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I am now informed that the existing extra-statutory concession which the Minister said would be incorporated into the Immigration Rules allows for the application itself to be lodged within the extension time, but not for corrections to be submitted to a document bundle that has been properly lodged within the permitted leave to remain period. It therefore does not cover the examples we discussed in earlier stages of people such as students or work-permit holders whose original application was refused because of some mistake or misunderstanding in putting together the application itself or its supporting documentation, but which is out of time to correct the error in a new application.

I draw your Lordships’ attention to a point raised by the noble Baroness, Lady Anelay, on 18 July. She raised the particular case of a person who is refused as a result of producing in good faith a document containing a significant error. On that occasion the Minister said in his reply:

As I read the let-out in Clause 19(2), new evidence can be produced—I should be grateful if the Minister would pay attention to what I am saying, because I hope that I will have an answer from him. If he could defer his conversation with the noble Lord for a few minutes I would be extremely grateful.

As I read the let-out in Clause 19(2), new evidence can be produced only if it,

whereas in the noble Baroness’s example, which I have just mentioned, the document was clearly invalid because of the errors. I respectfully ask the Minister to consider that his interpretation of proposed new Section 85A may not have been correct, because it does not allow the application to provide information that the original document failed to give in error or to expunge incorrect information that the document gave also in error.

The difficulty that both we and the Government seek to address is best achieved by adding to the list in proposed new Section 85A(4), as in our amendment,

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so that it is included in the Bill alongside the other rules on the circumstances in which the tribunal may consider new evidence. In many cases, that wording would allow the matter to be disposed of earlier than under the 28-day extension because, if there is an error of the kind that we are thinking about, the BIA would presumably spot it and refuse in good time for the applicant to correct it well before the 28-day limit. I beg to move.

4 pm

Baroness Hanham: My Lords, I made it clear at Report that I had a great deal of sympathy for the amendment of the noble Lord, Lord Avebury, as I have for the one that he moved today. For a whole new application to be required because of a simple misunderstanding is counterproductive, and an appeal which must consider the facts presented in the original case is no way of ensuring that procedural errors can be rectified before final judgment is given. I hope that the Minister managed to hear most of the comments made by the noble Lord, Lord Avebury, and is able to respond to them.

The Archbishop of York: My Lords, most of the cases that come to my notice, where people request that I write to the Minister to ask him to use his discretion, involve mistakes and misunderstandings. Most asylum seekers’ first language is not English, and even when they have learned a little, they do not always get the correct advice. Our immigration advisers are not always competent in making sure that no mistakes are made or in understanding what has been said. The amendment would cure much of my correspondence with Ministers of State about misunderstandings and errors. If, as the noble Lord suggested, further evidence emerges within the notice of appeal that can help to provide correct information in cases which would otherwise be turned down because of incorrect information, my sense tells me that that would be the best way to proceed. I support the amendment.

Lord Bassam of Brighton: My Lords, I am grateful to noble Lords who contributed to the debate and to the noble Baroness for her reminder to address the issue. I shall try to do exactly that. I want to take noble Lords through how the process works and try to offer some measure of reassurance.

Clause 19 would ensure that in appeals brought against refusals of applications made under the points-based system, the appeals system considers the facts which led to the decision being appealed and will not be an opportunity for applicants to patch up failed applications with new evidence. That is the purpose of Clause 19.

The appeals system exists so that any errors made by the Border and Immigration Agency in considering an application can be corrected. The amendment would lead to it being used to correct errors made by the applicant in applying. That is not the purpose of the appeals system as it exists. The noble Lord is rightly concerned that migrants who

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make mistakes in their applications will be unduly penalised. I hope I can offer some reassurance when I say that the points-based-system application process will be much clearer than the existing one about the evidence that applicants must submit.

