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The noble Baroness said: My Lords, in moving Amendment No. 1, I shall speak to the other amendments in the group. This group of amendments has been proposed in response to concerns and suggestions raised during Grand Committee in your Lordships' House and elsewhere. I am grateful to all noble Lords and to members of different stakeholder groups who have made representations to me. As noble Lords will see, these amendments will confirm in-country rights of appeal against variation decisions, as is the case under existing legislation.
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We maintain that it is important to create an effective single appeals system. Throughout the passage of the Bill, there has been a great deal of agreement in your Lordships' House that that is an important principle. We have therefore created within this group of amendments a new power to make removal decisions in order to achieve this.
Under these provisions, appellants will be able to contest variation and removal decisions at the same appeal, while continuing to remain in the UK with continuing leave. The amendments fit into the wider strategy of implementing an end-to-end migration process and will incorporate other elements of the five-year strategy. As your Lordships will know from this legislation, that includes the introduction of e-borders, for example, which will help us to know when people comply with the terms of their leave.
I will briefly speak to each amendment so that noble Lords can see how they fit together. Amendments Nos. 1, 2 and 3 are part of a package of government amendments which confer in-country appeal rights on a broad range of applicants. First, the existing right of appeal against decisions to refuse to vary and to curtail leave will be retained by virtue of Amendment No. 1. As a result, it is no longer necessary to confer a separate right of appeal against variation decisions for specific categories of leave. Clause 1(4) is therefore deleted.
Our intention behind these amendments is to allow variation and removal decisions to be made simultaneously and for both decisions to be contested at the same appeal. These amendments will ensure that variation appeals fit into the wider strategy of implementing the end-to-end managed migration process.
Amendments Nos. 4 and 5 are consequential to the package of provisions that we have introduced to ensure that in variation, curtailment and revocation cases there should, so far as is possible, be a single in-country right of appeal at which the enforcement decision can also be considered. As a result of the retention of variation and curtailment appeals by virtue of Amendment No. 1, it is no longer necessary to allow people to raise previous decisions as grounds for appealing against a removal decision. Therefore, Amendment No. 4 removes this provision. Amendment No. 5 makes a consequential change.
Amendments Nos. 12 and 13 provide continuing leave for people who are bringing an appeal against refusal to vary, curtailment and revocation of indefinite leave. This means that people will be able to exercise an in-country right of appeal and benefit from continuing leave during that appeal. Amendment No. 12 corrects a technical problem with the existing continuing leave provision in Section 3C of the Immigration Act 1971. Under the current version of Section 3C leave continues while an appeal could be brought without specifying whether to trigger an extension of leave; the appeal can be brought in the UK or elsewhere.
Amendment No. 12 inserts a condition that leave will be continued only where appeal may be brought in the UK or where such an appeal is pending. The
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change has been made to make it absolutely clear on the face of legislation that leave will be continued only where an appeal against a decision to vary leave could be brought in-country.
Amendment No. 13 is designed to ensure that the continuation of leave provisions provides an appropriate period of extended leave for applicants who are challenging decisions to curtail limited leave or to revoke indefinite leave to remain. It will bring the position for these appellants into line with the present position for persons who are challenging a refusal to vary leave. At the moment, leave is continued for appeals against refusals to vary decisions by Section 3 of the Immigration Act 1971 whereas for curtailment and revocation decisions leave is continued by Section 82(3) of the Nationality, Immigration and Asylum Act 2002.
The provisions of Section 82(3) of the 2002 Act do not extend leave beyond its original expiry date. Therefore, it is theoretically possible for a person's limited leave to expire midway through the currency of their appeal. To address that problem and for the benefit of coherence, Amendment No. 13 will bring all of the continuation of leave provisions into the same format and will extend leave in curtailment or revocation cases during the period in which an appeal against such a decision could be brought or is pending.
Amendment No. 14 removes Clause 13. Clause 13 would ensure that someone who has complied with the terms of their leave would not be liable to prosecution under Section 24(1)(b)(i) of the Immigration Act 1971 as an overstayer. It was introduced in response to concerns that we were enforcing illegality on people by virtue of Clauses 1, 3 and 11. However, the amendments which have been tabled at this stage will provide for continuation of leave during any appeal against a variation, curtailment or revocation decision and, therefore, Clause 13 is no longer relevant.
Amendment No. 15 provides an order-making power to limit the scope to certify clearly unfounded human rights claims under Section 94 of the 2002 Act. This would mean that where a type of leave was designated it would not be possible to use Section 94 powers in relation to variation appeals. We believe that it is important to take firm action against those who clearly make unfounded claims which is why the power to certify was extended, as noble Lords will remember from that legislation, to variation appeals in the 2004 Act. Introducing the order-making power does not change that position but we consider that the type of leave a person has before making a clearly unfounded claim may be relevant to whether they should be able to bring an in-country appeal. No decisions have yet been reached on what types of leave, if any, fall into this category but an order-making power ensures that we can seek Parliament's early approval if we decide that some types of leave should confer an in-country appeal right even where a person is making a clearly unfounded claim to extend his stay.
Finally, Amendment No. 42 creates a new power to make a decision to remove someone from the United Kingdom. The intention behind the amendment is to
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allow the enforcement decision to be made at the same time as the decision to revoke, curtail or refuse to vary leave. When two such decisions are made before an appeal is lodged, the tribunal will, by virtue of Section 85(1) of the 2002 Act, be required to deal with matters in a single set of appeal proceedings. That will address the issue of variation and removal decisions, triggering the separate appeal.
Baroness Anelay of St Johns: My Lords, I welcome these amendments. They achieve the Government's original aim of a one-stop appeal process. They also meet the concerns we on these Benches expressed in Grand Committee that the appeal should be in-country and that the people's leave should be preserved on the same terms and conditions until that appeal is finally determined. We thus avoid the unacceptable result of the original drafting of Clause 1 whereby people would automatically have been turned into overstayers with all the damaging consequences that could have had. We also avoid the necessity for the artificiality of the Clause 13 situation that was introduced in another place as a rather last-ditch attempt to save the Clause 1 procedure.
So, I am certainly grateful to the noble Baroness for the work she has done between Grand Committee and Report. The Government have fully met the commitments the noble Baroness gave in Grand Committee. On that more pleasant note, I am not sure whether others have had the opportunity to do so since last Wednesday, but perhaps I may congratulate her on being elected Peer of the Year by Channel 4 and the Hansard Society.
Lord Dholakia: My Lords, I too thank the Minister. She has obviously listened to the arguments we put forward at Second Reading and in Committee. I add my congratulations on her nomination and approval as Peer of the Year by Channel 4. I trust that that particularly generous award will be reflected by her approval of many amendments tabled by this side of the House.
Like the noble Baroness, Lady Anelay, I think that the amendment meets the three main concerns we have set out. First, it meets the Minister's aim of a one-stop appeal; secondlya point we had made again and againit requires that there should be an in-country appeal; and, thirdly, it requires that people's leave is preserved on the same terms and conditions until the appeal is determined.
I need to ask the Minister one simple question. Perhaps she could explain this. The need for a 10-day grace period for those who do not appeal is to preserve the status quo for the future if they were asked to leave the country. Will that remain in this Bill? Will the
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Minister also confirm that government amendments do not create any new powers over and above what is available in these amendments?
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