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Clause 4 - Entry clearance

Immigration, Asylum and Nationality Bill – in a Public Bill Committee at 1:00 pm on 20th October 2005.

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Amendment proposed [this day]: No. 24, in clause 4, page 3, line 9, at end insert

'or

(c) following a course of study of more than six months duration at an institution on the approved register for which he has been accepted.'.—[Mrs. Gillan.]

Question again proposed, That the amendment be made.

Photo of Eric Illsley Eric Illsley Labour, Barnsley Central

I remind the Committee that with this we are discussing the following amendments:

No. 78, in clause 4, page 3, line 9, at end insert

', or

(c) entering for any other purpose prescribed by order for the purpose of this subsection.'.

No. 83, in clause 4, page 3, line 9, at end insert

'or

(c) entering for settlement as a returning resident in accordance with the provisions of the immigration rules'.

No. 84, in clause 4, page 3, line 9, at end insert

'or

(c) entering in accordance with the terms of any provision of the immigration rules which relates to a provision of community law'.

No. 90, in clause 4, page 3, line 9, at end insert

', or

(c) entering for any other purpose prescribed by regulations for the purpose of this subsection.'.

No. 91, in clause 4, page 3, line 9, at end insert

', or

(c) entering as the dependant of a person authorised to study or seek or take employment or of an authorised self-employed  person in the United Kingdom, as prescribed by regulations for the purpose of this subsection.'.

No. 104, in clause 4, page 3, line 10, leave out 'Regulations' and insert 'an order'.

No. 80, in clause 4, page 3, line 20, at beginning insert

'in the circumstances specified in subsection (1)(a) above,'.

Photo of Neil Gerrard Neil Gerrard Labour, Walthamstow

I will be brief. I wish to make a couple of comments about the group of amendments and the wider debate on them. Given the time that we have spent on the clause already, we shall probably not have a clause stand part debate.

I understand some of the points about appeal rights disappearing that the hon. Member for Chesham and Amersham (Mrs. Gillan) made in moving the amendment. Many hon. Members have concerns when appeal rights disappear, not least for the selfish reason that I mentioned in the debate on clause 1. The disappearance of appeal rights on anything to do with asylum and immigration almost always leads to an increase in our work load. People without appeal rights do not just go away—they will be in touch with us.

Although clause 4 deals with entry clearance rather than with people who are already in the UK, many people who apply for entry clearance will have relatives here—that is certainly the case in family visits and even student visa applications. Sponsors in the UK are not necessarily family members, but they often are.

We will get the fallout when appeal rights disappear. We get the fallout now when there are delays in the system. The periods that can sometimes elapse waiting for case statements to be sent from the overseas post to the Home Office and on to the asylum and immigration tribunal is often a source of complaint and problems.

I suspect that the points scheme will improve matters. The hon. Lady suggested that nothing should be done unless there is an entirely objective system. To ask for a system that is 100 per cent. objective is to ask for the impossible. Whatever rules one makes or whatever points systems are devised, it will be absolutely impossible to devise a system that will cater for every conceivable set of circumstances. We are dealing with individual people's individual circumstances, and those circumstances will all be different in some way. Those of us with experience of other points systems, such as that relating to local authority housing applications, know that however carefully things are done, there is always scope for disagreement, argument and concerns about exactly how objective the process has been. However, the points system in immigration will at least make the situation much more transparent than it is now. It will be much easier to see the basis on which decisions are taken and to compare one set of decisions with another. One hopes that it will make it much easier for entry clearance officers to take decisions that are consistent within a post and from one post to another.

I hope that my hon. Friend the Minister will address a specific point in replying to the debate,   whether or not he is minded to accept amendment No. 24. Under the clause, he has the power to make regulations that will affect who does and does not have rights of appeal and the grounds on which people might appeal. It would be useful to the Committee if he gave some indication of his thinking on that.

It would also be helpful if the Minister responded to a further point. He is aware that a very significant number of hon. Members have concerns about changes to appeal rights for family members, and particularly about the possibility of oral appeals disappearing. I recall dealing quite recently with a student visa case in which the sponsor in this country going to the oral appeal and convincing the adjudicator of his credibility was a very significant factor in the appeal being allowed. A very considerable number of hon. Members, particularly Labour Members who deal with large numbers of asylum and immigration cases, would welcome hearing the Minister's thoughts on whether he might be able to think again about just how far he will go on family appeals.

My final point relates to points made earlier by the hon. Member for Chesham and Amersham. I understand that the Minister would not wish to tie himself down to a commencement date that depended on an organisation outside the Government and the Home Office. However, there will be an issue about the commencement date of all the provisions in the Bill. In relation to some of what has been said about the quality of decision making, about the efforts that the Minister is making and about the introduction of a points scheme, it might be helpful if he gave some indication of the lines along which he is thinking as regards commencement dates and how a commencement date might relate to what is being done on the points scheme and on reducing some of the delays that currently occur in the system.

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

This group includes amendments Nos. 78, 83, 84, 90, 91, 104 and 80, in my name and that of my hon. Friend the Member for Manchester, Withington (Mr. Leech). I shall dispose of them quickly; I want to ask only a couple of questions of the Minister.

Amendments Nos. 78 and 90, which offers an alternative wording to that of amendment No. 78, would give the Government more powers to make regulations to allow a wider range of appeals against refusal of entry clearance than just the ones listed in the Bill. It needs to be understood that I do not consider regulations to be the best way to restore people's rights, but given that that is the architecture of the Bill, we are asking the Government why they have chosen to limit the grounds on which they can do that.

Amendments Nos. 83, 84 and 91 relate to three specific groups and prompt questions about those groups. Amendment No. 83 would preserve the right of appeal for those who have already been granted indefinite leave to remain—that is settlement—who are applying overseas to be permitted to re-enter for that purpose. That group of applications currently has a right of appeal, but the Government's stated intention, while removing appeal rights from students and   workers, fails to mention that group, which may be an oversight. Only a small number are likely to fall into that category, but the right of settlement that they want to exercise should not be denied to them without good reason after it has been granted. Giving the right of appeal would avoid those applicants feeling that they had cause to pursue human rights claims or judicial review, which would be more expensive and complex and not necessarily the most appropriate way to proceed. I hope that the Minister will think about whether he is willing to consider that small group.

Amendment No. 84 refers to those seeking to gain their rights under immigration rules relating to a provision of Community law. I raised that matter under clause 1 and I will not repeat at length what I said. I asked the Minister to let me know his response to the examples given, preferably by the end of our debate on the proposal. The examples were Swiss nationals, and nationals of countries with relevant association agreements within the EU—Bulgaria, Romania and Turkey—who are seeking to enter for the purposes of businesses or self-employment. There is also a further example: non-European economic area nationals who are the primary carers of children resident here who themselves have rights of residence in accordance with the European Court judgment on the Chen case. Denial of a right of appeal in those cases may bring the UK into conflict with Community law and give rise to more expensive litigation, which could be avoided by providing for a right of appeal in such cases, although that is a narrow point.

Amendment No. 91 would give the right of appeal, or at least the right to be considered for it under regulations, to people

''entering as the dependant of a person authorised to study or seek or take employment or an authorised self-employed person in the United Kingdom, as prescribed by regulations for the purpose of this subsection.''

That would allow a right of appeal against the refusal of applications for individuals who wanted to enter the UK as the dependant of an individual granted entry into the UK.

Amendment No. 104 does not really belong in the group, and I mention it only because I want to return to something the Minister said earlier. He said that he thought that the negative resolution instruments were an acceptable way to deal with the issue—I hope that I am not misrepresenting him. It is not how the Government have always dealt with appeal rights, because section 29 of the Asylum and Immigration (Treatment of Claimants, etc.) Act 2004, in amending section 88, provides for an affirmative order to be the way forward. I shall be grateful if the Minister will clarify what is significantly different in this Bill to enable it to depart from that precedent.

Amendment No. 80 is relatively specific. Its construction is complex, but it would limit the reference to the person in the UK needing to be settled here to cases where the person seeking entry clearance to join them is applying for settlement and not just to visit. An application from a family member of a person who is living lawfully in the UK with permission to stay for a long period, for example, as a businessman, graduate student, researcher and so   forth would appear to lose any right of appeal under clause 4 as drafted.

My point is similar to that made by the hon. Member for Walthamstow (Mr. Gerrard). People who are already here are seeking for people to join them. They know how to contact their Members of Parliament and if the clause is accepted as drafted, there will be extensive use of Members of Parliament to raise these matters with Ministers in the immigration and nationality directorate, which is time consuming. Indeed, there may also be inappropriate reliance on human rights claims.