Applications under the points-based system will be made online, not through filling in long forms where the applicant has to identify the relevant boxes. The online system will guide applicants carefully through the process and signpost the way. Applicants will fill in a self-assessment form before making their formal application so that they know whether they are likely to qualify. When they complete the application online, they will indicate the categories in which they believe they qualify for points. The website will then tell them exactly what evidence they need to send to the BIA in order to prove that they qualify for the points. For example, if they claim points for having a degree, they will be told to send in their degree certificate. There will also be a call centre that they can phone if they are unclear. Therefore, there will be far less scope under the points-based system for migrants to send in the wrong evidence or to make the kind of mistakes that the noble Lord is concerned to prevent. Those who do make mistakes in their application despite the additional information and help that we will provide will have to make a new application. We do not believe that that is unreasonable, especially given the lengths to which we are going to make the requirements clear.

The Border and Immigration Agency will have to make a new decision on the new evidence and it is only fair that the applicant should pay the cost of the administration. Concerns have been raised that the applicant will not be able to make a second application if they make an innocent mistake. It has been suggested that, by the time the mistake has been identified, they will not have any leave and their applications will be out of time. If a person applies to extend their stay and they are applying after their leave has expired, it is correct that they would normally be refused. However, where their leave expired less than 28 days previously, the Immigration Rules will provide a grace period. By that I mean that a migrant who does not have leave to be here will still be able to have his or her application considered provided that his or her previous leave expires 28 or fewer days before they make the second application.

Lord Avebury: My Lords, this is the vital point. If the applicant had previously submitted a document that contained a clerical error and he has already been refused, is he, having had that application rejected, then entitled to submit a new application enclosing the correct documentation or correcting the error made in the form within 28 days after the expiry of his existing leave to remain?

Lord Bassam of Brighton: Yes, my Lords, that is what I am saying. The Government believe that the points-based system will provide an adequate remedy for migrants who have made mistakes in their application, which is the point that noble Lords have made.

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Lord Roberts of Llandudno: My Lords, in what language will we be communicating with these applicants who might have made mistakes?

Lord Bassam of Brighton: My Lords, it is fair to say that assistance is given to applicants so that they can comply with the application process. Advice will be available to them to ensure that their application is not defaulted, as it were, because they do not have a full and ready command of the English language.

The Lord Bishop of Winchester: My Lords, that point, among many, seems critical. Can it really be that the noble Lord does not have friends whose first language is English and who are familiar with computers but who get into stews of one sort or another when faced with long documents and the need to press the right buttons at the right moment? Yet he and his department are putting a lot of faith in people, at a point when they are under great pressure, filling in forms correctly and getting all the things in the right boxes.

Does the noble Lord remember that the original White Paper had the word “fair” in it? The detail with which we are dealing here seems likely to be anything but fair, especially when, at point after point in the process of these last months, we have noted the significant extent to which there are real inadequacies in the provision of legal services at the right moment and around people having sufficient time with a lawyer—we have heard of people who have had perhaps a quarter of an hour or 20 minutes with one. We have heard about the real difficulties with translation services and with people getting to the right detention centre and so on. It seems extraordinary that, at point after point, the noble Lord and his predecessor have seemed utterly determined on this, as if there were brownie points for getting through one of these sittings without giving anything away. That is the impression with which I am left after sitting through hours of this process. I would like him to consider especially the presence of that word “fair”.

My last point concerns the consistent reiteration of the noble Lord, Lord Judd, who unfortunately is not in his place today, of the effects on cohesion when people feel themselves constantly to be treated unfairly in the process. Their friends, relatives and compatriots receive an impression of an unfair and oppressive system.

Lord Bassam of Brighton: My Lords, the reason for having a points-based system is to ensure that there is greater transparency—that is how I can best put it. As I explained earlier, applicants will have a much clearer idea of what is expected of them in making the application because the points-based system spells it out. On the issue of fairness, that is obviously the most important point.

