Immigration, Asylum and Nationality Bill

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Clause 5

Refusal of leave to enter

3 pm

Dr. Harris: I beg to move amendment No. 103, in clause 5, page 4, line 1, leave out paragraph (b) and insert—

    '(b) if section 92(3)(c) applies.'.

I hope that we can deal with the amendment quickly. The purpose of the amendment is to preserve the existing position in the Nationality, Immigration and Asylum Act 2002 as amended by the Asylum and Immigration (Treatment of Claimants, etc.) Act 2004, under which a passenger who arrives with valid entry clearance and is then refused into the UK has a right
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of appeal from within country before removal, unless the reason for refusal is that that entry is sought for a purpose other than that for which the clearance was granted.

Proposed new section 89 of the 2002 Act, which clause 5 will insert, will significantly reverse the burden of proof in appeals against refusal of leave to enter. Before I continue, I should state, and I am grateful to the Bill team for having clarified this, that the capitalisation and the bracketing in the amendment are slightly awry. I advise the Minister, if he has not already been advised, which I suspect he has been, that amendment No. 103 should read:

    ''and insert—

    (b) if section 92(3C) applies.'',

because there is no section 92(3)(c). I am more than willing to say that that was an error in my handwriting in order not to apportion blame to anyone else for that slip-up. I understand that the Minister and his team would have understood what we meant. I shall explain the amendment's impact.

The way in which clause 5 proposes a new section 89 seems inappropriate for two main reasons. First, the passenger will have already demonstrated to the satisfaction of an immigration official overseas—the entry clearance officer—that he or she has a claim to enter the United Kingdom, so the clearance has the effect in law of constituting a grant of leave to enter the country. If the immigration officer on the control at a port in the UK is considering removing a status that has already been granted by a colleague, the burden of justifying that decision to go behind the earlier decision should rest with the officer who alleges it rather than with the passenger. To force passengers to defend themselves when someone else has made the decision seems a little unreasonable.

Secondly, new section 89 presumes a negative. It presumes that a passenger's intention is other than specified. As I have said before, we are in a sense revisiting—[Interruption.]—the primary purpose rule, as the hon. Member for Walthamstow pre-empted sotto voce. The Government rightly dropped that rule in 1997, in a move that was widely welcomed by colleagues in my party and, I believe, in the Minister's.

There was at least the right of appeal in primary purpose cases, even if it was always difficult to satisfy a court of someone's intentions when the person was not available to give oral evidence. The new section removes any right of appeal on a negative presumption about a passenger's intentions. The Minister should consider whether it would be more appropriate to amend the clause somewhat, even if he does not want to go the whole way in respect of what I have proposed. That is the basis for the amendment. I look forward to the Minster's response.

Mr. McNulty: I take the point about the drafting of the amendment; I do not wish to pursue that. I simply say that the amendment is of no practical value. Clause 5, as drafted, already prevents a refusal of leave to enter being appealed on full grounds where entry clearance was obtained for a purpose other than that for which leave to enter was then sought.
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We are satisfied that the drafting is appropriate and that there is no need for reference to be made to section 92(3C). There is certainly no need for reference to be made to section 92(3)(c), which does not exist. I think that we are right to say that there is no need for the amendment for the brief reasons that I have offered. I ask the hon. Gentleman to withdraw the amendment and that clause 5 stand part of the Bill.

Dr. Harris: I will address the first part of the Minister's final sentence. I am happy to withdraw the amendment to a section that does not exist, as the Minister put it. I am more than willing to seek leave of the Committee not to put the modified amendment while I consider what he has said He made a straightforward assertion rather than a justification, but I accept that the onus is on me to consider the points I made and whether his assertion that it is unnecessary and makes no difference is correct. I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 5 ordered to stand part of the Bill.

Clause 6 ordered to stand part of the Bill.