It is not clear that there has been any abuse of this provision at present, as the relatives to be visited will all be lawfully in the UK and most of them will be gainfully employed to the benefit of this country or engaged in higher education. Again that is a specific issue. In the interests of constructive debate, I should be grateful if the Minister could respond to the points that the amendments seek to probe.

Photo of Tony McNulty Tony McNulty Minister of State (Immigration, Citizenship and Nationality), Home Office 1:15 pm, 20th October 2005

Many of the hon. Lady's points about students are well made. I am with her all the way along until she says how disruptive the Bill will be. As we have discussed, a number of things are going on in the higher education sector. I do not believe the last part of her speech where she almost says, but not quite—this is an over-characterisation—that all the ills that currently beset the HE sector result from visa fees increase or what the Bill seeks to do to appeal rights.

I am keen to work as constructively as I can with the HE sector and to address broader issues such as the buoyancy of our economy, the level of currency and the fact that many competitor nations are getting their act together far more readily than they have in the past 20 years. I will discuss those matters in detail at the joint action taskforce. I will discuss them tomorrow morning with Universities UK. I am keen to go forward.

Let us be clear what we are talking about, not just on these amendments, but in the broader sense of clauses 4 and 1. It is not correct to say that any tweaking of the rules and regulations in immigration and asylum legislation is always simply in response to abuse. It is unfortunate that sometimes the debate is characterised in those terms. To look for a substantive evidence base that there has been abuse as the reason for a change is misguided. We are looking for the most productive and, as my hon. Friend the Member for Walthamstow says, transparent and clear set of rules and regulations so that everyone, including the applicants, understands exactly what is going on and, if a decision goes the wrong way, understands the precise reasons why.

Reform is not always prompted by abuse. Of course there has been abuse on the student side, largely by institutions here rather than individuals. I freely accept that. We will try to address that with the Department for Education and Science. It may be parliamentary   badinage, but it is inappropriate to quote my right hon. Friend the Prime Minister in an entirely different context from the early 1990s. The context is entirely different because the reform, investment, resources and all the other elements of the five-year plan and the points system were not on offer and on the table in terms of appeal rights at that time.

We are trying to get to a stage where there is clarity, transparency and everything else in the system for all concerned. We want to reach a stage in the context of entry clearance and appeals where a number of things happen. Yes, there will be that transparency and clarity. Yes, there are improvements to the decision-making process. Yes, the sponsor has a stronger role and greater responsibility, especially in education and employment cases, but within a context of almost light-touch regulations for due compliance and the heavier hand where there is less than compliance from employers or individuals. It is in that context that we need to understand what is going on in clause 4 and in the rest of this part of the Bill.

Much of what is in the clause and germane to the amendments is not to do with looking for substantive evidence of abuse in every case. We do not introduce reform only in response to abuse. We want a proper and comprehensive system.

The clause is not about playing with and tweaking the system for the pure administrative and economic convenience of the Government—I would not stand up and promote it if it were. However, we need to be aware—I understand entirely why the debate has gone in the direction that it has—that were we to leave the processes as they are, the image given would be that appeals are instant—that they happen overnight as if by magic. Part of the reason for the provisions is that we need to address the fact that, under the existing appeal process, students, employers and others can wait anything up to two years for their case to be determined. That cannot be right, either in terms of what we want to achieve, or for the applicants themselves.

Rather than hanging on to elements of the system that are outwith the new system, I urge the Committee to consider what we are doing overall. I do not say that just to advertise the fact that we are consulting on a five-year strategy and a points system but because those elements are central to what we are doing. I firmly believe that, by working with the education sector in particular, we can achieve what we both want to achieve in the context of what the Government seek to do.

Nor should people run away with the notion that the timing will be thus: the Bill is secured; its commencement is instant; the points system follows perhaps a year later; and, if we think about it, we will then make improvements to the system and put in resources to improve the entry clearance officer and decision-making processes. Again, I understand why, but that is the image that the Committee has given of how the Government are operating. I will not—I cannot—be locked into some mechanistic process that says, let us do this first, and if improvement occurs—if the appeal rates go down—then let us next go there   and there. I do not believe that that is appropriate, or the way to run a railroad in terms of public policy.

I have said, and I am happy to provide more information on this to the Committee, that we are starting the process of greater investment now, particularly in training and development and in putting more resources into the entry clearance officer process. In response to the point that the hon. Member for Chesham and Amersham made earlier: yes, I am confident that we will exact from the system the increases in efficacy and efficiency that we require.

With a fair wind, and allowing for the vagaries of what happens in the House of Commons and in another place, I hope that by April-May next year we will secure Royal Assent, and I would hope also by then to be able to give greater assurances. We are still working through things, and progress depends on where the points system goes, how long that will take and other related matters, but there should be some notion of commencement orders for specific parts of the Bill.

The only assurance that I can give is that the implementation of the Bill will not be instant. It would not be appropriate, the day after we secure Royal Assent, to roll out every single aspect of the Bill, and we will not do so. However, I cannot go beyond that and give an assurance that by such and such a date, through such and such a process of monitoring or whatever else is suggested by amendment No. 24 and others that relate to the heart of the clause, we will flick a switch that says that everything is fine and dandy now with the whole process so we will move towards commencement for the provisions of the Bill. Life just does not work like that. I am also convinced that the points system—there is plenty of time for more consultation on the shape of the beast—will not be introduced until mid-2007, at the very earliest.

Resources and investment are being introduced now to facilitate the improvement that everyone wants. The points system will be introduced at the earliest by 2007, with commencement dates for the provisions of the Bill happening as and when appropriate, but not immediately.

That cannot happen immediately because—I know by now that everyone will have lovingly read every word of the consultation paper on the points system—we are marrying the visa-issuing process and the entry clearance process, which is another issue that people have broad concerns about. If there is anything more troublesome for people, it is when, for all the system's vagaries and difficulties that Opposition Members allege there are, someone gets a work permit, a student permit or whatever else, only to find that he or she does not get a visa because of some delay. That cannot be right either.

Central to the points system, as well as what we seek to do in the Bill, is the role and function of those at ECO level. It does not take a genius to work out that it may be some time before the provisions are implemented in full. That is why I meant it when I said that people must understand the interlinking nature of the Bill and the points system far more clearly than they thought they had to.  

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

I am listening carefully to the Minister. The key issue is the commencement of clause 4. It would be meaningless to implement bits of clause 4, because clause 4 removes appeal rights. Is the hon. Gentleman saying, and if he is not perhaps he can make it clear, that clause 4 will neither be implemented immediately nor until the points system is in place? Or is he saying that he cannot guarantee that clause 4 will not be implemented before the points system is introduced, let alone has bedded down?

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

As I have tried to say, I cannot say that in that strict sense. I can say that it will not happen instantly—the first part of what the hon. Gentleman suggests—but I cannot pre-empt the final nature and shape of the points system. If I cannot pre-empt that, I cannot pre-empt the transition period from that to the final points system. We think that it will happen roughly about mid-2007, but, like many of these matters, as and when we can introduce elements of the points system earlier, we shall.

I shall give one small example. If Members look at the first tier of the points system, the plan to replace the highly skilled migrants programme, without pre-empting the consultation, will probably not be miles different from what it is now. That may be introduced at an early stage.

If I do know at this stage every detail—the nature of the transition or the nature of the final position—I cannot say absolutely that clause 4 will not be introduced until after the points system. To be helpful to the Committee—I say this on a personal level, so do not put me up against a wall and hold me to this—I think that it is very unlikely that clause 4 will be implemented before, at the very least, the transition period between the absolute points system and the introduction of elements of the system.

The entry clearance function, to which clause 4 and the amendments relate, is central to—far more than people readily understand—the points system. They are inextricably linked. Do not shoot me should some of clause 4 be implemented before the points system is introduced, but in all likelihood it may not. In all honesty, do not push me further on that, because further I cannot go. Three or four processes are unfolding simultaneously. I want to ensure that all of them are interlocking before we go down that road.

I understand the concerns in terms of the higher education sector. As my hon. Friend the Member for Walthamstow suggests, we shall get to a stage where everything is far more transparent. I agree with him, too—otherwise road blocks would run this place rather than MPs—that 100 per cent. objectivity is a fool's errand. Do not go there, because there is not 100 per cent. objectivity.

Furthermore, it is in our collective interest, in public policy terms, for there to be that flexibility in the system and for it not to be as sharp and rigid as 100 per cent. objectivity would imply. To the extent that it can be, there must be clearly defined flexibility in the system in the context of how the process will unfold. It is not about simply ticking boxes and adding points up, although that is a large part of the measure.  