We make every effort all the way through the process to ensure that applicants are not disadvantaged because of issues of language and understanding. Of course we expect the application to be completed in English, but we need to remember that we are talking about

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people who are coming here to work and study. In any event, those coming to do skilled work will need to speak the English language. However, advice and assistance are quite properly available so that applicants can deal with any difficulties that may arise in how the application works.

I had rather hoped that noble Lords would let me take them through the process. By following it, they may have a clearer idea of what we are trying to do with the new points-based system. I would argue that the proposed amendment will not work within the framework of the appeals system. It is designed to allow the Border and Immigration Agency to reconsider its decision at the point when a notice of appeal is lodged rather than when it is actually heard. Even if we had the resources to make new decisions without charging a second application fee, we would still find it impossible to make new decisions before the hearing. A notice of appeal is lodged directly with the Asylum and Immigration Tribunal, not the Border and Immigration Agency. The tribunal lists the appeal for hearing 28 days from receipt of the notice of appeal. By the time the agency receives a notice of appeal, there is simply not enough time to make a new decision without causing other delays to the appeal system.

Finally, it is worth saying that there is a risk that if this amendment was adopted, everyone who wished to put in new evidence at the appeal stage would claim that they have made a mistake. We would not want to enter into complicated litigation over whether a mistake was made, whether it was inadvertent or whether the entire basis of the application had changed. However, this amendment would encourage exactly that. For those reasons, we believe that the amendment is unnecessary and potentially harmful to the success of the points-based system, which generally has been accepted as being a fairer means of making an assessment and coming to a conclusion.

I believe that there is an outstanding question from the noble Lord, Lord Avebury. He asked about the scope of Clause 19(2). If the BIA rejects a document as invalid or not genuine because of an administrative error, we believe that in most cases the exception in the relevant section will allow evidence to correct the error to be admitted, as it will be evidence that the document is valid. I hope that that answers the noble Lord’s point.

Lord Avebury: My Lords, the new subsection states clearly that new evidence can be considered only if it,

We are considering a case where a document is manifestly not genuine or is invalid because of an error. It could be that the person has put the wrong piece of paper in the post or there is a clerical error on a particular form. It is the other way round from the circumstances described in the particular subsection I mentioned.

4.15 pm

Lord Bassam of Brighton: My Lords, I do not necessarily agree with the noble Lord. In most cases it will be acceptable. I understand the level of concern

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about this matter but we have a process here which should work better and which is fairer in the way it operates. I hope that I have answered the various points about fairness, language and access and so on. Those are important to this matter. We need to bear in mind the nature of the applicant that we are talking about.

Lord Avebury: My Lords, is the Minister asking the BIA to consider any old evidence that the applicant may submit at his own discretion, which he is for some reason pretending to be an error or omission? If the Minister says that it is not the purpose of the BIA to be punitive for applicants who patch up submissions that are incorrect, that means that it will be able to exercise discretion between cases where somebody submits a piece of evidence along the lines of our suggestion and those where somebody is simply trying to find a lever to reopen the case as a whole. I do not agree with the Minister that it would be difficult to make this distinction.

I am grateful to the noble Baroness, Lady Hanham, and to the most reverend Primate for the support that they have given the amendment. The most reverend Primate has emphasised that errors and misunderstandings inevitably occur—that is the case in any large system. Our experience—as his is—is that this occurs constantly in the immigration and asylum system.

I have no doubt that the points-based system will be clearer and that errors are going to be rare, but that does not mean that they will not occur. As I understand the Minister, the person will be able to complete all the questions online and—assuming all the information that he has given is correct and that he has not mis-keyed and typed an “I” where he meant a “7”—will then get a response from the system which is either favourable or not. In a sense, he is able to test the arithmetic of the application but not to verify that the documents to be submitted with the application—the noble Lord gave as an example a degree certificate—will satisfy the requirements. It is those cases—where there might be an error on the certificate from the university that he submits, for example—that we are anxious about, but we are not going to get any further with this matter this afternoon.

