Immigration, Asylum and Nationality Bill

moved Amendment No. 1:"Page 1, line 6, leave out subsections (2) and (3)." The noble Lord said: I am delighted that the noble Baroness, Lady Ashton of Upholland, will be responding on behalf of the Government. She is a listening Minister and so I hope that the end product of our discussion will result in some of our concerns being looked at very seriously. I have a small observation to make in that the usual channels worked unusually in this case because neither I nor my Chief Whip was consulted about the reference to the Grand Committee. Be that as it may, we are quite prepared to proceed. In reality, that means that much of our discussion will result in what we commonly call probing amendments—on which we will seek the Minister’s response—but I hope that by Report the Minister will be in a position to given an indication of how her mind is working on the discussions that will take place today. It would be very helpful if that could be done on Report, otherwise the Third Reading may be very laborious. Amendment No. 1, which stands in my name and that of my noble friend Lord Avebury, is grouped with a number of other amendments—Amendments Nos. 8, 9 and 10, on which we have the support of the noble Baroness, Lady Anelay, and Amendments Nos. 11, 30 and 34. It is also grouped with Amendment No. 5, in the name of the noble Earl, Lord Sandwich, and with Amendments Nos. 28 and 29, in the name of the noble Lord, Lord Hylton. I shall deal with Amendments Nos. 1 and 8 at this stage, and my noble friend Lord Avebury will deal with Amendments Nos. 9, 10 and 11. The purpose of Amendment No. 1 is to preserve an in-country right of appeal against refusal to vary leave. It is also a necessary amendment to pave the way for most alternative ways of achieving the one-stop appeal that the Home Office says it wants without depriving people of an in-country right of appeal against refusal to vary their leave. This is a technical matter and I hope the Committee will bear with me. Part 5 of the Nationality, Immigration and Asylum Act 2002 deals with appeals. Section 82(1) sets out that a person has a right of appeal against an immigration decision. Section 82(2) lists the decisions to be treated as immigration decisions for this purpose. Subsequent sections in Part 5 place further restrictions on the right of appeal. Clause 1(2) of the Bill removes from the list of immigration decisions against which there is a right of appeal the decision in Section 82(2)(b) to refuse to vary a person’s leave to enter or remain in the United Kingdom if the result of the refusal is that the person has no leave to remain. Clause 1(3) removes from the list the decision in Section 82(2)(e), variation of a person’s leave if, when the variation takes effect, the person has no leave to enter or remain—that is, a decision that would shorten or ““curtail”” the person’s remaining leave. Clause 1(4) then inserts into the list of immigration decisions two provisions for preserving rights of appeal against particular variation decisions. The result is that people who receive such decisions can appeal against them in-country with the terms and conditions of their leave preserved until such time as they do so. The immigration decision set out in new Section 82(2)(fa) is needed because this summer, the Government decided that refugees should be given five years’ leave and not indefinite leave to remain, as before. The effect of creating the new Section 82(2)(fa) is that a person who has been recognised as a refugee but is then refused further leave as a refugee can appeal in-country against the decision and continues to be recognised as a refugee, with the terms and conditions of their leave remaining the same until the appeal is finally decided. The new immigration decision created in Section 82(2)(fb) is different. It does not identify particular groups whose rights of appeal against the refusal to vary their leave will be preserved, but instead gives the Secretary of State the power to grant and remove first rights of appeal by making orders. While under the subsections to be repealed people have a right of appeal against a refusal to vary their leave only when the result of the refusal is that they have no leave to remain, in practice this does not bar people from appealing. If I have 12 months’ leave, ask for it to be extended to 18 months and the decision is refused when I still have one month’s leave left to run, there is nothing to prevent me making a second application, albeit I shall have to pay the Home Office fee again. By the time the application is decided, in practice the situation is unlikely to arise. However, the Home Office guidance asks people not to apply to vary their leave until 28 days before the period is due to expire. This helps the Home Office to prioritise cases; it is in the applicants’ interests too, because if refused after their original leave expires—which would be usual if they applied only 28 days before—they would get a right of appeal. An out-of-country appeal is not an effective remedy against refusal to vary leave, because irreparable damage is done before the appeal can be heard. In the light of this, and the high current success rate on these appeals, with more than one-third succeeding, the Government cannot justify these restrictions on appeal rights. The necessity of a justification was pointed out by the House of Lords Constitution Committee in its letter of 13 December 2005. Will the Government amend the Bill as they have been requested to do by the Constitution Committee in its letter of 13 December 2005 to give effect to the view of the Council on Tribunals, as endorsed by the House of Lords Constitution Committee in its letter, that,"““rights of appeal should be defined in primary legislation and not in secondary legislation, capable of being added to or cut down by regulations””?" Will the Government amend the Bill to ensure that order-making powers can be exercised by the Lord Chancellor and not by the Secretary