Clause 1 - Variation of leave to enter or remain

Immigration, Asylum and Nationality Bill – in a Public Bill Committee at 10:45 am on 18th October 2005.

Alert me about debates like this

Photo of Dame Cheryl Gillan Dame Cheryl Gillan Shadow Secretary of State for Wales 10:45 am, 18th October 2005

I beg to move amendment No. 13, in clause 1, page 1, line 6, leave out subsection (2).

Photo of Nicholas Winterton Nicholas Winterton Conservative, Macclesfield

With this it will be convenient to discuss the following amendments: No. 14, in clause 11, page 1, line 7, leave out subsection (3).

No. 77, in clause 1, page 1, line 7, at end insert—

'( ) In paragraph (g) (decision to move person unlawfully in the UK) at end, after ''Kingdom)'', insert ''save where that person had a right of appeal under paragraph (d) or (e) above (whether or not he exercised that right of appeal) and the Secretary of State or an immigration officer issues a certificate under section 96''.

( ) In paragraph (i) (decision to remove: family) at end, after ''(family)'', insert ''save where that person had a right of appeal under paragraph (d) or (e) above (whether or not he exercised that right of appeal and the Secretary of State or an immigration officer issues a certificate under section 96''.

( ) In paragraph (ia) (decision to remove: seamen and aircrews) at end, after ''(aircrews)'', insert ''save where that person has had an appeal under paragraph (d) or (e) above to which section 92 applies''.'.

Photo of Dame Cheryl Gillan Dame Cheryl Gillan Shadow Secretary of State for Wales

In moving the amendments, I shall introduce some themes to which, I am sure, all members of the Committee will return again and again over the next few days of our deliberations. If there is no movement from the Government on this issue, I suspect that what I am about to say will be repeated, probably with considerable force, by hon. Members from all parts of the House and possibly and particularly by those in another place. However, it is my luck to be the first Member to introduce these points in this Committee.

I should also like at this stage to acknowledge the excellent briefings that have been provided by outside organisations. It is always helpful for Opposition parties to be briefed by organisations that have a great interest in the legislation before us, so that the points made by their members can be put with, we hope, accuracy and lucidity. I should like particularly to acknowledge the efforts of the Immigration Advisory Service, in the shape of Keith Best and his co-workers, and also Universities UK, in the shape of Vivienne Stern. I have been impressed by the quality of the briefings that they have provided us with. The Minister should be aware that those organisations are fully engaged in these issues, as are others that I shall mention later.

Very grave concerns are shared by a wide range of bodies about the Government's proposed removal of the rights of appeal in respect of refused entry clearance or leave to remain applications.   Universities UK, which I have already mentioned, the Association of Colleges, the National Union of Students, and UKCOSA: The Council for International Education are all concerned about the impact that the measures will have on international students. They are supported by the Immigration Advisory Service and the Immigration Law Practitioners Association. All those bodies support the amendments. Before I go into the detail about them, I shall set out in relation to these provisions and those in clause 4 why the position of international students has been one of the major focuses of debate.

I am sure that the Minister is familiar with the statistics, but I will put the proposal in context: in 2004 there were 228,035 applications for leave to remain, of which 149,350—about 66 per cent.—were from international students. A very large proportion—about 30 per cent.—of international students have to apply for variation or extension of their leave to remain at some point during their time in the United Kingdom. Clause 1 will have a particular impact on such students, and a large number of them to boot.

There can be no doubt on either side of the House about the importance to the UK of attracting international students, as I am sure all members of the Committee will agree. There are 210,510 international students in higher education and an additional 75,000 international students studying in further education colleges.

Understandably, much attention has been given to the financial contributions such students make to universities and colleges, especially when their financing is so much in the forefront of our minds. International fee income accounts for 8 per cent. of the total income to the higher education sector, about £1.5 billion a year, which is no mean amount.

Fee income totals £58 million in the further education sector and, given the financial pressures that universities and colleges face, one can imagine that that income is vital to those organisations. But there is more to the financial equation: as well as the impact on college and university budgets, international students contribute about £4 billion to the UK economy, through spending on goods, services, accommodation and so on.

The Chancellor of the Exchequer, perhaps soon to be leader of the Minister's party, has enthusiastically praised the education sector as one of the fastest growing and most important export industries in the UK. Apparently, it has already eclipsed food, tobacco, drink, insurance, ships and aircraft, earning the UK some £10.2 billion a year. The Chancellor, who is not one to be profligate with his figures, predicts that by 2020, education could be worth twice that sum.

The Bill will not help the Chancellor with his predictions; if anything, it will hinder them and reduce the estimates of growth in the sector. However, I want to emphasise that the issue is not just about money. International students are not only valuable to the UK in economic terms; their contribution in cultural, social and educational terms should not be underestimated.  

Vice-chancellors and principals tell us that their ability to attract the ablest students from around the world is vital to the intellectual character of our institutions and to our position as world leaders in teaching and research. Among other things, I am the international treasurer of the Commonwealth Parliamentary Association, which is a non-political body that embraces all of us parliamentarians throughout the Commonwealth. When dealing with parliamentarians in other legislatures, I have been struck by how often their further education has been carried out in this country and how their feelings of good will towards this country are undeniable, as many of their formative years have been spent here.

Thirty nine per cent. of postgraduate research students are international. In some disciplines, particularly subjects that have been made vulnerable by low domestic demand such as the sciences, engineering and technology subjects, international students are keeping departments open that would otherwise have to close. Incidentally, I noticed on the annunciator screens that there is currently a debate in Westminster Hall on forensic sciences and the continuation of the Forensic Science Service.

Given the fierce debate in this House in the previous Parliament about the provision of courses in subjects of national strategic importance following the closure of Exeter university's chemistry department, I should like to remind the Minister of the importance of international students in sustaining the UK's strength, particularly in science subjects, engineering and technology. They should be of great interest to the House. I sat in my early days in this place on the Science and Technology Committee and I am well aware of the shortage of expertise. I was encouraged to see that we emphasised the role for women in science and technology. There have been some good efforts from my own Government and subsequent Labour Governments to encourage more women into this area. These are vulnerable subjects.

Even if the Government were not persuaded by the argument that they should do all that they can to encourage international students, the EU Lisbon goal should give them pause for thought. The European Commission tells us that Europe is 700,000 scientists short of meeting the Lisbon goal of having competitive and dynamic, knowledge-driven economies in the world. Yes, we must produce more native scientists, but we cannot afford to lose our ability to attract and retain scientists from the rest of the world. I hope that the Minister will make particular reference to the Lisbon goal and let us know the Government's attitude to it.

I understand that the CBI also supports these amendments not only because it recognises the contribution that international students make at our universities and colleges to the strength of UK research, but because talented graduates from our universities and higher educational establishments are a rich recruiting pool for UK business and industry. Those who return home once they have completed their studies—the vast majority—retain influential links with the UK that can confer benefits to us in   the long term through links with British business or as leaders in a wide variety of fields, including political fields.

I should like to explain why this is relevant to the amendments. The Government clearly recognise the benefits to the UK of attracting international students. The Prime Minister himself launched an initiative in 1999 to attract an extra 50,000 international students to higher education and another 25,000 to further education institutions by 2004. I understand that the Government are planning to renew that initiative and I should be grateful if the Minister would confirm that.

The market for international students is fiercely competitive. Currently the UK attracts 13 per cent. of all international students, compared with 31 per cent. who are attracted to the United States of America. We are losing market share. According to the Organisation for Economic Co-operation and Development, the UK lost 3 per cent. of its market share between 1998 and 2002. The USA also lost market share after tightening up on visas following 9/11, suffering a 2 per cent. drop in 2002–03. Even in the USA, they have looked at the figures and the fall-off of international students, have learned their lesson, and have eased up on visa restrictions. I should have thought that the UK could learn from that experience, and the Government should be thinking again on that point.

The UK cannot afford to be complacent. International students are important to the UK as a whole, and to our education institutions. As a matter of natural justice, the opportunity for young people from around the world to pursue the education that they feel most fits what they want to do in life is definitely a good thing. The Government have so far refused to accept that although they are seeking to attract international students through the Prime Minister's initiative, they are at the same time putting barriers in the way of UK educational institutions.

Ministers seem to have repeatedly been unable to recognise the evidence—anecdotal though it may be—that visa changes, including increases in the level of fees, have already had an impact on student recruitment. However, vice-chancellors report that there has already been a significant downturn in recruitment, and that visas are the main reason cited for that. There is a similar story in further education colleges, with many reporting decreases of 20 per cent. and over in international student institutions. That predicts a loss of between £1 million and £3 million this year. I should like to know what discussions the Minister has had with the Higher Education Funding Council and the Learning and Skills Council about the matter. If they are not worried about what this will do to higher and further education finances, they certainly should be. I hope that the Minister will deal with that point when he responds to the amendments.

Vice-chancellors and principals have attributed the downturn to a number of factors, including current economic circumstances and the strength of the dollar, but they also state unequivocally, based on their own   experiences of travelling to countries from which they recruit students, and the experiences of their staff, that changes to the visa arrangements have been a major factor. Those changes have involved big increases in fees, both for leave to remain and initial entry clearance. The psychological impact on potential international students has far outweighed the actual financial impact on them. We are told that the impression among international students is that they are no longer welcome in this country.

