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Many students unwittingly became overstayers because of payment problems, when the BIA payment systems rejected valid credit cards. By the time the students had received notice of their rejected payment, they

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had inadvertently become overstayers. I emphasise that these students were not illegal migrants seeking to disappear into the UK workforce, but people seeking to maintain their regular immigration status through an application and payment of £295 to the BIA. We also know that they are making good progress in their studies, since all applications have to be supported by their institutions. Considerable distress ensued from this rather over-zealous policy implementation, as students were told to leave the country and had their documentation confiscated. Many of these students were nearing the completion of their qualifications and had invested considerable resources in the UK to come here to study.

However, it is not all bad news. Following lobbying by Universities UK and the UK Council for International Student Affairs—UKCISA—we were pleased and relieved when, in January 2008, the BIA announced at the joint education taskforce meeting:

It is also welcome news that the BIA has agreed to work with UKvisas to draw up guidance for entry clearance officers to prevent entry clearance refusals solely on the grounds that students had overstayed and therefore had been refused leave to remain as students and so had to return to their home countries at considerable interruption to their studies. I understand that this guidance has now been issued to entry clearance posts by UKvisas.

In conclusion, I seek two assurances from the Minister. First, does the position about the BIA’s treatment of overstayers, as stated in the JET meeting in January 2008, still hold true, despite the changes we are considering tonight, which were announced on 6 February to this House? Secondly, will the Minister provide for the House a copy of the guidance about overstayers and their treatment that was issued by UKvisas to entry clearance posts around the world? A positive response to these two requests would certainly go some way to reassuring the higher education sector that the Home Office is listening to it on this important matter.

Baroness Hanham: My Lords, when we were considering the UK Borders Bill, the measures to introduce the new points-based system must have been considered reasonably uncontroversial as they were left to be introduced on a negative procedure, which would have happened today had the noble Lord, Lord Avebury, not drawn attention to this matter. He has lighted upon a number of issues, which will be germane not only to the statement we are discussing, but possibly to others which will follow as the other tiers are introduced.

I understand that this statement is primarily about tier 1, which deals with highly skilled migrants who wish to work or become self-employed in the United Kingdom, but those that follow on will take us through the whole gamut of those who wish to come into this country or to stay here, having already arrived. Of course, what will change is the number of points that will have to be achieved, the documentation required

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and the level of financial support among other requirements. In this process, there will be endless room for error in providing what is required. As the noble Lord, Lord Avebury, has pointed out, it also appears that any fault in the documentation, whether intentional or not, will simply mean failure at once, with little room for appeal or rectification. When we discussed this during the passage of the UK Borders Bill, the noble Lord, Lord Bassam, said:

I repeat the words,

I believe that that was a different quote from that given by the noble Lord, Lord Avebury, so we can make sure that we throw it back where it came from. Where in the statement on tier 1 is mentioned the possibility of appeal and any guidance about it?

The question of errors in documentation is particularly serious in terms of applications which involve children, since they cannot be accountable themselves and must rely entirely on their parents or other adults to submit them on their behalf. Like other noble Lords I have received a briefing from the Refugee Children’s Consortium, which is concerned that there is a mandatory refusal of a child's application—as indeed there is with an adult’s—if any false document or statement has been submitted or made. Effects flowing from that will effectively ban a child’s re-entry to the UK, which could even apply later when he or she is an adult. What consultation was undertaken on these changes, particularly with the Refugee Children’s Consortium, and, as the noble Lord, Lord Avebury, has mentioned, other interested bodies? How long was the consultation and when did it finish?

No one is going to condone or suggest condoning the intentional falsification of documents or false information being provided. The concern lies where the matter is unintentional; there could be a minor administrative error—a tip of the keyboard, perhaps—which may be discovered very shortly after the application has been submitted. Will there be any leeway for genuine changes to be made or will any application be automatically turned down, with a consequent refusal of entry in the future?

