Memorandum submitted by Universities UK
INTRODUCTION
1. Universities UK welcomes the opportunity
to submit evidence to the Constitutional Affairs Committee to
aid its inquiry into The Asylum and Immigration Tribunal: the
appeals process, and to describe our approach to this aspect of
the Immigration, Asylum and Nationality Bill as it progressed
through Parliament.
2. The Bill, which is likely to complete
its passage through Parliament next week, will abolish the right
of appeal for international students, and others, for entry clearance
applications. This measure is part of the Government's reform
of the immigration system, and will accompany the introduction
of a points-based system for managed migration. The details of
this scheme were set out in A Points-Based System: Making Migration
Work for Britain published by the Home Office on 7 March 2005.
3. Universities UK, alongside many other
interested organisations including the CBI, the Immigration Law
Practitioners Association, UKCOSA: The Council for International
Education and the National Union of Students vigorously opposed
the abolition of appeal rights in entry clearance cases, during
the passage of the Bill. We set out our reasons in paragraph 7,
below.
THE POINTS-BASED
SYSTEM
4. Universities UK welcomes the Government's
plans to introduce a points-based immigration system. We have
been pleased with the level of consultation on the proposals.
We agree that the points-based system is likely to produce a fairer
and more efficient immigration system. In particular, we welcome
the emphasis on objective decision-making, and plans to allow
potential applicants to self-assess in order to better understand
the visa requirements. We also welcome plans for institution-specific
visas, which will enable both universities and the Home Office
to develop a much clearer picture of visa compliance.
5. However, much of the detail of the scheme
is still to be determined—including details of how points
will be allocated in relation to students. In particular, we are
interested in further details about how the proposed Administrative
Review, which will replace the appeals process, will work.
OBJECTIVITY OF
CRITERIA UNDER
THE POINTS-BASED
SYSTEM
6. The proposals suggest that the criteria
used to make visa decisions will move from the current wide range
of criteria, some of which are subjective, to a system where points
are allocated on objective criteria. The Government has argued,
during the passage of the Immigration, Asylum and Nationality
Bill that this will remove the need for an appeal mechanism.
7. Universities UK questioned the assumption
that appeals will no longer be necessary in relation to international
students. There is substantial evidence of poor quality decision-making
under the current system. We argued that there will remain some
room for subjective decision-making, specifically in relation
to students' financial support, (a point which has been accepted
by Government) and that there will remain scope for human error
under the new system, which will continue to be operated by existing
personnel. Key points include:
— 33% of students who applied for visas
last year were initially refused. Of those who appealed in 2003
(the last year for which we have figures), 25% were successful.
This indicates room for improvement in decision-making.
— A range of reasons are currently
given for refusal. Frequently these indicate that an applicant
has been refused on inappropriate grounds, or because the ECO
has failed to follow the Immigration Rules. Whilst the new system
seeks to be more objective, inappropriate decisions may still
be made, particularly while the system "beds down".
— Furthermore, although the new system
will be more objective, it will not remove the need for some element
of subjectivity. As the Immigration Minister Tony McNulty has
said "100% objectivity is a fool's errand| It is not about
simply ticking boxes and adding points up, although that is a
large part of the measure."
— Indeed, we would argue that some
element of subjectivity is not only inevitable, but also necessary.
As an example, if a person applying for a visa apparently has
money in his account to cover the cost of his proposed course,
but those funds were only recently deposited, Entry Clearance
Officers are currently able to make a judgement about whether
the funds are really available to the applicant or whether, for
example, they have been temporarily deposited to enable the applicant
to obtain a visa. This sort of judgement is likely to continue
to be made under the new system.
— It is inevitable that the new system
will take time to implement across 160 visa issuing posts. Implementation
will require extensive retraining of immigration officers. We
have therefore asked that the new system should be allowed to
bed-down before removing appeal rights.
— Removing the right of appeal, with
no clear redress for those who believe a misjudgement has been
made, is potentially prejudicial to bona fide students because
immigration decisions, such as the refusal of a visa, remain on
the record of would-be migrants—a UK visa refusal would
prejudice any future visa applications made by a prospective student.
ADMINISTRATIVE REVIEW
8. We are pleased that progress on these
matters has been made during the passage of the Immigration, Asylum
and Nationality Bill, even though the Government remains committed
to the abolition of appeal rights. In-country appeal rights have
been retained for "leave to remain" applications (under
the Bill as originally drafted failed applicants for "leave
to remain" would have had to return home to exercise their
right of appeal). In addition, the Government helpfully committed
to bringing forward proposals for an administrative review scheme
to enable unsuccessful applicants to challenge decisions they
believe to be wrong.
9. We welcome this commitment and look forward
to working with Government to develop the detail of this. An outline
of the features Universities UK would like to see in such a scheme
is set out in the annex to this paper.
10. We are pleased that Baroness Ashton
of Upholland, the Minister was able to respond positively our
request to consult on the design of the scheme at Third Reading
of the Immigration Bill in the House of Lords, where she also
committed to publication of the scheme in draft.
11. We were also pleased that, as a result
of an amendment tabled by Baroness Anelay of St John's for the
Opposition, and accepted by the Government, at Third Reading of
the Immigration Bill in the House of Lords, a review of the scheme
will be conducted within three years of its introduction.
CONCLUSION
12. Universities UK reiterates its general
support for the introduction of a points-based immigration system.
We welcome the degree to which we have been consulted and many
features of the new scheme.
13. However, we remain disappointed that
the Government has moved to abolish appeals, which we felt would
provide a safeguard against errors in decision making, which are
common under the current system. We would certainly have liked
to retain appeals until the new points-based system has been introduced
and proven to be effective.
14. We are now focusing our efforts on working
constructively with Government to ensure the points-based system
is as fair and effective as possible, and that it is supported
by a robust administrative review procedure, capable of correcting
errors where they occur.
March 2006
Annex 1
ADMINISTRATIVE REVIEW
Any administrative review system should have
the following features:
— The ECO should provide written reasons
for refusal, and the outcome of any subsequent review.
— Individual applicants should be able
to request a review of the decision to refuse their application.
— The review should be independent
of the ECO, and their manager who took the initial decision, and
preferably led by the regional tier of UK Visas staff, with appropriate
support including central oversight and guidance/ training.
— Institutions/ sponsors should be
invited (in writing) to make representations on behalf of applicants
where appropriate.
— The review should be completed within
a reasonable timescale.
— The review should allow for the clarification
of existing evidence and the submission of additional evidence.
— The Independent Monitor should sample
review cases and monitor procedure in relation to students.
In addition there should be:
— Better central data collection.
— Monitoring of success rates on review/
appeal.
— An annual report should explain variations
between posts and changes in success rates in individual posts,
and set out steps the Govt intends to take to address issues raised.
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