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The Government's plan to abolish appeals in non-family cases was in the general election manifesto. It did not exactly shout out that students would have their appeal rights removed. I suspect that the implication of the text of the manifesto was not crystal clear to the public, but I accept that the provisions in this Bill accurately apply the commitment in the manifesto. As such, therefore, I have from the beginning acknowledged that the Salisbury convention means that I should not, and I would not, do anything to undermine the operation of Clause 4.
Debates in Grand Committee showed that there was opposition on all sides of the House to the Government's plans to abolish appeals for those who apply out-of-country for visas to come here to work and study. I expressed my concern both on Second Reading and in Grand Committee about that abolition of a right of appeal and its replacement by a system of administrative review. In Grand Committee, the Minister offered to take time to explain to noble Lords how the Government expected the new administrative review procedures to work and, in particular, how they would try to remove subjectivity from the decision-making process of the entry clearance officer. I believe that the Minister has met that commitment with good will and energy.
I am grateful to the Minister for arranging to meet my honourable friend Damien Green and me last week, so that IND officials could make a presentation on how they hope the new points system may work. The noble Lord, Lord Avebury, has just referred to that PowerPoint presentation. I was impressed by their optimism and determination to establish a system that is both fair and accessible and one that should try to remove from the equation that subjectivity in decision-making. I do not question their professionalism and dedicationfar from itbut there are significant questions that remain to be answered.
What is the timetable for the roll-out of the application of the various tiers of the points system? What is the number of staff that will be involved in the retraining of entry clearance officers and when will that training be completed? Will staff be trained on a country-by-country basis or on the basis of point of application? What are the plans for monitoring the quality of the initial decisions? If somebody objects to the results of that initial review and requests a review, how long might they have to wait for the outcome? What information will be given to them as to the reason for upholding or overturning the original decision? How will the Government raise awareness of the new system among small employers, who will not have access to the advice systems that may be put in
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place by affected/effective organisations such as UUK? Here I add my appreciation to UUK for all the hard work that it has done in briefing noble Lords on all the issues throughout the Bill process so far.
How will a proxy accreditation scheme for small business work? The Government say that there will be a carrot-and-stick approach to the points rating of employers. How will they determine the initial rating of employers? What information will be used and how reliable will it be? How will the new system deal with complex cases and high-risk areas such as poor track records or new sponsors? Those questions could go on for everit is tempting to do sobut I think that I have put there more than my baker's dozen which I had originally intended.
I realise that the results of the consultation will be published soon, as the noble Lord, Lord Avebury, said; one hopes it will be within the next month. It is vital that this House should consider the results of that consultation before Third Reading. It would therefore be helpful if the Minister could say whether she agrees that it would be best if the House had that opportunity.
I have reflected carefully on the work carried out by the Government on the new system of administrative review. It is important for everyone that it should work well. It is also important for Parliament to have the guarantee that it will have the opportunity to hold the Government to account for the operation of the administrative review system. It is in that spirit that I have tabled Amendment No. 9, which I hope will be seen as a constructive move forward. The amendment requires the Secretary of State to lay a report before Parliament within three years of Clause 4 being put into effect, a report that would have to set out the details of what system of administrative review has been set up and how effective it is, taking into account the number of cases and the number of applications for further review after the initial decision. As ever, I am not wedded to the drafting of that amendment, but it is offered in a constructive spirit.
Baroness Warwick of Undercliffe: My Lords, in speaking to Amendment No. 10 in this group, I declare an interest as chief executive of Universities UK. I cannot hide my disappointment that the Government have not proved willing on this occasion to listen to our concerns about Clause 4, which will abolish the right of appeal in entry clearance cases. No substantial improvement has been made so far to this aspect of the Bill. As the noble Baroness, Lady Anelay, said, there is a manifesto commitment in play which of course ties the hands of this House. But it does not remove the possibility of making real improvements to the Bill.