The statement is clear throughout that at the request of the Department of Health application for entry as a doctor in training will not be agreed. Here I declare an interest as a non-executive member of a teaching hospital. This means that no putative non-EU doctor can aspire to train in this country unless he is here already under previous admission criteria. I suppose that is at least a small step forward, considering that at one stage it looked as though non-EU doctors would be heaved out immediately. Is it anticipated that this will be a permanent prohibition or just one to help us over the extraordinary mess that has been made of doctors’ training, with a bulge that will have to be ironed out over the next two or three years? There is a certain irony that for many years we were only too happy for overseas doctors to come here to train and

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to gain experience either to return to their own countries, which benefited from that training, or to remain in this country to work for our health service. Does the bald prohibition in these changes hide consultation with countries such as India and other Commonwealth nations on this matter?

The points system is now under way. It is therefore important that not only is it clear, but that the explanations are also a model of clarity so that every avenue in the statement is covered. Appeal against refusal, and the process and timescale for it, does not seem to appear. I suggest to the Minister that it should do so on each version of these rules as the tiers are covered. Perhaps he will consider that for future such statements.

Lord Roberts of Llandudno: My Lords, the noble Baroness, Lady Warwick, mentioned concessions, but we cannot find such concessions in the order itself. Possibly the Minister can tell us exactly what these concessions are and how he is going to deal with them. Is there a concession regarding transitional arrangements, especially under paragraph 47, which is a very worrying provision. Without transitional arrangements, many people are going to suffer a grave injustice. We need to recognise the human rights implications, particularly on the right to private and family life for those who have established themselves. Given that, what are our obligations under Article 8 of the Convention on Human Rights? Is this something to which the Minister can say, “Yes, it has been cleared and we are meeting our obligations under the convention”?

We see the difference between old paragraph 320 of the Immigration Rules and the present one. It sets out the general grounds for refusing applications for entry clearance or leave to enter the United Kingdom. “General grounds” means simply that the grounds for refusal apply to any application and are not specific to any category or type of application under the rules. Some of the grounds for refusal are mandatory and some discretionary, but new paragraph 47 tightens up the whole system by listing additional mandatory grounds for refusal. These include where an applicant has previously breached the UK’s immigration laws by overstaying. If he has overstayed for 28 days or less and has left the UK voluntarily, not at the expense of the Secretary of State, that is all right, but otherwise an overstay of even a day over 28 days could incur a severe penalty. Another ground is breaching a condition attached to the applicant’s leave. What happens there? Then there is being an illegal entrant or using deception in an application for entry clearance unless the deception took place more than 10 years ago. Others are someone who left the UK voluntarily and not at the expense of the Secretary of State more than 12 months ago, someone who left the UK but at the expense of the Secretary of State more than five years ago, and someone who was removed or deported more than 10 years ago. All these new regulations will cause a lot of confusion in certain quarters.

The scheme tries to set out particular behaviours that will trigger a ban and set out the particular circumstances governing the length of the ban. The

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general intention is that breaches of immigration law should result in a ban on the person returning to the UK for a fixed period in the future. The general intention here is to provide an incentive to those who have breached immigration law to leave voluntarily and at their own expense, in which case their ban is only for 12 months, otherwise the ban will be for between five and 10 years. The one exception is where deception is used, in which case the ban will be for 10 years.

We on these Benches oppose the bans in principle. It is our position that the current rules are adequate in allowing for breaches of immigration laws to be taken into account in relation to any application to come to the UK. In addition to this position of principle, there are several concerns with the scheme. One of the fundamental problems, as already mentioned, is that there are no transitional arrangements. Furthermore, the scheme will provide an incentive for people to do exactly the opposite of what is intended, an issue to which I shall turn in a moment. It will penalise people who have done what the Home Office wanted by returning home to make entry clearance applications before these changes were published on 6 February or before they became aware of the changes. There was no consultation and so these people are in limbo. They have done what they should have done or were unaware of the changes, and now they find themselves in a difficult predicament. The scheme runs a coach and horses through established jurisprudence on which the Home Office has consistently relied, and continues to rely, relating to people with established family life who are unlawfully present in the UK. The problem is that those who were unaware were caught in this transitional period without any special arrangements being made for them.

