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Lord Filkin: No, it was not a mishear; the noble Earl heard correctly. That was what I said. If the circumstances of a person's application for entry clearance have changed, they are in a position to make a new application for entry permission.
Lord Kingsland: I thank the Minister for his reply. I of course accept that his amendment in this context is helpful and goes some way, but not all the way, towards meeting my concerns. Bearing in mind the long delay that often occurs between refusal of entry clearance and the hearing of an appeal—it can be as much as a year—does the Minister not think that it is unfair in those circumstances that subsequent facts should not be taken into account?
Lord Filkin: In a sense, that touches on the same point as that raised by the noble Earl, Lord Russell. At this time of night, I shall reflect on the noble Lord's point. Essentially, the answer is as I gave it: there is an opportunity of investigating the refusal directly and there is an opportunity to put in a new application if the person so wishes. Nevertheless, I give the assurance that was sought. I shall reflect on whether our consideration is fair and, if appropriate, I shall correspond with the noble Lord, Lord Kingsland.
Lord Kingsland: I am most grateful to the noble Lord for that thoughtful and constructive suggestion. In those circumstances, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Lord Bassam of Brighton moved Amendment No. 196A:
- Page 41, line 31, leave out from "only" to end of line 33 and insert "the circumstances appertaining at the time of the decision to refuse."
On Question, amendment agreed to.
Clause 73, as amended, agreed to.
Lord Bassam of Brighton moved Amendment No. 196B:
- Page 42, line 25, leave out "wholly"
On Question, amendment agreed to.
Lord Thomas of Gresford moved Amendment No. 196BA:
- Page 42, line 31, leave out paragraph (c).
The noble Lord said: This amendment concerns Clause 76, which deals with exceptions and the circumstances in which a person may not appeal against an immigration decision. I seek clarification of the words in subsection (2)(c),
- "seeking to be in the United Kingdom for a period greater than that permitted in his case by immigration rules".
- "leave to enter or remain".
- "seeking to enter or to remain".
- "seeking to be in the United Kingdom"
Amendment No. 196BB, which deals with subsection (2)(d), is conjoined.
Concern was expressed in the other place that the right of appeal to an adjudicator against a decision made under established policies and concessions, rather than under the Immigration Rules, was being abolished. I understand that an appeal against policies and concessions has been available until now in limited circumstances. In the other place, the Minister said that an adjudicator should not review a discretionary decision of the Secretary of State under a concession or policy. He said that judicial review was the appropriate procedure. I have already made the point today that judicial review is cumbersome, expensive and limited in its review of procedure, as opposed to merit.
The Minister also said that the Government were taking steps to consolidate the concessions. As I understood it, she said that the Government were taking steps to bring within the rules what were previously called concessions. I use this amendment to ask how far this process of consolidation of concessions, bringing them within the rules, has progressed and exactly what it covers. I beg to move.
Lord Avebury: I believe I am right in saying that the Statement made by the Minister in another place is not the first occasion on which the Government have promised to bring these extra-statutory concessions
within the rules. Considering that the use of what are called policies has been prevalent since the 1980s, I wonder why it has taken them so long to do that. One prominent example is that during the civil war in Somalia, the Government took account of the fact that Somali family units work in a different way from those of other asylum seekers and were therefore prepared to grant special leave to persons not within the normally permitted degrees of consanguinity in the rules to enter or remain. Other concessions that are not embodied in the rules relate to people coming here or remaining here in order to care for seriously or terminally ill relatives, pupil barristers and MPs' researchers.I understand that the Government have from time to time made efforts to move some of the policies into the Immigration Rules. However, there are some of long standing that remain as extra-statutory concessions— for example, children who have been living in the UK continuously for seven years or more would not normally be removed.
Therefore, a number of the concessions are treated as though they are within the rules, but now the Government will make them unappealable. I can see no justification whatever for taking away rights of appeal which have always been enjoyed by this series of groups of people and which would continue to have been enjoyed if the Government had done what they said they were going to do—that is, to embody all the concessions in the rules.
Lord Hylton: Are the Government aware that this amendment is supported by Amnesty International, the Immigration Law Practitioners' Association, the Medical Foundation for the Care of Victims of Torture, the Joint Council for the Welfare of Immigrants, Justice, the Public Law Project, the Refugee Council and the Refugee Legal Centre?
Lord Bassam of Brighton: I shall deal with the point raised at the outset by the noble Lord, Lord Thomas. In moving the first of the amendments, he asked what was the purpose of including in the legislation the term "seeking to be in the UK". So far as we are concerned, it has no different meaning from the current wording. I believe that in another place the Minister said that she believed that it covered the examples that she used. Those included the working holiday-maker who simply wanted to be in the United Kingdom for a longer period than permitted by immigration rules, someone from outside who was applying to enter to look after a relative, or even someone who was in the UK on a visitor's permit for six months and who wanted to extend the permit because her daughter had a baby and she wanted to look after it. Therefore, the provision covers that type of case.
Currently the immigration rules provide that an application must be refused where the applicant seeks to remain for a period longer than that permitted under the rules or where leave is sought for a purpose not covered by the rules—for example, in a case such as the ones that I have just cited. Therefore, it would be impossible for an adjudicator to uphold an appeal made wholly on those grounds.
The effect of the amendments would be to permit wholly hopeless appeals. They would put an unnecessary and unwelcome burden and pressure on the resources of the Immigration Appellate Authority. It goes further than that. They would extend the appeals queue, making other appellants wait longer for a hearing.
Of course, it would be open to adjudicators to make extra-statutory recommendations in those hopeless cases. But such recommendations are not binding and can only suggest that the decision-maker reviews new evidence. As a matter of policy, the Home Office reviews new evidence in any case. Therefore, as things stand, the power to make recommendations adds nothing to what is achievable by making direct contact with the Home Office.
Wherever possible, the policy will be to incorporate concessions within the rules at the first opportunity. That will always be the case. In areas where that would not be appropriate—for example, in relation to country information—we do not believe that incorporation would be right.
I am happy to write to the noble Lord setting out the point that we have reached on this matter. But I hope that I have added some clarity in the explanation that I have given. I hope that the explanation will have satisfied the noble Lord and that he will feel able to withdraw the amendment.
Lord Thomas of Gresford: Clarity, there is not; obfuscation, there is. I should welcome a letter from the Minister, as offered, which would help to explain a little more what he said a moment ago. I shall not pursue the matter further at this time of night and beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Midnight
[Amendment No. 196BB not moved.]
Clause 76, as amended, agreed to.
Clause 80 [Appeal from within United Kingdom: general]:
Lord Bassam of Brighton moved Amendment No. 196C:
- Page 44, line 18, at end insert "or would be unlawful under section 6 of the Human Rights Act 1998 (c. 42) as being incompatible with the applicant's Convention rights,"
On Question, amendment agreed to.
Clause 80, as amended, agreed to.
Clause 81 [Appeal from within United Kingdom: "third country" removal]:
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