As we know, the quality of initial decision-making is poor. With respect to students, about 34 per cent of applications are initially refused. Of those who appeal, one in four is successful. In plain English, entry clearance officers get decisions wrong with alarming frequency. The Government have argued that the new points-based immigration system will solve the problem. It appears, however, that Ministers are
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confident that this will happen overnight because it is clear that the Government intend to remove the right of appeal as soon as the points-based system is in place.
The noble Lord, Lord Dholakia, has tabled Amendments Nos. 76 and 77 in this group, which would create an opportunity for the system to be tested before appeals are abolished. I wholeheartedly support that approach. Under the current scheme, there will be no opportunity to test the Government's assertion that the new points-based system will work and will improve the quality of decision-making. Although we all hope that that will be the case, there are reasons to doubt that it will, which I have set out in a detailed letter to the Minister this week.
As the noble Lord, Lord Dholakia, said, the details of the scheme are yet to be published. I hope that we will see it before Third Reading. But from what we know, it is clear that there will remain an element of subjectivity in the process. As Tony McNulty, the Minister, has said in another place,
"100 per cent objectivity is a fool's errand . . . It is not about simply ticking boxes and adding points up, although that is a large part of the measure. We do not know how points will be allocated and what weighting will be given to different criteria".[Official Report, Commons Standing Committee E, 20/10/05; col. 116.]
There remains the fact that errors frequently occur under the current system, as a result of entry clearance officers failing to follow the existing rules. How can the Minister be confident that that will not happen under the new system? I hope that better training and resources will improve things, but I remain unconvinced that the new points-based system will be a magic-wand solution. If the Government are wrong and errors still occur, or it simply takes some time to get the system working well and train the people who are to operate it, those who lose out will have no opportunity for independent redress.
That is particularly disappointing because the Minister's own department, the Department for Constitutional Affairs, has made it clear that the Government are committed to providing independent adjudication where decisions taken by government officials affect people's lives. The July 2004 DCA White Paper, Transforming Public Services: Complaints, Redress and Tribunals, stated:
"in a democracy ruled by law, and under a government committed to high quality and responsive public services, simply appealing to a department's sense of fairness is not, and never has been, enough".
I hope my noble friend at the Dispatch Box will make it clear on the record that she agrees with the statement; I do. If she does agree, can she explain how it is consistent with the Government's intentions on entry clearance?
There is still time for the Government to achieve consistency between that statement and the entry clearance system. Amendment No. 10 would create an opportunity to do just that. It provides for the Government to appoint a person or body independent of the decision maker with power to review decisions in individual cases. Given the DCA's commitment to
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independent adjudication, I have suggested that this scheme should have the endorsement of the Lord Chancellor. I have not sought to bind the Government's hands on who should take responsibility for such an independent review and, no doubt, the Government can improve on the drafting. But in the five-year plan the Government have already committed themselves to producing a scheme for administrative review. All I ask is for that system to be given a statutory basis, for the principles to be set out in secondary legislation, and for it to include some element of final independent arbitration.
I know that my noble friend has been thinking about the scheme and I am most grateful for our conversations about it. But I would appreciate it if she could confirm several points: that administrative review will be available to all those refused visas; that entry clearance officers will provide written reasons for refusing visas and invite applicants and their sponsors to make representations; that the review should allow for the clarification of existing evidence; that responsibility for conducting the review will rest with the regional tier of entry clearance staff; and, finally, that the independent monitor will sample review cases and monitor procedure in relation to students. The reason I ask for these specific commitments is that so far we do not have any concrete proposals for the review, which was promised as part of the five-year plan and we know that the administrative review process that exists under the current system does not deliver results.
I believe the record will show that this House is well aware of the problems with the scheme the Government have set out. The Minister still has an opportunity to listen to those arguments and to make appropriate changes. At this point I should like to thank the noble Baroness, Lady Anelay, and the noble Lords, Lord Dholakia and Lord Avebury, for their determination, tenacity and continuing support for this approach. The Minister has a reputation in this House for listening and delivering real improvements to legislation. In speaking to Clause 1, all those who intervened complimented her on the fact that she was so willing to listen. Notwithstanding all of the constraints this House is under in view of the manifesto commitment, I hope she will take the opportunity now before us and bring back some concrete proposals before Third Reading.
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