Clause
19
Points-based
applications: no new evidence on
appeal
Paul
Rowen:
I beg to move amendment No. 136, in
clause 19, page 10, leave out from line 23
to line 11 on page 11 and
insert—
‘(5) The Secretary
of State shall lay before each House of Parliament regulations setting
out exceptions that may be considered on
appeal.
(6) Regulations shall
only be laid under subsection (5) after full consultation with all
interested
bodies.’.
The
Chairman:
With this it will be convenient to discuss
amendment No. 132, in clause 19, page 10, line 38, at end
insert—
‘(d) there is clear
evidence that the applicant was unclear about the conditions required;
and
(e) a failure to consider
new evidence would be in clear breach of natural
justice.’.
Paul
Rowen:
We now move to the points-based application, a
different aspect of the immigration process and a relatively new
section of immigration law that is not yet fully operational. I
understand the reasons for having a points-based application, which
will clarify matters for people who submit an application to come to
this country. They will know from the operation of the points system
whether their application will be successful.
However, I am concerned that
because the proposal is so new it virtually excludes any exceptions,
except in one very narrow sense. As members of the Committee are aware,
however tightly something is set up in law something or someone will
always find a way around it. Rather than the proposals setting out that
there will be no new appeals and a very narrow basis on which an
exception might be allowed, in tabling amendment No. 136, I am seeking
to ensure that the Secretary of State reflects on how the clause might
operate, and then, having consulted and discussed it with relevant
bodies, comes forward with what the allowable exceptions might
be.
When dealing with
a new system that is not yet in operation, it is good practice before
shutting the door to consider what sort of exceptions might be
allowable. If we do not do so, the end result may be that new case law
drives a coach and horses through what the Government intend. In that
case, we might need another immigration Bill because of not dealing
properly with earlier measures. A later clause on the sale of assets
comes readily to mind; in previous immigration legislation, the
Government allowed themselves the power to seize assets but not to
dispose of them. That is being dealt with in the Bill, but there could
nevertheless be exceptions.
Amendment No. 132 is slightly
different. In my experience of dealing with applications to enter the
country it can happen, for genuine reasons, that the applicant is
unclear about the operation of the system and does not provide the
necessary evidence in a form that allows the officer to make a
decision. I readily admit that even though a case may have been
formally determined, once one asks an officer to reconsider it,
especially if it is at a port, he will do so if one can demonstrate
that the applicant has not presented all the required information. The
problem is sometimes that the many people who make money offering
advice about completing the forms are the least able to advise
properly; they take lots of money from people and then give them poor
advice.
Amendment No.
132 would allow natural justice to apply if there was evidence that
what was needed had not been explained properly or not fully made
clear. Another example comes to mind. The Department for Education and
Skills keeps a list of what might be deemed allowable UK courses for
those coming into the country to study who have qualifications from
their own country. I have come across cases in which the course for
which the applicant is qualified is not on the Department’s
list, but once one engages in conversation with the Department, it
concedes and accepts that the course is allowable.
I accept that that may well
come under the narrow point about exceptions in clause 19, but
amendment No. 132 would allow a little leeway so that people can
demonstrate in a positive way that they meet the criteria. I do not
want them to be admitted if they do not meet the criteria. I merely
want to ensure that when people submit applications, they are given
every opportunity to put forward their best case. Otherwise, as usually
happens, they will be forced to make another application, and if the
increases in costs go through it will be a considerable burden to those
seeking to come here to study.
I hope that the Minister will
take the amendments in the spirit in which they were intended. I seek
to ensure that the new system is allowed to operate properly before
being overtaken by events.
Joan
Ryan:
As the hon. Gentleman said, the Bill is intended to
make much clearer the points-based system by which people can apply for
extended leave to remain or the right to come here to work or study. I
understand his points about clarity, but perhaps I can offer him some
reassurance.
7
pm
The hon.