Photo of Evan Harris Evan Harris Science, Non-Departmental & Cross Departmental Responsibilities 1:30 pm, 20th October 2005

May I strongly endorse what the Minister said in affirming what the hon. Member for Walthamstow said? Flexibility is needed. That is one reason why I think that he and I have the same view about maximum numbers or limits for immigrants or, indeed, asylum seekers: the necessary flexibility would be lost for hard cases or for cases that did not fit in and for which we would want discretion to be used.

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

I am grateful for that. I also agree with much of what the hon. Member for Chesham and Amersham said, but for different reasons. Other things are going on in relation to Chinese students than simply issues of visas, entry clearance and appeals. I return to the point that I was making. As robust as our education sector is—indeed, largely because of its high quality—we want sponsors to have much more responsibility than is currently apparent. We want a light-touch regulatory system that says to those at the top who comply in full, ''Get on with it'', for all the reasons that we agree on, about the valuable contribution that overseas students make. But we are coming for those at the other end who have abused and may continue to abuse the process. That is at the sponsor end. Linking things far more readily back to the sponsor is very important. No educational institution, wherever it is in the food chain, for want of a better phrase, will have to do more under the new points system and these elements of legislation than it should be doing already.

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

But will the Minister accept these points? I fully appreciate that there are more things going on with students from China. For example, China is becoming much more self-sufficient in its own higher education system. However, the Government have tightened up on visas and entry clearance since the attack on the World Trade Centre. We have examples, one of which involves the university of Derby, in which I am interested, with its new campus in Buxton, up in the Peak district. A group of about 20 students usually come from China through the university's partnership with Dong Cheng technical vocational school in Beijing. This year, for no apparent reason, something went wrong with two thirds of their applications and two thirds of the visas were refused. I understand that it is possible that that happened because the British embassy in China moved to a paper-based system for visa applicants and required information to be presented in a particular way. The Minister must admit that if something such as that happens it is hard for the higher education sector to have confidence in the system that he describes in his response to the amendment.

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

I do not know the details of that case, but I will happily look into it if the hon. Lady wants me to. However, there is much more going on, not least the proximity and the increasing competitiveness of educational institutions in the far east itself. Students from the far east always used to come to western Europe or the US. I am not thinking only of institutions in Australia and New Zealand; institutions in the far east itself are getting their act together far more readily. We can agree, if the case happened in the way suggested by the hon. Lady, that   it should not have happened. We also need to agree that we want and will actively pursue collaboration between institutions here and in China and that we recognise collectively, across all parties, that we ignore China and the potential of its students and its wider economy at our peril. If the hon. Lady wants to pursue that individual case with me, I will be happy to look into it, but I remain confident about what I have said about the future system.

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

The issue is not merely the loss of the students from China, which may or may not be critical to the course that is being run, but the forward planning for the higher education establishment itself. It would have planned on having greater numbers. Instead of 350, it will have planned for 400. Suddenly, all its agreements and domestic arrangements for following the courses will have been disrupted. If there is a downturn in what is happening—it will, I still believe, be exacerbated by this measure—that makes things doubly difficult for these organisations. That is what I am trying to impress on the Minister.

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

Again, I accept that except for the last point. I profoundly believe, from the work done thus far with the joint education taskforce, which is continuing, that there is mutual interest in the Government and the higher education sector working together. That includes the clarity, transparency and other elements suggested by my hon. Friend the Member for Walthamstow that will come from this Bill, unamended by these amendments, and all the other elements that we are taking forward with the points system. I also need to repeat the point that I made about the amendments. There is not a substantially different appeal regime or an absence of an appeal regime in our competitor countries.

I have two final points. We are looking at this and I will not be rash enough to accept an amendment, but I take the point about the regulations that fall out of the treaty obligations of the European economic area, in relation to accession countries and other associate countries like Switzerland. Some cases may fall between the various provisions, as implied by amendment No. 84. I suspect that they may be few in number, as the hon. Member for Oxford, West and Abingdon (Dr. Harris) suggests. I therefore ask him to withdraw the amendment, but I will look further at it. If we need to, we will come back either with an amendment that fills the gap or an explanation of why the gap he thought was there is not there. On amendment No. 84, I am being nice but the others are not necessary.

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

I am grateful to the Minister for his comments on amendment No. 84. Is he saying that he has looked at amendment No. 83, which also deals with a small number of people in a special case, and rejects it, or is he not in a position to comment? Is he ruling it out altogether or is it worth holding out hope that further scrutiny might lead him to consider whether that would be appropriate?

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

I am grateful. We think that amendment No. 83 is otiose. We are talking in the Bill of restricting appeal rights for those settled only on family visits. Clearly, the position of the dependants of those not settled, but here entirely   legitimately for employment or education, will remain the same. It is entirely proper that family visits are afforded to those who have already achieved settled status. If I have got that wrong, I am sure that someone, somewhere will tell me. I would crush any hopes about amendment No. 83. I am being magnanimous about amendment No. 84 because we think that is unnecessary, given that the rights that the amendment seeks to preserve are already preserved and we are not doing what is implied by the amendment.

I will expand on the last point at another time and probably on paper. The issue of family visits starts from what we had in the strategy document. That is currently still our position. We are looking at the notion of charging, a redefinition of family and simply paper appeals, not oral appeals and other similar elements. I really do not have the time, and it would probably be out of order under this particular set of amendments, to go into family visits; suffice it to say that it remains a fluid issue. Much of it is outside the scope of the Bill and more about rule changes, but I am more than happy on an appropriate occasion, either in Committee or outwith Committee, to go into more detail about where my thinking is at on how to implement the policy, as outlined in the five-year plan. I could go on for another half an hour about where I am at with family visits, but the Committee would not be terribly grateful if I did.

Therefore, I sound the caveat that I shall return to the issue in Committee, or on paper or outside Committee if that is more appropriate. Very important and legitimate points were raised about family visits side in relation to the amendment. In that context, given the unusually nice and generous comments about one particular amendment, I ask that all the other amendments be withdrawn for the reasons that I have suggested.

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

I am sorry, Mr. Illsley. The Minister seems to spend his life disappointing me, so I will disappoint him. I have no intention of withdrawing amendment No. 24. In fact, I shall seek to divide the Committee on it simply to make a point.

I am not sure how familiar the Minister is with the higher education sector's feelings, not least because he has never attended a meeting of the joint education taskforce, as he said earlier. Is that right or did I mishear him?

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

I fully intended to go to the most recent meeting. It had been in my diary for ever to go for the morning. Subsequently it emerged that, for whatever reason, it was in its diary that I was coming there all afternoon. Neither of us could switch in the end, so I am to attend the meeting at the end of October. Mea culpa, mea culpa—shoot me. So, no, I have not.

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

That is the best invitation I have had all day, Mr. Illsley. The only trouble is that I have left my gun at home. That is rather sad, because it puts the entire debate in context. The Minister, although eminently in charge of his brief and well briefed by his officials, has yet to attend that august body.  

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

There have been two meetings of the taskforce. I was in post six weeks at the time of the first one, albeit, as I have suggested already, that came after the visa increase, so it was not a terribly auspicious beginning. There was one subsequently. I shall attend the third one and I am seeing Universities UK tomorrow. My door is always open.

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

Methinks he doth protest too much, Mr. Illsley. We shall take it as an excuse. The downturns in enrolments are relevant, because of the continuous erosion process that has occurred. First we had, in 2003, the introduction of charges for leave to remain. I am sure that the Minister, although he has not been long in his post, will remember that. There have been big increases in the charges for leave to remain in 2005. The changes to the application process in China, as I mentioned, seem to have led to a big increase in refusals. There are now big increases in charges for initial entry clearance. As the Minister will appreciate, they were introduced at the worst possible time in the application cycle.

More importantly, Mr. Illsley—the Minister needs to take this on board—those charges were introduced without warning or consultation. The fear in the higher education sector, which has not been addressed in the Minister's response to the amendment, is that, coming hard on the heels of those changes, the abolition of the right of appeal will further damage applications and result in more no-shows, because potential students have no right of appeal whatsoever.

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

Heaven forfend that I should ever suggest through the hon. Lady that the Minister might have a figure wrong, but I am led to understand that the JET has met five times. If that is the case, it might be useful for her to give the Minister an opportunity to correct the record. I shall not get involved in a private argument, however.

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

I am grateful to the hon. Gentleman for informing the Committee. I am sure that the Minister is eternally grateful for the information provided by the hon. Gentleman. I now know why the Minister protested so much.

