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Lord Laird: My Lords, several concerns have been raised about the impact of Clauses 1 and 4 on international students. Universities UK and other groups, including the Immigration Advisory Service; the National Union of Students; the Council for International Education; the Association of Colleges and others, are opposed to measures that would abolish rights of appeal in entry clearance cases, and where students have been refused leave to remain.
The objection is twofold. First, it is felt that it is manifestly unfair to remove a right of appeal when the decisions taken, particularly in the case of initial entry clearance, are frequently found to be wrong or inappropriate. Secondly, it is feared that the removal of this appeal right would add to the impression already created by a number of recent measures relating to visas, that the United Kingdom is making it harder to obtain a visa to study in the UK.
Universities have asked the Government to reconsider, particularly the measures in Clause 4. They point to evidence that it is becoming harder to attract international students, and that many of our
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universities are experiencing a downturn in international student recruitment. They also point to the enormous benefit international students bring.
In the context of Northern Ireland, these issues are particularly pressing. The Queen's University of Belfast and the University of Ulster are both seeking to increase the number of international students they attract. That is important not only in terms of income from fees, but also for the contribution such students make to the intellectual resource of the university. In Northern Ireland the student population is largely homogeneous compared to other regions of the UK, so international students add much to the diversity of the student body, which is beneficial not only to the university but also to the wider community.
Economically, the intellectual capital that international students represent is particularly important to Northern Ireland. As in Scotland, where the Government have recognised the need for skilled inward migration and helped to achieve that by focusing on attracting international students through the "Fresh Talent" scheme, Northern Ireland needs international students to help us achieve economic development. So in Northern Ireland, as elsewhere, this is the wrong moment to be putting barriers in the way of the efforts of our universities and colleges to recruit internationally.
The Minister may argue that this is not what the Bill is about, but there is compelling evidence that if the right of appeal is abolished, hundreds and thousands of students will be turned away as a result of bad decisions by entry clearance officers. The evidence is that decision-making is so variable and frequently poor that the system badly needs the safeguard of an appeal mechanism. I shall give one example from Northern Ireland but I am sure the House will hear many others this afternoon. I am told of a student who applied from Cameroon to study at an English language school in Northern Ireland and was informed:
"You have further stated that you intend to study this course in Northern Ireland so that you can also improve your English. If this is your aim and English is not your first language, I do not find it credible that you would choose a school in Northern Ireland to do these studies".
The student was refused a visa in August this year. The case was brought to the attention of the Northern Ireland Department for Employment and Learning. The case was passed to the Foreign and Commonwealth Office for a response. The Foreign and Commonwealth Office replied by admitting that mistakes had been made and that the entry clearance officers were wrong to make judgments about the suitability of particular regions for particular courses. I am told that this is not an isolated example. Indeed, the impression that it is not is borne out by the report published in February this year by the Independent Monitor for Entry Clearance, who said:
"In relation to students I have found both in 2002 and 2003 that ECOs are effectively adding a number of additional requirements under the auspices of the requirements of intending to leave at the end of their studies and being able and intending to follow the course set out in the Immigration Rules. Specifically I find it unacceptable that students should be refused because they have
In the light of these examples I have some serious concerns about the abolition of students' right of appeal, given that the entry clearance officer's decisions continue to be made on what appears to be an arbitrary and subjective basis.
I understand that the Government hope that the introduction of a points-based immigration scheme will improve decision-making. I hope so, too. But the Government should bring forward plans to abolish the right of appeal in such cases when and only when they have proved that the safeguards offered by appeals is no longer necessary because no one is wrongly refused a visa. At the moment, appeals are very necessary to the credibility and fairness of the system. I hope the Government will think again.
There are other concerns about the Billspecifically the way in which Clause 1 operates. Clause 1 aims to create a one-stop appeal system in leave to remain cases. There is no objection to that. But the way in which the Government have chosen to achieve this will mean that a large number of unsuccessful applicants for leave to remain will become illegal over-stayers through no fault of their own and as a surely unintended consequence of the way the Bill is drafted. I hope that we will have time to examine this measure in detail in Committee and that the Government will address the problems with the current drafting.
