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Lord Avebury moved Amendment No. 26:
- Page 50, line 20, leave out paragraph (d).
The noble Lord said: My Lords, this amendment relates to a matter that we discussed in Committee. The noble Lord, Lord Filkin, has been good enough to hear further representations at two meetings during the summer.
The Immigration Rules do not cover all the circumstances in which the Secretary of State has a published policy or concession on who should be allowed to enter or to remain in the United Kingdom. Those concessions cover a wide range of circumstances, such as business people coming here to work, people who come on the basis of marriage and whose partners then die, and people who come here on the basis of a family relationship. Those refused permission to rely on such a concession or policy have a limited right of appeal. Such appeals are usually based on the claim that the Secretary of State got the facts wrong; for example, a decision that the policy did not apply to an appellant on the grounds that he was not working in a certain type of job, when in fact he was. Clause 86 removes any right of appeal to an adjudicator in those circumstances.
We accept that inevitably new policies and concessions will develop to meet new situations. There cannot ever be a state of perfection, where all policies
are incorporated into the rules. However, certain long-standing concessions have not yet been incorporated into the rules. We ask that they be incorporated as soon as possible; that is to say, before the end of this calendar year. We must bear in mind that once the Bill has Royal Assent people who formerly would have had a right of appeal will be deprived of it despite the long-standing nature of the concession in question. In addition, I think that it is reasonable to ask that a review of policies and concessions be carried out at least annually, and that statements of changes to the Immigration Rules incorporate new policies at least annually. I beg to move.
Lord Bassam of Brighton: My Lords, this amendment would permit an applicant to appeal even where he had sought to stay for a purpose not permitted by the Immigration Rules. Such an appeal would have to be dismissed. The Immigration Rules provide that an application must be refused where the applicant seeks to enter or remain for a purpose not covered by the rules—that much is plain. It would therefore be impossible for an adjudicator to uphold an appeal made wholly on those grounds. In some cases, the adjudicator must simply dismiss the appeal. This amendment would therefore provide an empty right of appeal, giving people false hope, and delaying the consideration of substantial appeals that may lie in a queue behind them. In some cases, the adjudicator can find that policy published by the Secretary of State has not been followed. However, even in those cases the adjudicator is not entitled to consider the merits of the decision. The only point at issue is whether the policy has been followed. In other words, the point is purely one of procedure and process.
The jurisdiction of adjudicators is substantive. Their function is to allow or dismiss appeals. We have a separate mechanism—judicial review—for challenging a decision by a public body on a point of procedure. The existing situation represents at best a duplication of functions and at worst a confusion of roles. Clause 86 takes nothing away from applicants. An appeal to an adjudicator adds nothing to the remedy open to them by way of judicial review, or through a simple letter to the Immigration and Nationality Directorate. It would be open to adjudicators to make extra-statutory recommendations in these cases, but such a recommendation is not binding and can only suggest that the decision-maker review new evidence. In any event, the Home Office reviews new evidence as a matter of policy, so the power to make recommendations adds nothing to what could be achieved simply by contacting the Home Office directly. Again, a failure by officials to consider fresh evidence would be a matter for judicial review.
Although one can understand the noble Lord's desire to ensure that there is proper process and that the merits of procedures have been properly understood, for the reasons I have given, we cannot agree to this amendment and we continue to resist it.
Lord Avebury: My Lords, I cannot understand why the Minister is being so negative about the
amendment, given that after the 1999 Act some of the concessions at least—although not as many as anticipated—were incorporated into the rules.We certainly expected the Minister's reply to give us some undertakings about the incorporation of these long-standing concessions into the rules, but he ignored that part of my speech. I mentioned several cases, such as business people who come here to work, people who come here on the basis of a marriage and whose partners die and people who come here on the basis of family relationship. In all those cases, there would have been a limited right of appeal, which I mentioned. I had thought that when we discussed the matter during the Summer Recess, we received some assurances that the Government would incorporate those long-standing concessions into the rules so that people would continue to enjoy the limited rights of appeal—as the Minister said, they are not extensive—on matters of fact.
Although I cannot press the matter to a Division at this stage, I am extremely unsatisfied with the noble Lord's answer and I hope to pursue it with him—
7 p.m.