The Minister is on dodgy ground because he said that not all cases are due to abuse, which I appreciate, but he cannot provide any evidence. Whatever happens, I do not think that the Government have any way of tracking what an applicant for a visa does—that is, whether that applicant actually enters the UK.

Photo of Tony McNulty Tony McNulty Minister of State (Immigration, Citizenship and Nationality), Home Office 1:45 pm, 20th October 2005

I am told by the magic of something happening behind me that the figure was five rather than three. I am grateful for that correction. I shall be attending the sixth. My point is not that cases are open to abuse but that not every single addition to, change to or correction of the existing system is always prompted by abuse. Our goal is as transparent, as objective and as efficient a system as we can possibly get, and we are moving towards that. It is not that cases are often open to abuse but that change is not always prompted by abuse.  

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

That is right. I appreciate that; we were almost talking at cross purposes. I do not know how the Minister can judge the issue, because he has no mechanism by which to do so. Some reports state that about 17,000 students never show up to study, but there is no way of providing any hard data on the matter or knowing what happens in the sector. The Minister must be able to confirm that there is no idea in Government circles, at any level, whether these people ever come to the UK. If the hon. Gentleman is relying on evidence or data—I should like to think that the Bill is an evidence-based measure—it is not there and the Minister does not have it.

The Minister has yet to have the privilege of attending the Joint Education Task Force, but it has no power to alter the Government's proposals in the Bill, so the Committee is the appropriate place to deal with them. It is such a shame that the Minister did not come armed with the background of having attended, because this Committee is where we could make the amendments, not in the JET. It is a useful body; it follows a long period of turbulence with decision following decision without any consultation or warning, such as in the case of the increase in fees, often at the worst time in the student cycle.

I hope that the JET will help to improve the situation but it was not warned or given an opportunity to discuss recent increases in fees for initial entry clearance, for example, before the Government made their decisions. Without having advance notice of the publication of the Bill, it is hard to see how the JET will help in terms of outcomes except in limited areas. I hope that the Minister will take note of that.

The Minister referred to the fact that our major competitors do not have right of appeal against the refusal of initial entry clearance, but in Australia, which we have quoted widely, students can appeal against the refusal of leave to remain; they are charged more than £1,000 to do so. However, if the appeal is successful their money is refunded.

The Universities and Colleges Admissions Service reports a 21 per cent. decrease. There is a problem in international student recruitment because it is strong and growing. Although there has been an increase in applications of just over 3 per cent., there has also been a sharp downturn from the key markets, such as China, which the Minister and I agree should be ignored at our peril. The increase is in surges from countries such as Nigeria and Pakistan which, sadly, have little record of converting applicants into real students.

The OECD has reported that the UK market share of higher education fell faster than that of any other OECD country, from 16.2 per cent. in 1998 to 13.5 per cent. in 2003. Members report that the visa changes are the biggest factor in putting students off from coming to the UK. It is therefore of little surprise that I have tried to give so much emphasis to this amendment and this part of the Bill.

The Minister's assurances on the commencement of clause 4 are comforting—they are cuddly and nice. He   is being nice to me and trying to give a good impression. However, the Minister is asking the organisations that provide higher education in the UK to trust him, and it is hard to see that that trust would be well founded. That is nothing personal against the Minister; it is the Government's track record.

I am glad that the Minister is meeting Universities UK, because it has some concerns about how objective and successful the new points-based immigration system will eventually be. Although that measure is still at the consultation stage, the problem is, as the Minister himself admitted, that the detail is so unclear that it is difficult for those organisations to take on trust that appeals will no longer be necessary.

I still maintain that the Government should be demonstrating an improvement in that quality of initial decision making long before abolishing the right of appeal. I appreciate the Minister's attempts at reassurance, but they fall on deaf ears.

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

I support the hon. Lady in seeking to press amendment No. 24 to a vote, if that is her plan, for the reasons that she has given.

I take this opportunity to confirm to the Minister that I will not be pressing any of my amendments in the group to a vote. We have discussed amendment No. 84. However, I should be grateful if, in respect of amendment No. 83, I could, through the hon. Lady, ask the Minister to clarify in the clause stand part debate whether he is right that the terms of the—

Photo of Eric Illsley Eric Illsley Labour, Barnsley Central

Order. There is no guarantee of there being a clause stand part debate. I shall be the judge of that.

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

I should be grateful if it could be clarified later whether if advice is actually given, that applies to appeal on entry and not just the terms of the regulations, in respect of the question of settlement. However, I accept your ruling, Mr. Illsley.

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

I appreciate that I was just being used by the hon. Member for Oxford, West and Abingdon to make his point to the Minister, which I am sure the Minister is well placed to deal with.

I shall reiterate one or two points before I finish. Earlier, we were talking about being careful about identifying institutions, because we do not want to talk down that market—I would be loth to think that we were doing that. This is the only forum in which we can debate the issue, and the only forum that can make the amendments that are being sought by the higher education establishments.

In the public sector, there are reports which the Minister should address. I gave the example of the university of Derby, but other vice-chancellors report similar dips to those occurring at Derby. For example, the vice-chancellor of the university of East Anglia says that his university's declining numbers of overseas students will mean the loss of £1 million to the UAE. The university of Essex has also reported a fall, and the vice-chancellor of Southampton Solent university says that its numbers are about 10 per cent. down,   from around 300 students to 220. Again, the main reason is that the numbers of Chinese students have dropped by about three quarters. The vice-chancellor of Southampton Solent gives as the first and main reason that

''the government has tightened up on visas and entry clearance.''

He continues:

''Without the income from overseas students, our higher education system would be bankrupt quite literally.''

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

I am listening to what the hon. Lady has to say, but did she not stand at the recent general election on a manifesto that required limits on immigration? Is she saying that that did not apply to any visas given for study purposes?

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

I do not believe that I personally said anything about immigration from my platform during the hustings for the last election in relation to overseas students coming to study at our higher education establishments. I am rather sorry—

Photo of Eric Illsley Eric Illsley Labour, Barnsley Central

Order. We will not pursue a debate about election manifestos or issues that are outside the scope of the Bill or the amendments.

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

I congratulate you on a sterling piece of chairmanship, Mr. Illsley, because I thought that we were having a serious debate, and low-level political interference from the junior Minister is not to be welcomed. This is a genuine debate and I am sorry that he stooped to those levels. I try not to do that myself and I did not do it when I was a Minister either.

I should like to finish my response to the excellent, if disappointing, reply from the Minister for Immigration, Citizenship and Nationality to this group of amendments. The new universities in particular are so worried about the issue that their umbrella group—Campaigning for Mainstream Universities—has, I believe, already made representations to the Government. The Minister has to do a great deal to win back the confidence of the higher education sector. It feels that it has constantly been under attack by the erosion of one of the most important aspects of its role in this country. I am afraid that the assurances that the Minister has given us about timetabling, joined-up government, the points system being in place and the improvement to the overseas postings decision-making process do not convince me, and I do not believe that they will convince the people who briefed me on this occasion either. Therefore, with some regret, because I thought that the Minister might give a little on this issue, I am forced to press amendment No. 24 to a vote.  

Question put, That the amendment be made:—

The Committee divided: Ayes 7, Noes 10.

Division number 3 Nimrod Review — Statement — Clause 4 - Entry clearance

Aye: 7 MPs

No: 10 MPs

Ayes: A-Z by last name

Nos: A-Z by last name

Question accordingly negatived.

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

I beg to move amendment No. 55, in clause 4, page 3, leave out lines 28 to 32.

Photo of Eric Illsley Eric Illsley Labour, Barnsley Central

With this it will be convenient to take Government amendments Nos. 56 to 58.

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

I believe that we all have an interest in making progress this afternoon, and with these amendments we can be brief. The main one is Government amendment No. 55, which removes subsection (3) of proposed new section 88A in clause 4. Government amendments Nos. 56 to 58 are consequential on the removal of that subsection. My hon. Friend the Minister of State, who has briefly left the Committee, is fond of describing Opposition amendments as otiose. In the interests of balance we can acknowledge that that description could apply to a small section of our own Bill.

The amendment removes the order-making power in clause 4(3) to remove full rights of appeal in entry clearance cases. The power was taken by the Government in the Asylum and Immigration (Treatment of Claimants, etc.) Act 2004 and was intended to be used to remove full rights of appeal by the specification of provisions of the immigration rules. Perhaps it would help the Committee if I gave an example of the kind of scenario in which it was envisaged it would be used. It could have been used to remove full rights of appeal for people refused entry clearance to study, but who fail to satisfy the requirements of the rule that their educational institution must appear on the register of providers.

