Clause 3 - Grounds of appeal

Immigration, Asylum and Nationality Bill – in a Public Bill Committee at 6:30 pm on 19 October 2005.

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Question proposed, That the clause stand part of the Bill.

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

I rise to put points that have been raised by the Immigration Law Practitioners Association, an eminent body with which I assume all members of the Committee are familiar. The association has prepared a briefing note, and I want to take the opportunity to ask the Minister to respond to its concerns.

A person who loses their right to appeal against a variation—including extension—of leave by the operation of clause 1 will instead be able to appeal against the decision to remove them from the UK. The effect of clause 3(2) is set out in the explanatory notes, which state:

''Clause 3 works with clause 1; subsection (2) ensures that a person affected by the removal of a right of appeal by Clause 1 has the earlier decision taken into account in an appeal against the later removal decision.''

By virtue of new section 84(1A) of the Nationality, Immigration and Asylum Act 2002, as inserted by clause 3(2), the person appealing against the decision to remove them would also be able to raise grounds of appeal against any decision that

''gave rise to or facilitated'' the decision to give removal directions against a person. The decision that gave rise to or facilitated the decision to give directions for a person's removal   for having stayed beyond the time limited by their leave might be the previous decision refusing to vary his or her leave—I hope that the Minister is following this. In other words, in appealing against the decision to remove them, the person should be able to challenge the original refusal to vary their leave and the merits of that decision.

The ILPA thinks that that will be scant comfort to a person who has already become an illegal overstayer, who has had to stop working or studying, who has been forced to leave the UK and who has had it noted in their passport that they were an overstayer. The association believes that the provisions will be of even less comfort than the explanatory notes suggest and that the Bill will not necessarily achieve the objective of allowing people to raise a complaint about the variation decision in an appeal against any subsequent and consequent decision to remove them from the UK.

The ILPA goes on to say that the reasons for that are rather complicated and technical, and I must admit that I tend to agree. First, clause 3 does not appear to have the effect of allowing an appeal if the tribunal finds that a decision that

''gave rise to or facilitated the making of the appealable decision'' was wrong. There is the provision that

''a decision against which the appeal is brought or is treated as being brought was not in accordance with the law . . . or a discretion exercised in making a decision against which the appeal is brought or is treated as being brought should have been exercised differently.''

That is from section 86(3) of the Nationality, Immigration and Asylum Act 2002, with which I am sure the Minister is familiar.

ILPA states that the clause appears to need to be amended to ensure that a person could win their appeal against the decision to make removal directions on the basis that the original refusal to extend their leave was wrong. It suggests that that could be achieved by providing expressly that

''for the purpose of section 86(3) such other decision is to be treated as a decision against which the appeal is being brought.''

ILPA would also like the Minister to clarify that it is the Government's intention that the decision to refuse to vary leave in the circumstances envisaged by clauses 1 and 3 is always to be treated as a decision that

''gave rise to or facilitated'' the decision to remove. ILPA wants to be absolutely clear that people will not be denied the opportunity to call into question the merits of the original refusal to vary leave on a technicality. I know that the Minister will be anxious to respond to ILPA's points, and I look forward to hearing what he has to say.

Photo of Andy Burnham Andy Burnham Parliamentary Under-Secretary (Home Office)

I begin by telling the hon. Lady that the clause has to be read in conjunction with clause 1. It obviously brings in the single appeals system, which is the second part of that system. This is a point that I was going to make to the hon. Member for Woking, but I remind Conservative Members that although I do not know who is currently the favourite in their leadership stakes—  

Photo of Andy Burnham Andy Burnham Parliamentary Under-Secretary (Home Office)

Nevertheless, the right hon. Member for Haltemprice and Howden (David Davis) said that Conservative Members ''are minded to accept'' the Home Secretary's arguments about appeals. I do not know whether his word carries through to all members of parliamentary Conservative party, but he obviously still has some power. I urge Conservative Members, as long as he is shadow Home Secretary, to bear in mind the comments that he made on Second Reading. He said that he broadly supported the system that we propose.

