Immigration, Asylum and Nationality Bill

The clause sweeps away the right of appeal against refusal of entry clearance for abroad, notwithstanding the fact that, as the noble Baroness, Lady Anelay, has already pointed out, according to the independent monitor, more than half the appeals dealt with in 2004 were successful. There are some posts abroad which make wrong decisions of a much higher percentage than that, yet the Minister has the effrontery to ask your Lordships to extinguish the rights of all those people. The same argument applies to the eradication of appeal rights under this clause as under Clause 1, as expressed in the weighty opinion of the Select Committee on the Constitution in its letter to the Minister of 13 December 2005, to which reference has been made several times already. We deplore the wholesale eradication of rights, and we condemn the Government’s partial restoration of rights to undefined categories of entry clearance applicants in secondary legislation, which nobody has yet seen. That committee emphasised that ever since the system of immigration control first came into force some 30 years ago, decisions by immigration officials have been subject to appeal, helping to ensure that standards of decision-making were maintained. But in the case of entry clearances, standards are already unacceptably low, and to paraphrase the committee only slightly, it is perverse beyond belief to remove these particular rights. The committee demanded the Minister’s observations on the matter, and we hope that we shall have those observations in good time to be able to take advice before we return to the subject on Report, as we shall inevitably have to do. As your Lordships are aware, the independent monitor, Ms Fiona Lindsley, whose contract has not been renewed following the expiry of her two-year term of office in November last year, perhaps because she was doing her job too well, told the Home Affairs Committee in another place that there is an institutional problem with certain nationalities; that the rising refusal rate overall, from 6 per cent up to the year 2000 to something like three times that level in the past year may be due to a fall in the quality of applications, but it may due to other less justifiable factors; and that as long as there are appeals, at least we have statistical evidence that might throw light on the quality of decision making. There is a provisional transcript of her replies to the questions put in that committee. If a particular post lost 56 per cent of appeals, which was a typical figure, there would be prima facie grounds for saying that poor decision-making was a factor in the outcome. The independent monitor pointed out that the National Audit Office had said the same thing. In another reply, Ms Lindsley said that in paper-based appeals, where the immigration judge saw exactly the same evidence as the ECO, 37 per cent of appellants were successful. She added:"““To me, that is pretty damning””." Ms Lindsley said the Government had not consulted her about the decision to take away appeal rights in entry clearance cases, but she estimated that over the three reports she had submitted during her term of office, about 46,000 people had been wrongfully denied their rights of appeal because they had nobody to advise them, and that she would oppose removal of appeal rights because it would mean the loss of information about the quality of decision making. The only conclusion that one can draw, after reading that submission and Ms Lindsley’s report of February 2005, is that the system of entry clearance applications is grossly defective, and that the Government have systematically and in some cases deliberately ignored the monitor’s recommendations. In the February 2005 report, the independent monitor had to repeat in annexes all the recommendations made in her previous two reports, and in the case of statistics collection, when she had got Ministers to agree that statistics on family visit appeals from the 10 largest family visit refusing posts should be collected, the data were gathered but never analysed, due to pressure of work, and UK Visas had told her that,"““the analysis, which was commissioned by Ministers, was not intended for publication””." Yet in family visit cases where the appellant was represented by IAS, the success rate was 79 per cent in 2002–03 and 83 per cent in 2003–04. In the case of students, the figures were 38 per cent and 49 per cent in those two years, and those figures are another indication that the quality of the decisions is going downhill. It is no wonder the Government want to remove these rights, and no wonder that they decided not to insist on the analysis they themselves had commissioned. I do not know whether the Minister has read the reports of the independent monitor, but I draw her attention to paragraph 102 of the February 2005 report, when the monitor says:"““Specifically I find it unacceptable that students should be refused because they have not studied the subject in their own country/ should have studied the subject there more recently; because they could study the subject in their own country more cheaply . . . because in the opinion of the ECO they should study in a third country rather than the UK; because they do not ‘need’ to study and because they have failed to obtain a level of