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We recognise that the Home Affairs Select Committee in another place recommended a restriction on new evidence similar to that provided in Clause 19. However, the Select Committee added that there should be a further stage at which the case worker issues a minded-to-refuse notice for an extension of leave, giving an applicant an opportunity to counter the draft refusal by submitting further evidence that would be considered by officials rather than by the AIT. However, Clause 19 would preclude the consideration of evidence submitted in response to a minded-to-refuse notice. We therefore suggest that the AIT should be obliged to consider only evidence submitted up to the date on which the appeal is lodged, giving the BIA plenty of time to consider it before the hearing. If there is to be a minded-to-refuse stage, applicants would have the chance to address points made and to correct errors arising from a misunderstanding or miscalculation. It would also accommodate the Home Office’s concern that new evidence should be considered by the BIA before it goes to the AIT.

So although we are satisfied that the procedures rules afford the AIT adequate powers to deal with the problem that exists, we have accepted, following consultations with ILPA, that a solution can be found within the framework of Clause 19, and we hope that, without necessarily committing himself to the precise wording of our amendment, the Minister will agree that reasonable opportunities must be given to applicants to submit further evidence related to the circumstances at the time of their application in good time to be considered by the BIA at a stage before the hearing. I beg to move.



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Lord Hylton: Given that many applicants are not legally represented, and that many applicants have not had legal advice before any hearing, the amendments are well worthy of consideration.

Baroness Anelay of St Johns: I beg the Chairman’s pardon; I thought that the noble Earl, Lord Listowel, had risen to speak. He may yet do so. Indeed, we may all have the opportunity to do so fairly shortly. The noble Lord, Lord Avebury, has been very helpful in tabling the amendments. We were certainly aware in our briefing meetings with all the organisations before the Bill was laid that Clause 19 was a matter of some concern. I hope that the amendment gives the Government the opportunity to clarify how they expect the process to work. I do not believe that the Government are trying to be difficult in preventing proper information coming forward, which would mean that there would be a satisfactory adjudication made in each case.

I hope that the Minister will explain more clearly than we have seen in the Explanatory Notes why the Government have felt that it is appropriate and necessary to change the rules. We do not want to end up with a new system, which, by lack of clarity, means that there could be a longer procedure during appeals and more difficulties put in the way of appeals by those who feel that they are being badly treated. What exactly will be the time constraints within which evidence can be submitted? Why have the Government decided that they should no longer consider substantive evidence if it is available only after the original immigration application has been made?

The Earl of Sandwich: The Minister asked for more pertinent arguments, and we have heard a very pertinent argument from the noble Lord, Lord Avebury. The Law Society points out that this will bring an enormous increase in applications. There will be more judicial reviews and more letter writing to and from Members of Parliament. Do the Government really want more paperwork?

Lord Bassam of Brighton: When I was looking at the amendments, I felt more warmth and sympathy to this one than I did to the previous one. Members of the Committee have raised some important issues. Issues relating to processes surrounding appeals tribunals and so on are very important because we need to get the processes right. So I am grateful to noble Lords for tabling this amendment and for giving me the opportunity to explain a little of the Government’s thinking. As I understand the amendments, they would negate the purpose of Clause 19 by allowing new evidence on any matter to be submitted in any appeal under the points-based system—PBS—subject to the sole condition that the evidence must have been submitted no later than the notice of appeal.

There is no reason why points-based system applicants should be able to do that. Under the PBS, they will be told, in clear terms, exactly what evidence they need to submit to qualify for points. It is

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therefore perfectly fair to expect them to submit that evidence with their applications and not later, as these amendments propose, which is part of the difficulty—the lateness at which evidence is allowed to be brought forward.

If accepted, the amendments would move the points-based appeal system away from what we regard as its purpose, which is to allow the Asylum and Immigration Tribunal to decide whether the appellant’s application was correctly refused. Allowing new evidence would mean that the tribunal would be making its own decision on a different basis to the decision of the Border and Immigration Agency. In effect, the appeal process would be looking at a different case. It would not be reflecting on whether an error in judgment had been made when the case was first considered, which is the nature of the problem.