Gentleman’s amendment would extend the circumstances under which
a tribunal would be prohibited from considering new evidence, although
that might simply be a problem with the wording—I accept that it
is a probing amendment. I think that his intention was to allow the
tribunal to consider evidence that was not submitted with the original
application if the applicant was
“unclear about the conditions
required”
and if
the
“failure to consider
new evidence would be in clear breach of natural
justice.”
Why is that problematic? Because
it would make the evidential rules in points-based system cases very
vague. The key consideration would be what the applicant knew, so
different rules of evidence would apply to different applicants. That
approach could be seen to reward applicants who could show that they
did not know what the rules required, while penalising those who took
care when making their applications. Any applicant who did not supply
evidence on time could claim that he was unclear about the
requirements. That would present a difficulty with the whole aim of the
system. People could take a chance on the judge believing them and
letting them submit further evidence with their appeals. We are trying
to ensure that appeals are not simply an extension of the application
process, but the intention behind the hon. Gentleman’s amendment
means that late evidence could still be submitted at appeal.
Under the system, the majority
of people will apply online. We will stipulate what evidence is
required so that it is clear and there can be no misunderstanding as to
what is needed. If an applicant is unable to provide a piece of
evidence, in exceptional circumstances, we will give advice as to what
evidence can be submitted instead. That should not present a problem
with late evidence. With online applications, there will be tick boxes
and if applicants cannot tick them to say that they can submit what
they need to, they will be told that there is a problem and that they
need to submit a certain document. If they are unable to do that, they
will be told to take different steps or to make contact. It will be
clear what evidence is required, what replacement evidence can be
provided when the necessary evidence cannot be produced and what to do
if there is still a
problem.
Paul
Rowen:
I am grateful for the Minister’s
explanation, but given what we learned in the papers last week about
the operation of a similar system for medical graduates, I am not sure
that this system will take account of all the circumstances. I return
to the example that I gave about qualifications. When the relevant box
is ticked, the system does not necessarily accept the stated
qualification. What route would an applicant then take to prove that
that qualification was acceptable? If the computer is not satisfied
with the application, it will reject
it.
Joan
Ryan:
As I have said, it will be clear exactly what is
required for each tier. If an applicant still has difficulties it will
be possible, ultimately, to make contact, but we want a clearer, more
streamlined system. We want to stop the situation in which the appeals
process is simply an extension of the application
process.
If it is very
clear what evidence should be submitted with an application, I do not
think that there can be a reason that is acceptable at appeal for an
individual to appear suddenly with the evidence that they were asked to
submit at application. Of course, that will not stop people having the
ability to reapply, as long as they are in time to do so. If they
submit an application but do not provide the evidence that is requested
and have their application refused, if they are in time they can submit
a further application and that application will not be prejudiced by
the outcome of the previous
application. That is the appropriate measure, as long as it is
absolutely clear to the applicant what is being asked of
them. Of course, we
want to ensure that there are a number of safeguards and clause 19
already contains a number of safeguards that will ensure that we do not
cause an injustice, which covers the hon. Gentleman’s other
point.
Where IND case
workers believe that a document is not genuine or valid, the applicant
will be able to submit evidence to try to rebut that allegation and
thus clear their name. In those circumstances, for example, it is
possible to submit further evidence. However, where an applicant is
trying to demonstrate that they meet the clearly stated requirements,
it is not appropriate that further evidence should be given at appeal.
Application is about deciding, on the evidence that the applicant has
submitted, whether a decision can be made. Appeal is about deciding, on
the basis of the evidence that the applicant has submitted, whether an
unfair or wrong decision has been made. At the moment, appeal is often
used simply to submit evidence that should have been submitted with the
initial application and we want to move away from that situation. In
order to do so without creating injustice, we want to make it
absolutely clear to applicants exactly what evidence they need to
submit.
Regarding the
point that the hon. Gentleman raised about difficulties with different
qualifications, he will be aware that in tier 1, for instance, which is
for highly skilled migrants, the only measure is the qualification at
degree level. So, it is absolutely clear; if you are a highly skilled
migrant, the qualification is a degree, and what is the level of the
degree? In tier 4, for students, qualifications are assessed by
colleges themselves, not by the IND.