Under clause 4, full appeal rights in entry clearance cases are conferred by the making of the regulations that we have been discussing today. There is therefore no requirement to retain the power currently contained in subsection (3). That is why in the interests of keeping our legislation tightly drafted, the Government intend to remove it from the Bill. The other amendments are consequential, and I hope that they will be accepted.

Amendment agreed to.

Amendments made: No. 56, in clause 4, page 3, line 33, leave out 'Subsections (1) and (3)' and insert 'Subsection (1)'.

No. 57, in clause 4, page 3, line 34, leave out 'do' and insert 'does'.  

No. 58, in clause 4, page 3, line 36, leave out 'are' and insert 'is'—[Andy Burnham.]

Photo of Humfrey Malins Humfrey Malins Shadow Minister, (Assisted By Shadow Law Officers) 2:00 pm, 20th October 2005

I beg to move amendment No. 11, in clause 4, page 3, line 37, at end add—

'(5) The Independent Monitor may make recommendations to the Home Secretary concerning the reasonableness of any decisions made relating to grants or refusals of entry clearance.'.

Photo of Eric Illsley Eric Illsley Labour, Barnsley Central

With this it will be convenient to discuss the following: Amendment No. 20, in clause 4, page 3, line 37, at end add—

'(5) Subsections (1) to (4) will not take effect until such time as a review procedure carried out by immigration judges on circuit at entry clearance posts is deemed to be operating satisfactorily by the Independent Monitor.'.

Amendment No. 21, in clause 4, page 3, line 37, at end add—

'(5) A person who may not appeal under section 82(1) shall be entitled to request that a refusal of an application for entry clearance is reviewed by the Independent Monitor or his appointee.'.

Government amendment No. 59

Government amendment No. 60

Government new clause 2—Failure to provide documents.

Photo of Humfrey Malins Humfrey Malins Shadow Minister, (Assisted By Shadow Law Officers)

Amendments Nos. 11, 20 and 21 cover the same ground. In short, they examine and strengthen the role of the independent monitor. We have heard some powerful speeches from my hon. Friend the Member for Chesham and Amersham in the last few days about appeals and international students. It follows from those speeches that the Opposition feel strongly about the need for appropriate checks and balances against the Government.

The original independent monitor was Dame Elizabeth Anson, who did a sterling job and continued to take a great interest in these matters for all her career. We now have a new independent monitor and the Government are advertising for a full-time post. One of the purposes of the amendment is to probe the Government much further on their intentions for the more formal role and the new job of independent monitor. The current entry clearance monitor, Fiona Lindsley, whose report was published in February 2005, rather implied that she did not consider that the time that she was under contract to devote to her task—50 days—was sufficient to conduct a thorough review of the entry clearance decisions in her remit. She says:

''50 days is a short period to produce such a report and there are issues that I have not been able to research or develop as much as I would have liked within the time constraints. It will be for Ministers to consider whether it would be worthwhile spending more funds for a more detailed exploration of the issues''.

The Government have now advertised the post of entry clearance monitor as a full-time post, and that is a welcome step forward. I would be grateful if the Minister could give the Committee a detailed indication of how the new entry clearance monitor will operate.  

I wish to ask the Minister specific questions about the independent monitor, which I hope that he will be able to answer in his replies. How many files does he expect the new independent monitor to inspect and what percentage will that represent of his estimate of the number of refusals that will not have a right of appeal under his legislative proposals? At present, the entry clearance monitor has responsibility for monitoring refusals in cases in which there is no right of appeal. Those include non-family visitors; students who apply for entry clearance to follow a course for which they have been accepted and that will not last more than six months; students applying for entry clearance to follow a course for which they have not been accepted; dependants of students in the cases just described; and applicants who have been denied rights of appeal in accordance with section 88 of the Nationality, Immigration and Asylum Act 2002.

A problem with the independent monitor is the limits put on what she can do. She can monitor and report, but she cannot take up or make decisions on individual cases. As the Government go down the road that they are taking for this new appointment, perhaps the Minister will say a bit more about the powers that the independent monitor will have. An applicant who has been wrongly refused, without the right of appeal, has no redress even if the monitor identifies clear maladministration. I am not sure whether the position will change under the proposed new arrangements. The monitor will simply be able to make recommendations based on observations regarding wrongful refusals of entry clearance.

The monitor's recent report is worth looking at. It is highly relevant in relation to my amendments. The monitor highlights several points in that report. First, many visa applicants in the categories that the monitor covers have been wrongfully denied visas. Secondly, there have been significant increases in visa refusal rates but no investigation into the factors that may contribute to that trend. Thirdly, improvements are needed in the explanation of visa refusals. Fourthly—this is a point that my hon. Friend the Member for Chesham and Amersham has made in earlier debates, and we are quite conscious of its importance—previous refusals, says the report, are taken into consideration. That is a worrying trend. Fifthly, inappropriate refusals are used for students—a point that my hon. Friend has made tellingly on earlier occasions. Finally, complaints are not dealt with properly and ECOs' training must be improved.

What is the overall view? I quote from the independent monitor's 2005 report:

''In my reports on decisions taken in 2002 and 2003 I have estimated that some 28,000 applicants have been wrongfully denied rights of appeal as a result of the misinterpretation of simple, objective rules about lengths of student courses and named family relationships. Further I find it hard to conceive how exercising a right of appeal from abroad could constitute an abuse of immigration control, although removing appeal rights may save time and money for the Immigration Appellate Authority.''

Figures have abounded throughout the debate on the refusal rates for students, which are significantly higher than for non-settlement applications.

Bodies such as the Immigration Advisory Service, which you may recall, Mr. Illsley, I had the honour to   found and which has over the years done a magnificent job representing those with rights of appeal under immigration law have themselves had notable successes on appeal rates for Immigration Advisory Service-represented students—38 per cent. in 2002–03, 49 per cent. in 2003–04. That is an extraordinarily high success rate. It is a matter of congratulation for the IAS but of great worry to members of the Committee because if the initial decisions had been different, or better, they might not have been in that position.

I read very carefully the Minister's letter to the hon. Member for Oxford, West and Abingdon dated 18 October, which is about three days ago. I congratulate the Minister on writing a letter on that date; I was in a neighbouring Committee this morning when we were expected to rely on documents provided to us only late last night. He deals with several very important issues in the letter. He recognises the need to improve quality of decision making, and I applaud him warmly for that. What I say now is no reflection on the integrity, honesty or sincerity of those who make these decisions at our posts abroad, and at home for that matter. They work very hard under great pressure and are to be commended on their efforts, but for many years the quality of the initial decision making has been a cause of great concern.

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

I, too, read that letter. I am impressed by the work underway to improve the quality of decision making, but would my hon. Friend agree that it is not just a matter of the regime that the Minister has set out in that letter but of the pay packets of those individuals? For example, I understand that the Immigration and Refugee Board of Canada pays its case workers the equivalent of between £43,000 and £50,000 a year, but an executive officer in the immigration and nationality directorate gets only about £18,000. It probably comes hard to the Minister to hear a Tory asking for money to be spent on civil servants' salaries, but if the quality is to be improved, surely the remuneration needs to be increased, and the calibre of those people improved. If you pay peanuts, you get monkeys.

Photo of Humfrey Malins Humfrey Malins Shadow Minister, (Assisted By Shadow Law Officers)

My hon. Friend hits on a very important point. It reminds me of my parliamentary question a year or so ago on this very subject requesting details of the salaries paid to the officials who make these important decisions at home and abroad, and the length of training that they have. I was very disappointed by the reply. First, the length of training seemed to me to be very short indeed, a view that was shared by hon. Members on both sides of the House when I raised the matter on an earlier occasion. Secondly, as my hon. Friend rightly pointed out, the salaries were very low, which perhaps would not attract those of the highest ability, for obvious reasons they will want a better paid job elsewhere. She is entirely right to draw the matter to our attention.

While not committing my party to any particular policy, I agree with my hon. Friend. I feel that there is a good argument for ensuring that those who make the decisions are properly remunerated. As I have said time after time, that is because they are sometimes life-and-death decisions. They are not unimportant decisions; they can be critical not just to individuals   but to families and the more important the decision, the more impressive should be the credentials of the person who is making it.

Interestingly, in the letter that we received from the Minister, for which I thank him again, he talks about enhancing the role of the independent monitor, who is the subject of my amendments. I appreciated receiving the letter.

I intend no discourtesy to the Minister, but I think that he missed one or two of my remarks when I opened the debate. I spoke then of the Government's plans to create a full-time post, and offer a broad welcome to their steps in that area.

