Clause 9 - Continuation of leave

Immigration, Asylum and Nationality Bill – in a Public Bill Committee at 3:00 pm on 20 October 2005.

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Photo of Humfrey Malins Humfrey Malins Shadow Minister, (Assisted By Shadow Law Officers) 3:00, 20 October 2005

I beg to move amendment No. 23, in clause 9, page 5, line 2, at end insert

'including provision for a grace period'.

I shall speak briefly to the amendment. Section 3C of the Immigration Act 1971, which provides that leave to remain is deemed to continue when an immigration application remains outstanding and the last grant of leave has expired until the applicant has exhausted any subsequent appeal rights in relation to the decision, will be removed by clause 9. This measure goes hand in hand with the provisions in clause 1.

Currently, when a person applies for an extension to their visa, their leave to remain is automatically extended until the application has been processed and a decision made. Section 3C of the Immigration Act 1971 provides that if it takes more time to decide an application than the applicant has leave to remain, they are at least able to stay until the decision had be taken and, crucially, they have had an opportunity to appeal the decision.

Clause 9 will remove that necessary protection for an applicant who may well succeed in any subsequent appeal. I think I can see why the Government are taking that approach, since the right of appeal against a refusal to extend leave to remain is exercisable only at the point of removal and a decision to remove an individual can be taken only once leave has expired. Someone who is protected by section 3C of the 1971 Act might conceivably be caught in a limbo in which he could neither appeal nor be removed.  

I do not think that this is a satisfactory solution, so amendment No. 23 probes how the Government intend the new scheme to work. A time-limited grace period following the refusal of an application to extend the visa would enable the Government to issue notice of their decision to remove the applicant at the expiry of the grace period, triggering the right of appeal while allowing the appellant to remain in the UK legally.

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

First and by the by, ''grace period''—as the hon. Gentleman will know, given his distinguished legal career—means absolutely nothing in legal terms. Were we to accept the amendment, which we shall not for reasons that I will come on to, it would have to be rewritten. There is no such recognised term.

Secondly, given the—I was going to say ''promiscuous'', but ''prodigious'' will probably do—nature of the Home Office's legislative schedule, I appreciate why the hon. Gentleman has not been in his place in this Committee all the time. These things blur when we are having so much fun, but I think that it was only yesterday—so I do not blame Hansard in terms of the record being produced—that I did a little exposition on section 24(1)(b) and (c) of the 1971 Act, which addressed that point. I said that we would consider the notion of whether, in primary legislation or in rules, we should address entirely the point. I took the point that if there is only one appeal and it is only invoked on a decision to remove, there would be some gap. I have undertaken to consider that matter and to address it.

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

I was in Committee at that time; I think that it was when the Minister accused me of having being in the House for more than 20 years by 1971. I had to correct him as to my age in no uncertain terms.

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

I remember vividly the hon. Gentleman protesting that he was only 18 at the time. I do remember and I apologise; he was in the Room.

In the main, following the comments that I have made about the term grace period, which he kindly accepts, and those about considering precisely the terms captured by the amendment—which I accept was tabled long before yesterday's deliberations—I hope that he will withdraw his amendment.

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

The amendment has been a useful probing amendment and I am grateful for the Minister's response. I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

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

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

I rise briefly to pick up on the point that the Minister has just made about his willingness to consider the matter. As he is aware, many people are concerned about clauses 1, 4 and 9 together, and particularly clauses 1 and 9. That is not only because they might create a hole, but because it does not seem well to distinguish between people who apply for extensions in time, particularly in relation to clause 1, and those who fail to.  

Could the Minister clarify whether he recognises not just that there will be a problem if the removal appeal is not triggered until some time after the refusal, but that there is also the problem that people who seek a time extension will be punished to the same extent as overstayers? Does he accept those points?

My second question is: if the Minister considers that the point that he has just accepted may require a revision of the Bill through an amendment, when are we likely to see that amendment? That will have an impact on how we proceed both in the Committee and on Report. Can he give an undertaking that if primary legislation is needed, he will indicate that by letter, even if the clauses cannot be drafted during the Committee stage? We would all appreciate that; it is a critical point that has been raised both by Opposition Members and by the hon. Member for Walthamstow. It would help us and would mean that we would not seek a stand part debate.

Photo of Tony McNulty Tony McNulty Minister of State (Immigration, Citizenship and Nationality), Home Office 3:15, 20 October 2005

First, I have not just accepted that point. As I said, I did so yesterday when I accused the hon. Member for Woking of being absolutely illegal. Had he been in the House in 1971 aged 18 he would have been conning the public and breaking the law, because I think that the minimum age limit at that time for being a Member of Parliament was still 21.

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

As it still is—and it should be changed. I believe that it has changed at local government level but not at our level.

So I have not just accepted that point. I have accepted the problem that the hon. Member for Woking has raised again, of clauses 1, 3 and 9 and their interlocking nature, which we have spoken about today and over the past couple of days, and how they relate to all those issues vis-à-vis section 24(1)(b) of the 1971 principal Act. I have undertaken to consider that matter, and if I can, I will try to get back to the Committee on that before Report.

In passing, however, given that when we have considered clause 11 and schedule 1 we will effectively have put this element of the Bill to bed, I do not accept that that has an impact on the rest of the Bill and our deliberations on it. However, I do undertake to consider how that delay, and all the other points that have been raised, relate to the interlocking nature of clauses 1, 3 and 9. That includes some of the points that the hon. Gentleman raised. I have said clearly that if primary legislation or rule changes are needed, or if greater explanations are required from me as to why neither of those two things are needed, I will happily come back to the Committee with those elements.

Question put and agreed to.

Clause 9 ordered to stand part of the Bill.

Clause 10 ordered to stand part of the Bill.