I express some gratitude to the Minister for at least saying—as I had originally thought—that if a person submits an incorrect application that is considered within time and the notice of refusal is served on the applicant, and if it turns out that refusal was based on some error or misunderstanding on his part, he will still be able to submit a fresh application within the 28-day grace period after his existing leave to remain has expired. That is not what the extra-statutory concession allows, but having the Minister’s assurance in Hansard will help to ensure that the final wording in the Immigration Rules satisfies what we had originally intended. I beg leave to withdraw the amendment.

Amendment, by leave withdrawn.

Clause 21 [Children]:

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Lord Bassam of Brighton moved Amendment No. 4:

(a) ”

The noble Lord said: My Lords, I am not going to crow at this point, but the right reverend Prelate the Bishop of Winchester accused me earlier of not making any concessions. Here I am going to make a concession, and I make it as graciously as I can. I pay tribute to noble Lords on the Conservative Benches. The noble Baroness, Lady Hanham, and her predecessor in this brief—the noble Baroness, Lady Anelay—both pressed me on this issue. We had a very constructive discussion on it on Report and I am grateful to all those who have helped us perfect the amendments.

The amendment tabled by the noble Baroness, Lady Hanham, required that contractors providing services for the Border and Immigration Agency should have to follow the same code of practice on keeping children safe from harm as the BIA. I said at the time that the Government sympathised with the amendment and that they had inserted a section to that effect in the code of practice. We have now considered the amendment put forward by the noble Baroness, and the two amendments to Clause 21 tabled by the Government have the same effect. Importantly, they also make the Border and Immigration Agency responsible for ensuring that those with whom it makes arrangements to provide services follow the code of practice. This is in contrast to it being simply the responsibility of the contractor alone. This now puts it beyond all doubt that those providing contracted services on behalf of the BIA have exactly the same responsibilities towards children as the Border and Immigration Agency’s own staff. I beg to move.

Baroness Hanham: My Lords, I thank the Minister for listening to us on this issue. In an area as sensitive as the one we are dealing with, where the Government are relinquishing their responsibility into the hands of agents, it is right that those agents should have to conform to the same practices as other people.

I am grateful to the Minister for having taken the matter away and looked at it, and I am particularly grateful for the fact that it is now on the face of the Bill rather than only in the code of practice. We have not won on very much, so in thanking the Minister I will quit while we are winning on this one.

Lord Avebury: My Lords, we are also grateful to the Minister for one of only a handful of concessions that have been made by the Government all the way through the Bill. None the less, the amendment is welcome. I also thank him for his letter of 18 October following our discussion on the extension of the obligations in the code to private contractors.

When we first raised the issue, we pointed out that many of the existing contracts had years to run and we asked whether the obligations would apply to them as well. I do not wish to repeat the examples that I gave except to mention Yarl’s Wood, the IRC where there have been major concerns in the past. The

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management was awarded to a new contractor in the spring and we were informed that one of the first things it did was to get rid of some 50 members of staff. To an outside observer, it was not clear how this would result in better compliance with the obligations in the code. But if it is not to be applied to that new contractor—if it is only to be applied to existing contracts when they are renewed—it will have two and a half years in which to get its act together, which would take a lot of the gilt off the gingerbread of this clause.

We also hope that there will be a formal system of recording alleged breaches by contractors of the code of practice and of having them investigated, presumably by the BIA chief inspector, in collaboration with an appropriate independent agency such as the Children’s Commissioner.

I accept that the code should not apply to fostering of UASCs, as I had suggested previously, because those arrangements are made by the local authority rather than the BIA. They would therefore be subject to Section 11. That was not entirely clear from the Minister’s previous answer and I would be grateful if he would comment on it.

The Lord Bishop of Winchester: My Lords, I, too, am grateful that the Minister has brought forward this pair of amendments; I accept that it is some response. As the saying goes, one swallow does not make a summer, but I thank the Minister.

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