Measures such as that which the Government intend to introduce through clause 1, which my amendments would remove, would do even more to put international students off studying in the UK. If potential international students think that they will be subject to sometimes arbitrary immigration decisions against which there is no right of appeal, and which might lead to their being unable to complete a course on which they embark, or graduate from that course, or finish writing a PhD, or transfer successfully from one course to another, they will choose to study elsewhere. Australia, Canada, New Zealand, members of the Commonwealth, the United States and Germany will be more than willing to make room for such students. Those countries are now aggressively marketing their own education facilities, often with reference to simpler, more welcoming visa arrangements.

I shall now address the detail of what the amendments would do. Subsection (2) would remove the right of appeal set out in the Nationality, Immigration and Asylum Act 2002 against a refusal to vary a person's leave to enter or remain in the United Kingdom. Subsection (3), which we seek to remove, would remove the right of appeal against a variation of a person's leave to enter or remain in the United Kingdom. So what does that mean? A person whose visa is nearing expiry, and who applies for an extension to their period of leave to remain and is refused, will have no right of appeal against that decision. Similarly, a person in respect of whom a decision is made to curtail the period for which they are allowed to stay in the UK, will have no right of appeal against that decision. Amendments Nos. 13 and 14 would leave out those two subsections and thereby reinstate the right of appeal against refusal to extend a visa or a decision to curtail leave to remain. In fact, those amendments take us back to clause 82 of the 2002 Act, which provided that a person could appeal to an adjudicator against an immigration decision. An immigration decision included, in paragraph (d):

''Refusal to vary a person's leave to enter or remain in the United Kingdom if the result of the refusal is that the person has no leave to enter or remain'' and in paragraph (e):

''Variation of a person's leave to enter or remain in the United Kingdom if when the variation takes effect the person has no leave to enter or remain.''

The provisions in clause 1, which so many people find objectionable, seek to remove the appeal rights that were thought to be proper and decent only a few years ago. Therefore the first question to ask the Government is: can they produce hard evidence that will convince the Committee that those further   restrictions on the right of appeal are necessary? I do not believe that the Minister and the Government have truly made that case.

The Government's approach to asylum and immigration needs to combine efficiency with humanity. Their inefficiency is legendary. Apart from their inability to remove failed asylum seekers and their abandonment of the original target of removing 30,000 failed asylum seekers a year, they have failed in many other respects. There continues to be a poor quality of initial decision making by entry clearance officers and Home Office officials, who are often dealing with decisions that can lead to huge hardship, but who do not receive enough training. Those initial decisions are still far too slow and are of uneven quality. The proof of that is clearly established by the fact that so many appeals are successful.

Let us look at some examples of people who would be affected by the provisions. An international student who has completed his undergraduate degree and who found, for example, that his visa did not enable him to stay long enough to attend a graduation ceremony, might apply to extend it. Under the provisions as currently drafted, if his application were turned down, he would have no right of appeal.

The same would apply to a student who had completed a course of study at a further education college or a school, and applied to extend his visa to take an undergraduate degree. What about a student who needed to repeat a year of his course? If his application were turned down there would be no right of appeal. Or what about a student who had to return home for urgent family reasons, who was given a year's sabbatical to deal with those family problems and who then wished to return to the UK to complete his education? What would happen in that case if his application were refused?

Or take another example: a young woman, who was in the UK as a student or in another capacity, might apply for a variation to her visa in order to remain in the UK as a spouse. If she were refused, she would have no right of appeal and might be unable to remain with her husband.

There are other examples—I have been given some real-life examples to look at. I understand that there was a student who sought entry clearance from Qatar for a one-year English course. He was refused on the criteria of intent to follow the course, intent to leave the UK and maintenance, but his appeal was allowed. The entry clearance officer in the case had concluded that the young student did not need to study English because his English was already quite good; that type of decision should have an appeal mechanism. In that case there was a subjective decision, which was overturned on appeal, but that avenue for a student will be removed in future.

The Minister will probably say that the individual retains the right of appeal against a subsequent decision to remove him or her from the United Kingdom and that clause 1 merely simplifies the system to ensure that the student gets only one bite of the cherry, but that is not a satisfactory response,   especially for the organisations involved outside the Committee Room, not least because it is not clear how he envisages the system working in practice.

In order for a decision to remove individuals to be taken, their period of leave to remain must have expired. Does the Minister seriously intend applicants for leave to remain to wait until they become illegal overstayers before they exercise the right of appeal against the decision not to extend their leave? Alternatively, do the Government intend that the right of appeal against a refusal to extend a visa is exercisable only from the applicant's home country? Those questions must be answered.

To put the matter in a human context, does the Minister want a student from, say, China, who wishes to extend his visa by a couple of weeks to attend his graduation ceremony, to go back to China to appeal against the decision not to provide the necessary extension? These are real and practical examples that he must address, and we would welcome clarification.

It would be unfair to force applicants for visa extensions to become illegal overstayers to exercise the right of appeal in-country. If an individual acquires such a status, it is bound to prejudice future applications for visas as well as removing the right to access services, including health care, and the ability to work if their conditions allow it. Notwithstanding the fact that their appeal may yet succeed, the individual would apparently have a track record of not complying with the terms of a visa, and an entry clearance officer considering a future visa application would be bound to look on such an application with suspicion.

The Minister will correct me if I am wrong, but I understand that paragraph 320(11) of the immigration rules provides for entry clearance to be normally refused where there has been

''failure to observe the time limit or conditions attached to any grant of leave to enter or remain in the United Kingdom''.

It is a bit of a muddle, to say the least. If an applicant for an extension must return home to appeal a negative decision, it seems likely that, in a significant number of cases, by the time the appeal is decided, the applicant will have missed the event—such as a graduation ceremony—for which they wanted to stay in the United Kingdom. That is not fictional; it is a practical example that has come from the universities. It is frequently why students wish to extend their visas.

In considering the matter, the Committee should bear in mind that it is not unusual for international students to be given insufficient length of leave when they are granted entry clearance at British diplomatic posts when they first come to the UK. Official guidance issued to entry clearance officers sets out the length of leave that students are to be given to include up to four months for postgraduate students in addition to the length of the course, in some cases to allow for circumstances such as those I have described. However, I understand that that guidance is not always followed.

I do not understand why the Government have chosen the proposed route to achieve a single point of appeal for international students. I ask the Minister to   consider whether there is a better way to achieve this one-stop appeal. Perhaps he will explain why it would not be possible to amend the legislation so that an individual who has exhausted the right of appeal against a decision not to grant an extension to a visa can subsequently appeal against the decision to remove him or her from the UK. Have the Government considered the problems that I have described, and is the Minister willing to share his thinking on clause 1?

Photo of Neil Gerrard Neil Gerrard Labour, Walthamstow 11:15 am, 18th October 2005

The hon. Lady said a lot about students. I do not wish to repeat that. In fact, my point is narrower. Essentially, the clause deals not so much with entry clearance as with people who are already in the UK and who are applying for variation of leave.

It is important to stress that there are people who are in the UK legitimately and who have abided by immigration law. We are not dealing with someone who is here illegally and who does not have a valid visa, but with people who have come here legitimately, with valid documentation, who, when they have applied for extensions or variations of leave have been refused.

Students will not be the only people affected. The clause will have an impact on people who are here for other reasons. It is difficult to know precisely whom the clause will affect until we debate later amendments connected with subsection (4) of the clause, which gives the Minister powers to make orders that will give some rights of appeal to certain types of people whose variation of leave is refused.

We must assume that the main provision will apply to a wide range of people, which, as well as students, will include people who have business visas. Potentially, people who might otherwise have come here as business men looking to invest in the country will be more wary about doing so if they think that uncertainty will arise over how long they can stay. In particular, clause 1, in connection with clause 9, means that someone will become an illegal overstayer immediately the decision is made to refuse the variation, with an appeal against the removal taking place after the person has left the country. That appeal is triggered, as I understand it, by the removal decision.

When I consider many of the cases that I deal with concerning people who have had refusals of one sort or another, I am often astounded at the length of time between the Home Office making an adverse decision on a case and the removal directions being made. For some people, it is a matter of years since an adverse decision has been made on their case, yet still no removal directions have been issued. Until those have been issued, we shall have the peculiar position in which someone is here illegally but cannot trigger his own right of appeal because a removal direction has not been made. Therefore, even if he leaves the country voluntarily, he would not have that right of appeal because the removal direction has not been made.  

I am in favour of much of what has been done to simplify the appeals system by having one-stop appeals, at which everything that is relevant to a case is taken into consideration. I never thought that it was sensible to have systems where people could make appeal after appeal on different grounds. It makes sense to put everything together, but it is the point at which it is put together that matters.

We have dealt with some abuses, particularly relating to students. Again, I was pleased with some of what we did in the last piece of legislation on immigration and asylum and, following on from that, to root out many of the bogus colleges, which were recruiting students and taking money on false premises. In some cases, they were used as a vehicle for people to get entry clearance into the country when they had no intention whatever of being a genuine student. A great deal has been done in that regard. Much of the abuse of student visas has been stopped. Now we receive representations not from little fly-by-night colleges, but from the UK universities—the major institutions—to which we should be listening.