of State for the Home Office? The Home Office is a party to the appeal and, for substantive fairness and for the appearance of fairness, should not be able to create and deprive people of the right of appeal. Furthermore, these powers are likely to affect the workings of the AIT, increasing the number of out-of-country appeals, and of the higher courts, because the AIT appeal will not be a sufficient remedy. Therefore, those responsible for the court system need to have oversight of these powers. I refer Members of the Committee to Section 53(6) of the Immigration and Asylum Act 1999 as a precedent; it provides that regulations governing bail hearings require the approval of the Lord Chancellor. The purpose of Amendment No. 8 is to probe the Government’s intention by illustrating that existing powers are sufficient to create a one-stop appeal. The amendment looks complicated but the principle is simple. It is no more than a probing amendment because the powers to which it refers already exist. It amends the list of immigration decisions in Section 82(2) of the Nationality, Immigration and Asylum Act by inserting a reminder that the Secretary of State can deny a subsequent appeal against removal to a person who has already had an appeal against refusal to vary leave by issuing a certificate to say that these matters could have been raised at an earlier stage. The amendment must be read with Amendment No. 1, which preserves an in-country right of appeal against refusal to vary leave. At Second Reading, the Parliamentary Under-Secretary of State said:"““I am particularly inviting suggestions from your Lordships that might identify an alternative approach that creates what is central to this part of the Bill—an effective, one-stop appeals process but one that might confer in-country appeal rights on a wider range of cases.—[Official Report, 6/12/05; col. 578.]" This is our first response. Three paragraphs of Section 82(2) of the Nationality, Immigration and Asylum Act 2002 deal with appeals against removal: Section 82(2)(g) deals with overstayers; Section 82(2)(i) deals with family members of overstayers; and, finally, Section 82(2)(ia) deals with seamen and aircrews who have overstayed as a special category. By operation of Clause 11 of this Bill, people refused a variation of leave will become overstayers. Thus the amendment lists exhaustively all those who might have been refused a variation of leave and now face removal. The Home Office wants to ensure that people do not have two appeals—one against refusal to vary leave and one against the decision to remove them from the UK. But it already has power to do that. The Secretary of State already has power to select who shall have a right of appeal at all by virtue of Section 88 of the Nationality, Immigration and Asylum Act 2002. The Secretary of State can set down in the immigration rules mandatory requirements for varying leave—for example, prohibiting extensions beyond a certain time or switching between particular categories. Thus he already has enormous control over who has a right of appeal and who does not. Then, in Section 96 of the 2002 Act the Secretary of State has broad and flexible powers to deny a person a right of appeal where the person could have raised the matter at an appeal at an earlier stage, whether or not he or she exercised that right of appeal. Some extracts from Section 96 show just how broad the power is:"““An appeal . . . against an immigration decision . . . may not be brought . . . if the Secretary of State or an immigration officer certifies . . . that the person was notified of a right of appeal . . . against another immigration decision (whether or not an appeal was brought . . . )””," and that the claim or application could have been raised in an appeal against the old decision and that, in the opinion of the Secretary of State or the immigration officer, there is no satisfactory reason for that matter not having been raised. There are more powers to the same effect. So the Secretary of State can say, ““Give me all your reasons for wanting to stay in the UK when you appeal against a refusal to vary your leave. If you do not, I shall issue a certificate to bar you from raising them at a later stage””. The amendment allows for the possibility of preserving the appeal against removal as a safeguard in cases in which the Secretary of State recognises that such a safeguard should be available. When a version of this amendment was laid in Committee in the Commons, the Minister of State said only:"““Nor do I accept, for elaborate reasons that it would take me more than 12 minutes to explain, that Amendment No. 77 is a clear and valid alternative to what we are trying to do.—[Official Report, Commons Standing Committee E, 18/10/05; col. 36.]" I shall address three main points in relation to this amendment. We agree that the amendment is based on current legislation. It is designed to illustrate how much power the Secretary of State already has to control appeal rights. If he has not used these powers to date, we must ask why he comes to Parliament seeking new powers. Perhaps, in fact, the system works better as it is. Circumstances can change between the making of a decision to refuse to vary leave and a decision to remove a person from the UK. But that is because the Home Office takes such a long time to issue the decision to remove. The Parliamentary Under-Secretary of State told us at Second Reading:"““Part of the rationale behind the provisions is to allow the refusal and curtailment decisions to be made simultaneously””.—[Official Report, 6/12/05; col. 579.]" As to judicial review, yes, the Section 96 certificate can be judicially reviewed. Such a review would be on the grounds that a matter could not have been raised earlier—not an easy point to prove. In summary, why have the Government done so little to date to bring about the situation that they say they are seeking to bring about by this clause? They have the necessary powers and they have not used them. I beg to move.