Clause 19 contains enough safeguards to ensure that it is fair. For example, new evidence will be allowed in order to challenge an allegation by the Border and Immigration Agency that a piece of evidence is not genuine, or to refute a reason for refusal that is not based on the acquisition of points. On those issues, new evidence will be allowed. However, subject to those exceptions, the principle that new evidence will not be allowed in points-based system appeals is, in the Government’s view, correct. The amendments are not compatible with that, so, for those reasons, we cannot accept them.

The noble Lord, Lord Avebury, referred to the Home Affairs Select Committee’s recommendation that we might consider introducing a minded-to-refuse stage into the application process. As we said in response to the Home Affairs Select Committee, we agree that there may well be some benefits to a minded-to-refuse procedure. However, we need to weigh them against the financial implications of adding another stage to the decision-making process. Our preference is to make changes that simplify the decision-making process. That is not just in the interests of the state but also those of the applicant, because over the many years that I have been dealing with this subject, a constant complaint has been the labyrinthine and complex nature of the process. I think we all agree on that. Over that time, we have been trying to make the process more transparent and simpler for those caught up in it. We are not currently convinced that the introduction of a minded-to-refuse process will aid simplification, which is another reason for not going along that route.

The noble Lord, Lord Avebury, also posed a question about whether the Asylum and Immigration Tribunal has the power to exclude evidence through the procedure rules. That is correct, but the aim of the points-based system is to ensure that the criteria are so clear that there will be no need to put evidence in at the appeal stage.

The noble Earl, Lord Sandwich, made the point that frequently there is not proper representation. We are trying to design a process where there is clarity, where the criteria are plain and simple and where what should be put in front of the appeal body at the appeal stage is obvious to all. Relying on the AIT’s

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powers to exclude late evidence does not go far enough in ensuring that applicants are clear that they need to submit all relevant evidence at the time that they make their application.

[The Sitting was suspended for a Division in the House from 4.56 to 5.06 pm.]

Lord Bassam of Brighton: I had almost finished my peroration, such as it is, before the Division. I was trying to respond to various points, including that made by the noble Earl, Lord Sandwich, on the Law Society briefing on the Bill. I think that the point related to Clause 19 and the notion that it might lead to an increase in applications for judicial review, requests for assistance from MPs, and so on. I suppose that it could lead to more judicial reviews. However, in cases where an applicant is refused for not having submitted the required evidence but then obtains it later, they should make a fresh application. The merits of their case could then be properly considered by the case workers rather than by means of the appeals process. It would be wrong to turn the appeals process into a second-form case consideration at tribunal level. We do not think that that would be a good or intelligent use of the appeals process. That is essentially why we think it right to rely on case analysis rather than tribunal analysis. Obviously we want to get to the point where the case workers make the correct decision in as many cases as possible.

We see no reason why this proposition should lead to more judicial reviews or other representations. Under the points-based system there will be fewer areas for dispute because the applicant will be guided to ensure that the right information is supplied. If the applicant provides the specified evidence, they will get the points. There will therefore be less scope for challenging the BIA decisions. It will be a much more guided process and clearer. What the applicant has to provide and the evidence required will be clearly identified for those who are in the process. As an outcome, there should be fewer calls on MPs’ time for assistance and fewer judicial reviews.

Baroness Anelay of St Johns: Before the noble Lord, Lord Avebury, responds, perhaps I may say that I am grateful to the Minister for the way in which he has delineated the importance of having the appeals process as one that is distinct from the initial decision-making process and that it should not simply look at the whole thing all over again as if it were a new case. To tease him a bit, I note that the Government are considering changing the way in which the Court of Appeal considers cases. If they bring forward some of the proposed changes, the Court of Appeal will hear cases ab initio and there may be some parallel arguments to be made by the noble Lord, Lord Avebury, regarding the Bill—but long after I have finished this brief. That is not quite my legacy to the Minister.

I would be grateful if the Minister could give an assurance on the record regarding one matter which has been raised with me by noble Lords on my Benches who act as vice-chancellors to universities.

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They hope that there is a circumstance that would come within the permitted part of Clause 19 that says that if a document is not valid it may be presented later. The circumstance that I have in mind is where someone under the points-based system seeks to come here and presents evidence of having achieved a certain level of educational attainment—which carries with it particular points. The document has been sought in all honesty, and that person has attended and completed a course satisfactorily, but when the institution issues the document it makes a simple error, whereby perhaps the wrong date is given for the attendance of that person at that course. If that is discovered during the proceedings and the person is accused of having an invalid document, can the Minister assure me that the person who has to seek a new document setting out the correct information would not have to go back and start the whole process over again but would be able to bring the information later?