The hon. Gentleman asked about
people who apply to study at colleges that are not on an approved DFES
register, but which are added to the list after an application is made.
That question seems to be connected with applications for entry
clearance. If an applicant was using the pre-checking online system
prior to making an application, it would be clear to them that their
application would be refused. In that situation, the applicant would be
clear that they should not be applying until the college is added to
the register. That is the way that the system should work. So the
pre-application online system will assist individuals in not submitting
an application that will be refused, by making it absolutely clear
whether or not they meet the criteria.
Paul
Rowen:
I am grateful for the Under-Secretary’s
explanation, which is important to the operation of the system, because
hon. Members need to understand how it will operate. If I may, I shall
give her two other examples of cases that I have dealt with in which
the current system allowed the appeal and therefore allowed migrant
workers to come into the country. In one case, which I dealt with last
year, a number of stonemasons were allowed into the country to carry
out some work. They were allowed in because they were to be working on
a local mosque and we were able to show that although a British
stonemason might have the qualifications to be a stonemason, they would
not be able to carve the Arabic words that were wanted on
the front of the mosque. That to me was an example of a case in which
the qualification is there and is equivalent to a qualification that
exists in this country, but someone could say that extra evidence has
to be shown, which is the ability to do
that—
The
Chairman:
Order. Interventions should be brief. Perhaps
the Under-Secretary will reply
now.
Joan
Ryan:
Thank you, Mr. Amess. It is not the
intention of the points-based system that where there are skills gaps
and specialist skills are needed, we are unable to avail ourselves of
those specialist skills. Of course that will be possible through the
points-based system and we would want to ensure that that was the case.
There are situations in which individual skills are required and we
need to be able to and will take account of
those.
Amendment No.
136 would mean that instead of being laid down in primary legislation,
the circumstances in which new evidence would be excluded in an appeal
would be contained in regulations. Parliament could not amend such
regulations, so there would be a significant reduction in parliamentary
scrutiny of the proposed changes to the appeals process. Also according
to the amendment, we would have a statutory obligation to consult
stakeholders before regulations could be
laid.
Secondary
legislation would make the appeals system more complicated; our
long-term goal is to simplify legislation. Parliamentary procedures, as
we have seen during proceedings on this Bill, give interested parties
plenty of opportunities to make their views known throughout the
legislative process. The involvement of stakeholders is possible at a
number of points in the process. For instance, Ministers met
representatives of the Immigration Law Practitioners’ Association
before the Bill was introduced, and ILPA, along with other interested
organisations, gave evidence at the recent public evidence session at
which the hon. Member for Rochdale was present. Such groups can also
lobby MPs, expressing their views on proposals in a Bill and offering
amendments. We have
shown in the course of proceedings on this Bill just how much
involvement stakeholders can have, so I see no additional benefit from
the latter aspect of amendment No. 136. Overall, the amendment would
reduce parliamentary scrutiny of the changes to the asylum and
immigration tribunal’s jurisdiction, without improving the
opportunities that stakeholders have to contribute to the law-making
process. I hope that the hon. Gentleman has had sufficient reassurance
that he feels able to withdraw amendment No. 136 and not to press
amendment No.
132.
Paul
Rowen:
I am grateful for the Under-Secretary’s
response. However, our debate has demonstrated that we have not had
sufficient chance to discuss how some of the measures will apply.
Clearly, many more issues will arise when the Bill is put into
operation. By tabling the amendments, I sought to give the Government a
little longer to consider some of the issues. I am happy to withdraw
them, because I think that case law will instead be made through the
AIT. The Government might think that they have produced a cast-iron
case that does not allow any exceptions, but I suspect that the reality
will prove to be otherwise. I beg to ask leave to withdraw the
amendment.
Amendment, by leave,
withdrawn.
Further
consideration adjourned—[Mr. Alan
Campbell.]
Adjourned
accordingly at fifteen minutes pastSeven o’clock till
Thursday 15 March at Nine
o’clock.
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