Immigration, Asylum and Nationality Bill

In speaking to amendments in this group, I declare an interest as chief executive of Universities UK. Together with a long list of other organisations, that organisation supports the purpose behind these amendments. The aim is to seek a better means of achieving the one-stop shop appeal system that the Government seek to create with respect to applications for variation of leave and leave to remain. As I hope that I made clear during Second Reading, I do not oppose the Government’s purpose in Clause 1. Currently, unsuccessful applicants for leave to remain or variation of leave have two opportunities to appeal against refusal, once at the point at which the decision is made and once against the subsequent decision to remove the applicant from the UK. The Government, rightly in my view, seek to simplify the system so that unsuccessful applicants have just one opportunity to appeal. However, it is clear from what every noble Lord speaking in the debate has said that there are some major problems with the mechanism used to achieve this aim as the Bill is currently drafted. While the Government have gone some way to address the problems that have been identified, I do not believe that we are quite there yet. In tabling amendments in this group, noble Lords seek to lay out alternative means of structuring provisions in Clause 1 to achieve the aim of a one-stop appeal without the difficulties created by the scheme as currently drafted. As other noble Lords have said, there are two principal difficulties with the Bill. First, failed applicants for variation of leave or leave to remain will be able to exercise their appeal only when they have left the UK. That is unsatisfactory for a number of reasons, particularly in relation to international students. About 30 per cent of international students seek leave to remain during their time in the UK. Common reasons are: to finish a PhD, to attend a viva or a graduation ceremony, or to move from one course of study to another. It used to be the case that students were commonly given an inadequate period of leave on their original visa, and so had to extend to complete a course as a result of a mistake on the part of an entry clearance officer. I am happy to say that that happens much less frequently now as a result of recent efforts made by UK Visas. But in the circumstances that I have described, having to leave the UK to appeal against a decision not to grant leave to remain could seriously damage an international student’s studies, perhaps even preventing them completing their studies or graduating. For students from China who want to stay an extra couple of weeks to attend a graduation ceremony, the expense and delay occasioned in returning home to lodge an appeal could probably mean that they missed that ceremony. That may seem a narrow point, but it is worth bearing in mind that 51 per cent of applications for leave to remain come from students. So I think it is extremely important that the one-stop appeal that the Government seek to create should be exercisable in the UK. The second problem with the scheme set out in the Bill as currently drafted relates to the operation of Clause 1 together with Clause 11, which removes the provisions that allow for leave to continue pending appeal. Without that provision, applicants for leave to remain whose leave expires while they are awaiting a decision would become illegal overstayers as soon as they are told that their applications had been unsuccessful. This point was made powerfully during Second Reading, but what it means in practice is that even the most law-abiding individuals, who pick up their bags and head straight to the airport as soon as they discover that they have been refused, would leave the country as illegal overstayers. In all probability that fact would be stamped on their passports on their way out of the country, although I understand that in a letter from the DCA it is said that they will not be stamped. It would be helpful if the Minister could provide clarification on that point because, as other noble Lords have said, if that were to be the case, it is very likely to influence immigration applications and could well restrict ability to travel in the future. The Government have already gone some way towards recognising that this was not the intended consequence of the Bill. Clause 13 has been introduced to ensure that applicants in this position will not be liable for prosecution. That is helpful, but not sufficient. Applicants with no legal right to be in the UK have no right to work or study or to receive primary healthcare. It is important that such applicants have continued leave pending the outcome of their appeals. Again, I should like to remind the House that more than half of the applicants we are talking about are international students. The Government have made it clear that they do not wish to criminalise such students, but can the Minister go further and reassure the Committee that it is not the Government’s intention to prevent them from studying or receiving healthcare, or to prejudice their chances of getting other visas in the future? I hope that the truth is that there is broad agreement on the principle that the one-stop appeal should be exercisable in the UK and provide for the continuation of leave until the appeal has been determined. If that is so, I believe that the amendments now before us offer some workable mechanisms to achieve that. Amendment No. 1 is the bluntest approach. It simply removes subsections (2) and (3) in Clause 1. Subsection (2) would remove the right of appeal set out in the Immigration and Asylum Act 2002 against a refusal to vary a person’s leave to enter or remain in the UK. Subsection (3) would remove the right of appeal against a,"““variation of a person’s leave to enter or remain in the UK””." So the effect of Amendment No. 1 would be to restore the status quo. That is a possible solution because, under Section 96 of the 2002 Act, the Government already have the power to deny a person who has already had an in-country appeal against refusal to vary leave a subsequent appeal against refusal. Amendment No. 1 also paves the way for Amendment No. 8 and others and it probes further the question of whether the Government could use existing powers to achieve the one-stop appeal. Amendment No. 8 makes the proposed mechanism explicit but does no more than the existing legislation allows. Amendment No. 10 takes us into slightly different territory. This amendment, though not technically effective, outlines an alternative scheme. The scheme would enable the Secretary of State to give notice that an application had been unsuccessful and, simultaneously, serve a removal notice. The applicant would have one opportunity to appeal against both decisions, in the UK, and his or her leave would be deemed to continue until that process had been exhausted. Amendments Nos. 9 and 11 are an attempt at an effective means of achieving the scheme described in Amendment No. 10 and, in my view, offer the best and most comprehensive solution to the problems that have been identified. If the Minister is unwilling to adopt such a far-reaching solution, later amendments standing in the names of the noble Baroness, Lady Anelay, and the noble Lord, Lord Dholakia, will offer the opportunity to deal at least with the problems the scheme set out in the Bill would pose for international students. I shall listen with interest to what my noble friend the Minister has to say in response to the various schemes that have been proposed. I hope that some mutually acceptable compromise can be reached.