Lord Avebury: My Lords, the noble Baroness, Lady Anelay, started this debate four and a half hours ago by entering a plea for consolidation. In that she was echoing the advice that we have been given by the Law Society, and that was the implication of several of the speeches we have heard this afternoon, such as that of the noble Lord, Lord Hylton, who said that this was the eighth measure that had been introduced since 1987. I was trying to calculate how many there had been since 1971 when I came into the House. It would certainly run well into double figures. When we last discussed the subject of consolidation, on the 2002 Act, I made an amendment partially to consolidate the 1971 Act and in particular Schedule 2, which has been patched and altered in most of the Bills since then over the years and is now to have a little more of its cornice knocked off in the repeals under this Bill.
The Minister who replied then, the noble Lord, Lord Bassam, recognised that the case had been made out. He said that he could not proceed until,
That means that it will be put off for ever. I hope that when the Minister replies this evening she will be able to give us a little more assurance on the time scale for
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consolidation. In particular, she might be able to say whether the consultation has begun with the Law Commission, which would be the first step towards consolidation. Would the Government be prepared to agree to the consolidation of Schedule 2 if I tabled that amendment again as a first step towards a more comprehensive exercise?
Every commentator from outside this House, including those who addressed your Lordships upstairs yesterday evening, has been unanimous in their criticism of the reduction of appeal rights. We all know about the disastrous effect that the Bill would have on the ability of the universities to sustain their intake of good overseas students. In particular we heard from the noble Baroness, Lady Warwick, but she is by no means the only one to have majored on this theme this afternoon. I want to quote only one letter which I received from Ms Helen Bagshaw, who is a student at Balliol College and pointed out to meand I think that these were the figures given by the noble Baroness, Lady Anelaythat 25 per cent of student appeals against refusal of entry clearance in 2003 were successful and that where the applicant received professional help from the IAS in conducting the appeal, the success rate went up to over 60 per cent. But it is not only students who suffer from the low quality of initial decision-making on entry certificates. The noble Lord, Lord Chan, gave us an extremely good example in the case of the Chinese catering industry.
This low quality has been highlighted by the National Audit Office and the independent monitor which was referred to by my noble friend Lady Sharp. The monitor, who addressed us upstairs yesterday evening, said that the use of subjective criteria, inappropriate reasons for refusal and frequent misinterpretation of evidence presented by applicants was a problem. Yesterday, she also said that it was very unlikely that entry certificate officers who were dealing with 40 cases a day, having very little guidance and insufficient training, would attain a good level of fairness and efficiency. As my noble friend Lord Dholakia said, in her current report of February 2005 she points out that 28,000 people had wrongly been denied rights of appeal in 200203 under the existing system, and her advice to Parliament was to consider this when, as she correctly anticipated, consideration was given to whittling down the rights of appeal still further.
The one concession that was dragged out of the Minister, Tony McNulty, in another place was that the removal of appeal rights would not come into effect until the points system was fully in place, except for people under tier 1, the equivalent of the present Highly Skilled Migrant Programme. The new points scheme is not in the Bill, but it is not the simple single scheme that has been advertised. I also hope that the Government will find time to debate the report of Sub-Committee F, which did not find that points schemes were inherently superior to work permit systems and said that they were not best at meeting labour market needs because employers may not find what they need among people who are admitted because they possess
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some general set of attributes, rather than the specific qualities that are sought under the work permit system. Conversely, more people having a particular skill may be admitted than are needed to fill the jobs in the favoured categories. Until we see the small print we will have no way of knowing whether the subjective judgments of ECOs, and therefore the propensity for error in the system, will be reduced by the new scheme.
My noble friend Lord Dholakia made specific mention of the evils that have resulted from Clause 9 of the Asylum and Immigration (Treatment of Claimants, etc.) Act. I wish that my noble kinsman Lord Russell was still with us because I am certain that he would have had something to say about the need to rescue families trapped in destitution as a result of the creation of a new category of "failed asylum seeker with family". The research which is now being conducted by Barnardo's demonstrates that Section 9 is wholly incompatible with the Children Act 1989, that the families affected did not understand the process, and that local authorities felt it was an attempt to shift the burden from the IND to local budgets. My noble kinsman said that the protection of the weak, in one of the 17th century phrases he always had ready to hand, was,
We shall do our best to restore that keystone, with a virtual plaque on it to his memory.