I shall quote from the Minister's letter, as it is worth putting on the record. He says:

''We are proposing to change significantly the role of the Independent Monitor for entry clearance refusals without the right of appeal (IM): we envisage enabling the IM to make regular reports to UK visas closer to real time,''— not a phrase that I am awfully fond of, but I think that I understand what it means—

''rather than a long annual report, and for us to be able to respond more quickly to lapses in quality identified in these reports. We have appointed an additional member of staff to liaise with and support the IM.''

There are a number of other matters set out in the annex to the letter under the heading:

''Work underway to improve quality of decision making.'' which are not for debate in this section of the Bill, but I sincerely wish the Minister and his Department the best of good fortune in taking that work forward. Many people will be watching with interest to see how it develops.

We are trying, in one way or another, and initially through the amendments, to ensure that justice is done and that the quality of decision making is improved. Amendment No. 11 would permit the independent monitor to

''make recommendations to the Home Secretary concerning the reasonableness of any decisions made relating to grants or refusals.''

That would enable the independent monitor to have a real hands-on approach, and to take up individual cases if appropriate.

Amendment No. 20 would require there to be

''a review procedure carried out by immigration judges on circuit at entry clearance posts.''

That review would determine whether the system was operating satisfactorily.

There is an argument for the greater presence of a number of people at posts abroad. For example, the Immigration Advisory Service has a number of offices abroad and can therefore provide a service on the spot. That gives real help to applicants.

Imagine the case—I exclude myself, as I am not an immigration judge—of visits by judicial officers in this country to some of our posts abroad and their review of the situation and how it is working. That could produce some most interesting results and could be very worth while, because the whole purpose would be   to ensure that the decisions that are being made are fair, decent and right.

Amendment No. 21 would entitle a person to have a particular refusal

''reviewed by the Independent Monitor or his appointee.''

There is a lot to be said for that. I want to give the independent monitor more teeth, to provide a check on the Government and their officials.

When the Minister replies—I am not sure which Minister will reply. If it is the Minister for Immigration, Citizenship and Nationality, he may be at a disadvantage in not having heard the debate in its initial stages, or perhaps he will be none the worse for that, since I am moving the amendments. Perhaps it will be his colleague, the Under-Secretary of State for the Home Department. Whichever Minister responds to the debate, we in the Opposition would find it helpful to have a lot of detail about the proposals for the independent monitor—as much detail as the Minister can give us. Linked with that we would like some details—this is critical, and is the point of the amendments—of the powers of the independent monitor and their ability to get involved on behalf of some of the most disadvantaged people in the world, many of whom, by definition, need the most help and support because of their own lack of resources.

Photo of Evan Harris Evan Harris Science, Non-Departmental & Cross Departmental Responsibilities 2:15 pm, 20th October 2005

I wish to comment briefly on the three amendments tabled by Conservative Members and I hope to catch your eye, Mr. Illsley, to respond to the Government amendments after they have been moved.

We support amendment No. 11 because it is reasonable that the independent monitor should independently monitor, and there is plenty to monitor, as the hon. Member for Woking (Mr. Malins) said. I think that there is a role for the independent monitor not only to make recommendations, but to have a more direct influence on Government policy, rather like the independent monitor of the anti-terror legislation. Lord Carlile is often referred to before policy is made and has a much greater influence on policy. I accept the point made by the hon. Member for Walthamstow that some people might not wish the independent monitor to set Government policy or wish that to be delegated outside the Government, but it would at least be within the bounds of reasonableness for the independent monitor to set a time at which certain policies can be implemented or to make recommendations as in the amendment.

I have already spoken to amendment No. 20 in a different form and I do not intend to repeat my comments, but I did pledge to the Minister for Immigration, Citizenship and Nationality that I would consider the point that he made in response to an amendment along these lines about the import of the National Audit Office's comments on the competence of entry clearance decisions. He said, I think with fairness, that the NAO had said that in 34 per cent. of cases in which there is additional evidence, that may not have been available to the entry clearance officer. The words in the paragraph are   ''may not'' so it is not clear whether, in all 34 per cent., the additional evidence was not available to the entry clearance officer when they were making their decision. As I understand it from speaking to experts since the Minister made the point, it is nevertheless the case that additional evidence usually comes through the post and it is an opportunity and good practice for entry clearance officers to look at the matter again. I will continue to look where the Minister directs me as regards whether what I said was correct, but I do not think that there is enough evidence to assert that the general thrust of my concerns was not correct.

Amendment No. 21 is a probing amendment. It refers to the independent monitor being available to consider individual cases. That is not the best way forward; the best way forward is, of course, not to remove appeal rights in the first place and to have a sensible, well staffed appellate function in the areas that we are discussing, but I can understand the point made by the hon. Member for Woking.

Photo of Eric Illsley Eric Illsley Labour, Barnsley Central

Order. Before I call the Minister, I should clarify something. Although Government amendments are listed with amendment No. 11, the Minister is not required to move them at this stage, because they are out of sequence with where we are in the Bill. They will be formally moved later, but they will be debated as part of this group.

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

I apologise for not being here at the start of the comments by the hon. Member for Woking. I wanted to go to the little boys' room before he resumed and was late because of traffic and other reasons. In another capacity, the balance between security considerations—not least what has been done at Black Rod's end of the Palace—and Members' ability to get into the Palace are things that we should look at.

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

I shall not indulge that comment from the hon. Member for North-West Norfolk (Mr. Bellingham), although it was his first, which I am grateful for. Forty minutes later, I went to the little boys' room, so I apologise for missing the start of the comments by the hon. Member for Woking. I accept much of what he said about the independent monitor and I am grateful for his comments about the direction in which we are trying to move with that. He will know that currently the independent monitor works for 50 days a year, produces one report based on a limited sample of cases and reviews only cases that do not attract a full right of appeal, quite rightly. We are seeking to move that to a full-time post by the end of the year. The monitor would still look at a sample of cases that do not attract full right of appeal, but would make twice-yearly formal reports to us by way of feedback. I agree about the clumsiness of the phrase ''in real time'', but the Committee will know what that means—we are trying to use real instances to demonstrate the quality of decision making, rather than just receiving a regular annual report. It is important to say that there will be no changes to the powers of the independent monitor; the post will merely move to full-time. We understand that the role is very important.  

One of our aims is to enable the monitor's report to be more regularly used, not only to monitor quality but to promote it. If we receive both our official reports and the more routine reports during the course of the year, and they reflect more closely what is actually happening rather than being retrospective, we will be able to achieve that aim, as noted by the hon. Member for Woking—my brief says ''my hon. Friend'', and I shall admonish somebody later for that, but for now I am more than happy to speak of him in those terms.

It will be a full-time post. The monitor will review as many cases as is considered necessary to establish a robust assessment of the quality of decision making. We will set no limit on that; it will be a matter for the person in the new, full-time post to assess what is needed in order to get to grips with the notion of quality. There can be broad agreement here except about the direction in which we are moving in terms of the independent monitor.

I would hope that if that person is in place by the end of the year, as anticipated, we shall be able to avail ourselves of that new full-time role in order to discuss with him or her not simply what follows from the passage of this Bill, but other matters such as the role and function of an ECO; decision making outwith the Bill in terms of the five-year plan; and, crucially, the points system. We need to marry together all those elements, as well as the rule changes that are required. It is only appropriate that I find some mechanism to ensure that the independent monitor is party to our discussions as we develop the system.

Turning quickly to the amendments, amendment No. 11 expands the remit of the independent monitor for entry clearance, as the hon. Member for Woking has suggested. We do not believe that it is the purpose of primary legislation to—shackle is too strong a word—impose on the independent function what this Committee determines should be part of the job. The postholder will have a very broad remit in terms of exploring the quality of the entire decision-making process, and if we accept amendment No. 11 there will be too great an overlap between his or her work and that of the immigration appeals tribunal.

I know that the hon. Gentleman was down the corridor when we discussed what I call the air miles amendment—that is, the notion of judges tootling round each ECO post to determine quality subsequent to the commencement order for anything that is in the Bill. As I said previously, that is not the most appropriate way to determine quality at the posts, nor would it probably—to put it generously—be the best use of the time of the hon. Gentleman's judicial brothers and sisters. We do not think that the air miles amendment is appropriate. Nor is it necessarily appropriate for there to be a formalised link between individual cases and people who are dissatisfied with the way their appeals have been determined and the independent monitor.

Again, that is moving away from the independent monitor's important role of overseeing the quality and efficacy of these assorted processes. If the independent   monitor is in place by the end of the year, and if the Bill returns to us from the other place in April or May, I would be more than happy to facilitate a discussion between the new appointee and about how he or she views the independent monitor's role panning out. Clearly that is to some extent dependent on the appointment being made by the end of the year. I will certainly keep Members informed about that.

