Immigration, Asylum and Nationality Bill

The Minister says, ““Surely not,”” but I look forward to hearing his views on the other amendments. I feel that he has an open mind on these matters, and that he may be moved to accept some of the proposals. As we know, this part of the Bill removes the right of in-country appeal for leave to remain or for variation of leave from all applicants, other than those in the categories covered by clause 1(4). That means, for example, that international students applying for leave to remain or to vary their leave will have no right of appeal against refusal. The Government intend that such applicants should have one right of appeal against a subsequent decision to remove them from the UK, but that appeal will be exercisable only outside the UK. Another problem noted in Committee is that applicants whose leave expires while they are awaiting a decision on a leave-to-remain application will become illegal overstayers, once they are told that their application has been unsuccessful. All hon. Members will know that the consequences of overstaying illegally are serious. People in that position lose the right to work or study, and their access to benefits such as primary health care. On their way out of the UK, their passports are likely to be stamped with a record of the fact that they had no legal right to be in the UK. That would affect the likelihood of those people getting visas in future. One feature of the Bill’s passage through the House so far has been that a wide range of bodies have raised grave concerns about the Government’s intention to remove people’s rights of appeal in respect of refused entry clearance or leave-to-remain applications. Universities UK, the Association of Colleges, the National Union of Students and the Council for International Education have expressed concern about the impact of the measures on international students. I regret that their fears were not allayed by the Minister in Committee. In addition, as the Minister is aware, we have received excellent advice from the Immigration Law Practitioners Association, which has briefed Members on both sides of the House. The association has raised serious concerns over this part of the Bill, which I hope to reflect in some of my remarks. To set my remarks in context, I remind the House of some basic statistics. In 2004, about 228,035 applications were made for leave to remain, of which 149,250—about 66 per cent.—were from international students. About 30 per cent., which is a large number, had to apply for a variation or extension of their leave to remain during their time in the UK. A significant number of people could be affected by the provisions. The net effect of the first 11 clauses is to make anyone who is refused an extension of leave with right of appeal under the amended section 88(2) of the Nationality, Immigration and Asylum Act 2002 an overstayer. In fact, it is a double blow, as the applicant is not only refused further leave but precipitately finds themselves categorised as an overstayer. As the Minister admitted in Committee, the individual is, in effect, criminalised and can be prosecuted and charged with the criminal offence of breaching immigration control. To be fair, I concur that that is a rare occurrence but, although I appreciate the spirit in which the Minister introduced new clause 1, there are other problems for the overstayer, which the Minister appeared to acknowledge in Committee and that are not rare. For example, an overstayer is immediately denied the right to work and their employer could be liable to prosecution, too. The overstayer is denied the right to access benefits and the right to study, and some rights of access to the health service. They could also be liable to detention. The new clause does not cover those points at all. Far from clarifying the situation, as we expected after Committee, it merely addresses the question of the criminal offence and does so in a way that offers only a fairly loose promise that the Government will not prosecute in the future. It certainly does not address the range of difficulties facing the overstayer, or the issues we raised in Committee. The Minister must forgive me, but I feel that he has led us—or certainly me—down the garden path a little. I was heartened by what I thought was his real intention to amend the Bill—[Interruption.] He protests, but he certainly gave a greater impression that he would be more flexible than has proved to be the reality. In the second sitting of the Committee, the Minister said:"““There is confusion about people’s status at the tail end of the decision-making process, after the decision to remove, and during the subsequent appeal against removal. I fully accept that.””" He continued:"““Let me be clear: if we need to amend the primary legislation in the Bill to clarify section 24(1)(b) of the 1971 Act, I shall. Equally, if I need to clarify the same point in the immigration rules in relation to the gap between a final decision and the commencement of the appeal process, I shall.””—[Official Report, Standing Committee E, 19 October 2005; c. 60–62.]" Sadly, the Minister’s comments are not reflected in his amendments and some confusion remains. Later in our Committee proceedings, the Minister was still pandering to our requests and reinforced the Committee’s belief that he would grapple with the problem and present a solution. He said:"““The only issue . . . is the difference and gap between the cancellation of leave and removal. I made it clear during the debate on clause 1 on appeals that we would examine that gap and not leave people in limbo. I am happy to give that assurance again in terms of any cancellation of leave.””—[Official Report, Standing Committee E, 25 October 2005; c. 245.]" I am certainly not the only one to be disappointed by the proposal in new clause 1—