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Lord Rooker: My Lords, in that case I can move on. During our debate on 28 June a number of questions were raised about the operation of a register of educational establishments. I should like to answer those concerns because the Bill will return to the other place fairly soon. The noble Baroness, Lady Anelay of St Johns, has expressed the view that there should be a right of appeal for establishments not included in the register. As I explained, the Department for Education and Skills is consulting on the detail of how the register will operate and will be considering whether there should be a right of appeal as part of that consultation.
The amendment tabled by the noble Baroness and the noble Viscount seeks to place the responsibility for a register of bone fide educational establishments in the hands of the Secretary of State for the Home Department. The Department for Education and Skills is responsible for education and skills within England and it is therefore appropriate that any register which records the existence of learning providers be owned by the department with those responsibilities. Much of the information needed for the register relating to publicly funded providers is
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already held within the Department for Education and Skills and it already has strong working links with those bodies responsible for accreditation of private providers.
The noble Baroness, Lady Carnegy of Lour, asked whether there would be consultation on the register in Scotland. Once the register is operational, the Home Office will need information about all education providers in the UK and the Department for Education and Skills and the Home Office are therefore in consultation with the devolved administrations to ensure that that is achieved.
I can therefore assure the noble Baroness and the noble Viscount that the proposition in Amendment No. 26—the original Amendment No. 26—that the power in Clause 29 could be used to specify a requirement relating to approved educational establishments is one with which the Government are in full agreement. It can be achieved using Clause 29 as drafted. We do not consider that it is necessary to refer to the example on the face of the legislation.
The noble Lords, Lord McNally and Lord Avebury, have tabled an amendment that seeks to ensure that the order making power in Clause 29 could be used only in relation to requirements under the Immigration Rules which relate to an issue that is objectively verifiable and factual, and not to questions which require subjective assessment of evidence and intention.
I agree with much of the thrust of what the noble Lord, Lord Avebury, said in his opening remarks. We want this to be highly targeted and precise so that there is no argument; otherwise, it would be grossly unfair if the matter were subjective. After the previous debate, we agreed to consider whether Clause 29 could be amended so that the only grounds that could be specified by order are those that relate to a factual requirement of the Immigration Rules. We explained that it would be difficult to define what was meant by "factual". However, we made it clear that we were sympathetic to the principle behind the suggestion; namely, that the power should be used only in relation to requirements of the rules which concern a simple question of fact.
We explored the suggestion with parliamentary counsel but concluded that Clause 29 should not be amended in the manner suggested. For similar reasons we are resisting this amendment. Inserting the word "factual" or referring to "objectively verifiable facts" would not give effect to the principle behind the suggestions. We reached the same conclusion when, previously, we considered using the word "objective". All the Immigration Rules could be described as relating to factual matters or as being objectively verifiable. The question is the extent to which there is room for debate—the noble Lord gave a couple of examples in his opening speech—and thus scope for appeal, in coming to an objective conclusion about a factual matter. Generic limitations of the kind suggested would not necessarily prevent the use of the power in relation to requirements which we would have no intention or wish to include.
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Whether or not the right of appeal against a refusal of entry clearance on a particular ground should be removed is best judged on a case-by-case basis. That is the effect of Clause 29 as drafted. It requires the Secretary of State to specify by order the grounds in relation to which he intends to remove the right of appeal. The affirmative resolution procedure will ensure that both Houses will be able to consider whether the grounds specified are appropriate for the use of the power. No Minister would want to be embarrassed at the Dispatch Box unless a robust order, which cannot be picked apart, is brought before the House. We would certainly want the order to include consideration of the specific provisions of the immigration rules to which those grounds relate. That would also include consideration of the need for subjective assessment of evidence or intention in relation to those immigration rules.
