Immigration, Asylum and Nationality Bill

My Lords, it is very common practice in my experience as a Minister that we are allowed as a department—whatever department it is—to look at the recommendations and determine our views. That is not uncommon. There is often a lot of appropriate dialogue between the organisations concerned. The few weeks that have passed do not form a substantive delay. Although I accept that the noble Lord will never accept my views on that, I have checked that this is not an unusual or unprecedented delay. I have made the offer about my noble friend Lord Triesman, and I am sure that the noble Lord will find him receptive to his points. He will deal with them far more adequately than I could conceivably do at this point. I shall deal with as many of the details of the amendments as possible. I am grateful that noble Lords have used the occasion, as I indicated, to talk about the points-based system. Not surprisingly, I am going to focus quite a lot of what I say on the administrative review, because in a sense it is at the heart of the acceptance of the points-based system. There was general agreement in your Lordships’ House that the points-based system is a good thing; it is substantially better than the system it is replacing, and will enable more transparent, quicker and easier decisions to be made. This is to be welcomed. On that basis, the administrative review has an important part to play. On Amendment No. 1, tempting though it always is for the Government to take another power unto themselves, I intend to resist doing so. The issues that the noble Lord, Lord Dholakia, raised around, for example, the unaccompanied asylum-seeker children were well dealt with in Committee. We want to ensure that we capture those areas. Yet it is not right that we need an appeal system for the new points-based system coming into place. Issues that are or could be of concern about decisions will be dealt with by administrative review, so the principle of having an appeal system falls. On that basis it would be wrong for the Government to take a power unto themselves, because it would suggest either that we did not have faith in the system, or that we planned to change it, which we do not. If a new system were to be put in place, it should come to your Lordships’ House by way of primary legislation, not secondary, because these issues are of such great importance. Tempting though it might be, I will resist that amendment. I turn to the commencement amendments also spoken to by the noble Lord, Lord Dholakia. I listened carefully to what the Select Committee on Delegated Powers and Regulatory Reform said, and it made no comment on that clause. The noble Lord will know that I always do what it tells me. Had it told me to do something, I would have done it. It is also important to recognise that we have had a great deal of debate on this, and that we are keen to have a normal commencement provision in the Bill. We wish to do that appropriately. However, the debate around these issues will not end, and I will come on to some of the ways in which we plan to continue the dialogue. My substantive comments start on the issues in Amendment No. 2, and specifically answer the questions raised by my noble friend Lady Warwick, which were echoed across your Lordships’ House, especially by those involved in education. I will answer her questions so that my response will be firmly on the record, before coming to some of the broader questions. My noble friend sought clarification on four questions, and was kind enough to give me advance notice of them. I wanted advance notice to make sure I answered them properly, not for any other reason. The first question was: if I accept that there is an element of subjectivity in the process, will the administrative review be able to consider judgments and points of law, as well as facts? We have said that we want to ensure that there is little scope for subjectivity, which I think my noble friend accepts. If a person is refused, then the entry clearance officer’s letter refusing the application will set out exactly why it has been refused, referring back to the criteria for which points are awarded. That is part of our commitment to transparency. Someone who is refused entry clearance under the system will be able to apply for administrative review. The application for review will have to set out which aspect of the decision, as justified in the refusal letter, was incorrect. This encompasses both judgments and points of law, where they are relevant to the specific reason for refusal. Secondly, my noble friend was concerned with the Command Paper saying that the points-based system would be supported by review where appropriate, and asked whether the administrative review would be available to anyone refused a visa under the new system. Yes, anyone refused entry clearance under the points-based system will be able to apply for administrative review. They have to allege that the decision was made in error on the basis of the entry clearance officer’s refusal letter. We are arguing the ““appropriateness”” point to avoid people who might be being vexatious, or who should have provided evidence in their original application. On the basis that they are saying that they want a review based on the evidence provided, everybody will be entitled to claim. Thirdly, on consulting fully on the design of the review, and publishing the final scheme so that we all know what to expect, one of the things that has become clear working with my colleagues in the Home Office, and especially with the officials, is their decision to involve as much as possible a broad range of stakeholders, including those from the education sector—especially from Universities UK—in the design of the detail of the administrative review programme. I hope all those invited to participate will do so fully, because this is a real opportunity. The full details of the process will be published in Diplomatic Service procedures, and will therefore be official government policy. Fourthly, if I accept that there will be cases where subjective judgments are involved in reaching a decision, should there be an opportunity to involve a third party—someone within the Immigration Service, but not involved in the initial decision? The noble Lord, Lord Laird, felt particularly strongly about this as well. We have got to look at the detail of the design of the system, but I accept that in some circumstances there may well be good reason for a person outside the management chain to be involved, whether at regional or national level. As my noble friend will agree, we had a good meeting with some of her vice-chancellors last week, and discussed this at length. We talked about the different circumstances that could exist where one might wish to look outside. Noble Lords will not be surprised that it is particularly relevant in financial issues. For example, we considered areas where there might have been substantive issues of fraud or other kinds of financial irregularity. That might well be such a set of circumstances. I am committed, and have committed the Home Office, to there being such circumstances, though we hope to determine what precisely they are in discussion with stakeholders. The expertise that stakeholders can bring is critical to determine that. There will be such circumstances, but they will be limited, because our ambition is for a transparent system. If a mistake is made, it can be overturned quickly—quickly enough that the person is not affected in their desire to come either to work or to study in this country. It will be quick, but where circumstances seem appropriate—in a clearly defined way, working with colleagues in the university sector—there will be the potential for that to be the case. I hope that gives my noble friend the strongest assurance that I can give.