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Mrs. Cheryl Gillan (Chesham and Amersham) (Con): First, I appreciate the spirit in which the Minister has introduced the debate on the new clause. We had extremely valuable discussions in Committee, and we have few disputes about large portions of the Bill, but the Minister knows that some matters remain contentious, both in the House and among a wider audience.
Secondly, this group of new clauses and amendments covers the whole of the first part of the Bill. That amounts to 13 clauses, so I have a lot of ground to cover in my speech. I hope that colleagues will forgive me for boring them to death over a period of time—
Mrs. Gillan: The Minister says, "Surely not," but I look forward to hearing his views on the other amendments. I feel that he has an open mind on these matters, and that he may be moved to accept some of the proposals.
As we know, this part of the Bill removes the right of in-country appeal for leave to remain or for variation of leave from all applicants, other than those in the categories covered by clause 1(4). That means, for example, that international students applying for leave to remain or to vary their leave will have no right of appeal against refusal.
The Government intend that such applicants should have one right of appeal against a subsequent decision to remove them from the UK, but that appeal will be exercisable only outside the UK. Another problem noted in Committee is that applicants whose leave expires while they are awaiting a decision on a leave-to-remain application will become illegal overstayers, once they are told that their application has been unsuccessful.
All hon. Members will know that the consequences of overstaying illegally are serious. People in that position lose the right to work or study, and their access to
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benefits such as primary health care. On their way out of the UK, their passports are likely to be stamped with a record of the fact that they had no legal right to be in the UK. That would affect the likelihood of those people getting visas in future.
One feature of the Bill's passage through the House so far has been that a wide range of bodies have raised grave concerns about the Government's intention to remove people's rights of appeal in respect of refused entry clearance or leave-to-remain applications. Universities UK, the Association of Colleges, the National Union of Students and the Council for International Education have expressed concern about the impact of the measures on international students. I regret that their fears were not allayed by the Minister in Committee. In addition, as the Minister is aware, we have received excellent advice from the Immigration Law Practitioners Association, which has briefed Members on both sides of the House. The association has raised serious concerns over this part of the Bill, which I hope to reflect in some of my remarks.
To set my remarks in context, I remind the House of some basic statistics. In 2004, about 228,035 applications were made for leave to remain, of which 149,250—about 66 per cent.—were from international students. About 30 per cent., which is a large number, had to apply for a variation or extension of their leave to remain during their time in the UK. A significant number of people could be affected by the provisions.
The net effect of the first 11 clauses is to make anyone who is refused an extension of leave with right of appeal under the amended section 88(2) of the Nationality, Immigration and Asylum Act 2002 an overstayer. In fact, it is a double blow, as the applicant is not only refused further leave but precipitately finds themselves categorised as an overstayer. As the Minister admitted in Committee, the individual is, in effect, criminalised and can be prosecuted and charged with the criminal offence of breaching immigration control. To be fair, I concur that that is a rare occurrence but, although I appreciate the spirit in which the Minister introduced new clause 1, there are other problems for the overstayer, which the Minister appeared to acknowledge in Committee and that are not rare. For example, an overstayer is immediately denied the right to work and their employer could be liable to prosecution, too. The overstayer is denied the right to access benefits and the right to study, and some rights of access to the health service. They could also be liable to detention.
The new clause does not cover those points at all. Far from clarifying the situation, as we expected after Committee, it merely addresses the question of the criminal offence and does so in a way that offers only a fairly loose promise that the Government will not prosecute in the future. It certainly does not address the range of difficulties facing the overstayer, or the issues we raised in Committee. The Minister must forgive me, but I feel that he has led us—or certainly me—down the garden path a little. I was heartened by what I thought was his real intention to amend the Bill—[Interruption.] He protests, but he certainly gave a greater impression that he would be more flexible than has proved to be the reality.
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In the second sitting of the Committee, the Minister said:
"There is confusion about people's status at the tail end of the decision-making process, after the decision to remove, and during the subsequent appeal against removal. I fully accept that."
