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Baroness Ashton of Upholland: My Lords, I am grateful to all noble Lords who have participated in the debate. I begin where the noble Lord, Lord Lewis of Newnham, ended. I would like to enhance our reputation. The point that was made by my noble friend Lady Warwick on the number of decisions that are overturned on appeal is the reason and the driving force for the new system that is being proposed, which
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is a much better proposition. My role, notwithstanding any conventions, is to try to convince your Lordships' House during the passage of the Bill that we have that right.
One of the ways I want to do that is to make a promise. The promise is specifically directed at the noble Lord, Lord Avebury, but I believe that it will be welcomed by your Lordships' House. I have discussed it very briefly with the noble Baroness, Lady Anelay, and I know that she will welcome it. As noble Lords have indicatedI think that the noble Lord, Lord Avebury, used the word "shortly"the response to the consultation will be published. I give the commitment that Third Reading of the Bill will not take place until that is published and noble Lords have had at least a few days to consider it. I do not have a publication date yet; my pay grade is not sufficient to be given such an honour, but as soon as I have one I shall make sure that noble Lords know it. If for some reason the publication were delayed, we would move the Third Reading date accordingly. The purpose of that is to achieve precisely what noble Lords want, which is to look at the consultation and to have the opportunity to meet myself, my honourable friend Mr McNulty and officials. I was grateful for the thanks that noble Lords have given for the meetings that officials have held with them over the past couple of weeks.
One should also understand that the stakeholders involved in thisI refer not only to universities but also to other education institutions and employers, large and smallplayed a critical part in designing the new system. They will have a continuing role to play in making sure that we get it right. Noble Lords rightly mentioned the difficulties that arise with the current system. I am sure that there are wonderful entry clearance officers and entry clearance managers and I know that noble Lords do not mean to imply that they are not, but I accept that mistakes are made and that judgments are arrived at. Largely because of the judgmental nature of the way in which decisions are made it has been important to have an appeals process. That has proved itself through the number of successful appeals. But that is not the system that we will be dealing with. The system will be specifically designed with all those factors taken out.
One issue that has been raised continuously with me by representatives of Universities UKI am always sorry to disappoint my noble friend Lady Warwick, despite my efforts to meet her concernsmembers of the Chinese community and others, has been considering the subjectivity of intention to study. That will not be in the new system, because the people who will decide that someone is going to come and study in this country will be the institutions. They will determine by giving someone a place that they are qualified and able to study and that they meet the requirements, just as they do with students here.
The other issue that I am often told about is that people supply many pieces of information, largely to give financial security to entry clearance officers in the sense of giving them all sorts of information that they
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might need. Without pre-empting what will happen, we hope that the system will streamline that process totally, so there is transparency regarding what information is needed for the individual who is seeking to apply either to come to this country as a student or who has a job offer and is coming in as a worker, so that they know what they need to supply in the points-based system and they understand the importance of supplying it.
I apologise if the seven-page PowerPoint presentation did not do it for the noble Lord, Lord Avebury, but I have sought to get peoplewhether Members of your Lordships' House or people outsideto understand that we have to forget the existing system and all that we loved or hated about it and think about a transparent system at which any applicant can look and work out how many points they will need and how they will gain them and that the same system is being looked at by an entry clearance officer at the point at which the applicant is seeking to have the application ratified and to come into the country.
That transparent system will do a number of things. It will prevent people speculatively trying to come into the UK, which will have an impact, because it will show people what they will need. It will enable the institutions and employers to play a far greater role. We are talking about how to make sure they have a positive relationship and we are discussing with Universities UK what role the institutions might play in querying if there is an issue. It will enable people to see at a glance precisely what information is required, so we do not get the bundles of paper that lead to the issues and problems that have been raised.
When I talk to the officials at the Home Officenoble Lords must remember that I am not a Home Office Minister, which is sometimes an advantage in this process, because I am not part of it and can therefore ask more difficult questionsI am clear that here is a system that sounds infinitely better for everyone; not least our hard-pressed entry clearance officers in terms of being able to understand and see what will happen. It is in that context that we began to think about what kind of mistakes or issues we would need to take forward. It is not an appeal against someone's judgment; it is looking at what might be the issues and problems.