The purpose of clause 1 is to allow decisions to refuse to vary or curtail leave to be challenged in the course of an appeal against removal. The hon. Member for Chesham and Amersham asked me to clarify that it is our intention to allow appellants to challenge the quality and the decision reached in the initial circumstance so that the first decision could be fully contested at that single appeal. We fully intend to allow that possibility. At that point the appellant would have the ability to raise all of the issues. That is the effect of clause 3.

Concerns have been raised in the context of clause 1. The hon. Member for Oxford, West and Abingdon was worried about the potential gap between the decision being made to refuse to vary or curtail leave and serving the decision to remove. The intention behind the repeals of section 82(2)(d) and (e) of the 2002 Act is to allow the decision to remove to be served as soon as the decision to refuse to vary or to curtail has been made. The reality is that the affected party will be able to challenge the decision just as quickly as under the current system. I know that in some ways that requires the hon. Gentleman to accept that the administrative changes to be put in place will be made. That is the intention of the clauses as drafted.

The hon. Member for Chesham and Amersham asked whether the provision will not allow an appeal if the earlier decision is wrong. The way the provisions work is that the challenge to the decision facilitating the decision to remove is one ground of challenge to that decision to remove. I hope she is clear on that point.

Photo of Evan Harris Evan Harris Science, Non-Departmental & Cross Departmental Responsibilities 6:45, 19 October 2005

I was listening to the hon. Lady's remarks, because I had the same briefing. While she was reading, I had only to follow.

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

That happened with one of the hon. Gentleman's earlier contributions.

Photo of Evan Harris Evan Harris Science, Non-Departmental & Cross Departmental Responsibilities

As the hon. Lady says, it happened with one of mine earlier.

A distinction was being made. The ILPA expressed a concern—given its knowledge, it is in a position to do so—that there can be an appeal against the refusal only if it is unlawful, not wrong. Will it be possible for the appeal on removals to consider refusals made on the merits of the application—that it is wrong on balance rather than unlawful?

Photo of Andy Burnham Andy Burnham Parliamentary Under-Secretary (Home Office)

I am grateful to the hon. Gentleman, because, for this clause, that is the heart of the matter. In developing the response to the hon.   Member for Chesham and Amersham, I was going to say that if the asylum and immigration tribunal accepted that the earlier decision either to refuse to vary or to curtail leave was wrong, the appeal against the latter decision to remove would succeed. We are confident that that is the effect of the Bill as drafted.

That relates to the crux of the argument put by the ILPA. I am happy to give the hon. Lady that reassurance on that important point. We believe that providing that system will give the appellant an enhanced right to appeal. They will be able to bring forward at that stage all the arguments I mentioned. They will have ample opportunity to make the case.

I do not need to detain the Committee much longer. Clause 3 carries through the intention behind clause 1 and conflates the two appeal stages into one. It fulfils a long-standing aim of the Government: to move towards a streamlined appeals system with a one-stop shop appeal. I believe that the Conservative party shares that, given the comments by the right hon. Member for Haltemprice and Howden (David Davis) on Second Reading. Given that, and the reassurance I gave the hon. Member for Chesham and Amersham on the points she has raised, I urge that clause 3 stand part of the Bill.

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

It is good to see that the Minister for Immigration, Citizenship and Nationality has joined us again. He might be surprised at the rapid progress we have made in his absence; he could be absent a bit longer.

I understand from the signals I have received that the ILPA is pleased with the probing of this clause stand part debate. Obviously, this is a technical matter, but I am grateful to the Under-Secretary for being so forthright in his assurances. I am sure that if there are any further issues the Minister will hear from that organisation, but at the moment I am satisfied with the response.

Question put and agreed to.

Clause 3 ordered to stand part of the Bill.