My final point—this is a selfish point—relates to what I suspect will happen to me and other hon. Members who have significant amounts of immigration and asylum casework. It can be guaranteed that people who get a refusal of variation of leave and have no right of appeal will quickly find their way to our advice surgeries. Every time that a right of appeal has been removed, our experience has been that people who have lost that right do not go away quietly. Inevitably, people will find their way to us and ask us to make representations to Ministers. There will be an increase in work load for me and other hon. Members, and in the amount of correspondence that the Minister receives from us saying, ''Look, it really seems that a bad decision has been taken in this case and a mistake has been made.''

Photo of Dame Cheryl Gillan Dame Cheryl Gillan Shadow Secretary of State for Wales

The hon. Gentleman is making a sensible speech. I have such a case in my constituency. A young man applied to come and study at an accountancy college here, but the money that he was required to have went into his account only two days before he had the interview with the immigration officer, the reason being that he is an orphan and the money came from other family members. That was deemed to be sufficient reason to turn down his application. Is it not worrying to think that that could happen when there is no right of appeal?

Photo of Neil Gerrard Neil Gerrard Labour, Walthamstow

Appeals exist to deal with such problems, and that is what I believe should happen. I would always prefer that there are both mechanisms whereby people can appeal and systems that allow poor decisions to be challenged, rather than more and more people coming to hon. Members and saying, ''Can you do something about this bad decision?'' I hope that the Minister will give some thought to that.

We will no doubt debate the people whom the Minister will allow to have access to an appeal mechanism through the order-making powers in subsection (4). The powers are available, but it would make more sense to keep one-stop appeals and to allow them when the decisions are taken. From   my selfish point of view, I do not relish what will happen—

Photo of Nicholas Winterton Nicholas Winterton Conservative, Macclesfield

Order. I see a smoking radiator. It looks as if the Committee is jinxed. I intend to suspend the sitting for five minutes to allow the source of the smoke to be properly investigated, for the safety of hon. Members and those listening to our debate.

Sitting suspended.

On resuming—

Photo of Nicholas Winterton Nicholas Winterton Conservative, Macclesfield 11:39 am, 18th October 2005

I have instructed that the construction work, which was clearly the source and cause of the fumes coming from the heating and air conditioning system, be stopped for the duration of this Standing Committee. The hon. Member for Walthamstow had the Floor and was speaking. I think that he was about to bring his remarks to a conclusion, so if he would like to continue, I should be happy for him to do so.

Photo of Neil Gerrard Neil Gerrard Labour, Walthamstow

Thank you, Sir Nicholas. I was about to bring my remarks to a conclusion. I am not clear in this part of the clause what problems the removal of appeal rights is supposed to correct. In the case of students, we have dealt with many of the problems that were there, which were to do with fake or bogus colleges. They have been dealt with, and quite rightly too.

As far as business visas are concerned, I am not aware of any great abuse relating to variation of leave. Some of the bigger problems that occur with business applications are more to do with the accession countries and problems relating to EU law. I hope that the Minister will reconsider the matter. As I said, there is the capacity in the clause—we will discuss subsection (4)—for him to give us an assurance about how he intends the provision to apply. I would much rather that there be simple, clear, straightforward mechanisms for appeals, rather than the consequences of what would happen here, which would be many more people trying to use the informal mechanisms, and coming to hon. Members of the House and asking them to make representations to the Minister. I would rather be in the position of being able to say to someone that they had the right of appeal, and they should get some good advice and use that right, rather than constantly having to try to make representations to Ministers to make decisions about the immigration laws. We are likely to end up in that position if the clause remains exactly in its present form.

Photo of Evan Harris Evan Harris Liberal Democrat, Oxford West and Abingdon

I welcome the hon. Gentleman's remarks, and I agree with them all. I also welcome the remarks of the hon. Member for Chesham and Amersham. I certainly join her in thanking Universities UK and the Immigration and Advisory Service for their briefings, as well as the CBI, the Refugee Council and the Immigration Law Practitioners Association. Because of the complexity of the legislation, we are all reliant on experts identifying many of the problems of the legislation—I was going to say some of the benefits too, but I do not see any benefits in this clause. My first question to   the Minister is: when can we expect a consolidated Bill that will put all the legislation in one place, instead of relying—we have to, as does he—on a number of Bills that have been amended many times?

Amendment No. 77 is in my name and that of my hon. Friend the Member for Manchester, Withington. Together with amendments Nos. 13 and 14, in the names of the hon. Members for Chesham and Amersham and for Woking, and supported by my hon. Friend and I, amendment No. 77 seeks to demonstrate that there is an alternative way in which the Government can achieve the one-stop nature of appeals that they seek.

Photo of Dame Cheryl Gillan Dame Cheryl Gillan Shadow Secretary of State for Wales

I should also like to support amendment No. 77 as an alternative. We have tabled two amendments and the hon. Gentleman has tabled the other in the group.

Photo of Evan Harris Evan Harris Liberal Democrat, Oxford West and Abingdon

I am grateful to the hon. Lady for that comment. She has already intimated that this group of amendments provides an alternative mechanism for achieving what the Government intend: a one-stop appeal mechanism. I am grateful to her for highlighting that.

I should like briefly to talk about how amendment No. 77, taken with the deletion of clause 1(2) and (3), which would be the result of amendments Nos. 13 and 14, would provide such an alternative. I should like the Minister to explain why he does not feel that our approach is satisfactory, and why he feels that his approach is in any way more satisfactory, given the comments that we have heard from the hon. Member for Walthamstow. I should also like to set out my concerns about the human rights implications of the clause, and this is the most appropriate group in which to do so. That means that I shall not have to come back to the issue in any of the other groups or on clause stand part debate. There are significant human rights implications in the clause, which amendments Nos. 13 and 14 seek to remove.

I should also like to raise a number of case histories with the Minister about some of the people who will be affected by the legislation. We have already heard one very apposite example from the hon. Member for Walthamstow.

Amendment No. 77 is analogous with amendment No. 70 in the next group an alternative way of curing what the Government might perceive as the mischief of multiple appeals.

The amendments would enable the applicant to appeal against the decisions before having to leave the UK and to stay in the UK while appealing, without thereby committing a criminal offence—a matter I will return to shortly. They also allow for the possibility of preserving the appeal against removal as a safeguard in cases that the Secretary of State recognises. In other words, by declining to use section 96 powers, such a safeguard should be available to provide more flexibility for the Minister but still give him the ability to restrict multiple appeal rights.

The Government's objective of creating an effective one-stop appeal can be achieved using existing   statutory powers, notably those under section 96 of the 2002 Act, because that section gives the Secretary of State the ability to deny a person an opportunity to raise on an appeal a matter that they have or could have raised at an earlier stage. It is not necessary to abolish the appeal against refusal to vary leave, nor the subsequent appeal against removal, because all necessary powers already exist to prevent abuse.

If the Government contend that clause 1, supported by clause 9, which criminalises people who are denied appeal rights in that way, is merely designed to deny successive appeal rights, why do they have to do it in a way that forces people to leave the country and renders them illegally present here until they do when the Minister could simply deny successive appeals by using section 96 powers? That is the key question.

I should like to raise a number of general issues that are brought up by this group and set out some of the problems. As has already been summarised, under the current law, a student, family member or work-permit holder lawfully in the UK refused an extension of stay in the UK or other variation of leave—for example, from one category of leave to another where a variation is permitted by the immigration rules—has a right of appeal against the refusal and may remain in the UK while that appeal is being heard.

The real mischief of clause 1 is that it will prevent people from appealing while they are in the country. It abolishes the appeal against variation including extension of leave. People will retain a right of appeal against removal from the UK but can only appeal, save on human rights grounds, after they have left or been removed from the UK. That is a real problem.

It is impossible to discuss this group of amendments and clause 1 without, as the hon. Member for Walthamstow pointed out, looking at clause 9, which effectively criminalises those who are refused an extension of stay or variation of leave in the UK. A person can be rendered illegal the moment the variation of leave is refused, if their original leave has expired by the time that they receive a refusal.

I will come on to explain why that would catch a large number of people because of the timings involved in some of these appeals and decisions. These will be people here lawfully whether as employees, students, as we heard from the hon. Member for Chesham and Amersham, family members or business people. Under the current law, if a person's leave expires while they are awaiting a decision on an application, their leave is deemed to continue on the same terms and conditions until that decision is made, then until the time for appealing has expired and, if they appeal, until the appeal is finally decided.

If clause 1, taken with clause 9, becomes law, a person's leave will be deemed to continue only until the initial decision has been made. The problem arises because—this is why the provision catches so many people—the Home Office does not allow people to apply for an extension of leave more than 28 days   before that leave expires. A large number of people will be affected by subsections (2) and (3) and Home Office delays mean that it is usual for the decision to arrive after a person's original leave has expired. Leave is normally extended pending receipt of a decision. There is nothing that the applicant can do about that; it is a question of how quickly the Home Office makes the decision. Clause 9, when taken with clause 1, means that if the decision arrives after the person's existing leave has expired, they are in breach of immigration law from the moment of receipt of the refusal. Even if they leave the country the same day, they will by then be an overstayer. Their passport may be endorsed on departure with the potential to cause them future difficulties as an immigration offender if they try to return here or go to another country.

Can the Minister explain why it is fair for the people in my example, who have followed all the rules, effectively to be made criminal or illegal by the decision not coming within that 28-day period? The real cost is that the proposal loses the existing critical distinction between those who breach immigration law and those who have complied at every stage. The latter are none the less rendered illegal from the moment that they receive the negative decision.

