Immigration, Asylum and Nationality Bill

I shall deal with our concerns about clause 1, and I shall also speak to amendment No. 47, which would delete clause 1. I shall look at the problem of overstaying in clauses 1, 3 and 11, and the way in which the Government attempt to solve that problem in new clause 1, as well as the amendments to that provision that my hon. Friends and I have tabled. Finally, I shall say a brief word about clause 4, as a great deal has already been said about it. The problem with clause 1 is that people will not be allowed to appeal against a refusal of extension of leave in country. Students, workers and spouses will lose their in-country right of appeal and will have to leave the country in order to appeal. That seems an unfair way of treating people who are in the United Kingdom legally, have abided by the terms of their leave and are simply seeking to extend it. Sometimes the initial leave is given with a view to the likelihood of further leave being granted in future. A spouse or an unmarried or civil partner is expected to stay with their partner for more than the initial two year period, of course. If there were doubts about that, they would not have been given leave in the first place. The granting of leave in such a case presupposes a reasonable right to apply for leave and therefore to appeal against decisions that are wrong, without having to seek human rights grounds on which to do so. In addition, business people are welcomed to the UK with limited leave in order to set up a business. I presume the expectation is that they will grow that business once they are here, and therefore seek leave to remain more than two years, particularly in view of the provision that they invest more than £200,000. Various groups of people would be affected by the clause. I have mentioned some of them. They include a person married here who has been living two years with their British citizen or British resident spouse, perhaps with children, who has been refused indefinite leave to remain on the basis of that marriage. I will deal in a moment with the proportion of decisions that are won on appeal. It is pretty significant to get that wrong and separate people from their spouse and/or their children. The clause would also affect a work permit-holder—for example, a nurse, a maths teacher or a head of an export department in a big company, whose employer wants them to extend their contract but whose application is refused, at least in the average third of cases where that decision is wrong; a person established in a business, who has invested £200,000 or more, and who has created, under the regulations, at least two jobs for people settled in the UK; and a student several years into their studies—we heard examples of how they might be affected in respect of graduation. The Government’s position seems extremely unreasonable. It is not as if such people had hopeless cases. There is no right of appeal in the case of mandatory refusals—that is, where there is a mandatory requirement on the basis of age or nationality, or specific requirements to switch from one category of leave to another. Those cases do not attract a right of appeal. As I said, 33 per cent. of in-country non-asylum appeals succeeded in 2003, the last year for which figures are available. The Government have never justified the sweeping powers in clause 1. The Minister suggested in Committee that it was unfair to give a right of appeal against a refusal to vary leave in cases where the decision results in people having no leave left, whereas those who applied and were refused before their original leave runs out get no such appeal. However, that unfairness does not exist in practice, because as we know, the Home Office urges people not to apply for a variation, such as an extension, until shortly—usually a month—before their leave expires. When a person applies for a variation and is refused before their leave runs out, the normal practice would be for them to make a fresh application before the leave expires. It is not an appeal, but it provides an opportunity to address what are said to be the shortcomings in their original application, which are identified in the refusal. At present, people prefer not to do that because of the cost, but if they are faced with the prospect of becoming overstayers if they do not, more will apply earlier. If more people apply more than a month before their leave runs out, that will create more bureaucracy or a replacement bureaucracy for the Home Office. That does not make sense. I see one of the Ministers—the Under-Secretary of State for the Home Department, the hon. Member for Leigh (Andy Burnham)—in his place. Can he confirm that it will be his policy to continue to tell people not to apply for a variation more than 28 days in advance, or does he recognise that the effect will be that people will want the opportunity to get their refusal while they still have leave to remain? I endorse the points made by the hon. Member for Walthamstow (Mr. Gerrard) in respect of unaccompanied minors. I shall not repeat what he said in the Chamber or in Committee, but he is right. Our main concerns about clause 1, in summary, are that the Government’s desire for a single appeal can be achieved using existing powers. If the object is streamlining, we demonstrated in Committee that there are alternative ways to achieve that. We are not opposed absolutely to streamlining, but the provision is not a fair way of doing so. It is misleading to say, as the clause does, that people will still have a right of appeal against removal, if they will be able to exercise it only after they have left the UK. That is not the same thing. It puts people at a significant disadvantage and it is no cheaper for the Home Office to run the appeal from abroad. If anything, it may well be more expensive. The Government are relying on people not bothering to appeal. Denial of justice is not a substitute for justice. We have already explained that the Home Office decision making is poor, so the best thing