The Minister appeared before the Joint Committee on Human Rights on 19 February, where he referred to the importance of sending a “very clear signal” to those who use deception on entry clearance applications. However, these statements by the Minister neither explain nor justify the lack of transitional arrangements. If someone has already done something inadvertently, how can you deter that person from doing it when it has already been done? After they have done it, it is too late to be sending a very clear signal to them. We need clear transitional arrangements by which people can abide.

Far from giving an incentive for people to leave, the rules provide an incentive for people to remain in the UK, to pursue appeals and judicial reviews, and, ultimately, if unsuccessful, to be come part of a larger problem—those who have gone to ground and disappeared from the scheme. Once a person has committed a breach, however minor, that person no longer has any incentive to comply with immigration laws. With one minor infringement, such as forgetting to report on one occasion or overstaying for a short time beyond 28 days, the ban comes into force. From this point, the person may well reason, “In for a penny, in for a pound. With no transitional arrangements, why should I abide further by these regulations?”.

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Those who have returned home will, from 1 April, face a mandatory ban on their return. Neither they nor their advisers could have predicted that they would face such a ban; a ban had not been envisaged when they were advised. If it had, the advice would in many cases have been very different. It is a fundamental injustice that people in this situation should be penalised for having returned to their home country. We need to look again at the arrangements and the rules. As has been mentioned, we know that the Asylum and Immigration Tribunal and higher courts are already having considerable difficulty in thinking about this order.

8.15 pm

Lord Bassam of Brighton: My Lords, I am grateful to everyone who has taken part in this short debate; they have raised some important issues. I am particularly grateful to the noble Baroness, Lady Warwick, who gave me advance warning of a couple of specific issues that she wished to raise. I am conscious that noble Lords have spent quite a lot of time researching what I said on the UK Borders Bill last year and I am grateful to be reminded of my fine words at that time. I hope that nothing I say this evening will run in contradiction.

The noble Lord, Lord Avebury, is always assiduous in these matters. I have a great deal of respect for his general approach to these issues and for the courteous way in which he conducts himself. Generally, that is the best way and is in the best traditions of your Lordships’ House. It makes for a more interesting and civilized debate. It is clear that noble Lords feel strongly about the changes we are making to the general grounds for refusal, particularly those that require people who have broken our immigration laws in the past to be, in effect, banned from coming back for a period.

Before I respond to the detailed questions, it may be helpful if I explain why we propose these changes First, we wish to deter people from breaching our immigration laws—we take that very seriously—and we do that by imposing a clear sanction on those who do so. Secondly, we wish to give illegal migrants an incentive to go home of their own accord rather than wait for the BIA to remove them. That is why the rules say in terms that if you go home voluntarily, and at your own expense, you will be banned for only one year; but if you are removed, you will be banned for 10 years. That is a very clear, plain, straightforward, simple incentive—and that remains the Government’s position.

A number of people have, however, suggested that we will achieve our aims better if we give people who are currently here illegally a chance to leave before the new rules are applied to them. We have listened to their argument and reflected on it, and we agree with them. I can announce that we will not apply the provisions in new paragraph 320(7B) of the Immigration Rules to anyone currently in the United Kingdom who leaves the country voluntarily before 1 October 2008. Those people will be able to apply to come back without being automatically refused under these provisions, although it is possible that they will be refused under other parts of the Immigration Rules.

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I emphasise that that does not mean that those people will automatically be allowed to come back. They will need to meet all the other requirements of the Immigration Rules. The BIA will also, as now, have the discretion to refuse them if they contrive in a significant way to frustrate the Immigration Rules; for example, by contracting a bogus marriage, which we know happens. They will not face a period of automatic refusal under paragraph 320(7B), as they will, if they go home after 1 October. That gives those who are currently here illegally a clear incentive to go home and, as I mentioned earlier, it promotes the Government’s objectives. We cannot withdraw the Immigration Rules in order to make the change, as I have outlined, since many of them are already in force. The change will therefore take effect as a time-limited concession outside the rules. I hope that noble Lords will find themselves able to support that concession.