As we have heard, the proposal has significant implications. Even if the decision is erroneous, the person will have to stop studying or working the day they receive notice of refusal. The problems, on which I will expand, touch on the issue of human rights and it is crucial that we consider them. The person involved will have to leave the country, and their studies, work or caring for a family member will be interrupted. If they succeed in their appeal against removal, they must make their way back to the UK, which may involve applying for entry clearance again, with attendant delays. Nothing in the Bill suggests that the Government anticipate bearing the cost of that, nor compensating them or their employers. Will the Minister please explain why he considers it fair to make mistakes and then to have someone else pay significant costs for them, in human and cash terms?

Although generally appeals relating to those benefiting from community law fall within the separate scope of the Immigration (European Economic Area) Regulations 2000, as amended, there are risks that the Bill will breach university community law by denying in-country rights of appeal in cases involving the directly effective rights of Bulgarian and Romanian nationals establishing themselves in self-employment, the rights of Turkish nationals under the association of Europe with Turkey and the rights of parents with self-sufficient EEA children. I am grateful to the Immigration Law Practitioners Association for briefing me to raise the point with the Minister; I understand that the association raised the matter with officials more than a month ago, but a response has not yet emerged.

The Government may reply that the proposal is simply streamlining, and that there will still be a right of appeal against removal at which all matters can be considered. However, under the Bill, that would take place after the person has left. Because they will have to interrupt their lives and, indeed, may have been   rendered criminals, it has implications for future applications to the UK or to third countries. I hope that the Minister will accept that it is no easy task to run an appeal hearing from abroad, nor to be able to challenge the Home Office effectively when someone is not present in court to do so.

I would understand the Government's making these proposals if they always got it right first time, but in respect of the issues raised in the amendments—to vary leave to enter or remain and the variation of leave to enter or remain and refusals of that leave—the Home Office's record is not good. The Government have published statistics on the matters we are considering, which come under the category of appeals against ''after entry into the UK'' non-asylum decisions. That category substantially, if not exclusively, contains the outcome of appeals against variation decisions.

A table provided by ILPA shows that, in 1997, only 9 per cent. of appeals were allowed. The legislation would perhaps have been understandable then, except for the 9 per cent. who lose out. That has risen steadily, however: 24 per cent. of appeals were allowed in 2000; 29 per cent. were allowed in 2001; 30 per cent. were allowed in 2002; and 33 per cent. were allowed in 2003. Not only are appeals successful, and therefore initial decisions wrong in 33 per cent. of cases where appeals were brought, but the problem is getting worse. The Minister shakes his head.

Photo of Tony McNulty Tony McNulty Minister of State (Immigration, Citizenship and Nationality), Home Office 11:45 am, 18th October 2005

I do not challenge the figures, but a causal relationship that says, ''The appeal is right, therefore the initial decision was wrong'' is far too black and white. Any number of additional pieces of information can come to light after the initial decision has been made. It is not absolutely right to say that; it is casual empiricism to say it. The hon. Gentleman's point is not the case, and he knows that.

Photo of Evan Harris Evan Harris Liberal Democrat, Oxford West and Abingdon

I see the point that the Minister makes. We can look directly at the quality of decisions made when we discuss in clause 4 the questions of entry clearance. I shall not go into that now, but clause 4 contains independent measures to assess the competence of initial decisions. Either way, however, my main point still holds. Given that 33 per cent. of appeals are successful in this category and given how difficult and what a huge deterrent it would be to have to appeal from abroad and to bear the consequences of being criminalised and having to give up one's study and one's work in the meantime, people may feel that it is not worth the hassle of returning to complete their studies if their appeal is successful. They might also discourage others from appealing.

Although the facts show that a third of appeals in this category are successful, the Government are seeking to abolish the ability of a huge number of people—a very large proportion—to appeal. That is important.

The Minister raised the point about the quality of decisions. It is likely, and there is a strong case for this, that the quality of decisions will decrease if the level of scrutiny is reduced. Some people will not deem it worth while to appeal once they have been refused, and others will find it difficult, or even impossible, to   do so from out of country. They will not be present at any appeal hearing, and that limits their scope to challenge the Home Office.

During the debate on the Asylum and Immigration Appeals Bill in 1992, this was said:

''When a right of appeal is removed, what is removed is a valuable and necessary constraint on those who exercise original jurisdiction. That is true not merely of immigration offers but of anybody. 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. That is simply, I fear, a matter of human nature, quite apart from anything else.''—[Official Report, 2 November 1992; Vol. 123, c. 43.]

That is true, and it is a very good point. The then shadow Home Secretary, now the Prime Minister, was right on that occasion, and I, in repeating his words, am right now, as are other hon. Members who share that view.

There is a more independent view, and there are Select Committee views, about the importance of preserving appeal rights, but I do not have time to go into them now. I would, however, like to raise with the Minister a point about the validity and the benefit of allowing appeals. Ministers have implied—indeed, they have stated on the record and in media interviews—that without the measures in the Bill, the Minister and his Department would be snowed under with hopeless or abusive applications. That is not the case; it is not reasonable to say that.

Photo of Evan Harris Evan Harris Liberal Democrat, Oxford West and Abingdon

If the Minister does not say that that is his view, it is not clear what the justification for these proposals is. I do not wish to misquote the Minister, but many of what the Government have said are their motives for introducing these measures are a result of the need to deter people from making hopeless or abusive applications. If the Minister is happy to clarify that that is not one of his reasons, it would be a welcome departure from the usual rhetoric.

A precondition, however, for being able to bring a variation appeal is that the appeal has some prima facie merit. Ample powers already exist to deal with applications that have no prospect of success and those that are deemed abusive. A variation appeal may not be brought against an immigration decision on the ground that a person does not satisfy mandatory requirements or is making an impossible application. In these circumstances, an appeal may still be brought on asylum and human rights grounds, but the Secretary of State can prevent this from being brought in-country by certifying a claim as ''clearly unfounded''.

The only people who may bring a variation appeal are those who have already been accepted as qualifying for leave to enter or remain and are able to put forward a claim that they continue to qualify for such leave under the immigration rules or a claim, which the Secretary of State does not characterise as ''clearly unfounded'', that refusal of leave breaches the UK's international human rights obligations. It is reasonable to say that the preservation of appeal rights is important. We must recognise that the number of   people who will lose rights of appeal under the new system is extensive. It is vital to list them so that the Committee is aware of exactly who is covered.

A person granted limited leave for a probationary period of two years as the spouse of a UK citizen or settled person, applying for indefinite leave to remain on the basis of that marriage will not be allowed to appeal against refusal. Neither will a person holding a work permit applying to extend leave to continue in employment or a person with leave to establish himself in business applying to continue in business. An applicant for such leave should have invested at least £200,000 in the business in which he seeks to continue and have created at least two jobs for persons settled in the UK, which will also be at risk. The stakes are very high. We have already heard about students and I will not repeat what has been said.

I should like to give an example of one of the cases supplied by the Law Society, both in writing and face to face. An aircraft engineer from Morocco with graduate-level work experience worked in the UK as an aircraft parts salesman. His employer and he argued over commission and the employer, taking no steps to dismiss him, told the Home Office that he had left the job. He received a notice of curtailment of stay. He appealed the curtailment and won. The immigration judge was critical of the Home Office for failing to allow the appellant to make representations in his defence before issuing the notice. He has a new job in the UK selling aircraft parts.

If provisions in the Bill are introduced, this applicant would become an illegal overstayer on receiving the notice of curtailment of stay. He would have no in-country right of appeal against a subsequent removal decision and would be returned to Morocco. His considerable skills, which are in demand, would be lost to the UK economy unless he was able or willing to exercise the less effective out-of-country appeal. The Minister must respond to such examples and explain why it is in the interests of UK plc for these curtailments to occur.

I have more examples, but in the interests of time I shall give just one more. The case has been brought to my attention by ILPA. D came to the UK in 1995 to do an MBA at a British university. He continued his studies and applied in May 2001 for continued leave to study. He was refused on the basis that he had not provided proof of progress in his studies. This proof had been delayed in the post. When he appealed in November 2001 he provided that proof with his grounds of appeal. He heard nothing. He completed his MBA and then enrolled on a nursing course, successfully completing that.

All the while D kept the Home Office informed of what he was doing. He married a naturalised British woman in March 2004 and applied for leave on the basis of marriage. He heard nothing. Finally his student appeal was listed for July 2005. He won the appeal although his studies were by this time long since completed. He was given leave for a month to make an in-time application for leave as a spouse. This   was granted in September 2005 and thus he was able to start work in October 2005, just a short while before the birth of the couple's first child.

Under the proposed law this man would have been in the country illegally from the time of first refusal, even though a mere postal error was the reason for that refusal, as was clarified four years later. He would have had a record as an immigration offender and would have been forced to leave the UK, interrupting his MBA. He would not have been able to appeal until he had left the country and would have had to stay outside the country for four years waiting for the appeal to be decided. The immigration judge hearing the case noted:

''The appellant has been made to wait for nearly four years for his appeal against his refusal to remain as a student to come on for hearing. In the meantime he has successfully completed two courses and has become qualified as a registered mental nurse and has been offered employment in a sector of the health service which is known to be short of staff.''