I invited all noble Lords who took part in our deliberations in Committee or whom I have met outside and the universities and other institutions to come forward with examples of decisions that have gone wrong, which might be decisions that could not be addressed by what I have described as the administrative review. I am still waiting to find one that either would happen or could not be dealt with.
When we looked at what we need to do to make sure that things do not go wrong, my concern was that there was still of course the possibility of human error. Even with a system that has taken out huge amounts of judgmentI will talk about the final judgment in a momentwe still have the potential for someone to misread a piece of information; to write down the
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wrong number for the points, and so on. What could we do that would create a better system than the one we have currently but would recognise that that could happen?
Noble Lords who have dealt with appeals will know that they can sometimes take up to two years. I want a system that means that a student, for example, is not prevented from coming to their course because someone read a number wrong. We need to design an administrative review system that has a number of elements: first, that it is free, which it will be; and secondly, that it is speedy, which it must be. We have asked universities and employers what is an appropriate length of timeI am talking days and weeks; certainly not monthsto make sure that we can handle an assumption that everyone who is refused will call for a review. Therefore the time period has to be manageable within the system but the system must make sure that no one misses out on either a job offer or a university or college place because it has taken too long. How do we make sure that that is done in such a way that people have transparency?
Any decision that is made that says that an applicant will not be entitled to come must give within itthe noble Baroness, Lady Anelay, asked about this point in her opening remarksthe specific reason why the applicant has been turned down. That enables the applicant, or the institution if it plays a role, to say, "Hang on a minute, you have read that wrongly", or, "You have misinterpreted that information". The review is done of a very specific, relevant piece of information or of a fact that can be looked at.
Lord Avebury: My Lords, does that mean that during the process of monitoring by the independent monitor the applicant will be able to submit written evidence to show where the decision is faulty and to contest any incorrect statement that has been included in the decision? The applicant will not be able to give oral evidence, will he? It will simply be a matter of making written representations to the monitor.
Baroness Ashton of Upholland: No, my Lords, the independent monitor does not play a role in this. The independent monitor is much further up the system. He will be in a full-time position, looking across a sample of cases. We talked about this a lot in Committee. He will perhaps look at particular countries where there have been particular issues. I am describing a process which we still have to work out and which is not set in concretewhere someone more senior in the area looks at whether someone has misread bank account details or miswritten the number of points. We are talking about a very clear administrative system. The individual can reapply; there is nothing to stop anyone reapplying.
That is the kind of process that we seek to put in place to address precisely the questions that will be raised, bearing in mind that the subjectivity has largely been taken out. The one area where we still have to have a discussionand I am grateful to my noble friend, because she mentioned this area in her letter this weekis where you believe that the
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documentation before you may be forged, or something of that nature, in which case one might say that professional judgment has a part to play. That is what my honourable friend Mr McNulty referred to when he said that you can never 100 per cent rule things out, because you have to consider whether the information before you is forged or accurate. We have to think about that. We are talking about an administrative review, not an independent anything. It is not an appeal by the back door. I will not pretend to your Lordships that that is what I am looking for. I am looking for a system that will provide a greater and better impetus for people to come to this country as students or workers; I am looking for a system that is much more transparent and makes it much easier for people to understand what they have to provide to do so. The system should give them greater opportunities to participate in education or in work in this country; that is the ambition behind it.
I will now address the specific points that noble Lords have raised. The noble Baroness, Lady Anelay, gave me a series of questions. Some of them will be answered when the documentation is available, but I will seek to deal with those questions as best I can. We have a five-year strategy to roll this out in a phased way, so I do not have a specific timetable at this point of how it will come in. The idea is to phase in the different tiers over time. The noble Baroness is absolutely right that we need to think about the number of staff that we need for training. Part of the design is how we make sure that we have got the right kind of training in place; we absolutely do not underestimate the importance of that. Whether we take a country-by-country approach will be part of looking at what will work best. We will use a phased approach, but we need to think about how to do thatwhether it should be country by country, or all of one tier.
