Immigration, Asylum and Nationality Bill

moved Amendment No. *27A:"Page 6, line 7, leave out ““(2)(b) and”” and insert ““(2)””" The noble Lord said: First, I apologise for the rather late tabling of this amendment. I am well aware that Members of the Committee will not have had time to prepare briefings and so on. It should have been tabled in conjunction with the amendment of the noble Lord, Lord Hylton. However, having considered the contribution that he made on Monday, I felt that there were one or two issues that were not covered. It is right, therefore, that I move this amendment. The amendment relates to Clause 11, which is headed, ““Continuation of leave””. Its purpose is to give effect to the Parliamentary Under-Secretary of State’s assurance that she would address the problem that, as the Bill is drafted, people refused an extension of leave, however quickly they leave the UK, risk having their passport endorsed with a note that they are an overstayer, a person who has breached the Immigration Rules, with consequences for future attempts to visit the UK or third countries. In other words, an endorsement of that nature would effectively ruin their future chances not only of visiting the UK but a number of third countries. The amendment would achieve its purpose by preserving subsection 3(2)(b) of the Immigration Act 1971, which provides for leave to continue on the same terms and conditions for the period during which an appeal against refusal could be lodged. Clause 11 as a whole is objectionable. It will cause chaos for applicants, their employers, educational institutions and others, as well as for those seeking to administer immigration control. On Second Reading, the Minister appeared willing to address one of the problems when she said:"““Under Clause 13, someone who has been the subject of a removal decision will not be committing an offence during any time when an appeal against removal from inside the UK could be brought or is pending and will not be liable to have their passport endorsed on embarkation if they have complied with the terms of their leave. Anyone who has had leave refused or curtailed and embarks within any time that an appeal in-country could be brought, which is within 10 working days, would not be committing an offence. However, I shall look very carefully when we are in Committee to make sure that we have covered this point. It is not the purpose of the Bill to make people do something illegal accidentally””.—[Official Report, 6/12/05; col. 579.]" Our amendment tries to meet that pronouncement. The reference to Clause 13 and to not committing an offence is worrying because it recalls some of the language to which members of all parties objected at Commons Report and Third Reading when the Minister of State, having promised to address the problem that Clause 11 as drafted made people overstayers the moment they were refused, merely came back and gave them immunity from prosecution by moving what is now Clause 13, rather than tackling all the problems of turning people into overstayers and putting them in what he himself called ““the twilight zone””. The Minister of State himself said in Committee that it is very rare that overstayers are prosecuted. If the Parliamentary Under-Secretary of State had merely been repeating this doublespeak, there would be little reassurance. However, she appeared to offer something more tangible in that she said that people would not have their passports endorsed. Section 3C(2)(a) of the Immigration Act 1971 provides that if a decision on refusing to vary a person’s leave is not received until after the original leave has expired, leave continues on the same terms and conditions until the decision is received. Clause 11 does not change that. Section 3C(2)(b) makes similar provision for the period during which an appeal against refusal could be brought. Section 3C(2)(c) makes similar provision for the period during which any appeal made is pending. Clause 11 repeals both of them. Thus, if a person is refused, as is normal, after their original leave has expired, from the moment they receive that refusal they are overstayers. If they catch the plane that very evening to leave the UK the immigration officer at the airport could stamp their passport as an overstayer as they left. The immunity from prosecution under Clause 13 does not touch this. While immune from prosecution, they are still overstayers. They have, in the Parliamentary Under-Secretary of State’s words, done something illegally accidentally. It will be scant comfort to them to know that they cannot be prosecuted for it, if their passport is endorsed. Such an endorsement in their passport will adversely affect not only their chances of coming to the UK again, but also of going to other countries. The amendment therefore tests whether the Parliamentary Under-Secretary of State was giving a promise worth having. Subsection 3(2)(b), preserved by this amendment, provides for leave to continue on the same terms and conditions for the period—10 days—during which an appeal could be lodged. The amendment would mean that leave continued on the same terms and conditions for the period of 10 days during which an appeal against it could be brought. Thus the person who embarked during those 10 days should not face having their passport endorsed. This may not get us very far: the passport will show only the original leave and there is a high chance that mistakes will be made and people’s passports be endorsed anyway, but it would at least suggest that the very real problem created by the legislation is being taken seriously. The Government may indicate that they cannot accept this amendment because if they did they could not make refusal and variation decisions simultaneously. That goes to the very heart of the problems that I have described. They have sought to give people a single right of appeal but the appeal they have picked on is against a decision that can be made only once a person is an overstayer. That is why we have suggested wholesale amendments to Clause 1, and different ways of achieving the one-stop variation appeal, as we were invited to do by the Minister. This amendment does nothing to address the problems faced by those who do not have a right of appeal under new Sections 82(2)(fa) and 82(2)(fb), inserted by Clause 1, but who none the less have an in-country right of appeal because it has been brought on human rights grounds. As soon as the 10-day period for appealing has expired, they will be overstayers and will remain so until the appeal is finally determined, losing rights to work and other entitlements, and facing detention and possible removal. Those are further reasons for the Government to remove Clause 11 as a whole and recognise that this system will cause chaos for everyone and form the basis of judicial reviews in the High Court and applications to the European Court of Human Rights under Article 13 of the ECHR. Those are the reasons for our amendment. I hope that on the basis of the Minister’s comments at Second Reading, she will feel able to accept it. I beg to move.