Noble Lords have taken the opportunity to raise a number of issues, and I will go through those in turn. The noble Lord, Lord Avebury, started his commentary by asking why we did not consult immigration practitioners before putting forward the initial proposals. It is normally the practice that we would go through fairly rigorous consultation arrangements, but it is not always possible to consult everyone who might have an interest in the subject before changing the Immigration Rules. However, we have subsequently had some extremely valuable meetings with the Immigration Law Practitioners Association, a very respected body, since we proposed our changes, and that dialogue continues to be of value to us.

The noble Lord asked about appeals. Other questions were also asked about appeals, to which I shall come. In essence, the noble Lord asked how appeals could succeed if refusal is mandatory. It is possible to bring an appeal on human rights grounds if keeping the applicant out would breach their human rights, the right to family life and so on. If they succeeded on appeal, that would lead to them being admitted. The noble Lord asked about our objection to the EU re-entry ban. The main reason for our declining to take part in that instrument was that it is a matter best dealt with by member states, and that is essentially what we are doing with this set of proposals.

My noble friend Lady Warwick mentioned a number of points, one of which was about false documentation. She asked what we meant by a “false document”. We mean a document that is forged or has been altered to give false information. If people submit such documents, our belief is that they should be refused. It will be for the BIA to prove that a document is false, and the standard of proof has to be very high.

My noble friend asked whether we could confirm that people who apply within 28 days of their leave expiring will be dealt with as normal under the points-based system. The answer to that is simple: yes. That was an undertaking we gave when Section 19 of the UK Borders Act 2007 was before the House; in fact I made it, and plainly so. These rules deliver on that. They do not require a points-based applicant to have existing leave. Consequently, applicants whose

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leave has expired can be granted as normal under the points-based system; that is what the rules say.

My noble friend also asked whether we could make available a copy of the guidance on overstayers and place it in the Library. There is no specific guidance on overstayers. The position of overstayers is dealt with in the guidance that covers each individual category of the Immigration Rules—those that cover students and those that cover spouses. That guidance is already in the public domain on the BIA website. To make it easier for my noble friend, I shall ask our officials to provide her with a copy. If other noble Lords want a copy, I shall happily make it available to them.

My noble friend asked whether the position of student overstayers as announced to the joint education taskforce was still valid. The answer to that is yes: students who overstay up to 28 days will be considered as normal; those who overstay for between 29 days and six months will be considered in exceptional circumstances.

Lord Avebury: My Lords, I have already asked the Minister to point to the passage in the statement which states that an application will be considered within 28 days of the expiry of a previous leave to remain. Where does it say that?

Lord Bassam of Brighton: My Lords, I cannot give the precise reference this evening, but I shall ensure that the noble Lord has the references that work.

The noble Baroness, Lady Hanham, repeated the point about consultation. It is worth making it clear that we said in our statement of intent on tier 1, which was published in December last year, that we would use general grounds to refuse those people with a bad immigration history. That has attracted fairly general and widespread support. It is an important point.

The noble Baroness also asked about the adequacy of the remedy for tier 1 general applicants and the possibility of appeal. There is no appeal for those applying to come to the UK under the points-based system, but a person refused entry can apply for an administrative review of the decision of the entry clearance officer if they believe that an honest mistake has been made. This review will be carried out by an official who is different from the official who made the original decision. So there is a measure of distance between the original decision-maker and an effective review of the case. If people are dissatisfied with the outcome of an administrative review, the possibility of a judicial review remains clear.

Applications to come to the UK for work or study do not raise the fundamental issues that justify a full right of appeal, as one might expect under the Asylum and Immigration Tribunal. Section 4 of the Immigration, Asylum and Nationality Act 2006 removes the full right of appeal for those who apply from abroad to come to the United Kingdom under the points-based system. The legislation will take effect as each points-based system tier rolls out. Appeal rights will be abolished in all the highly skilled subcategories except where the appeal is brought on human rights or race discrimination grounds.

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Lord Roberts of Llandudno: My Lords, the administrative review is just a piece of paper in front of a judge; it is not a hearing in any sense. Is that right?

Lord Bassam of Brighton: My Lords, it is an administrative review carried out by officers who consider the cases. It is not a judicial process, though, as I have made clear to the noble Lord, if there is a disagreement over the effect of the review, there is a possibility of a judicial review. Perhaps that helps the noble Lord.

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