I am grateful for the amendments in as much as they have prompted the debate. I fully accept and understand the important function that the independent monitor must have, which is why we are seeking to make it a full-time post. For the reasons I have outlined, the first and third of these amendments go too far and confuse the oversight role with other elements of the independent monitor's role.

As I did earlier, I cheerfully dismiss the air miles amendment as an inappropriate way to lock in the genuine concerns of increasing quality before we commence various provisions in the Bill. With all those comments in mind and in appreciation of the hon. Gentleman's comments about the enhancements we are carrying out with the independent monitor, I ask him to withdraw the amendment.

Photo of Humfrey Malins Humfrey Malins Shadow Minister, (Assisted By Shadow Law Officers) 2:30 pm, 20th October 2005

I appreciate the tone of the Minister's reply enormously, though the content did not satisfy me. The fundamental difference between us is simple. The amendment seeks to permit the independent monitor to make recommendations to the Home Secretary concerning the reasonableness of any decision made. We want the independent monitor to be able to look at a particular case and, unless I have misunderstood the Minister, under his proposals the independent monitor will not be able to do that.

As we think that the ability to look at a particular case on behalf of an individual is so important I will press this to a Division. I see behind the Minister a number of Labour Members who have a track record of supporting the position of the appellant and who do not want to see anything at all done in their name that would damage those interests. I am therefore hopeful that the Division will be closer than the Government Whip may think.

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

On a point of order, Mr. Illsley, do the Ministers intend to debate amendments Nos. 59 and 60 and the new clause? If the hon. Member for Woking withdrew his amendment it might end the debate on this group. I thought that one of the Ministers want to speak to the Government amendments. I should be grateful for clarification about the options.

Photo of Eric Illsley Eric Illsley Labour, Barnsley Central

We are debating a group of amendments beginning with amendments Nos. 11, 20 and 21 and including Government amendments Nos. 59, 60 and new clause 2. If the Minister chooses not to debate those amendments in the contribution he makes to the Committee, it is entirely up to him. If the hon. Gentleman wishes to raise Government amendments Nos. 59 and 60 and new clause 2 he should initiate that debate as part of the debate on this group of amendments. There is nothing to prevent him from discussing the Government amendments. The confusion has arisen because the hon. Member for Woking spoke to his amendments, to which the   Minister has responded. If the hon. Member for Oxford, West and Abingdon wants to illicit a response from the Government, he should speak to the Government amendments.

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

Further to that point of order, Mr. Illsley. For the sake of clarity and completeness, I should say that I have responded to the hon. Member for Woking. I did not know that I had only one pot. I fully intended, after he had finished his remarks, at least to mention the two amendments, albeit very much in passing because they are simply consequential, and to say a little about new clause 2, if I may.

Photo of Eric Illsley Eric Illsley Labour, Barnsley Central

That is entirely appropriate.

Photo of Humfrey Malins Humfrey Malins Shadow Minister, (Assisted By Shadow Law Officers)

I understand the situation. I shall respond very briefly to the Minister's very well intended comments on my amendment.

In a few minutes, I shall move my amendment formally and put it to the vote. This is my preliminary response to the Minister, and no doubt the debate will continue before I put my amendment to the vote. On that basis, I shall resume my seat, and no doubt the hon. Member for Oxford, West and Abingdon will want to say a word or two about matters that he discussed a second ago.

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

I am grateful to the hon. Gentleman for holding back from pressing his amendment to a Division, if he was ever intending to do so; I believe that the Minister intends to speak to the three amendments, as he said, and I shall wait for him to do so before I respond. I imagine that the hon. Member for Woking will decide what to do to dispose of the lead amendment before then.

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

Let me say briefly in response to the hon. Gentleman's response to me before I respond to the exhortation to enact my intention of speaking quickly to the Government amendments and the new clause that the third element of the amendments tabled by the hon. Member for Woking could, as I read it, if it was written into the Bill, mean that every one of the 250,000 applications for entry clearance as a student in 2004 that was subsequently refused could be formally sent to the independent monitor for the further scrutiny that the hon. Gentleman suggests. Indeed, there is no provision in the Bill to do otherwise.

With my hand on my heart, I must say that if we want to go in that direction, we might have to reconsider the resources available to the independent monitor, because that is not part of the role of independent monitor, as currently envisaged. It would unnecessarily ramp up expectations that simply could not be delivered, despite the enhanced role that we are affording the independent monitor. I say that in response to the hon. Gentleman, and I shall move on.

I do not want to dwell on Government amendments Nos. 59 and 60, because members of the Committee will understand that they are consequential to many of the other elements in clause 4 and should have been included when we drafted the amendments. They are not new in the sense that they do not introduce   anything new to the equation. New clause 2 does add to the equation, which is why I intended to speak to it after our brief debate within the debate on the previous three clauses.

Section 88 of the 2002 Act limits the availability of a full right of appeal in cases in which unsuccessful applicants fail to meet certain basic requirements set out in the section. Those limitations apply where an application has been refused on the grounds that the applicant does not hold a necessary document or where he does not meet another specified requirement of the rules; for example, he has applied for leave to enter as a dependent child but is too old to meet the requirement of the relevant provision of the rules. The new clause extends the scope of section 88 of the 2002 Act so as to restrict the availability and full rights of appeal in cases in which the applicant has failed to supply a medical report or a medical certificate as required by the rules. The provision would apply where an applicant for entry clearance was required by the immigration rules to hold a medical certificate confirming that he was free of tuberculosis but failed to supply such a certificate. In that situation, an appeal against a refusal of entry clearance could be brought only on the grounds that the decision was racially discriminatory or a breach of the applicant's human rights. It is the absence of documentation that is the issue.

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

The amendment is fairly important which is why, for change, I am reading what I am told to read rather than doing things in my own way. I shall finish what I am reading and then I will happily give way.

The amendment of section 88 is designed in part to tie in with the Government's implementation—not roll-out—of the programme of targeted tuberculosis screening for entry clearance applications. The Government announced in our five-year asylum and immigration strategy to control our borders that we are implementing our existing powers by targeting health screening for tuberculosis in high-risk areas at the entry clearance stage. Those who are diagnosed will then need to seek treatment at home before being allowed to enter the UK.

The first phase of the programme, which covers four countries, has already begun. Immigration rules already provide for entry-clearance applicants or arriving passengers to be refused entry clearance or leave to enter for failure to produce a requested document or medical report. Despite what has already been implemented and what has happened under immigration rules, the new clause is required to complete the legislation.

Although, given that it is a matter of statute, the measure refers universally in the first instance, as immigration rules do, we are focusing the proposals on four countries—high-risk areas is part of the definition—and we seek fully to assess and evaluate that before we move beyond the four countries.

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

I have a series of questions and perhaps I can ask them by way of interventions, which will be quicker. The Minister said that it starts with TB; is he   aware of any plans in the Department to include HIV testing in this sort of provision?

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

I thought we were going to get the whole list, but I was wrong. Unless I am told otherwise, from my perspective the answer is no. It is rather like saying that it is in four countries at present but we need the universal provision; again there is the universal provision in terms of medical documentation as well as other documentation added by the new clause. In this instance, the pilot is purely for TB screening. The hon. Gentleman will understand why it is universal in terms of ailments, for want of a better phrase, rather than being specific to tuberculosis, as is the reality.

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

I understand that. Clearly, the statute is general; the Minister's intention in terms of implementing certain policies is specific. I am assuming that his Department and the Department of Health have evidence that implementing such a scheme for TB will reduce the incidence compared with not doing so. Will the Minister give an undertaking to provide the evidence, advice or information that he has from the Health Protection Agency if such information exists? Could he give that simple undertaking so that we can see what underpins the proposal with regard to TB?

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

If I can, of course I shall. When I say high risk, it is commonly accepted that something like 40 cases annually in over 100,000 population is a notional measure of the high incidence of TB, which affects a range of countries. I add that caveat because I do not remember in their entirety every stick of paper we have seen in arriving at this position, but I shall put as much of it as I can, if not all of it, before the Committee.

Secondly, it is in order and appropriate to look at specific countries with very high risk to see if the correlation that the hon. Gentleman suggests can supplement the existing evidence. On the figures that I mentioned, there are currently 135 countries that would come under the measure of high incidence of 40 cases annually per 100,000. Clearly, it is not appropriate to include all 135 in the first instance but I am more than happy to provide that information if I can. It is very early days, but bearing in mind my caveat about the parliamentary timetable, if there is more to say and report on that matter by the time we get to the end of our deliberations, I will be more than happy to keep the Committee informed.