There is the best example of what can happen to a student, bringing together many of the problems that exist under the current system. The Government are ignoring the repair of that system and are simply seeking to abolish appeal. We will lose huge numbers of people who will be of potential benefit to the country.

I shall finish by discussing human rights. The statement on the front page of the Bill reads:

''Mr. Secretary Clarke has made the following statement under section 19(1)(a) of the Human Rights Act 1998:

In my view the provisions of the Immigration, Asylum and Nationality Bill are compatible with the Convention rights.''

I believe that that statement is highly questionable. It is important to emphasise that an appeal may be brought against an immigration decision only if it is of a kind set out in the list in section 82. Section 82(2)(d), which clause 1(2) of the Bill would repeal, identifies as an appealable immigration decision the

''refusal to vary a person's leave to enter or remain in the United Kingdom if the result of the refusal is that the person has no leave to enter or remain.''

Section 82(2)(e), which clause 1(3) of the Bill would repeal, identifies as an appealable immigration decision the

''variation of a person's leave to enter or remain in the United Kingdom if when the variation takes effect the person has no leave to enter or remain.''

Applications for asylum or to remain because return would put the person at risk of torture in violation of article 3 are not immigration decisions within the meaning of section 82. It is arguable that a person making application for asylum would not be removed from the UK. However, those whose claim is based on the contention that removal from the UK would breach their human rights would, as far as I can see, have to sit it out as illegal overstayers, and would be unable to work and liable to detention until such time as a decision to make removal directions was served, in which case the 2002 Act provides for an in-country right of appeal against such a decision where it is made on human rights grounds.

It seems to me that decisions affecting a person's education and decisions about allocation of a school   place do attract a right of appeal. The European Court of Human Rights recognised, in Niemietz v. Germany 1992, that a person's working life may form part of his or her ''private life'' that is protected by article 8. A person's employment is considered as being so important that he or she should have a right to take proceedings in an employment tribunal if they think that they have been unfairly dismissed. Therefore, preventing people from exercising those rights while they are awaiting their appeal rights has implications for human rights.

I would like the Minister to address this key question: if he argues that an appeal on human rights grounds is preserved by the Bill, why does he not set out clearly in clause 1 that there will be a right to appeal on human rights grounds against a variation of, or a refusal to vary, a person's limited leave to enter or remain? The Government could have made that clear, and their failure to do so in clause 1 leaves them at some risk of not being compliant with the Human Rights Act 1998. Can the Minister clarify why he thinks that he can guarantee that human rights will be respected under clause 1 and thereby give me reassurance on that matter?

Photo of Nicholas Winterton Nicholas Winterton Conservative, Macclesfield

Order. I am not over-conscious of my title, but it is the only recognition that I have had in 34 years, so perhaps members of the Committee would take appropriate note.

Photo of Tony McNulty Tony McNulty Minister of State (Immigration, Citizenship and Nationality), Home Office

That was a less than propitious start, so let me start again. Thank you, Sir Nicholas. It has been a long and necessarily complex debate, and I do not hold that against anyone. As hon. Members have said, this is the front load of the frontloaded, so it is right that we should dwell on clause 1.

As I said at the start, I appreciate that the Bill is difficult in the sense that it constantly refers back to previous Acts—principally the 2002 Act. By the bye, I take to heart the point made by the hon. Member for Oxford, West and Abingdon (Dr. Harris) about the need for a consolidated piece of legislation, which is perhaps overdue, although that is not a bid for further legislative time in this Session. The hon. Gentleman will, however, agree that—for once—this Bill is not presented as the all-singing, all-dancing answer, solution and comprehensive retort to whatever is going on in the asylum and immigration world, as some of the others have been. It is important to stress—as he and others have said—that we cannot really discuss clause 1 without taking into account its interlocking nature with clause 3 and clause 9, and without a reference to clause 4 and to students, as my hon. Friend the Member for Walthamstow said. I am beginning to get the feeling that there probably will not be much of a stand part debate, Sir Nicholas, so you will forgive me if I wander a little on clause 1 and its relations with other areas, as well as dealing with the amendment.

If it was not complex enough that we have to refer back to previous legislation and that we cannot discuss appeals without reference to clauses 3, 9 and 4, there is another complexity, which is that all this needs to be   seen in the context of the Government's five-year plan for asylum and immigration and, crucially, the current consultation paper on a managed migration points system. Many elements that we are discussing and that we shall discuss under the Bill are but building blocks of what we are trying to do with the overall five-year strategy and the points system.

For example, there will be—or at least this is offered in the consultation paper—a separate tier among the five tiers in the points system, tier 4, with a clear focus on students. I accept much of what the hon. Member for Chesham and Amersham says about students. The Government do not resile from our strong view—this relates to the Prime Minister's initiative—that our overseas students not only are very important to the UK economy, but make an enormous contribution culturally and in other ways. Many eventually settle here and make a contribution. Others return to their country of origin and make a huge contribution there, often establishing a strong relationship with this country. I do not object to any of the comments in that regard. I do object to many of the hon. Lady's other comments on the amendment, but we shall come to that.

One further complexity is the fact that we are already doing a lot on entry clearance, which was the undercurrent to much of what hon. Members expressed. That is why I said earlier that we cannot talk about appeals without going back to the original decision that is being appealed against.

I shall go through some of the important elements that are germane to the amendment in the context of what we are trying to do with the five-year plan and the points system. Building on much of what we have already done in relation to colleges, as my hon. Friend the Member for Walthamstow said, we establish far more readily the relationship between colleges and other education institutions, their sponsorship role and the student, and exactly the same is true for employers. There is a far more ready focus on the sponsor rather than simply on the applicant. That needs to be borne in mind in the context of the appeals that we are talking about.

I do not want to dwell on this, but I am sure that it will be a refrain throughout many of our deliberations: we are already doing a significant amount and will do more to build on the quality of decision making. I accept the import of comments from assorted bodies that have written to members of the Committee, and the thrust of the contributions from hon. Members thus far, that the first thing we must do is get the quality of initial decision making right. That must be the starting point. The removal of appeals needs to be seen in that context. I shall return to this in far more detail when we consider entry clearance specifically. We are doing far more on training, promoting consistency and best practice, management time and how management get involved in the decision-making process, learning from appeal determinations, enhancing the role of the independent monitor and making more resources available to UK Visas. We are also doing more on a risk assessment and awareness basis in terms of specific sources of abuse from specific stations. All that must happen in the context of the   decision-making process, regardless of what happens to the aspect that we are discussing. No one would demur from the notion that things need to be got right in the first place.

That is why I intervened on the hon. Member for Oxford, West and Abingdon to say that it is making a bit of a casual empirical relationship to say that every appeal refers back to a very bad decision in the first place. I accept his broad point, however. Even if we are talking about a figure of 25 per cent. rather than 33 per cent., that is still a very large number, even though only 1 per cent. of all students studying here have come through an appeal route. We can argue about statistics until the proverbial cows come home, but all that we are doing in this part of the Bill—our position on the amendment and more generally—must be seen in terms of the five-year plan, the points system and what we are doing with entry clearance.

Photo of Evan Harris Evan Harris Liberal Democrat, Oxford West and Abingdon 12:15 pm, 18th October 2005

I welcome the Minister's recognition that the quality of initial decisions must improve. I got the impression from what he was saying that that had to happen first, but that is not what he was saying. Can I ask him a specific question: would he agree to suspend the introduction of these measures until he can show, through independent means or the publication of the most recent statistics, that there has been a significant improvement? That would clearly deal with one of the concerns that has been raised by the Opposition parties.

Photo of Tony McNulty Tony McNulty Minister of State (Immigration, Citizenship and Nationality), Home Office

I would rather not be restricted by that straitjacket, partly because it is happening anyway—although I take the hon. Gentleman's point—and partly because with the fairest of winds and the Terrorism Bill, we shall be lucky to complete this Bill before April or May. I would be happy, by consideration of Lords amendments, should there be any, or at the tail-end stage of the Commons process, to get back to members of this Committee with an update on developments with entry clearance officers and any improvements to the decision-making process. I say that with confidence because, in part, it is happening now. If people have not read the five-year plan and the points system, they must understand that more, rather than fewer, people will be in the hands of the entry clearance system in future, particularly students and workers. That is why it is absolutely right that, even in the confines of the curtailment of these ''appeal rights'', we look at the wider notion of entry clearance.

Photo of Dame Cheryl Gillan Dame Cheryl Gillan Shadow Secretary of State for Wales

When will the Minister give an indication of when the points system will be fully developed and available for scrutiny? I am glad that he acknowledges that the decision-making process is an imperfect one, and there have been obvious efforts to improve it. However, my experience is that the Government say that efforts are going into improvements, but that there are not then the commensurate resources behind those words to give them weight. If he is going to come back to the Committee and give us more detail about what is happening in the training of ECOs now that the   independent monitor is going to be a full-time position, I should like to know what extra resources have been dedicated within the Home Office to the issue. His warm words in Committee are not going to satisfy those who are affected.

Photo of Tony McNulty Tony McNulty Minister of State (Immigration, Citizenship and Nationality), Home Office

I take the hon. Lady's point, of course, but I would simply say that the points system, and everywhere that we want to go for a transparent, managed migration system, ain't going to work unless such resources are put in. We are very clear about that. We are not putting in resources simply to sweet-talk for the duration of the Bill. I implore people to read the strategy and the points system document, because therein lies the future of what we are trying to do on the managed migration side. As I have indicated, much of the Bill, including the amendments under discussion here, provides the building blocks for that.

