We now return to the question of appeals under the points-based system, which was where we left off on Tuesday evening. The clause is a new aspect of those appeals. As members of the Committee will recall, it deals with appeals under the points-based system and, in particular, what sorts of evidence may be adduced on appeal.
The amendment relates to proposed new section 85A(4)(d), under which evidence that would challenge the Secretary of State’s discretion to refuse an application under a points-based system, and in particular to do so on grounds not related to the acquisition of points, would be allowed to be adduced on appeal. There are two purposes to the amendment, which would delete that proposed paragraph. The first is to ask how far the points-based system will extend, and therefore how far the appeals provisions will extend. In asking that I bear in mind the problems that have been encountered in the appeals system: a huge volume of appeals in certain categories, a backlog of appeals, a disjunction between the working of the asylum and immigration tribunal and posts overseas, long delays and many other problems. It is a relevant question to pose.
The Government have published their proposals for the points-based system, but I understand that they are not entirely cast in stone. I would like to know how far the system will extend. It seems evident from the Government’s papers that it will apply to work permits, including those with an entitlement to settlement, which are an important feature of the work permits system and are overlooked. When one talks about work permits it is not always understood that permits of certain categories carry the entitlement to reside in the United Kingdom or to become a UK citizen after four or five years of residence. That is an important fact but it is not always taken into account. The question is not just of work permits but of entitlement to settlement and therefore economic migration.
It is clear that the appeals system will cover work permits, but will it extend, for example, to students applying to study in the United Kingdom? How will they be dealt with? Will they be part of the points system and, if so, will they therefore be able to appeal under these provisions? Will evidence be able to be adduced on appeal about a student studying in the United Kingdom? I would like to know how far the provisions will extend and what applications they will cover.
The second purpose of the amendment is to register support for the judgment of immigration officers as an exercise of discretion when it is appealed against under these provisions. That seems to be what proposed paragraph (d) is getting at—giving the right to appeal against the discretion of the Secretary of State as exercised by immigration officers. I pray in aid the important evidence that we heard from Migrationwatch UK about the importance of the judgment of immigration officers. I remind the Committee that I asked a question specifically related to the amendment, and Sir Andrew Green told us about the judgment of immigration officers. He said:
“That judgment is absolutely essential. I think appeals against that judgment should not be allowed. It is turning into a legal nightmare.”——[Official Report, UK Borders Public Bill Committee, 13 March 2007; c. 277, Q331.]
I can also pray in aid what the Minister himself said in an earlier debate about the importance of the judgment of immigration officers. There was an element of consensus, at least between him and myself, on what a good job immigration officers do and how important a part of that job is their judgment. In support of the amendment, I quote what the Minister said to the Committee:
“putting feet on the ground is not enough if those officers do not have the power or the tools to do their job effectively in the 21st century.”——[Official Report, UK Borders Public Bill Committee, 6 March 2007; c. 163.]
I believe that a large part of the power of immigration officers is the power to exercise their discretion. Removing much of that discretion, in effect, changes the role of immigration officers and takes away much of their power. I think that the Minister and I were at one on that, but I would like to hear a response.
In other documents about the proposals for a points-based system, Ministers have spoken of the clarity and objectivity of such a system, but there does not seem to be a lot about the judgment of immigration officers. I would suggest that that judgment is so valuable, because it is formed from experience of conditions on the ground, at post, based on local knowledge, and in the case of the applications that we are dealing with—for work permits and other types of leave to remain or enter—presumably the immigration officer has had the opportunity to see the applicant. An immigration officer in such a post knows the local conditions and the problems that there can be generally, and specifically to certain countries. The immigration officer then exercises his judgment on the basis of that local knowledge and possibly after having had the opportunity to see the applicant.
Appeals against the judgment of the officer will go to the asylum and immigration tribunal, which sits at Taylor house on Rosebery avenue in Farringdon, well away from the conditions that immigration officers face daily. The tribunal will not have the local knowledge or the experience of the officer. Sir Andrew Green speculated that it may well be, apparently, that members of the tribunal will not even have visited the country in question; and presumably they will not have the opportunity to see or question the applicant. Wondering aloud, how can one sensibly say that an asylum and immigration tribunal sitting in London can exercise discretion better than an immigration officer on the ground? How can the tribunal sensibly challenge such discretion? However, that is what the clause appears to do.
I would like an answer to a specific question. Can the asylum and immigration tribunal just look at the same circumstances with which the immigration officer was confronted, or can the appellant, in support of an appeal, present new evidence—not seen by the immigration officer—to the tribunal? As I understand section 85 of the Nationality, Immigration and Asylum Act 2002, which deals with appeals under the present system, that is not allowed. The asylum and immigration tribunal can only take into account circumstances appertaining at the time of the decision to refuse. Under the proposed subsection, will the asylum and immigration tribunal be able to look at new circumstances? That is an important question, to which I should like an answer. My view is that one should trust immigration officers on the ground, rather than allow their judgment to be challenged. I look forward to the Under-Secretary’s response.
Many other issues surrounding the points-based system more generally, come into play in determining how many such appeals are likely. There are lots of issues about how high the bar will be set in the points-based system for what the Government describe as highly skilled migrants. Just how highly skilled will they be? How much demand will there be for the work of skilled workers in tier 2? How wide will be the range of occupations for skilled workers covered by the Government’s points-based system? All are relevant to the question of how many such appeals there are likely to be. Those might be matters for another day, but I should like a response from the Under-Secretary to the points that I have raised now.