Lord Bassam of Brighton: I am grateful to the noble Baroness for her comments. I understand the tease; different policy, different area, not for me. It is an interesting point. Proposed new Section 85A(4)(c) allows evidence to be submitted at the appeal to rebut a decision by the BIA that a document is not genuine or is invalid. I think I made this point earlier. We would envisage evidence being produced by the applicant to correct that kind of clerical, typographical or administrative error. I think that it would fall within that exception. The interpretation is sufficiently broad to enable that to be the case.

Lord Avebury: The point raised by the noble Baroness was by way of example and was maybe not unique. Documents that are submitted with the application may turn out to be invalid for one reason or another, and she has given a particular instance of an incorrect date being given that could well have been corrected once attention had been drawn to it. Supposing that there are other instances of a similar kind—not leaving universities—and pursuing the line of thought introduced into our debate by the noble Baroness, I suggest that in many cases it would be critical to the student to have his application considered on the proper date, which it would not be if he had to submit a fresh application. If he misses that opportunity and by submitting a fresh application is out of time for the university term, he may lose the right to attend a particular course. That was the reason why—without suggesting, as the Minister put it, that we introduce a new stage into the process—there could at least be consideration of evidence that was submitted up until the time of the appeal. That would give the BIA an adequate opportunity to look at the evidence before the appeal was heard, and it would not be faced, as it says sometimes happens now, with evidence coming in at the very last minute or on the day of the appeal.

I have made the case and the noble Lord is aware of the arguments. I leave him to consider it in the hope that perhaps between now and Report we can find a solution that is acceptable not only to your Lordships but to the many applicants under the

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points-based system who may otherwise lose their rights under that system. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

5.15 pm

[Amendment No. 34ZB not moved.]

The Deputy Chairman of Committees (Lord Brougham and Vaux): If Amendment No. 34A is agreed to I cannot call Amendment No. 35 due to pre-emption.

Lord Bassam of Brighton moved Amendment No. 34A:

The noble Lord said: Amendments Nos. 34A and 36A implement the Delegated Powers and Regulatory Reform Committee’s recommendation that the power to specify,

the application be vested in the Lord Chancellor rather than the Home Secretary.

On reflection, we agree with the committee’s recommendation. Our amendments will therefore allow the Asylum and Immigration Tribunal’s procedure rules, laid down by the Lord Chancellor, to make the necessary specification, rather than have them appear in the Immigration Rules which are made by the Home Secretary. I beg to move.

Baroness Anelay of St Johns: My Amendment No. 35 appears in this group. As the Lord Chairman remarked, it is pre-empted by Amendment No. 34A—and I am delighted that it is. I could have a little vanity trip and read out a page and a half of speaking notes but today is not the time to do so. I tabled the amendment only to elicit the response from the Government that they have given in Amendments Nos. 34A and 36A, which satisfactorily meet the recommendations of the Delegated Powers and Regulatory Reform Committee. I am grateful to the Government for doing so and support the government amendments.

Lord Avebury: We were grateful to the noble and learned Baroness, Lady Scotland, for the letter of 22 June explaining that Amendments Nos. 34A and 36A were tabled following the recommendations of the Delegated Powers and Regulatory Reform Committee, as the noble Baroness has just said. The committee is to be congratulated on its vigilance, though regardless of whether it is the Home Secretary or the Lord Chancellor who makes the rules on,

the application, under the points-based system the negative procedure will apply. As I understand it, the amendment makes no substantive difference to the way in which the clause operates—perhaps the Minister can confirm that—and does not address the major flaw in Clause 2, that applicants are to be given no opportunity to correct straightforward errors in their original evidence.



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Lord Bassam of Brighton: The noble Lord is probably right on his second point—I shall think about it a bit more; he may be right on both points. The issue here is to put right something that we spotted earlier. We are grateful to the Delegated Powers and Regulatory Reform Committee and the noble Baroness, Lady Anelay, for drawing out the issue. We think that the other issues are a separate consideration.

On Question, amendment agreed to.

[Amendment No. 35 not moved.]

