Clause 30 - Power to cancel leave extended under section 3C of the Immigration Act 1971

Immigration Bill – in a Public Bill Committee at 5:00 pm on 3rd November 2015.

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Photo of Keir Starmer Keir Starmer Shadow Minister (Home Office) 5:00 pm, 3rd November 2015

I beg to move amendment 216, in clause 30, page 33, line 28, after “decision)” insert—

“(a) leave out ‘and’ at the end of subsection 1(b);

(b) leave out subsection 1(c);

(c) in subsection (2) for ‘The leave is extended by virtue of this section’ substitute ‘The leave is extended from the day on which it would otherwise have expired’”

To ensure that a person whose application is refused before their original leave expires and is still in time to bring an appeal or has brought an appeal by the time their original leave expires, benefits from the protection of 3C leave in the same way as they would had they been refused by the Secretary of State only after their original leave had expired.

Photo of Albert Owen Albert Owen Labour, Ynys Môn

With this it will be convenient to discuss amendment 217, in clause 30, page 33, line 28, after “decision)” insert—

“(a) in subsection 3C(1)(c) after ‘decided’ insert ‘or declared invalid’

(b) in subsection 3C(2)(a) after ‘withdrawn’ insert ‘nor declared invalid’”

To ensure that a person who makes an “in time” application which is later determined to be invalid benefits from “3C leave” for the period, if any, between the expiry of their original leave and the Secretary of State’s notification to them that the application is invalid and thus to give effect to the interpretation of the law for which counsel for the Secretary of State argued in the case of R(Iqbal v SSHD) [2015] EWCA 838.

Photo of Keir Starmer Keir Starmer Shadow Minister (Home Office)

I apologise for coming to very technical amendments at this stage of the day and the proceedings; we seem to have been dealing with technical amendments for some time. Perhaps it will be possible for the Minister to give an assurance; the purpose of the two amendments is to ensure that individuals in the circumstances set out in the explanatory statements will not be in a worse position under the Bill than they are now.

Photo of Robert Buckland Robert Buckland The Solicitor-General

Amendment 216 seeks to change the way the leave that is extended by section 3C of the Immigration Act 1971 operates. With respect, there has been a misunderstanding of the current position. The effect of the amendment would be that where a person applies for leave to remain and their application is  refused while they still have immigration leave, their leave would be extended by section 3C while they bring an appeal or administrative review. Where an appeal or administrative review is lodged, leave will continue to be extended until any appeal or administrative review is no longer pending.

It was said that the reason for the tabling of the amendment is that people in that situation do not have their leave extended by section 3C, and that is an unintended consequence of the Immigration Act 2014. That is not the case. In fact, if anything, the 2014 Act actually improved the position with regard to section 3C. It has always been the case that, where an application is refused while the applicant still has immigration leave, leave is not extended by section 3C while a challenge to the refusal can be brought. In other words, section 3C applies only to undetermined applications. Where somebody is still waiting for an application to be dealt with, section 3C kicks in to allow the delay to be remedied.

Photo of Keir Starmer Keir Starmer Shadow Minister (Home Office)

Just to clarify that point, what is the position if the Secretary of State cancels the leave during that period?

Photo of Robert Buckland Robert Buckland The Solicitor-General

The whole purpose of the provision is to deal with the question of cancellation where there has been a breach of the conditions. I will come on to that point in the clause stand part debate. At this stage, we see no reason to change the position in the way that is outlined in amendment 216.

Amendment 217 would have highly undesirable consequences and is unnecessary. With respect to the hon. and learned Gentleman, he does not fully outline the Government’s case in the Iqbal case, the Court of Appeal judgment by Lord Justice Elias that was reported earlier this year. The amendment, as outlined by the hon. and learned Gentleman, would mean that immigration leave would be extended by virtue of section 3C for anyone who makes an invalid application for further leave.

The problem is that that is clearly open to potential abuse. A person could deliberately make an invalid application, for example by neglecting to pay the required fee or by failing to provide mandatory documents, and continue to remain in the UK lawfully. That leave would continue until the Home Office determined that the application was invalid. That, I am afraid, would potentially be a charter for exploitation by unscrupulous people who could make invalid applications simply to extend their immigration leave and to take advantage of the section 3C provision.

The amendment is also unnecessary, because our rules and guidance set out clearly how to make a valid application, and an opportunity is provided for mistakes that lead to an application becoming invalid to be made good. That provides a safeguard for people who, from time to time, make a genuine error. Where a fee is paid, we will contact those who make invalid applications to tell them what steps they need to take to make their application valid. Where people respond within the specified time limit and provide the missing information, they will be deemed to have made a valid application, and their leave will be extended by section 3C if the application was made before the expiration of their previous leave. That point was dealt with chiefly in the case of Iqbal.

The safeguard works. More than 650,000 applications were made between April last year and June this year, of which only 2.45% were rejected as invalid. I understand the concerns expressed about access to services and about the offences that the Bill introduces for those who work illegally or drive while unlawfully in the UK. However, in practice, those measures will not be applied to individuals until the Home Office has determined whether an invalid application has been made.

In respect of the offences of illegal working and driving while unlawfully in the UK, the question of whether to prosecute will be one purely for the Crown Prosecution Service. In applying the charging test, it must be satisfied not only with the first limb and a reasonable prospect of successful prosecution, but that it is in the public interest. Where someone genuinely believed that they had made a valid application and thought they had leave to remain here in the UK as a result of section 3C, it is very unlikely to be in the public interest to prosecute them. So our processes and the public interest test set the right balance in protecting an individual who has made a genuine error from being prosecuted, while maintaining effective immigration control.

For the sake of clarity in the case of Iqbal, counsel for the Home Secretary advanced two arguments: first, the determination that an application is invalid was itself a determination; secondly, the backstop argument was that an invalid application cannot be an application that triggers section 3C. It was on that second limb that the Court of Appeal unanimously agreed with the submission of the Home Secretary and therefore disallowed the appeals in each of the three cases that were cited. In the light of those reasons, I invite the hon. and learned Gentleman to withdraw the amendment.

Photo of Keir Starmer Keir Starmer Shadow Minister (Home Office) 5:15 pm, 3rd November 2015

I am grateful to the Solicitor General for that clarification and assurance as to how the provision is intended to operate. Obviously, the public interest will be for the Crown Prosecution Service, but what he has said will no doubt be taken into account by it. On that basis, I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 30 ordered to stand part of the Bill.

Ordered, That further consideration be now adjourned. —(Charlie Elphicke.)

Adjourned till Thursday 5 November at half-past Eleven o’clock.

 Written evidence reported to the House

IB 24 Immigration Law Practitioners’ Association further submission part 5

IB 25 Focus on Labour Exploitation (FLEX)

IB 26 Migration Yorkshire

IB 27 Law Society of England and Wales

IB 28 Anti-Trafficking and Labour Exploitation Unit (ATLEU)

IB 29 National AIDS Trust (NAT)

IB 30 Migration Watch UK (supplementary evidence)