New Clause 29: Power to Remove
Rights of Appeal
77. New clause 29 gives the Secretary of State a
power to remove the right to appeal against refusal of entry clearance
if the decision to refuse is taken on grounds which relate to
a provision of immigration rules and are specified for this purpose
by the Secretary of State.
The power is exercisable by order made by affirmative resolution
procedure. The power
cannot be used to take away existing rights of appeal on grounds
of race discrimination and human rights.
78. The Minister introducing this amendment stated
that the Government intends to use this power "only in respect
of provisions in the Immigration Rules that are based on objective
reasoning is that the decision that an applicant for entry clearance
fails to meet such a specified requirement is a question of fact,
and there is little point in having a right of appeal in such
cases. It is envisaged that the power will be used to preclude
a right of appeal against refusals based on a failure to meet
new objective requirements which might be introduced into the
Immigration Rules. The only specific example provided of a possible
use of the power was in relation to "bogus colleges".
The Immigration Rules might be amended to make it a specified
requirement for entry clearance as a student that the applicant
be enrolled at an institution which is included in a register
of bone fide colleges. The power might then be used to
preclude any appeal against a refusal of entry clearance on the
ground that the applicant was not enrolled at a registered college.
79. The removal of rights of appeal against entry
clearance decisions raises issues of compatibility with the right
to an effective remedy in respect of Convention violations under
Article 13 ECHR and the right not to be discriminated against
under Article 14 ECHR in conjunction with Article 13 and Article
6(1) (right of access to court).
80. Not providing a right of appeal in cases where
the basis of the refusal is the failure to meet a requirement
which turns on an objectively ascertainable fact is likely to
be unobjectionable in human rights terms.
However, the breadth of the power conferred on the Secretary of
State by new clause 29, without specifying on the face of the
legislation the types of case in which the power can be used,
is a matter of concern. Parliament is being asked to authorise
in advance a very wide power which is capable of being exercised
in a way which may impede access to an effective remedy or unjustifiably
discriminate between different classes of applicant for entry
81. Unless the
Bill expressly states the specific cases in which the power to
remove rights of appeal can be exercised, we are unable to reassure
Parliament that this is a power which is compatible with human
rights. We draw this matter to the attention of each House.