Again, there is no silver bullet to deal with tuberculosis in this country—absolutely not. The hon. Gentleman knows far more about the incidence of the disease than I do, given his background, but it is right and proper that we at least examine whether the new clause does what I think—and he suggests I think—it will in the context of the four countries. I hope that that is helpful.

Photo of Evan Harris Evan Harris Science, Non-Departmental & Cross Departmental Responsibilities 2:45 pm, 20th October 2005

I do not want to go too far into the medical details, as we will not be able to progress. The Minister is wise to stick to the briefing that he has given. However, I want to make one point, to which we may have to return. He kindly provided a race   equality impact assessment. I am working on the assumption that the measure is acceptable in terms of race equality only if there is good evidence, or at least no counter-evidence, that it will be effective. The Minister will discriminate against people indirectly on the grounds of race and nationality, depending on the countries chosen. That can be considered legitimate only if he has good evidence to go on, or at least information to suggest that such discrimination would make a difference to public health. Will he at least accept that premise? We can return to examine the measure in detail in another format and not deal with it now if he will simply accept that he will have to do some thinking about how it would make a difference that would justify its impact.

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

No. 1, if we thought that the measure would not make any difference at all, we would not introduce it. No. 2, this Government and, I suspect, any other Government would not offer anything that countered either the human rights legislation or the ability, which there is, to discriminate in very specific circumstances between nationalities on the basis of substantive evidence as per the Race Relations Act. In that context, I commend new clause 2.

As I said, I do not offer any disdain for the Committee by gliding over the other Government amendments. They are elements that should have been in the Bill and are consequential to other elements that we are discussing. For the sake of brevity—for which, of course, I am renowned—I shall glide over them.

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

I am keen to respond to the amendments and new clause, and hope that I will not pre-empt points that the hon. Member for Woking was planning to make.

Government amendment No. 59 provides what I believe the Government need to provide under the 1951 United Nations convention relating to the status of refugees because it allows those who are appealing—despite the provisions of clause 9—against a decision to refuse to extend their leave following recognition as a refugee, to retain their current leave with attendant rights such as the rights to work and to family reunion, during the period between refusal and the final determination of the appeal. Therefore, the correcting amendment is welcome.

Government amendment No. 60 is more substantive than the Minister indicated. He may wish to comment on it. Does he at least accept that the amendment reduces parliamentary scrutiny? Whether he thinks parliamentary scrutiny is justified or not, the amendment reduces it by changing the circumstances in which regulations describing the people who may not appeal against refusal of entry clearance are subject to the affirmative resolution procedure. He is changing categories that were subject to the affirmative resolution procedure to categories subject to the negative resolution procedure.

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

Purely as a consequence of what is happening elsewhere in the Bill. That is why I said that the amendment is consequential. It should have been part of the Bill in the first place, and that is why I glided over it.  

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

Okay. I shall not repeat the points that we made earlier about the need for parliamentary scrutiny.

Government new clause 2 deals with a contentious area in which the Government ought to tread with care. There is no more sensitive trigger for tabloid headlines than to seek to marginalise people and prey upon fears around immigration and asylum than reports that imply that people are coming to this country carrying contagion and wishing to exploit the NHS, and, in exploiting the NHS, are the reason why someone's grandma cannot get her hip done, and are creating public health problems. Those things are meat and drink to irresponsible parts of the media. They touch all the buttons that cause problems for race relations and problems in relation to the status of immigrants and asylum seekers. The only thing not mentioned is sex offending, which some people will doubtless try to include and blame on asylum seekers as well.

That is why the Government ought to tread with care and have good evidence before going along with the call to screen people that has been made by the Conservative party. To ensure that the Government are treading carefully and also to ensure compliance with race relations legislation, I asked the Minister to provide the information that he has been given by the Health Protection Agency about the impact of this measure in the four countries where it has been rolled out as a pilot—or initially implemented, to use his language—and about the impact that there will be when it is extended further in 135 countries. If the justification does not exist, the provision is extremely dubious.

I understand that in order to do what the Minister wants to do with respect to TB screening, he feels that he needs to amend the Nationality, Immigration and Asylum Act 2002. Clearly, I am not happy with that, but it is not worth pursuing it further here. I will give him one example of how it is important that, when he gets advice from someone, he treats it with care. If large numbers of people were coming to this country with active TB, they would be diagnosed pretty quickly because it is hard to have active TB and not access health care services.

If the burden of TB falls on people who are born abroad, which is what the figures show, one would think that, if those people were newly arrived immigrants, the vast majority would be diagnosed in year one. I think that the figure is in the region of only 10 per cent. I have a fat file on this matter from my medical days and my days in this House. That figure implies that the burden of TB in this country falls on people who may be British citizens and are certainly settled here—often from the Indian subcontinent—who may have their TB reactivated or become re-infected when they visit home. That is what the evidence suggests.

I would be cautious of predicating a policy on the idea that lots of immigrants are arriving with TB and of stating, as the Minister's race equality impact assessment does, that

''nearly two thirds of our TB patients were born abroad'' and

''about half of the TB patients who were born abroad are diagnosed with the disease within five years of first entering our country''.

If a person has active TB, it will take a darn sight less than five years to diagnose them. That is why the Government may be being led astray by calls from the Conservative party for action in this area. If the Government can provide the evidence, I will withdraw my opposition to new clause 2 and, if they cannot, I will catch your eye at the appropriate moment, Mr. Illsley. However, I am grateful to the Minister for his willingness to put the information in the public domain so that we can test the assertion about the race equality impact assessment.

Photo of Eric Illsley Eric Illsley Labour, Barnsley Central

Before I call the hon. Member for Woking, I should point out that when we come to new clause 2 it will simply be moved formally and voted on. The opportunity to debate new clause 2 is now. If the hon. Gentleman wishes to raise any further points, the only opportunity that he has is the debate on this group of amendments.

Photo of Humfrey Malins Humfrey Malins Shadow Minister, (Assisted By Shadow Law Officers)

Having said all that I want to say, I simply support amendment No. 11.

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

I will not respond to that excellent speech by the hon. Member for Woking, but I do want to refer briefly to some of the points made by the hon. Member for Oxford, West and Abingdon. First, in relation to amendment No. 60, he thinks that he has caught me out because the affirmative procedure is in play. However, if all that we have decided to do is accepted, the affirmative procedure will relate to a provision that is no longer there, which is why I said that amendment No. 60 was consequential. The amendment was simply drafted in that sense.

Secondly, I want to say as profoundly as I can that I fully accept much of what the hon. Gentleman said about those who would mischievously link asylum seekers, or even immigration, with health.

This exercise, which started in one country and is about to be implemented in three others, is prompted by public health concerns in relation to those countries and high-risk areas and is not about indulging the Daily Mail, Daily Express and all the others who tell their rabid little tales, which apparently none of the Conservatives agree with now—they did barely six months ago. It is not about that, and I say that in the strongest terms. Regarding TB and what we are trying to do in the pilot, there is no absolute certainty that it will be rolled out to the other 131 countries that have a high incidence, but what we are doing to the system and our public health responsibilities mean that we must at least consider the position.

There was a news story recently that effectively said that all the health ills, travails and difficulties in the NHS can be routed back to immigrants and asylum seekers because they use the health service far more than everyone else. That is complete nonsense, and there was not much evidence given for it either. I am not implying that six months later anyone in the Conservative ranks is seeking to go down that road, but that was the clear impression during the general election.  

There is a balance to be struck between not indulging that rabid right-wing dimension and backing away from everything, even where there are clear, responsible reasons why something should be at least considered. I put new clause 2 firmly in the second category, but I repeat what I have said: I will provide the Committee with as much information about progress and the background to the initiative as I can.

Question put, That the amendment be made:—

The Committee divided: Ayes 7, Noes 10.

Division number 4 Nimrod Review — Statement — Clause 4 - Entry clearance

Aye: 7 MPs

No: 10 MPs

Ayes: A-Z by last name

Nos: A-Z by last name

Question accordingly negatived.

The Chairman, being of the opinion that the principle of the clause and any matters arising thereon had been adequately discussed in the course of debate on the amendments proposed thereto, forthwith put the Question, pursuant to the Standing Orders Nos. 68 and 89, That the clause, as amended, stand part of the Bill.

The Committee divided: Ayes 10, Noes 7.

Division number 5 Nimrod Review — Statement — Clause 4 - Entry clearance

Aye: 10 MPs

No: 7 MPs

Ayes: A-Z by last name

Nos: A-Z by last name

Question accordingly agreed to.

Clause 4, as amended, ordered to stand part of the Bill.