On the quality of initial decisions, I hope that I have given a flavour of looking for transparency and objective criteria so that people can understand the process effectively. We are looking at the details now so that we can make sure that people get the information in a clear, objective and transparent wayfor example, if they are refused. The noble Baroness, Lady Anelay, raised the issue of small employers, on which we are consulting. Not surprisingly, members of the Chinese community have raised it with us, because they represent a large number of small employers. We are looking carefully at how to ensure that we involve them appropriately and how we make contact and keep contact with them. That is much easier with big employers who have a number of people coming through and where we will be able to develop personal contacts for them. We need to make sure that we have got that right. That also applies to an accreditation system for small businesses.
We want to ensure sure that the basic procedure is in place so that we can obtain the initial ratings. We will aim to have more compliance checks while people get their ratings right. There might be a provisional rating that will then come into force as we have more compliance checks. I am not seeking to prevent people
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participating or to discourage or discriminate against them because they do not have a long track record. The use of compliance checks is to help them.
I can tell my noble friend Lady Warwick that the administrative review is available to anyone who is refused. Written reasons will be given, as I have indicated. There is no regional tier involved. Such regions are huge areas of the world, but my noble friend and I can continue to talk about this. I have indicated that the independent monitor will carry out a sampling exercise.
I have talked at some length about the administrative review and, sneakily, I thought that my noble friend would start quoting my department at me. I have the quotation, too. The noble Baroness quoted section 3.13. Section 3.12 states:
So I stand by what we said in 3.13. The noble Baroness will know that I am responsible for tribunals within my own areas of policy. We are saying that we need to make sure that people dispute with departments and agencies. We are doing that and the administrative review enables it to happen. There are still rights of appeal on human rights and race relations grounds; there is a route to judicial review; there is a level of independent scrutiny by the independent monitor; and the noble Baroness may wish to note that the document states on page 15:
Noble Lords will remember from Second Reading that we are seeking to achieve a better use of resources across all our work on asylum, immigration and managed migration. It is important that we achieve that.
Turning briefly to the amendments that have been spoken to, I do not think that the noble Lord, Lord Dholakia, will be surprised that I do not accept Amendment No. 6. However, I am interested in Amendment No. 9, which I hope will please the noble Baroness, Lady Carnegy of Lour. She wanted me to accept that amendment here and now. My difficulty is that there is a technical problem with the drafting, as I have already explained to the noble Baroness, Lady Anelay, who accepted that explanation. The amendment is worthy of consideration for the exact reasons that noble Lords have stated. I am happy to take it away for further consideration and return to it at Third Reading.
My noble friend Lady Warwick and the noble Lord, Lord Dholakia, know that I shall resist Amendment No. 10 regarding creating a review of the kind that it describes. I understand why noble Lords want to put matters on the face of legislationit is a guarantee of what the Government are seeking to dobut there is no reason to fear the introduction of our administrative review system. It is important that we introduce the system and we are committed to it, but
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making that process statutory on the face of legislation would bring with it all the difficulties of creating rigidity in a system that needs to be flexible. It is also an administrative review, which would not sit well with being statutory. However, we are committed to doing it and will work closely on it with my noble friend and others.
I shall not accept the idea that Clause 4(1) cannot come into force until at least January 2010, because this is a better system for future students and employees; when we are ready to introduce it, we should do it properly. I do not want to be captured by legislation that sets out a date that may be inappropriate for many reasons, although I understand why noble Lords want to set a date.
Regarding Amendment No. 77, I bow always to the Delegated Powers and Regulatory Reform Committee. I have not yet failed, nor do I plan ever to fail, to accept what it says. So when it does not say something, I take that to mean that noble Lords on that committee are reasonably content with what we have done. They made no comment on the procedure in Clause 59 and, therefore, I do not propose to accept that amendment.
I hope that the explanations and the commitments that I have given about Third Reading may offer some cheer to noble Lords and perhaps some greater understanding of why we are proposing a new system with a new process rather than thinking about the old system and the concerns that quite rightly noble Lords have had. On that basis, I hope that at this stage the noble Lord will feel able to withdraw the amendment.
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