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(b) his application for variation of leave has been refused.
(3) Condition 2 is that a decision has been made to remove the person from the United Kingdom.
(4) Condition 3 is that—
(a) the person could bring an appeal against that decision while in the United Kingdom by virtue of sections 82(2)(g) and 92(4) of the Nationality, Immigration and Asylum Act 2002 (c. 41) (appeals) (ignoring any possibility of an appeal out of time with permission), or
(b) the person has brought an appeal against that decision while in the United Kingdom by virtue of those sections and the appeal is pending.
(5) In subsection (4)(b) "pending" has the meaning given by section 104 of the Nationality, Immigration and Asylum Act 2002.'.—[Mr. McNulty.]
Brought up, and read the First time.
12.41 pm
The Minister for Immigration, Citizenship and Nationality (Mr. Tony McNulty): I beg to move, That the clause be read a Second time.
Mr. Speaker: With this it will be convenient to discuss the following: Amendment (c) to new clause 1, in line 4, at end insert—
'( ) At a time when the conditions in this section are satisfied a person's leave to enter or remain is extended by virtue of this section save that such extension shall not prevent a decision to remove the person from the United Kingdom being made.'.
Amendment (a) to new clause 1, in line 8, leave out subsection (3).
Amendment (d) to new clause 1, in line 8, after 'been', insert ', or could be'.
Amendment (b) to new clause 1, in line 10, leave out '3' and insert '2'.
Amendment (e) to new clause 1, in line 11, at beginning insert
'where a decision to remove a person from the United Kingdom has been made'.
Amendment (f) to new clause 1, in line 11, leave out from 'decision' to '(appeals)' in line 13.
New clause 5—Entry Clearance Applications—
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(1) A person may not appeal under section 82(1) against refusal of entry clearance as a visitor unless the application was made for the purpose of visiting a member of the applicant's family.
(2) In subsection (1) the reference to a member of the applicant's family shall be construed in accordance with regulations made by the Secretary of State.
(3) Regulations made under subsection (2) may in particular
(a) define 'member of the applicant's family" for the purposes of this section;
(b) make provision by reference to the duration of two individuals' residence together;
(c) confer a discretion.
(4) A person may not appeal under section 82(1) against refusal of entry clearance as a student if the application is for entry clearance to follow a course of study and—
(a) the course of study for which he has been accepted will not last more than six months,
(b) he has not been accepted for a course, or
(c) the course of study for which he has been accepted is not at a UK education institution on the approved register.
(5) Where a person has no right of appeal under subsections (1) or (4) above, a person applying for entry clearance as a dependant on his application shall have no right of appeal.
(6) Nothing in this section prevents the bringing of an appeal on either or both of the grounds referred to in section 84(1)(b), (c) and (g)".'.
Amendment No. 47, in page 1, line 3, leave out Clause 1.
Amendment No. 4, in page 1, line 16 [Clause 1], at end insert—
'( ) the leave was granted to a person to follow a course of study at a UK education institution on the approved register; or'.
Amendment No. 33, in page 1, line 16 [Clause 1], at end insert—
'( ) the leave was granted to a person who had applied for but not been given asylum or humanitarian protection as an unaccompanied minor but had been granted exceptional or discretionary leave to enter or remain'.
Amendment No. 3, in page 1, line 21 [Clause 1], at end insert—
'(fc) Variation of, or refusal to vary, a person's limited leave to enter or remain in the United Kingdom if—
(i) the leave was granted to a person to follow a course of study at a UK education institution on the approved register; and
(ii) the result of the variation or refusal taking effect is that the person is unable to—
(a) complete that course of study,
(b) attend or undertake any event or activity in connection with that course of study, or
(c) move from that course of study to another course of study at the same or another institution.'.
Amendment No. 5, in page 2, line 31 [Clause 3], at end insert—
'( ) An appeal under subsection (2) may be brought in the United Kingdom.'.
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Amendment No. 6, in page 2, line 36, leave out Clause 4.
Government amendments Nos. 27 to 29.
Mr. McNulty: I preface my remarks to this group of amending provisions by alluding to what happened in Committee. We had a very fruitful and productive series of sittings, with engaging debate and useful points being made by Members on both sides. On the many occasions—although, I think, not all— when I said that I would look further into particular matters, I have sought to do so and have tabled amending provisions, where appropriate. New clause 1 is the first example.
Much disquiet and concern was expressed in Committee about the gap between the notification of someone's leave coming to an end or being curtailed for whatever reason and the one and only time permitted under the Bill to appeal against removal initially and then all the other elements leading up to the removal. Members of the Committee were concerned, as I said, because they did not want people to be committing an immigration offence if they stayed in the UK while bringing an in-time appeal against a removal decision. That was an entirely fair point and new clause 1 was tabled in the light of those genuine concerns expressed by Opposition Members in Committee. As I said, that was characteristic of the sensible and constructive manner in which the Committee's work was conducted. I am pleased to move new clause 1 in response.
It is entirely a matter for the House authorities, but, under the broad heading of appeals, a significant number of amending provisions and amendments to them are appended that embrace a number of concerns. It is my intention—I believe that it is in order, Mr. Speaker—formally to speak to new clause 1 and then, in the fullness of time, to listen to all the concerns expressed in the debate, including the other amendments, and to respond appropriately to them. I prefer to do that, rather than pre-empt discussion by giving my view on every aspect of every other amendment in the group at this stage of our deliberations.
To finish speaking to new clause 1, where a person has no leave to enter or remain in the United Kingdom, a decision can be made that they should be removed from the country. By virtue of section 82(2)(g) of the Nationality, Immigration and Asylum Act 2002, that is an immigration decision, which gives rise to a right of appeal to the Asylum and Immigration Tribunal.
If the appellant has made an asylum or human rights claim while in the UK, or argues that removal would result in a breach of their rights under EU law, that appeal can be brought prior to their removal from the UK. In all other cases, any right of appeal against a decision to remove can be exercised only once the appellant has left the country.
The purpose of the new clause is to ensure that a person who has complied with the term of their leave—that is, who has made an unsuccessful application for further leave in time, or who has existing leave curtailed—is not liable to prosecution under section 24(1)(b)(i) of the Immigration Act 1971 as an overstayer during any period in which they can bring an in-country appeal against a decision to remove them from the UK, or in which such an appeal was pending.
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As I said in Committee, it is not our intention to force people who have observed the conditions of their leave to risk criminal sanction during their appeal. The new clause fits with the principle that there should be a "soft-touch, light-touch" compliance regime for those who comply with our system of immigration control, but far stricter enforcement for those who abuse it.
The new clause fills a gap in the original Bill about which legitimate concerns were expressed. In Committee, I undertook to explore whether we needed to introduce further proposals and, if so, whether existing rules would provide a suitable vehicle or could be modified to do so. I also undertook to consider whether new legislation was needed. After much thought and reflection, we believe that it is on balance right and appropriate to include these provisions in the Bill. That is the intention behind Government new clause 1.
I repeat that I shall return to the Dispatch Box when other hon. Members have had a chance to state their case in respect of the new clause and the other amendments that are grouped with it, quite fairly, under the broad heading of "Appeals".
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