Lord Henley moved Amendment No. 36:

The noble Lord said: As we have been discussing, Clause 19 further restricts the right to appeal. In appeals against refusal of leave to enter or of variations of leave to enter or remain, the AIT will be prevented from considering evidence adduced by the appellant which was not submitted at the time of making the original application where that application was made under the new points-based Immigration Rules. Representations have been made to the Minister that this clause will affect applicants who have not had the benefit of sound immigration advice when they submitted their original application, because they would not be able to adduce evidence crucial to the case at the appeals stage simply because the evidence was not submitted at the time of the application.

Our application would give Parliament a role in examining how this new restriction operates. It would, as the amendment makes clear, require the Secretary of State to lay before Parliament within 12 months of the commencement of the clause a report on the way in which the new restriction has operated. I appreciate that the Minister will claim that a report on these matters will be part and parcel of the report made by the Border and Immigration Inspectorate, but it is important at this stage in our debates that the Minister explains just how he expects the restrictions in Clause 19 to operate fairly when they appear to disadvantage those who do not have access to legal advice. I beg to move.

Lord Avebury: There was an interesting discussion on a very similar amendment in the Public Bill Committee on 15 March. The Minister, Joan Ryan, said then that there would be reports to Parliament on the operation not only of Clause 19 but of every other clause, and that the independent inspectorate would look at the points-based system, including its appeal system, and the operation of Clause 19, as the noble Lord, Lord Henley, has just acknowledged. The Secretary of State would then lay its annual report before Parliament. Then, in accordance with Cabinet Office guidelines, there would also be a post-implementation review of the Bill, including Clause 19 itself. So although my honourable friend the Member for Rochdale supported the Conservative amendment in the Public Bill Committee, having

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discussed it with him and having listened to the Minister’s explanation on that occasion, I believe that the noble Lord, Lord Henley, would have concluded that Parliament would have adequate opportunity to review the workings of Clause 19 and, indeed, the rest of the Bill.

Lord Bassam of Brighton: The arguments have not moved on greatly since that consideration. I listened very carefully to what the noble Lord, Lord Henley, had to say. He is right to anticipate my response that the role of the chief inspector for the Border and Immigration Agency, which Clauses 47 to 55 introduce, will of course include the operation of Clause 19 as part of the inspector’s duty quite properly to consider the treatment of appellants. This would introduce a disproportionate and unnecessary, even overburdening, reporting requirement, and would make the whole process rather more bureaucratic than it needs to be. We are often upbraided for introducing disproportionate and unreasonable reporting requirements on those who are involved in monitoring or law enforcement. I am sensitive to those issues. We should apply those duties with care. It is also worth saying that, in accordance with Cabinet Office guidelines, our regulatory impact assessment in any event commits us to conducting a post-implementation review of the whole Bill, including Clause 19. A copy of that report will be placed in the Library of each House.

The further report demanded by the amendment would be unnecessary, and it would not justify the resources required to prepare it. It would also introduce unnecessary duplication. I hope that the noble Lord will consider those points and withdraw his amendment.

Lord Henley: I am grateful to the Minister for his response. He told us that the arguments have not moved on, but went on to assure us that a regulatory impact assessment will be made by his department and copies of it will be placed in the Library. When is that likely to take place? Will it be a one-off assessment or will further regulatory impact assessments be made in later years? I would not want to overburden the Home Office, which has a great deal to do, particularly when it is not passing further legislation, but it might be that such large parts of the department have been hived off to the Ministry of Justice that it has a little more spare time on its hands. Before I withdraw the amendment, I will be grateful if the Minister will let me know a little more about the timing.

Lord Bassam of Brighton: It is a bit difficult to do that because it would depend on the details of the implementation timetable, which we are giving further consideration to in our leisure hours. The noble Lord teases me about the Home Office, but it is a not-infrequent tease. It will not have escaped his notice that in the next parliamentary timetable there appear to be fewer Home Office Bills than we have been used to. I cannot say that that is going to be the case for ever, but it will free a bit more time so we can give issues of this sort more consideration.



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Lord Henley: I am grateful to the Minister for the assurance that there will be fewer Bills from the Home Office, but there will, no doubt, be yet more from those bits of the Home Office that have been moved to the Ministry of Justice. We look forward to seeing the Minister assisting that department as well as the Home Office in due course. I appreciate that he cannot give a precise time when the regulatory impact assessment will be made, but I, or my successors, look forward to seeing it in due course. In the mean time, I beg leave to withdraw the amendment.


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