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Mrs. Gillan: The Minister has accused Conservative Members in Committee and on the Floor of the House of being disingenuous, but he should take into account the report from the Select Committee on Constitutional Affairs, which looked at, among other things, the quality of initial decision making in the Home Office. It wrote in its recommendations:
Mr. McNulty: Absolutely not, otherwise we would not be introducing the new points system and investing heavy resources in the entire decision-making process. We would not be doing all that if I were being entirely smug and complacent, saying that every decision made by the Home Office or any agent thereof was 100 per cent. correct. I accept that excellent work is being done throughout our posts internationally, but I accept, too, that there can and will be improvements. Part of that improvement will come about with the clarity afforded by the points system. I accept that that is the other half of the policy. I am not defendingI do not think I wouldevery decision made by the Home Office, but that is where the future lies in improving circumstances and conditions for overseas students and others who apply to work or to study here, not in holding on to the appeals system.
No one doubts the Minister's personal sincerity on the matter. He is a dedicated and hard-working constituency MP dealing with hundreds of thousands of immigration cases, but it is the system that needs changing, not the Minister and not the appeals system. He should defer these measures until he puts in place a package of measures that will deal with the issue
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of bad decision making, exactly as the Select Committee recommended. All he has to do is defer and get his package in place, and he will find that he does not need to make the changes that he is making today.
Mr. McNulty: I am grateful to my hon. Friend for his advice, but we are doing that now. We are doing any number of things in terms of the ECO process. Admittedly, we are just starting the process, but all those things are happening now. We are enhancing the role of the independent monitor. He will be full-time, but it is essentially the same post, to answer the question asked by the hon. Member for Chesham and Amersham. I hope that he or she will be appointed in January. We are enhancing training, there is quality focus in UKvisas and we have objectives on best practice. This is within our international obligations. There are best practice reviews, more management resources for posts, quality of refusal noticeswhich are often a problem for many individuals and MPsand we are working more closely with judges. There is any number of other elements: risk assessment, so we are informed far more readily on where risks are involved, communications, and general awareness, where we have suffered in the past. Those and other elements are happening now.
I said this clumsily in Committee, as the hon. Lady reminded us, but I think that rather than delay matters to some far-off time, there is merit in looking at the notion that only when elements of the points system are introduced completely should the commencement order on appeal systems happen. The House will forgive me for not saying simply in terms that when the points system in all its entirety is introduced, only then will there be a commencement order on the lifting of appeals. I made it clear to the Standing Committee that there will be some elements of the points system that can be introduced earlier than mid-2007. Save for those elements that may be introduced earlier, including tier one and the highly skilled migrants programme, I will say that I am happy not to go down the route of introducing the provisions of the Bill that refer to appeals until the points system is in place. Those points were made in Committee and they are fair.
I am trying to think of a way where, on the premise we get the independent monitor in place in January, he or she can help in that process, having grown into the role over a year when these resources are going in. There may be a commensurate impact both on allowed decisions and refusals, and more generally on the appeal rate, but it is not going to give us significant evidence to say yea or nay in any mechanistic sense. However, I will say, with the caveats that I have mentioned, that we will not do that with the appeal process until we get there.
I will come back to money because it is in this huge pile herenot the money but the point that the hon. Lady made. There are some specifics to which I want to refer. Some go to the debate and some to other points raised. We have had, apparently, legal advice to the effect that, following the ECJ cases of Panyatova and Dorr and Unal, certain classes of persons claiming under European Community association agreements are entitled to rights of appeal under EC law. The hon. Member for Oxford, West and Abingdon (Dr. Harris) alluded to that point earlier. I will give him this note.
Such persons have rights of appeal under current legislation, but those rights will be removed by the changes to appeal rights in the Bill. We may provide the
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necessary rights of appeal by using the necessary legislation without amending the Bill. In other words, this is still work in progress. I undertook to let the hon. Gentleman know about that. We may need to provide a right of appeal for non-EEA nationals who are primary carers of EEA children exercising treaty rights in the UK following a subsequent judgment. We think that we can cover that through section 92 of the Nationality, Immigration and Asylum Act 2000. I shall write more fully to the hon. Gentleman about that.
Dr. Evan Harris: I am grateful for the Minister's response and I hope to receive his letter in good time for consideration in the other place, particularly in respect of whether an amendment to the Bill or regulations would be satisfactory.
Mr. McNulty: On the substantive elements in new clause 1, I shall disappoint the House in that the most compelling point made in Committee was about the issue of the twilight zone and criminality. New clause 1 addresses that matter, although it may be clumsy. The hon. Member for North Southwark and Bermondsey (Simon Hughes) clearly said that the provision affects only a limited number of people. On the appeal right processnon-suspensive appeals versus in-country appeals issueit is an even more limited group. The points made about criminality in the new clause are limited to those who would exercise on a notice of removal and through the one-tier appeal their right to pursue an asylum or human rights claim. That is the very narrow pool of people who are affected in that regard.
Let me be clearthose people will not get extensions to leave or the rights and benefits that leave accrues because, as a result of the position that they are in, they have no leave. There can be no leave to pursue. I do not want to reach the stagethere has been evidence of it over the past three, four or five yearsof putting a perverse incentive in the core of a Bill under which those people, albeit small in number, queue up to make erroneous and capricious human rights and/or asylum claims simply because they know that it will elongate the right to work and the benefits that they may have had prior to the refusal. The debate about that has been interesting and I shall take some of the points into accountI do not accept the substance of points about studentsbut much of the argument was erroneous because of the small, narrow focus of people who are involved.
If it is a small narrow group of people, there is presumably nothing wrong with preserving their right to exist and to carry on working while the appeal is being considered. I may want to say more about that in a few moments. I want to raise a point that I made in Committee, to which I do not believe the Minister has responded. What happens if a valid judicial review application is given against a decision not to extend leave? Do the rights continue under that application? The Minister indicated at column 148 of the Committee proceedings that he might write to me, but I am not clear that he has done so. Will he now take the opportunity to clarify it either by answering now or writing later?
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Mr. McNulty: I shall write. I do not think that the matter is particularly germane to new clause 1, but I will write in more general terms to the hon. Gentleman. His pointI hope that I have it rightis that the grant of leave pre-supposes that the holder should be able to stay while they bring any future appeal, but that is a pre-supposition that simply does not exist under lawin intent or otherwise. A grant of leave signifies that someone may stay in the UK while they meet the conditions on which the leave was granted. If that is a truism, I apologise to the House. There is no pre-supposition there, only the terms of the conditions that were granted. Once they no longer meet the requirement of the rules or any application for further leave, there is no basis on which they are entitled to stay here. That is a fair point.
As I said earlier to the hon. Member for Meirionnydd Nant Conwy (Mr. Llwyd), if he would only read the Bill he would understand that his points about human rights are nonsense. How can the Bill be non-compliant with the European convention on human rights terms if all the terms of the Bill do not apply to those who make human rights applications and they are dealt with in a specifically different way under ECHR? When it comes to the interpretation of the ECHR in all its glory, on balance I trust the hon. Member for Woking (Mr. Malins) rather than the hon. Member for Oxford, West and Abingdon, and I certainly do not trust the high street solicitor from Meirionnydd Nant Conwy. I do not accept those points at all.
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