be included in the regulations. I do not think that the Minister answered that point.

Photo of Lord Bassam of Brighton Lord Bassam of Brighton Government Whip, Government Whip

My Lords, I thought that I had covered appeals fairly thoroughly. However, I shall reflect further on the noble Baroness's comments and provide her with more background.

Photo of Lord Avebury Lord Avebury Spokesperson in the Lords (Civil Liberties), Home Affairs, Spokesperson in the Lords (Africa), Foreign & Commonwealth Affairs

My Lords, I thank the Minister for the very welcome concession that he made at the beginning of his speech but express the reservation that it was not done in another way; that is, by withdrawing the order and then bringing back an alternative set of amendments to the Immigration Rules that would set out the exemption until 1 October 2008 in the order instead of dealing with it in this extra-statutory way outside the rules.

I take it that the noble Lord was telling us that paragraphs 33 to 39 and 47 and 48 are to be left in the measure but not brought into effect until the date he mentioned, and that nobody would be made to suffer under those paragraphs until the expiry of that period. If that is what he was saying, I certainly welcome it. It would take care of a large part of what my noble friend said about the transitional arrangements because people would be able to make the necessary adjustments to their lives in time. I share the unease of the noble Baroness, Lady Hanham, as regards what he said about appeals. As I have said twice, there is nothing in the measure which says that a person can appeal. There is a complete blanket prohibition on a person who is guilty of an offence under these paragraphs, whether it was inadvertent or whether, in the case of a child, it was done without his knowledge. One would have liked to see set out in the measure a provision that there could be appeals against refusal for those reasons.

I share the anxieties expressed by the noble Baroness, Lady Warwick, about students. It is not enough to say that if a person realises he is late and puts in a fresh application within 28 days, it will be heard. There may well be cases where it takes longer than 28 days to do that. That person's whole future and the payments that he has made for his university course may hinge on being able to appeal against the refusal. To say that after 28 days a person has no right whatever to appeal against a refusal when it may have been due to some inadvertent clerical error or mistake in a document will not satisfactorily take into account every case.

The reason for declining to participate in the EU ban was not because we considered this should be dealt with by member states; that was made perfectly clear in the quotation that I read out. At the time the Home Office made its submission on the EU-wide entry ban it considered that it was improper to have a ban as long as 10 years and that it was perfectly satisfied with the non-mandatory ban in the immigration rules, particularly the one that is being amended this evening.

I conclude by saying that we have to be satisfied with the concession that the Minister made. We are grateful for it as far as it goes. We hope that as a result of the further discussions with the Immigration Law Practitioners' Association that he mentioned other extra-statutory concessions may be made to take into account the many valid points that it made. But in the meanwhile I shall not press the Motion. I beg leave to withdraw the Motion.

Motion, by leave, withdrawn.

Moved accordingly, and, on Question, Motion agreed to.

[The Sitting was suspended from 8.40 to 8.46 pm.]