On the hon. Lady's question about the points system, we are coming to the end of the consultation process—7 November, I think. I have exhorted many, including the Secretary of State for Education and Skills, to have their say in the development of that process. We would then look at the timing of the Bill in Parliament before the beast in all its glory is developed after that consultation. I think that it would require roughly another year to implement it. So, roughly about the middle of the year after next, the fully fledged points system will be up and running. Much of it—we can explore this outside the Committee as it is not the concern of the amendment—can and will be introduced as we go along where appropriate, or appropriate transitional arrangements will be put in place. There are something like the best part of 70 explicit routes into the country on the managed migration side. It is about rationalising those as much as we can.

Photo of Dame Cheryl Gillan Dame Cheryl Gillan Shadow Secretary of State for Wales

May I clarify that point? Is the Minister saying that before we finish the stages of the Bill in this House, the results of the consultation will be available to all hon. Members?

Photo of Tony McNulty Tony McNulty Minister of State (Immigration, Citizenship and Nationality), Home Office

We will certainly have the shape of the way forward in terms of the points system on the premise that it will probably be April or May by the time the Bill is finished. I think that there is no danger of the Bill being done and dusted by both Houses of Parliament this side of Christmas. As long as the hon. Lady does not hold me to an exact timetable, I can give her the assurance that she seeks. The Bill needs to be seen in that context and in the context of much that we have already done to streamline appeal rights in clauses 3 and 9. The amendments would completely reverse that, but I understand why they were tabled. I will discuss them in detail, while bearing in mind your exhortations about brevity, Sir Nicholas.

We cannot discuss the issue elsewhere in the Bill as the hon. Member for Oxford, West and Abingdon suggests. We do not lightly put on the front of a Bill that we think it accords with the convention on human rights. In any case when an applicant alleges that removal would breach his rights to private and family life under article 8, his appeal against the decision would be in-country unless the article 8 claim was certified as clearly unfounded under the appropriate section 94.  

Generally, when there is acceptance of a human rights claim, the appeal will be in-country rather than otherwise. It would never be possible to remove someone from the UK without their human rights being considered. In any case where an appellant alleges that removal would breach their human rights, the appeal against any decision to remove would be exercisable from within the UK save for the certification of a clearly unfounded claim under section 94 of the 2002 Act. With that caveat, human rights are of course protected.

Photo of Evan Harris Evan Harris Liberal Democrat, Oxford West and Abingdon

Is not the Minister worried that by virtue of the fact that that is the only appeal mechanism open to people who may be very reluctant to leave their family, job and education, it encourages appeals on human rights grounds? He and his officials will have to wade through appeals to see which ones might be on human rights grounds and which are not. It will create the same work that he is trying to avoid.

Photo of Tony McNulty Tony McNulty Minister of State (Immigration, Citizenship and Nationality), Home Office

I partly accept that, but the section 94 certification process is an appropriate backstop. I appreciate the tenor of the debate and also why hon. Members are always looking out for something that at least in part removes appeal rights in the context that everyone therefore will lose their initial application to extend or not to have their leave curtailed. That is not the case, but I understand why people put it in those terms. Many of the examples quoted, apart from those where there is serious maladministration, will, as often as not, be regularised under the new points system and it will be very clear what rights people have. We forget, too, that the onus will be on education institutions far more than it is now. I have said clearly to Universities UK and others that no university or college that is doing what it should be doing now—not all of them are—will be penalised by the burdens that the Bill imposes.

Photo of Dame Cheryl Gillan Dame Cheryl Gillan Shadow Secretary of State for Wales

With the tacit admission to the hon. Member for Oxford, West and Abingdon that the Minister will be forcing people down the road to human rights, has he had a chance to carry out an impact assessment of resources, especially of the civil legal aid budget?

Photo of Tony McNulty Tony McNulty Minister of State (Immigration, Citizenship and Nationality), Home Office

The assorted impact assessments for the Bill are in front of me in all their glory, so the stark answer is no. I do not accept that we are encouraging people to go down the route suggested by the hon. Lady. I say very strongly that the removal of appeal should be considered in the context of the five-year plan and the strategy and all that that entails in terms of shifting burdens to sponsors far more readily, streamlining the decision-making process, putting in all those resources and fusing both work permit applications and visa applications. We should consider all those points, but I take the point about resources, and I hope that I have answered that.

Photo of Dame Cheryl Gillan Dame Cheryl Gillan Shadow Secretary of State for Wales

One of the main reasons that we gave a statutory right of appeal to asylum seekers in 1993 was because of the cost of everybody going to the High Court to challenge the decisions. Therefore we must know the Minister's assessment of the likelihood of that happening and whether there will be any impact.  

Photo of Tony McNulty Tony McNulty Minister of State (Immigration, Citizenship and Nationality), Home Office

I have said once, and I shall say again, that I do not believe the assertion clearly implied by Opposition Members that if we remove the right of appeal, the refusal rates will suddenly shoot up. I understand why they are using that as a debating device, but that does not mean that refusal rates will suddenly go through the roof. That is not the case at all.

Furthermore, given the clarity, transparency and all the other elements that we shall achieve though the five-year plan and the points system, I do not agree with where Opposition Members started from in the first place. I certainly do not agree with the assertion—implicit or otherwise—that the removal of the right of appeal will suddenly mean more direct human rights appeals.

In fact, I would go further. My hon. Friend the Member for Walthamstow talked quite rightly about the level of delay with many processes in the recent past and about people being in the system for so long. In part, certainly in this case, they have been in the system so long because of the level and number of appeals that are permitted, including human rights appeals and judicial reviews. I do not say that people should not go down that route; I simply say that we are seeking to streamline. That streamlining must be seen in the context of all that we are doing in other pieces of legislation. That is why I say strongly that much of what is in the Bill, and not only in this group of clauses, serves as building blocks to what we are trying to do elsewhere.

Hon. Members will not understand, in real terms, what we are doing in areas such as e-borders unless they know everything else that is going on. All the legislative elements that we require for e-borders are not included in the Bill, nor are those dealing with employers and illegal employment Some elements are included, but they are building blocks and need to be seen in that context.

This will sound now like an unconscious stream, Sir Nicholas, but I am attempting to cover the serious points that hon. Members have raised. We are fully aware of the treaty rights of Bulgarians and Romanians under accession rights and of the Turkish nation under association rights. Those are enshrined in the assorted treaties, and nothing contained in this or any other Bill will challenge those rights.

I challenge what people say about the starting point for this legislation or anything else we are trying to do concerning immigration and asylum being to cut out abuse. It is not. I cheerfully say that in many cases the Bill is not about abuse—it is about streamlining the system. I was told when I took this job that administration would get me in the end—not policy, politics or organisation but bog-standard administration. That is what we are trying to streamline.

I do not start from the premise here or elsewhere that immigration in all its glory is somehow hugely problematic, and we have always got to solve problems. I do not accept that, and I have said that since I assumed this role. The clauses are about   streamlining and getting to a stage at which there is but one appeal process in this narrow area. I fully understand why hon. Members are talking about appeals in the absolute round when they dwell on their points. However, the legislation is not about appeals in the round—it is in these two narrow areas. It is not that the absence of abuse equals ''do not bother reorganising and streamlining''. If there are improvements to be made, we should make those improvements. A quite obscure Member of the House, the right hon. Member for Haltemprice and Howden (David Davis)—I think that is where he lives—said on Second Reading:

''Conservative Members are minded to accept the Home Secretary's arguments on appeals''.—[Official Report, 5 July 2005; Vol. 436, c. 196.]

That is very kind of him. If he remains shadow Home Secretary, which I am fully confident he will, he can repeat that point later. I understand why people are doing what they are doing, but let us put this in context. I cheerfully admit it is not simply about abuse. Of course, I know what Lisbon is. Nothing in the Bill challenges the Lisbon agenda and the Prime Minister's initiative in terms of the importance of overseas students.

My hon. Friend the Member for Walthamstow is entirely right. This must change and is part of what we are seeking to improve. There is a long time between refusal of leave and removal decisions being made, but at least on some levels it is a result of the assorted layers. One of the primary aims of clauses 1 and 3 is to facilitate removal decisions. When the application for further leave is refused, the problem that my hon. Friend describes arises in large part because a decision to remove cannot be made until after the appeal against the refusal of variation of leave.

I am fed up with people saying, as someone did during the election, ''What bit of 'send them back' don't you understand Mr. Blair?'' Anyone who understands asylum and immigration and the complexities, either in this part of the appeal process or elsewhere, will realise how crass and ignorant such questions are. In asylum cases in many instances one is trying to establish who the individual is, where they come from, what documentation they have and how they can be returned. I do not suggest that my hon. Friend is going anywhere near this, but there are complexities when it comes to removals and it is not as simple as signing a removal order and as if by magic someone disappears.

This is partly about decreasing that gap. Whatever I do in this job, on appeals and everything else, it is clearly wrong for people, whatever their circumstances, whatever the validity of their application whether on the asylum or immigration side, to dwell within the system for four, five, six or more years, getting on with their lives while the bureaucracy tries to unpick matters.