Lord Bassam of Brighton: My Lords, I have looked through my notes. They make it plain that we have registered the noble Lord's point. We need to do further work on incorporating those concessions into rules. We hope that we shall be able to make real progress by next year so that the process of incorporation will coincide with the commencement of Part 5. That may not go as far as the noble Lord would like, but that is our honest endeavour and what we seek to do. That may make him a little happier in withdrawing his amendment.
Lord Avebury: My Lords, that is a much better reply than the Minister gave at first. If it is possible to incorporate the long-standing concessions into the rules to coincide with the coming into force of Part 5, that will go a long way towards meeting what we are aiming to do. With that, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Lord Bassam of Brighton moved Amendment No. 27:
- Page 50, line 31, leave out from "on" to end of line 32 and insert "any or all of the grounds referred to in section 82(1)(b), (c) and (g)"
The noble Lord said: My Lords, this group of amendments would add greater clarity to the legislation. I shall run fairly quickly through each amendment. Government Amendments Nos. 27 and 28 protect the right of appeal on asylum grounds where an appeal would otherwise be prevented by the operation of Clauses 86 and 87 respectively. Amendment No. 29 simplifies Clause 90(2) by replacing the list of appealable decisions with references to those decisions, thus avoiding repetition.
Amendment No. 30 clarifies that the trigger for suspensive asylum, human rights or EEA appeals is a decision made on an application on those grounds, not on the grounds of the appeal themselves. Amendment No. 31 is a minor and genuinely technical amendment to clarify that, where a certificate has been issued under Sections 11(2) or 12(2) of the Immigration and Asylum Act 1999 on the removal of asylum claimants to a third country, a person may not appeal under Section 80(1) while they are still in the United Kingdom.
Finally, Amendments Nos. 32 and 33 are technical amendments representing the knock-on effect of government amendments made elsewhere in Clause 109 concerning the definition of a human rights claim.
I hope that those explanations provide the necessary clarity. I beg to move.
Lord Kingsland: My Lords, I have a question about one of the amendments, which I hope I have understood. I am sure the noble Lord will correct me if I am wrong.
Amendment No. 29 might appear on the face of it to be simply a drafting amendment, removing five paragraphs that are repeated elsewhere in the Bill and replacing them with a simple cross-reference. However, two of the provisions that currently appear in the list in Clause 90(2), which the amendment would replace with a cross-reference to the list in Clause 80(2), are worded slightly differently from those to which the cross-reference will point if the amendment is agreed to.
Clause 90(2)(b) and (c) allows a person to appeal from within the United Kingdom if he is appealing against a refusal to vary his leave to enter or remain, or against a variation of that leave. The Government propose to delete those words from the clause and replace them with a cross-reference to similar words in Clause 80(2). However, the wording is not quite the same in these two cases, although it is the same in the other three provisions to be replaced by cross-references.
Clause 90(2)(b) allows a person to appeal from within the United Kingdom if the appeal is against,
- "refusal to vary a person's leave to enter or remain in the United Kingdom".
- "refusal to vary a person's leave to enter or remain in the United Kingdom if the result of the refusal is that the person has no leave to enter or remain".
By replacing the existing wording of Clause 90(2)(b) with the cross-reference I have just quoted, the amendment effectively adds,
- "if the result of the refusal is that the person has no leave to enter or remain".
What is the effect of that on the right to appeal from within the United Kingdom allowed under Clause 90? Does it mean that a person cannot appeal from within the United Kingdom if the Secretary of State refuses to vary, or does vary, his leave to enter or remain, unless as a result he would have no leave to enter or remain? What would be the position of a person whose leave to remain was varied but who wanted to challenge the variation, perhaps on the grounds that an extension was not long enough? He would retain the right to remain in the United Kingdom, but, as I read the amendment, he would no longer have the right to appeal from within the United Kingdom under Clause 90, because of the effective insertion of the words that I have just quoted.
I apologise for what might seem to be a Committee point, but I hope your Lordships will agree that it is important to ensure that the effects of government amendments tabled late in the Bill's passage are probed and understood just as much as those tabled in Committee. I hope the noble Lord will be kind enough to help clarify the situation, or at least to respond to my observations. There may be a very simple explanation that I have entirely missed.
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