We have given assurances that we would not wish to use the power in relation to requirements under the immigration rules which are particularly open to assessment or argument. If the power were used inappropriately, the relevant order, as I have said, could be subject to challenge by way of judicial review. I know the noble Lord, Lord Avebury, said that was fanciful. It would not take many such cases by concerned people and organisations outside to start to clog up the system. That would be acutely embarrassing to both the Home Office and the Government, bearing in mind the commitments I have given at the Dispatch Box, which will be repeated in the other place in the next few days.
There are some grounds for refusal which are straightforward and self-evident, where there should be limited scope for appeal. I have a fresh example to give. It is a fair example and I offer it for the record. The requirements to be met by applicants wishing to set up as a businessperson are set out in paragraph 200 to 210 of the immigration rules. These include the fact that the person has at least £200,000 of his own money to invest in the business. The availability of funds is assessed through scrutiny of the applicant's business plan and supporting documents such as financial accounts. Checks are also made to ensure that funds are the applicant's own and not from another source, and that they are entirely under the applicant's control. Applications can be, and have been, refused solely on the grounds that the applicant has not provided sufficient evidence that he is investing not less than £200,000 of his own money directly into the business in the UK.
There is not much more to report on the compiling of the register, as I indicated last week. I hope that I have been able to reinforce our intention about the way this new power will be used. We are working with the English language sector to encourage comprehensive accreditation of English language schools so that, in due course, visas will be issued only to English language students who are coming to the UK to study at an accredited school.
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A point was raised—and I regret I did not make a note of it during the speech—asking about the cross-flow of information so that schools know the names of the students who the Home Office knows. I gave a positive response to that. Maximum transparency has got to be best for all concerned, and that is my understanding of the intention as to how this operation will work. Whether or not the position will have been advanced by the time this group of changes goes to the other place, I genuinely cannot say. The latest update on the position will clearly be given when these Lords amendments, as they will be, are moved in the other place in the next few days.
Lord Avebury: My Lords, it is not a question of argument whether or not we have this register of colleges which is approved on all sides by your Lordships. The only questions that have arisen again today are just how establishments will be put on the register and whether there will be a right of appeal against refusal to list a particular establishment.
The noble Lord, Lord Rooker, has said that that would be considered for inclusion in secondary legislation. Clearly it could be limited to non-educational matters, such as whether proper records are kept and the hours that students attend, whether lectures are given in the subjects offered, whether examinations are held, and whether they lead to a recognised qualification such as the NVQ. All of those are legitimate matters of fact which should be specified. There will not be any difficulty in, as the noble Baroness, Lady Anelay, put it, "landing a punch" on the sham colleges by listing the criteria which have to be satisfied by an organisation wishing to be on the list.
We were looking at something much broader than that. Until this evening, the only example that had been given of an objective and factual requirement was the colleges. Now the Minister has kindly given us another one, which needs a little analysis. As the noble Lord has said, whether someone has the funds to set up in business is a question of fact and that would be ascertainable by evidence submitted by the applicant in the form of a bank statement, for example. However, the noble Lord then said that doubts could arise on whether the funds were the applicant's own or whether they were under his control.
That precisely illustrates our point. If the entry certificate officer says that the funds are not under the applicant's control or belong to someone other than the applicant, but he has no objective reason other than his suspicions for saying that, then these matters ought to be subject to independent appeal. They should not be treated as objective and readily verifiable facts. That is the distinction that we have sought to make all along: between matters of fact, which are properly to be dealt with under this power, and somebody's opinion, assessment or judgment, on which there ought to remain a right of appeal.
If this example had been given to the JCHR and it had been able to consider it as part of its scrutiny of the legislation, it might have said, as I do, that the example demonstrates our doubts about leaving the clause as it
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is. I did not understand the noble Lord's explanation of why it was impossible to incorporate our suggested wording in the clause. However, we shall have to be satisfied with his assurances, which enable outsiders to rely on the Pepper v Hart statements that have been made more than once on the Floor of the House. If there are any further discussions on this, we shall have to leave them to another place to pursue. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 38 [Immigration Services Commissioner: power of entry]:
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