proficiency in their own country through studying there. All these reasons proliferate particularly in the refusals of English as a Foreign Language students in refusals in 2002 and 2003””." Has the Minister looked at that report? If she has not, I honestly suggest that it would repay her to read it and come back to the Committee, and see whether she could honestly say that the removal of the rights of appeal in these entry clearance cases is justified. In our amendments, and those of the noble Baroness, we are trying to undo some of the damage done by this egregious clause. Amendment No. 13 gives the Secretary of State power to prescribe further categories of people to whom rights of appeal may be restored, as is done in Clause 1, and in the family visitor provisions of this clause. The categories might include students coming for longer courses of study, who have been accepted by a registered educational establishment; innovators, ministers of religion, working holidaymakers, and applicants for settlement. If the Minister is not inclined to accept Amendment No. 15, dealing with people whose rights the Minister acknowledges, this would be one means of restoring what is otherwise being unlawfully taken away from them by this clause. Amendment No. 14 deals with returning residents who are in compliance with the immigration rules. That means they have been granted ILR but do not hold a British passport—and I personally know of people who have been here for 25 years without feeling the necessity to acquire British citizenship. The bizarre position is that a dependant of someone resident in the UK has a right of appeal, but the resident does not, and we hope that the Government will agree to put this right. In another place, the Minister, Mr Tony McNulty, said this amendment was otiose, because returning residents would not need to apply for entry clearance. However, he is wrong; such cases do arise, and ILPA has given us examples, of which I will only mention one—but there are others, if the Minister wants to see them. An elderly couple were settled here, and went back to their country of origin, on a visit. While they were there, a son still resident in the country of origin was killed, and the couple stayed to find out how the tragedy had occurred. They became involved in legal proceedings and were away for five years. When they applied for entry clearance as returning residents they were refused on the grounds of their long absence, no account being taken by the ECO of the exceptional circumstances. Of course, they were successful on appeal, but if this clause had been in effect they would still have been stranded there. Amendment No. 15 covers the restoration of appeal rights where that is necessary to give effect to obligations under European Community law. This is another case in which Mr McNulty gave an undertaking to consider it when it was raised in Committee in another place; but as with all his promises, nothing has materialised. The reason why the amendment is necessary is that certain rights of free movement guaranteed by Community law are set out in part 7 of the Immigration Rules, rather than in the Immigration (European Economic Area) Regulations, under which there is a right of appeal which is unaffected by Clause 4. There are at least three groups of people who are potentially affected: nationals of Switzerland, which is not a member of the EEA but whose citizens have the same rights of free movement as EEA nationals; non-EEA nationals who are the primary carers of children who themselves have rights of residence in respect of whom there is a European Court judgment in the case of Chen. I have that judgment in my papers here somewhere, but the Minister probably knows it. Also affected are nationals of countries with relevant association agreements with the EU such as Bulgaria, Romania and Turkey, seeking to enter for purposes of business or self-employment. If the Minister is not prepared to accept this amendment, we shall find ourselves in conflict with Community law, and there is likely to be expensive litigation. The Minister, after agreeing to look at this matter in Standing Committee E said on Report that the necessary appeal rights could be provided otherwise than by amendments to the Bill. He wrote to my honourable friend, Dr Harris, on 24 November, as follows:"““I also said that I would write to clarify why it has been decided that no amendment to the Bill is required to incorporate Community law rights. We do not propose to amend current provisions in the Immigration, Nationality and asylum Bill””" sic—"““to preserve existing appeal rights for these cases but will instead provide the necessary rights of appeal either administratively or through secondary legislation. We may achieve this through existing powers, possibly with some reliance on current Bill provisions in respect of amendments to section 82 of the Nationality, Immigration and Asylum Act””." He got it right the second time. But the Minister cannot rely on the powers in Clause 1 to make regulations under the new Section 82(2)(fb) of the 2002 Act, because Clause 1 is confined to variation appeals, and cannot be used to solve the problems that arise from this clause. So I hope, now that there has been an opportunity for reflection, the Minister will agree that our solution is the right one.