"Let me be clear: if we need to amend the primary legislation in the Bill to clarify section 24(1)(b) of the 1971 Act, I shall. Equally, if I need to clarify the same point in the immigration rules in relation to the gap between a final decision and the commencement of the appeal process, I shall."—[Official Report, Standing Committee E, 19 October 2005; c. 60–62.]
Sadly, the Minister's comments are not reflected in his amendments and some confusion remains.
Later in our Committee proceedings, the Minister was still pandering to our requests and reinforced the Committee's belief that he would grapple with the problem and present a solution. He said:
"The only issue . . . is the difference and gap between the cancellation of leave and removal. I made it clear during the debate on clause 1 on appeals that we would examine that gap and not leave people in limbo. I am happy to give that assurance again in terms of any cancellation of leave."—[Official Report, Standing Committee E, 25 October 2005; c. 245.]
I am certainly not the only one to be disappointed by the proposal in new clause 1—
Dr. Evan Harris (Oxford, West and Abingdon) (LD) rose—
Mrs. Gillan: We worked quite closely with the Liberal Democrats and I give way to the hon. Gentleman.
Dr. Harris: I certainly endorse the hon. Lady's remarks; she saves me from having to repeat those points later. As she knows, we have tabled amendments to the new clause to try to tease out some of the issues and we hope that the Minister will explain, in answer to her questions and ours, how he will deal with the problems other than criminalisation of the overstayer.
Mrs. Gillan: I am grateful to the hon. Gentleman. What is interesting about the group of amendments is that we have all tried to approach the matter from different angles, to move the Minister in the direction we thought he was taking in Committee. He will have a bit of work to do when he responds to both the hon. Gentleman and me.
The Immigration Law Practitioners Association looked at the issue and has set out one element of our disappointment. The association believes that new clause 1 does not even rectify the problem in the limited context of the criminal offence. The Minister acknowledged that there is a long time between refusal of leave and the making of removal decisions. The effect of the new clause is to suspend the chance of prosecution until the appeal is finally determined. However, subsection (3) means that during the time between refusal of leave and the removal decision there is no protection from criminal prosecution—certainly as I read it. The Minister's defence could be that it is not usual to prosecute, but if that is his line the provision looks more like window dressing than real movement.
There is further confusion. People with out-of-country appeals, even if they rapidly leave the UK, could have applications prejudiced by risk of
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endorsement as an overstayer. Under the immigration rules, leave to enter would normally be refused if the time limits on previous entries had failed to be observed, yet that person has no control over whether he overstays; he is simply in the hands of the Home Office and the timing of its decisions, with no redress. I hope that the Minister will deal with the issues raised by new clause 1 on the position of overstayers, which is still confusing, especially in respect of their entitlements.
I want to move on to some of the amendments tabled by my hon. Friends and me. As I pointed out earlier, about 30 per cent. of international students—about 45,000—apply for variation or extension to their leave. Common reasons for those applications, as I am sure the Minister is well aware, are to complete PhD studies, to transfer courses from one university or college to another, to attend graduation ceremonies or even to attend vivas. With the amendments, I am trying to probe the Government to find out whether they will consider the position of students in those catch-22 situations.
The educational world is seriously concerned, and so am I. I hope that the Minister agrees that, over several years, there has been broad cross-party support for the principle that where a subjective decision-making process could lead to mistakes there should be a right of appeal. That is really not an excessive request in the United Kingdom. However, under the legislation, thousands of individuals could be left on the wrong side of the law through no fault of their own, by becoming illegal overstayers the moment that the decision to refuse their application has been made.
Concern in the education sector has been driven by an awareness of the reputational damage that such a change could have on the UK as a study destination. Already, as we discussed in Committee, a raft of recent measures, which includes substantial increases in fees for leave-to-remain applications and initial visas, has had an impact—possibly damaging—on international student recruitment. There is growing evidence to suggest that international students are beginning to choose to study elsewhere.
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