Immigration, Asylum and Nationality Bill

moved Amendment No. 2:"Page 1, line 16, at end insert—" ““(   )   the leave was granted to a person to follow a course of study at a United Kingdom education institution on the approved register, or”” The noble Baroness said: In moving Amendment No. 2, I shall speak also to Amendments Nos. 6, 31 and 33, which are supported by the noble Lords, Lord Dholakia and Lord Avebury. With the leave of the Committee, I shall also speak to Amendments Nos. 7, 32 and 35, which stand in the name of my noble friend Lady Morris of Bolton. My noble friend sends her apologies to the Committee because she is unexpectedly unable to be here, and she has asked me to speak to her amendments. Our lengthy but, I hope, very constructive and productive debate on the first group of amendments has served as a proper backcloth to this second group. I have made it clear that our preferred solution would be to find a way to ensure that the appeals system works effectively for all. My argument now is that if the Government feel that they are unable to move ahead with changes to Clause 1—and I am very heartened to hear what the Minister said about looking at Amendments Nos. 9, 11 and 34 between now and Report—then there are certain groups for which exceptions should be made. The narrowly drawn categories referred to in my amendments are students and children in certain circumstances. The contributions made in the last group by the noble Baroness, Lady Warwick of Undercliffe, and the noble Lord, Lord Dearing, were very helpful in setting the tone for this group of amendments. These are people who have entered the country legally in the first instance. The disruption that they would face if forced to leave the UK could cause administrative problems and give rise to successful human rights claims in the courts. The exemption for students in the amendments would not prove to be costly or overburdensome for the Home Office and, quite simply, it would be the right thing to do. Real examples of potential iniquity abound, and I am sure that the noble Lord, Lord Dearing, and the noble Baroness, Lady Warwick of Undercliffe, could give specific examples of when real hardship would follow. In the past I have quoted the example of a Chinese PhD student who was wrongly refused leave to extend his stay by just three months to complete his work or attend a graduation ceremony. He would, perhaps, have to go home to Shanghai to institute appeal proceedings and in the mean time would lose his opportunity to attend the graduation ceremony or complete a course. That simply lacks sense. Where is the evidence that there is a serious problem with variation appeals in relation to students? Certainly, I am grateful to all those who have briefed on these issues in addition to those previously referred to, including the Refugee Children’s Consortium. We have had very helpful briefings from ILPA, Universities UK and UKCOSA, all of which support the amendments in this group. I purposely tabled two different kinds of amendments relating to the problem of students. It may appear that I was being otiose but Amendments Nos. 2 and 6 were tabled to provide a different approach. I hope that the Minister can address all the issues in one go when she responds. Amendment No. 2 gives a right of appeal against a refusal to vary leave to those whose original leave was granted for them to study at an education institution on the approved register. I accept that one criticism of this amendment is that it looks at past leave to study at a recognised institution, whereas the application for future leave could be for a purpose unconnected with study or with that institution. So Amendment No. 6 offers a solution to that position. It protects those who move from one course to another or who change institutions or attend a viva voce examination, graduation ceremony or other such event directly connected with the course. Because it creates a new paragraph, (fc), it does not in itself provide for an in-country right of appeal, nor does it address the problem of a person becoming an overstayer between refusal and appeal. Having created a problem in that amendment, to fill the gap I tabled the two consequential amendments to Schedule 1 to ensure an in-country appeal and a continuation of leave pending appeal. Amendment No. 31 would ensure that, pending the final decision on an appeal under new paragraph (fc) inserted by the amendment, the appellant’s leave will continue on the same terms and conditions. I note that paragraph 4 was inserted in Committee in another place by government Amendment No. 59. The effect of that amendment was that, despite the provisions of what is now Clause 11, those appealing against a decision to refuse to extend their leave following their recognition as refugees or because they have been given an in-country right of appeal by an order made under the proposed Section 82(2)(fb) would retain their current leave with the attendant rights—for example, to work or to family reunion—during the period between refusal and final determination of the appeal. In the debate, the Minister said very little in speaking to the amendment and, for reasons we do not understand, spoke to it in a group on Clause 4 of the Bill, describing it as,"““consequential to many of the other elements in clause 4 and should have been included when we drafted the amendments””.—[Official Report, Commons Standing Committee E, 20/10/05; col. 133.]" That appears to be incorrect: new paragraphs (fa) and (fb) of Section 82(2) are inserted by Clause 1 and have nothing to do with Clause 4. The Bill team has confirmed to ILPA that government Amendment No. 59 relates to Clause 11. Amendment No. 33 ensures that an appeal under new paragraph (fc), inserted by the amendment, will be in-country. I turn to the amendments standing in the name of my noble friend Lady Morris of Bolton. I am grateful in particular to the Refugee Children’s Consortium for its briefing. It states that these measures are ill-conceived, punitive in nature and will have a hugely detrimental impact on those who are in an already vulnerable group. It goes on to say that the changes will do nothing to improve the protection needs of children, contrary to the explicit duties placed upon public authorities by the Children Act 2004 to safeguard children. In both Houses, the Government have stated that they will ensure that the appeal rights of children and children who have reached 18 years of age will be preserved and continuity of leave protected pending appeal. I welcome that commitment and that it has been honoured as regards continuity of leave and support by the insertion of paragraph 4 of Schedule 1 in another place. However, as was pointed out by the noble Earl, Lord Sandwich, the commitment regarding the substantive appeal right has not been placed on the face of the Bill. It has been indicated in debate that ““children”” would almost certainly be one of the categories to be later specified as exempt by the Secretary of State. I believe that Members of the Committee will agree that the term ““almost certainly”” is not the strongest assurance available to the Government. I hope to elicit from the Minister a response that she is able to go significantly further. I return to the general theme, having looked briefly at my noble friend’s notes and ensured that I have not omitted anything essential. I note that other noble Lords have tabled amendments underlining that the new system will adversely affect other groups, too. At Second Reading on 6 December, at col. 543, the right reverend Prelate the Bishop of Chelmsford asked why we should allow international students to be exempted from the rigors of Clause 1 and about other groups, too. I welcome the fact that other noble Lords have stated that other groups would also be disadvantaged. I shall listen carefully to the arguments put forward by the noble Lords, Lord Dholakia and Lord Avebury. Overall, it is clear from what has been said today that this is not a party-political issue. There is agreement around the House that we need to find a common way forward and it is a case of how we will do that. I hope the answer is, ““Soon””, and that in government terms that means very soon. I beg to move.