Photo of Evan Harris Evan Harris Liberal Democrat, Oxford West and Abingdon 12:30 pm, 18th October 2005

While I have significant differences of opinion with the Minister and the Government in this   whole area, like him I was appalled by the posters saying, ''What bit of 'send them back' don't you understand?'' It diminished the debate and was most unfortunate. I should like to bring him back to students. He argued that nothing in the Bill challenges the Lisbon agenda and the Prime Minister's commitment to increasing the effectiveness of universities in this country for students. But is he not troubled in that context by the huge range of opinion from college principals and university vice-chancellors against the Government's position on these clauses and entry clearance? Does that not give him pause?

Photo of Tony McNulty Tony McNulty Minister of State (Immigration, Citizenship and Nationality), Home Office

I was going to come on to students. May I say simply in defence of the Conservative party, this was one scruffy little advert in a little paper in an Essex seat. However bad the Conservative posters were, none had the question, ''What bit of 'send them back' don't you understand?''

Photo of Tony McNulty Tony McNulty Minister of State (Immigration, Citizenship and Nationality), Home Office

I had refrained from mentioning that, but it was.

I take to heart all the comments about students. I repeat what I said about the Prime Minister's initiative. Although I understand why they are doing it, I simply do not accept what the people in the sector are saying. I am going to the next joint education taskforce. We have set up a taskforce between the education sector, principally higher education, ourselves and the Department for Education and Skills to talk about these matters. On reflection, it was not terribly helpful that we jacked up the visa fees the week before the joint education taskforce met, but there have been very encouraging discussions thus far.

Those discussions revolve around how we collectively deliver on the Prime Minister's initiative, the Lisbon agreement and all the things we were saying about students. The hon. Member for Chesham and Amersham picked up some of the key points: the strength of the pound and other competitor countries finally getting their act together. As part of my duties as an academic I was an admissions tutor and I went to Malaysia and Hong Kong to recruit overseas students. Although it was a great pleasure, it was also hard work, Sir Nicholas—[Interruption.] It was. No one believed that when I got back, but it was 10-hour days interviewing people all the time. That happened at a time when, in relative terms, we lived—rightly—on the quality of our product. There is nothing wrong now with the quality of that product, which has improved if anything, nor is there anything wrong with the experience of students in the UK, which has also improved. However, as the hon. Lady suggests, the others are catching up.

What appeal rights do overseas students have against a refusal of extension of leave or coterminate leave in Australia, Canada and elsewhere? The answer is that they have none. Do not tell me, therefore, that the revocation imposed by clause 1, which the hon. Lady seeks to overturn, would be the silver bullet that all of a sudden restored numbers in the UK sector. I know that the UK sector has difficulties, but that is   not because of what we seek to do in the Bill. Nor are those difficulties due to image. I have spoken to chancellors and asked them not to go down the road of some self-fulfilling circle that starts with saying, ''We do not like what the Government are doing, for whatever reason, so we will talk it down.'' They therefore will talk themselves down, and in the end the numbers will go down. That is a less than virtuous circle that no one wants. The experience elsewhere is certainly no better than in the UK and, in terms of appeal rights, most countries are no better than the UK.

Photo of Dame Cheryl Gillan Dame Cheryl Gillan Shadow Secretary of State for Wales

The Minister, by his own admission, says that those other countries do not have a right of appeal. Why should we go down the same route as them? They are improving, but we are not giving any added incentive for people to choose the UK as their place of study. In fact, the Bill is removing any vision of fairness or equity that students would have of the regime in the UK.

Photo of Tony McNulty Tony McNulty Minister of State (Immigration, Citizenship and Nationality), Home Office

I simply do not accept that this is a matter of fairness and equity. Even if Opposition Members had argued in the strongest possible terms, using all possible rhetorical devices, I would not have sympathy with that argument. It does not follow from the implementation of clause 1 that all of a sudden refusal rates will go through the roof because of the lack of right of appeal. Is there an absolute lack of right of appeal? No, there is not. We have said clearly that there is still the right of appeal on the final determination of removals. It is not helpful to say—the hon. Lady will understand that this is a paraphrase—that when faced with a choice, overseas students come to the UK only because they have a right of appeal on whether their leave should be extended or revoked. I certainly do not accept that argument—it is nonsense, but it is partly what the hon. Lady said, and partly what the sector says, when they compare the UK with other places.

Let us start from the original premise. In entry clearance terms at least, barely 1 per cent. of overseas students studying in our universities are in the UK because they secured an appeal against that original entry clearance decision. We will return to that matter in clause 4, because that clause deals with entry clearance. However, it is not the case that all of a sudden doom and gloom will beset the entire market because of the streamlining that we are undertaking. The key distinction, in relation to clause 1, is between those who have protected and refugee status and everyone else. That is an important streamlining that we want to preserve, but hon. Members should consider the clause in the context of the five-year plan and the points system.

Photo of Evan Harris Evan Harris Liberal Democrat, Oxford West and Abingdon

The entry clearance system is clearly a matter to be discussed under clause 4. However, I do not think that the Minister can make the argument that students might come to the UK because there is an appeal right. There is an issue of reputation. Some students select countries and universities via the internet and by reputation and what other people say. If large numbers of people find that they have to go through appeal, or they hear of other people who have had to go through appeal because of poor quality   decisions, whether in-country or for entry clearance, or who were not allowed to appeal, when there are so many delays and the quality is so poor, that can have an impact. Perhaps Britain has traditionally had the right of appeal that other countries do not have to make up for the fact that our processes are not as efficient as those in other countries.

Photo of Tony McNulty Tony McNulty Minister of State (Immigration, Citizenship and Nationality), Home Office

The smallest word in the hon. Gentleman's contribution was the most important—the word ''if''. He said, if the student experience in the UK is that they have to go through the whole series of appeal processes, and if they are being removed or refused and subsequently removed in large numbers. That is fantasy—it is not going to happen. We are seeking to streamline the system, for the reasons that I have outlined, and I do not think that it will impinge at all on the attractiveness of either the UK as a student destination or the quality of students' experience once they are here.

Photo of Dame Cheryl Gillan Dame Cheryl Gillan Shadow Secretary of State for Wales

I would have some sympathy with what the Minister is saying if the trend of our market share of international students were not on the downward slope. We have lost 3 per cent., as I said when I proposed the amendments, whereas the USA, which has tightened up its system, has lost only 2 per cent. Can he not see that when that downward trend is continuing, these measures are only going to exacerbate that and possibly hasten the rapidity of our loss of market share?

Photo of Tony McNulty Tony McNulty Minister of State (Immigration, Citizenship and Nationality), Home Office

No, I fundamentally do not accept that, because that attributes such frailty to the quality of the product that we have in the UK higher education sector, and suggests essentially that it is built on a house of cards and the slightest shift will cause it to fall down. Do not fall for, or suffer from, the tyranny of casual empiricism; please do not. I have said this to the vice-chancellors themselves: people are paying very significant amounts of money—£20,000, £30,000 or £40,000—to study here, and I am seriously told by heavyweight intellectual vice-chancellors that if there is an extra 50 quid on the visa, the students will not come. In the context of spending £20,000 or £30,000, either on themselves or elsewhere, that again is casual empiricism.

If one looks more carefully, the trend, as far as I can tell, that we need more generally to challenge, comes not so much from Germany, which was cited, and not so much the States—which is getting its act together, although there are other international reasons why students from particular countries are less than obliged to go there—but from the Pacific rim, Australia, New Zealand and others, which are offering a more attractive market to many from the far east. That is why what the Chancellor is doing with China is so important, and why I challenge those who, because of these minor changes, would traduce the entire quality product that is the higher education experience in this country. The entire house of cards will not tumble down because of a £50 rise on a visa, or if—I use that little word myself—the Bill, the five-year plan and ECO improvements are all taken together. People have said to me, ''Let's wait and see before those improvements come through'', as the hon. Member for Oxford, West and Abingdon suggests. I am not   going to be party in any way, shape or form to what I think has been some poison in the debate about a fundamental change in the managed migration system of this entire country. The points system will take some of the poison out of the debate. Some—it does not matter who—sought to exacerbate and exploit that during the last election.

Photo of Tony McNulty Tony McNulty Minister of State (Immigration, Citizenship and Nationality), Home Office

No, not the hon. Lady. I want to get to a stage—a forlorn hope, perhaps—where the managed migration system, of which these building blocks are a part, works far better than it does now, where it is absolutely transparent, and where those applying, as well as those observing it for public policy reasons, are in a position where no party, however desperate, will seek to exploit it as an issue, because it has gone away as an issue. I live in hope of the Daily Mail saying that managed migration is good, although I am not that naive. It is in all parties' interests to get to a stage where there is real transparency and clarity in the system. That is why I dwell on the five-year plan and the points system, albeit hooking on these amendments and some of the other elements that the hon. Gentleman and the hon. Lady raised. Hopefully, I shall get back to your exhortation about brevity, Sir Nicholas.

Photo of Evan Harris Evan Harris Liberal Democrat, Oxford West and Abingdon

My understanding is that in Australia, which the Minister cited as a place that is expanding its market share, one can appeal against refusal of leave to remain. That should be of concern. I want to give the Minister a longer word than ''if'' and a shorter word than ''empiricism'' and it is ''evidence''. What evidence does he have, and what research is he commissioning, on what he accepts is a big business—the recruitment of overseas students—to reassure himself that these moves around appeals, not just the fees, will not damage the reputation of this country? Such research would put him in a better position than those who are in a position to know, such as the vice-chancellors and the university sector.