the Home Office could do is improve decision making, not deny appeal rights. The rights at stake are important. We have discussed the situation of spouses and people who are investing or working or who want to continue their rights to education and training. The opportunity for all these good things—family life, more education and training, investment—will be lost if people have to leave the country for an appeal against removal. The current system is not broken in terms of its structure. Decision making could be improved, but it does not need fixing on the suggested basis. In Committee the Minister spoke at length about the new managed migration schemes. I am not inviting him to do so again, as he spoke eloquently and with passion on the subject then. Whatever the system is, there will still be the problem of people seeking to extend their leave. The Government say there will be a new and better scheme, but that does not solve the problem of injustice. There will still be human rights applications, which will still be allowed, but because of the fracture to family life that will result from the provision, more people will attempt to make such appeals than would otherwise be the case. The Government will not gain as much as they anticipate. On the new clause, the problem that the Government have created in respect of clauses 1 and 11, which was clause 9 earlier, is, as we heard from the hon. Member for Chesham and Amersham (Mrs. Gillan), that people are effectively overstayers when they receive the first judgment—that is, they do not get extended leave. I am disappointed by new clause 1, which is why I tabled a series of amendments. The hon. Lady and the hon. Member for Walthamstow spoke to those amendments, so it will not be necessary for me to speak to them at length. The Minister said he would deal with the problem of criminalisation, although he did not accept the language adopted. However, as we heard from the hon. Lady, the new clause does not do that very effectively. He also said in Committee, at column 60, that he intended to clarify matters. However, given all the issues that were raised, not least by the hon. Member for Walthamstow, the new clause does not do so at all. It does little more than reflect the status quo and is quite inadequate. On the basis of what he has heard in the debate, can the Minister say whether there will be other provisions to follow new clause 1? If he can give that undertaking, it would be welcome. However, if the Government propose nothing more than new clause 1 to deal with the issues raised by calling people overstayers before they have had a chance to exercise their right of appeal, that is a problem. Does he recognise that people who lodge a human rights appeal have an in-country right of appeal, and that, like everyone else with an in-country right of appeal now, they are allowed to stay in the country on the basis of their existing conditions while that appeal is heard? Even when there is a human rights appeal to be heard and it is not certified as clearly unfounded, the Government are saying that those people will still be treated as overstayers. That is a real change for people in the country who are arguing a non-certified human rights claim. Will the Minister at least concede that those people should not be considered as overstayers and that their existing leave should carry through to the appeal stage, as it does now? Does he think that anyone should be entitled to carry through their appeal right, and if so, who? Is the Minister going to do something about the problem, which the hon. Member for Chesham and Amersham has already identified, that people who leave the country to appeal will do so as overstayers, which will blot their records? That problem is caused by the architecture of the Bill, and new clause 1 does not deal with it effectively. I will deal with the Liberal Democrat amendments to new clause 1. Amendment (c) would insert the following:"““At a time when the conditions in this section are satisfied a person’s leave to enter or remain is extended by virtue of this section save that such extension shall not prevent a decision to remove the person from the United Kingdom being made.””" That is the key point that the hon. Members for Walthamstow and for Chesham and Amersham and I were trying to capture in Committee. I cannot see why it is not possible for the right to remain to carry through to a simple right to appeal against the decision to remove. Amendment (a) would leave out ““Condition 2”” to probe why none of the rights not to be persecuted apply until after a decision has been made to remove, when we know that a decision to remove can happen many days, weeks or months after the decision on the extension. Amendment (b) is a consequential amendment. Amendments (d) and (e) are another way of making the point to the Government that their approach is not reasonable. They seek to clarify that people are entitled to some consideration when a decision could be made to remove a person. In his introductory remarks, the Minister said that he would not discuss the amendments until they had been introduced. I hope that he will address not only their structure, but the real reasons behind them, which have been politely put from both sides of the House. We have a major problem with clause 4 in and of itself. It is not right when the quality of decision making is so poor to sweep aside appeal rights. The priority should be to improve decision making, and in Committee we recognised the Government’s willingness to implement programmes to improve decisions. Sweeping away appeal rights is wrong, regardless of the consequences for the universities and for family life. I endorse the points made by the hon. Member for Chesham and Amersham and will not repeat them, but I have a number of questions. Are the Government planning to define ““family visitor”” more narrowly? And will Parliament have an opportunity to examine the draft regulations to see who will have appeal rights before hon. Members are asked to vote on the legislation?