Clause 7

Abandonment of appeal

Dr. Harris: I beg to move amendment No. 95, in clause 7, page 4, line 25, at end add—

    '(4B) This section shall not apply where an applicant's appeal has been allowed on human rights grounds but dismissed on Refugee Convention grounds and the pending appeal relates to the dismissal of the Refugee Convention claim.'.

I am pleased that we are making progress and I hope that we shall continue to do so. Clause 7 covers the abandonment of an appeal and new section 104(4) of the Nationality, Immigration and Asylum Act 2002 provides that when an appeal is pending, it should be treated as abandoned if the appellant is

    ''granted leave to enter or remain in the''

UK or leaves the UK. Under the new section, neither of those events would cause an appeal to be abandoned if it was not brought in the UK. Under the amendment, the appeal would not be treated as abandoned if the person is granted leave to enter or remain in the UK on human rights grounds if they are waiting for an appeal against the denial of refugee status. That is just about clear to me even now, as it was at breakfast, and I hope that the Minister will give a positive response to that approach.

Mr. McNulty: The amendment seeks to prevent an onward appeal from being treated as abandoned if it is allowed, as the hon. Gentleman suggested, on human rights grounds but dismissed under the refugee convention. If the appellant left the United Kingdom while the appeal was pending, their claim for asylum would lapse and the appeal would be pointless.

We agree that if leave is granted for a different purpose—for example, on humanitarian grounds—while an appeal against refusal of refugee status is pending, that might have a significant effect. We will consider the issue further to ensure that the provision
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would not give rise to any injustice. There is a point in the amendment, which I am not willing to accept, but I take the point.

The provision that an existing appeal should be treated as abandoned exists to prevent resources from being wasted on hearing an appeal that no longer has relevance because the appellant has been granted leave or has left this country. It was not our intention that a person seeking entry clearance should lose their right of appeal by entering the UK and the clause puts that beyond doubt.

An appellant in the United Kingdom who appeals against a decision of the asylum and immigration tribunal is not required to leave the country if they have an appeal pending under section 104 of the 2002 Act. However, I must consider whether the clause could have unforeseen and unjust consequences, as the hon. Gentleman suggests. I will write to him and, through you, Mr. Illsley, to the Committee with an adjustment if it would have that unforeseen consequence or an assurance that it does not. In that spirit, I ask the hon. Gentleman to withdraw the amendment and for the clause to stand part of the Bill.

Dr. Harris: Given those terms and in the same spirit, I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 7 ordered to stand part of the Bill.

Clause 8 ordered to stand part of the Bill.

Clause 9

Continuation of leave

Mr. Malins: I beg to move amendment No. 23, in clause 9, page 5, line 2, at end insert

    'including provision for a grace period'.

I shall speak briefly to the amendment. Section 3C of the Immigration Act 1971, which provides that leave to remain is deemed to continue when an immigration application remains outstanding and the last grant of leave has expired until the applicant has exhausted any subsequent appeal rights in relation to the decision, will be removed by clause 9. This measure goes hand in hand with the provisions in clause 1.

Currently, when a person applies for an extension to their visa, their leave to remain is automatically extended until the application has been processed and a decision made. Section 3C of the Immigration Act 1971 provides that if it takes more time to decide an application than the applicant has leave to remain, they are at least able to stay until the decision had be taken and, crucially, they have had an opportunity to appeal the decision.

Clause 9 will remove that necessary protection for an applicant who may well succeed in any subsequent appeal. I think I can see why the Government are taking that approach, since the right of appeal against a refusal to extend leave to remain is exercisable only at the point of removal and a decision to remove an individual can be taken only once leave has expired. Someone who is protected by section 3C of the 1971 Act might conceivably be caught in a limbo in which he could neither appeal nor be removed.
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I do not think that this is a satisfactory solution, so amendment No. 23 probes how the Government intend the new scheme to work. A time-limited grace period following the refusal of an application to extend the visa would enable the Government to issue notice of their decision to remove the applicant at the expiry of the grace period, triggering the right of appeal while allowing the appellant to remain in the UK legally.

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