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Baroness Anelay of St Johns: My Lords, I thank the Minister. He referred to the fact that the education sector supports the Government's proposals. It certainly supports the proposition that there should be a register of bona fide colleges. Our only dispute is with how effective such a register may be, given that the DfES proposal appears to be one that could allow in colleges that would still be considered bogus by organisations such as ARELS. I was glad to hear the Minister refer to the Association of Recognised English Language Services by its old name. When organisations change names, as it has recently, it always creates difficulties.

I agree with the Minister that the list, when it is drawn up, should be operated by the Home Office. I just want to be sure that the current standard that the Home Office has set is the minimum that will be transferred to the new register. When I spoke about quality, I did not mean assessing whether the education being provided is first class or acceptable. I was asking whether it will fit in with the current standard that the Home Office exercises. That would be the minimum that we would consider appropriate.

I am glad that discussions on the criteria for accreditation are continuing with the DfES. It is not right to take the matter further at this stage because I shall now go back to Universities UK, ARELS and the Association of Colleges and see what other issues they would like me to raise at Third Reading. I shall then give the Government a further opportunity to address the issue of the right of an education institution to appeal against the refusal to allow it on to the list. The matter of appeal by the student has not been raised at all by the education institutions; rather, they are concerned that bona fide colleges might not be included on the list and might need the specified right of appeal. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Lord Avebury moved Amendment No. 27:

The noble Lord said: My Lords, Clause 29 gives the Secretary of State the power to remove appeal rights against the refusal of entry clearance applications in circumstances to be determined by Statutory Instrument. The clause does not reveal what the Government have in mind. The only clue is that the decision to refuse must have been taken on grounds that,


 
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Since virtually all applications are made under the rules, and those that are not do not attract the right of appeal anyway, the provision is potentially very far reaching.

We believe that the preservation of appeal rights is vital in the interests of justice and the maintenance of standards in decision-making, so we are seriously concerned about the clause as drafted, which appears to give the Government carte blanche to remove appeal rights against all entry-clearance refusals, except those that raise issues under the Human Rights Act or Race Relations Act. In that sense, the proposal is breathtakingly wide, and the Government have given no justification whatever for seeking to take those tremendous powers.

The powers extend decisions based on not only any existing rules but, as the Minister frankly explained when we discussed the matter in Committee, any future rules that may be made hereafter. The only example that he gave of how the clause might operate in practice, which he said was not meant to be exhaustive, was that it could be made an additional requirement of the rules—we have just discussed the matter—that, to qualify for a student visa, the bona fide private educational institution at which the applicant had enrolled had to be on the proposed register. Therefore, it can be provided under the clause that, if an applicant has enrolled in an establishment that is not on the register, he can be refused with no right of appeal.

At present, if the system is working properly, there is presumably a list of establishments that are not bona fide, and entry-certificate applications naming them would be refused in any case. If the applicant then appealed, there would be an investigation of what was provided by that establishment. That would be the last thing that the operators of the bogus colleges would want. As the Minister said, once the register is in operation it will be a question of fact whether a school or college is on it. We would have no objection to there being no right of appeal against the negative decision based on the fact that a non-registered establishment is named in the application.

That example points to the way in which the clause ought to have been drafted. It should have said that a person may not appeal if the grounds of refusal are that he has failed to comply with a factual requirement of the immigration rules. That would be compatible with existing limitations such as in, for instance, Section 88 of the 2002 Act. When a person does not have a document required under the immigration rules such as a work permit, is not a Commonwealth citizen when that is a requirement, or is older than is allowed to be an au pair or working holidaymaker, there is no right of appeal. That is not unreasonable because those are objective criteria already set out in the rules, and
 
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appeals against refusal on those grounds could not succeed. Similarly, visitors have no right of appeal, except if they seek to visit family members. Students cannot appeal if they seek to follow a course of less than six months' duration.

The press release that announced the amendments said that the Home Secretary would,

That example was not helpful, because "prospective students" are already denied appeal rights by Section 91 of the 2002 Act.

If the Government would amend Clause 29 so that it could be used only to take away rights of appeal where the refusal was based on the applicant's failure to satisfy a factual requirement of the immigration rules, we would support them. We cannot accept the catch-all provision that appeal rights may be removed where the decision is taken on grounds that merely relate to a provision of the rules. We ask that the Minister take the clause away and amend it to honour the undertaking that he gave that it will apply only to,

That means provisions about which there can be little doubt as to whether the necessary requirements have been met. I beg to move.

Lord Rooker: My Lords, I can only repeat what I said in Committee. I give my reassurance again that the order-making power will be used only in respect of decisions based on objective criteria. As I said in Committee, the availability of judicial review in cases that will have no right of appeal as a consequence of Clause 29 underlines that assurance. It would be against the Government's interests to create a situation whereby high numbers of cases were judicially reviewed. That is what would happen if the Government sought to remove the right of appeal for decisions that were not based on objective and factual criteria.

The High Court was consulted before the Government tabled Clause 29, and indicated broad support for the measure, provided that it was to be used in the way in which I have described. I almost say "I rest my case", because that is the nub of the matter. If the Government are seen not to operate the provision, that would go against what the High Court said when we consulted it, and we would pile up a load of judicial review cases, which would be in no one's interests.

The Delegated Powers Committee scrutinised Clause 29 and accepted that there may be a need to respond to evidence of abuse. The committee considered the power acceptable in the light of the affirmative procedure. I confirm what I said in answer to the noble Countess, Lady Mar, when I was asked if there would be a possibility of judicial review from abroad. The answer is yes. If I said more I would risk repeating myself. We have to operate the provision as I set out. The High Court would
 
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not buy it if we did not do so, and if we did not do so everyone would know about it because the court system would be clogged with judicial review cases.

Lord Avebury: My Lords, I am a bit mystified about why the Minister is reluctant to amend the clause to incorporate the undertakings that he gave in Committee and just now.

Lord Rooker: My Lords, we have opportunities for constant review of legislation as it goes through. The best brains in Whitehall are on the case. If we can clarify and make more transparent what we seek to do, to meet the points raised, we will do so. We intend to use the factual requirement only in relation to objective requirements. There are difficulties in defining "objective", which is probably part of the problem. There would be similar difficulties in defining factual requirements. The safeguard is the affirmative resolution procedure, which we will set out.

As I said, the High Court was consulted about the clause and indicated broad support—I do not say detailed support—provided that it was used in the way that I described. If the way that I have described it could be used better to clarify part of the clause, we will do that. I am not saying that we will shut the door, but on the other hand I cannot say that we will take the matter away and bring it back at Third Reading. I shall seek to have an answer on the matter for the noble Lord at Third Reading.


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