Immigration, Asylum and Nationality Bill

Standing Committee E

Thursday 20 October 2005

(Afternoon)

The Committee consisted of the following Members:

Chairmen: Sir Nicholas Winterton †Mr. Eric Illsley

†Bellingham, Mr. Henry (North-West Norfolk) (Con)

†Brown, Lyn (West Ham) (Lab)

†Burnham, Andy (Parliamentary Under-Secretary of State for the Home Department)

†Gerrard, Mr. Neil (Walthamstow) (Lab)

†Gillan, Mrs. Cheryl (Chesham and Amersham) (Con)

†Harris, Dr. Evan (Oxford, West and Abingdon) (LD)

†Hodgson, Mrs. Sharon (Gateshead, East and Washington, West) (Lab)

†Kawczynski, Daniel (Shrewsbury and Atcham) (Con)

†Leech, Mr. John (Manchester, Withington) (LD)

†Mahmood, Mr. Khalid (Birmingham, Perry Barr) (Lab)

†Malins, Mr. Humfrey (Woking) (Con)

†McCarthy-Fry, Sarah (Portsmouth, North) (Lab)

†McNulty, Mr. Tony (Minister for Immigration, Citizenship and Nationality)

†Miliband, Edward (Doncaster, North) (Lab)

†Prosser, Gwyn (Dover) (Lab)

†Ryan, Joan (Lord Commissioner of Her Majesty's Treasury)

†Scott, Mr. Lee (Ilford, North) (Con)

Dr. John Benger, Mr. Frank Cranmer, Committee Clerks

†attended the Committee

[Mr. Eric Illsley in the Chair]

Immigration, Asylum and Nationality Bill

1 pm

The Chairman: Before we resume the debate, may I for the benefit of the Committee point out that I intend to suspend at around 4.30 pm for one hour to give hon. Members a comfort break?

Mrs. Cheryl Gillan (Chesham and Amersham) (Con): On a point of order, Mr. Illsley. Can I just clarify what you anticipate the sitting hours to be this afternoon, as you are giving us a comfort break from 4.30 pm until 5.30 pm? Have you had any indications at all as to what time we may sit until tonight?

The Chairman: The indication is, as far as I am aware, that the Committee will sit late until it achieves the progress that is agreed between the usual channels. The idea of a comfort break for an hour at 4.30 pm is to enable people to eat, refresh themselves and then return for the later part of the sitting.

Clause 4

Entry clearance

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.

The Chairman: 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,'.

Mr. Neil Gerrard (Walthamstow) (Lab): 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,
 
Column Number: 111
 
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.

Dr. Evan Harris (Oxford, West and Abingdon) (LD): 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
 
Column Number: 112
 
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
 
Column Number: 113
 
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.

1.15 pm

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.