The appearance of Clause 51, which arouses the concern of UNHCR as a,
of the convention, reminded me of the debate we had on the order designating a very large list of offences of varying degrees of severity as being "particularly serious" and therefore automatically such as to exclude a person from being considered as a refugee under Article 33(2) of the convention. The UNHCR guidelines on interpretation require a high threshold to be placed on the interpretation of Article 33; that each case should be assessed individually on its own merits, and that there should be proportionality between the offence and the consequences of a refusal of asylum. Now the Government, having got away with breaching the guidelines on 1F(b), which excludes those who committed serious crimes from consideration as refugees, apply the same logic to 1F(c), which, as we have heard, deals with acts contrary to the purposes and principles of the United Nations, even though the Minister admitted that we had never been obliged to admit someone to the UK as a refugee because we lacked this provision in our law previously.
We are greatly indebted to the Joint Committee on Human Rights, which has once again come up with important warnings just in time, and it is right about the iniquity of Clause 53, which allows somebody to be deprived of his British citizenship, even if born here, if the Secretary of State thinks, for example, that something he has said "justifies" terrorism. There are similar objections against Clause 54, under which a person may be deprived of his right of abode where the
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Secretary of State is satisfied that it would be non-conducive to the public good, a test which under the 1971 Act has never been subject to proper judicial review.
Regarding Clause 52, which was dissected in some detail by the noble Baroness, Lady Stern, although the Security Council has indeed said in Security Council Resolution 1373 that acts of terrorism are contrary to the principles and purposes of the United Nations, the Government define "terrorism" according to the 2000 Act, extending to any act of violence against persons or property anywhere in the world. The encouragement or inducement of others to commit, prepare or instigate such acts, whether they were actual or threatened, would also bring the individual within 1F(c). This is not the restrictive interpretation required by UNHCR, and it would have caught many heroes of the past, from Harry Hotspur to Cromwell, Garibaldi and Kossuth through Adam von Trott to Nelson Mandela, Isaias Afewerke, Meles Zenawi and John Garang. All those were freedom fighters who would have been debarred from the protection of the convention if this clause had been in operation. We agree with the JCHR that in the context of this Bill a narrower definition of terrorism is needed, and the offences to be covered should be actual rather than inchoate.
Finally, the UNHCR commends the Government for the arrangements being made for the inspection of detention facilities, but it deprecates the absence of an automatic right to a bail hearing, for which the Government made provision in Part 3 of the 1999 Act, but then reneged on in the 2002 Act. In fact, Clause 45 merely puts the chief inspector's existing role in detention centres, short-term holding facilities and escort arrangements within the scope of the Prison Act 1952, another area of the law in desperate need of consolidation. As has been said, the chief inspector does a fantastic job, but her periodic reviews of whole establishments do not remove the need for judicial review of individual detentions. The Refugee Children's Consortium drew our attention to the growing number of children in immigration detention75 at the end of September, compared with 35 on 17 May 2004, as stated by the noble Lord, Lord Bassam, in a previous debate in response to an amendment of ours on the treatment of claimants Bill. He rejected our proposal for a systematic assessment of the needs of children in detention because the number was trivial and the vast majority were held for very short periods. But since the number has doubled over the intervening 18 months, and we still have no idea how long the children are being held, we need much better oversight of what is happening, and I hope this time round we shall be much firmer with the Government.
On detention generally, although its purpose is said to be the facilitation of removal, one of our witnesses told us that the number being detained was twice the number being removed and that although the number of asylum seekers in detention had gone up to 1,695 two weeks ago, that had not resulted in a proportionate increase in removals. So the propensity
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to lock up asylum seekers has increased, and one of our witnesses upstairs said that it was a case of filling all the bed spaces available. On Sunday I spoke on the telephone to Miss Amanda Sibiye, a Zimbabwean who has been in Yarl's Wood detention centre since 8 April, and on hunger strike in protest against her detention since the beginning of November. She has lost 10 kilograms and the doctor from the Medical Foundation who examined her last week recommended that she be transferred to hospital, but the authorities declined to do that. A system that holds people in custody for eight months and ignores medical advice to release them is manifestly in need of regular judicial oversight, and we hope that if the Government are not prepared to implement Part 3 of the 1999 Act, they will come up with equivalent safeguards for vulnerable asylum seekers being held in detention indefinitely.
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