Photo of Nicholas Winterton Nicholas Winterton Conservative, Macclesfield 12:45 pm, 18th October 2005

Before the Minister replies, let me say that I am pretty confident that it would be to the advantage of the Committee if we completed our deliberations on this group of amendments before we adjourn at 1 o'clock, only because the Committee will not sit again until Wednesday afternoon. I say that merely as guidance; it is, of course, entirely up to the Committee.

Photo of Tony McNulty Tony McNulty Minister of State (Immigration, Citizenship and Nationality), Home Office

Thank you, Sir Nicholas.

The evidence base for all that we are doing on managed migration, on the points system and on tier 4 in that system, which relates directly to students, is, to the extent that there has been any evidence, in the document that is out for consultation now. I exhort hon. Members here, as well as everyone else, to take full advantage of that. Indeed, I shall go further by saying that should each of the Opposition parties want meetings with Home Office officials to go through the processes relating to the points system, the consultation paper and the thinking behind it, I   would be more than happy to offer that facility to them. That is very important. It is not enough to say that because I am charging others with casual empiricism, what I am trying to do in terms of the overall system must be rooted in some quantitative empirically determined evidential base. It is not, and I am not suggesting that it is, but there is a job for us collectively to do. By ''us'', I mean Government, the sector and, of course, other parties if they want to be involved, but I repeat, in relation to entry clearance, on which most of the deliberations have focused, that only about 1 per cent. or less of students are here because of an appeal right.

Hon. Members raised other issues and I apologise for dwelling on matters not strictly germane to the amendment, but I repeat that it is impossible to understand what is going on in the Bill in relation to appeals and all the other elements without understanding fully the context and backdrop, which is the five-year plan and, specifically, the points system.

In terms of what has been described as streamlining, except for those with refugee status, of course I prefer what is in clause 1 to the alternatives. I do not accept the notion that it is appropriate simply to remove what we suggest in clause 1—I was going to say simply removing the suggested removal in clause 1, but that would complicate things. The amendment proposed by the hon. Member for Chesham and Amersham would simply remove what we are trying to achieve.

Nor do I accept, for elaborate reasons that it would take me more than 12 minutes to explain, that amendment No. 77 is a clear and valid alternative to what we are trying to do. I shall write to the hon. Member for Oxford, West and Abingdon to explain that in more detail. In that context, and with the assurances and promises that I have given, which others can explore in detail, about this matter needing to be seen as part of the overall policy that we are implementing, and about a further exposition of the five-year plan by officials for hon. Members, I urge the hon. Member for Chesham and Amersham, as the owner of the lead amendment, to withdraw it.

Photo of Evan Harris Evan Harris Liberal Democrat, Oxford West and Abingdon

I note that the Minister is to write to me about one of my questions and I accept that, because we are short of time. However, I asked him a number of specific questions, but the key one is: does he recognise the problem of blurring the distinction between people who follow all the rules and become criminals by virtue of a refusal, and those who have not followed the rules and are otherwise illegal? What incentive is there for people to follow the rules under the system when they can be determined as illegal and criminalised simply by a notice of refusal of a lawful application?

Photo of Tony McNulty Tony McNulty Minister of State (Immigration, Citizenship and Nationality), Home Office

I understand and accept the hon. Gentleman's use of the term ''criminalisation'', but if someone's application is unsuccessful and they no longer have a right to stay in the country, that is as it is across the piece in terms of any other aspects of immigration. Yes, he is strictly right, in the sense that that criminalises people. He makes a fair point. It goes back to what I was saying about sponsors taking the work or the college route. We can elaborate on the issue further in respect of the points system, but our   aim is a transparent, managed migration system, including tier 4 for students. Yes, there can be greater confidence than there is at present in terms of the initial entry clearance decisions so that people do not have to regard it as a road that they should not go down. Under the new system, of which this proposal is just a building block, there will be strong motivations and clarity about what is and is not legal.

In respect of the education sector, including colleges, as with employers, I would like to get to the stage where the reward for compliance is a light touch, and the reward for abuse at the sponsor end, knowingly or otherwise, is a very heavy stick—not simply falling off the list but far stronger than that. That is precisely why I want to see things in the round.

I do not want to get to the stage where there is a neutral position because of legislation between legal routes and illegal routes or, worse, that by some perverse design, the consequences of legislation or of immigration rules in the wider context encourages illegality rather than legality. There lie the challenges to the integrity of the overall system and I am trying to achieve the exact opposite of that. The hon. Gentleman makes a fair point but it needs to be seen in the wider context of everything we are doing. I urge the hon. Gentleman—I am sorry, I mean the hon. Lady—to withdraw the amendment.

Photo of Dame Cheryl Gillan Dame Cheryl Gillan Shadow Secretary of State for Wales

It is so nice that the Minister can tell the difference.

Many people outside the ambit of the Committee will be disappointed with the Minister's response. He is dealing with an extremely complex area, which is hard to get a grip of because, by his admission, e-borders and the points system are not in the Bill. We are told that we must go back to the five-year plan and that what is proposed are the building blocks, but we are only humble legislators. It is difficult to fine-tune the proposals and get a grip of what is happening when we are only seeing part of the picture. I appreciate his difficulty in producing the whole picture, but it is not unreasonable to expect him to have waited a little longer before tackling the matter so that we could have had a fuller picture.

I am grateful for the Minister's generous offer of briefings from his officials for members of the Committee—an offer that we will want to consider as we must get things right. We do not want students, or anyone who is on the receiving end of an unfair process, to be put off coming to study in this country. However, especially on the Lisbon goal, for example, the Minister ignored my point that the Bill is likely to hamper our ability to recruit international students, including science students and postgraduate researchers. That is why the Lisbon goal, which will require 700,000 students, is relevant. I hope that those who advised me that there may be difficulties are wrong, because it will affect the science base in this country.

I have great sympathy with the hon. Member for Walthamstow. It is ironic that the Minister said that at the end of the day there will remain a right of appeal against a direction to remove, as that is scant comfort for the applicant who is not only stigmatised but may   have to wait months, if not years, before being able to exercise any right of appeal, depending on when or if the Government serve a removal notice.

The Minister will recall that 13 years ago the Conservative Government tried to remove certain appeal rights. I make no apology for quoting the words of the then shadow Home Secretary who said:

''When a right of appeal is removed, what is removed is a valuable and necessary constraint on those who exercise original jurisdiction.''—[Official Report, 2 November 1992; Vol. 123, c.43.]

That is true not just of immigration officers, but of anybody. When I was doing some research, I came across quotes from 1992 and 1993 which are worth looking at. The hon. Member for Nottingham, North (Mr. Allen) said:

''In almost every other walk of life there is a right of appeal. Even a convicted murderer has a right of appeal. A social security claimant who believes that his claim has been wrongly assessed has such a right. For all systems of administration this right offers the possibility of redress.''—[Official Report, 11 January 1993; Vol. 216, c. 701.]

That is what the Minister is taking away by not accepting our amendments.

The hon. Member for Hackney, North and Stoke Newington (Ms Abbott) said:

''Immigration officers are bad enough as it stands, but if they know that people have no right of appeal they will be even more arbitrary, unpleasant and unfair.''—[Official Report, 2 November 1992; Vol. 213, c. 102.]

Have things changed so much since then? I hope that the Minister's assurances about further education and more resources are right. The hon. Member for Erith and Thamesmead (John Austin) said:

''As other hon. Members have pointed out, the strength of any appeals system lies not only in the right of redress for the aggrieved or wronged but in the fact that it acts as a control on arbitrary decision-making by officials. Those who know that their decisions may be subject to appeal are likely to behave differently from those who know that their appeals are not subject to appeal, scrutiny, challenge or review.''—[Official Report, 2 November 1992; Vol. 213, c 95.]

Those are comments by Labour Members.

I make no apology for turning to the statement of the right hon. Member for Sedgefield (Mr. Blair). He said:

''The new Bill— the Asylum and Immigration and Appeals Bill—

''replaces the measure which fell because of the general election. It contains one concession of significance that we welcome—full oral right of appeal for all asylum seekers—but in our judgment it remains profoundly flawed. Without any justification it removes the right of appeal under immigration law from two categories—visitors and certain categories of student. The Secretary of State's speech in justification will have done nothing to allay the deep offence that the Bill has caused in many parts of our communities, which see it, rightly, as arbitrary, insensitive and unfair.''—[Official Report, 2 November 1992; Vol. 213, c. 36.]

The Prime Minister's words hold true today. People will not understand why this right of appeal is being removed. I urge the Minister to think again and to consult as widely as possible, particularly those organisations that have briefed us on the clause. I have no intention of withdrawing the amendment.

Question put, That the amendment be made:—

The Committee divided: Ayes 6, Noes 10. 

Division number 1 Nimrod Review — Statement — Clause 1 - Variation of leave to enter or remain

Aye: 6 MPs

No: 10 MPs

Ayes: A-Z by last name

Nos: A-Z by last name

Question accordingly negatived.  

It being One o'clock, The Chairman adjourned the Committee without Question put, pursuant to the Standing Order.

Adjourned till Wednesday 19 October at half-past Four o'clock.