Immigration, Asylum and Nationality Bill

I have not talked about Amendment No. 4. The purpose of this amendment, which stands in my name and that of my noble friend Lord Avebury, is to give business people a right of appeal against refusal to vary, including to extend their leave. The conditions of having invested £200,000 and creating two jobs for people in the United Kingdom are taken directly from the requirements set out in Rule 206 of the Immigration Rules. Also, by virtue of paragraph 4 of Schedule 1, the amendment solves the problem created by Clause 11, which makes people overstayers between the refusal and appeal stages. This amendment mirrors the one relating to students. It creates a new immigration decision in Section 82(2) of the Nationality, Immigration and Asylum Act 2002, and this has the effect of creating a new right of appeal on the face of primary legislation. While much attention in debates on this Bill has focused on students, the effects on other groups are just as dramatic. The Government’s five-year strategy acknowledges the benefits to Britain of economic migration, as highlighted by the requirements of the amendment. A business person who was forced to leave the United Kingdom and was technically an overstayer here by operation of Clause 11 could not continue to run a business, and the two or more people employed would also be likely to lose their jobs. Even if the business person had an in-country appeal on human rights grounds—on the basis of, for example, unjustified and disproportionate interference with his right to peaceful enjoyment of his possessions—being an overstayer under Clause 11 he could not continue to run his business in the mean time. A victory at appeal would come too late as the business he was seeking to retain would have been destroyed. Such uncertainty would inevitably be a factor that people take into account in deciding whether to base themselves in the United Kingdom or elsewhere. There is also the likelihood that some would seek judicial review on the basis that the out-of-country appeal would not provide an effective remedy and that successful appeals would then found claims for compensation and damages. While the amendment focuses on the one category of people with their own businesses, it provides an opportunity to raise the difficulties that Clauses 1 and 11 will create for all categories of self-employed people and workers. The Government’s five-year strategy suggests a greater focus on sponsors and that they intend to create a register of employers, just as they have created a register of educational institutions. If work to identify a responsible sponsor is successful and a recognised employer wants the employee to stay, there should be an opportunity to challenge a refusal before it takes effect and the business person is forced to leave the United Kingdom. The amendment mirrors the amendment on students. It creates a new immigration decision in Section 82(2) of the Nationality, Immigration and Asylum Act 2002 which has the effect of creating a new right of appeal in primary legislation. I am raising this issue because the matter was discussed at considerable length at Second Reading by the noble Lord, Lord Chan, who cannot be with us today. I was approached by several Chinese businesses who are represented by Christine Lee & Co (Solicitors) Limited which has presented a case in relation to the Chinese community in this country. Representatives of the Chinese community had a meeting with the noble Lord, Lord Chan, on 1 December and had the opportunity to speak to him about the effects of the Bill. I am told that:"““the Chinese are generally a reserved community who have never before made public complaints to the British government. However, for the first time in the history of the Chinese community here, they feel a strong need to come before Parliament and enter into the public domain to register their grievous objection and strongly protest this government Bill.""““The Chinese community firmly believe that the drafters of the Bill have failed to appreciate the serious implications and repercussions which the Bill is likely to have on the ethnic community wishing to invest, work or study in the United Kingdom as well as the adverse effects on the image of the United Kingdom on the international front.""““The Chinese community firmly believe that we are not the only ethnic community whose interests would be adversely affected by the passing of this Bill into law.""““However, the Chinese community are mounting a strong protest against the Bill as it would have wide repercussions on us and our way of life in this country: it would devastate the catering and restaurant industry, discourage Chinese investors from investing in the United Kingdom and greatly reduce the number of Chinese foreign students who believe the British education system is the best in the world.""““Further, the Chinese employers, who are traditionally reliant upon Chinese foreign workers in their restaurants and businesses, are legitimately concerned about the burden and sanctions which this Bill seeks unjustifiably to place upon them. Their concerns about the Bill, which seeks to impose an undesirable and unnecessary role upon them as . . . immigration officers, are real and justified.""““Finally, the removal of appeal rights in relation to both in-country and out-country immigration decisions raises . . . deep-rooted concerns in the Chinese community, particularly when the quality of first-instance immigration decisions are clearly questionable, as evidenced by this high rate of successful appeals overturning such initial decisions.""““Since the Chinese employers in this country have learnt about the potential implications and effects of the new Bill, they have become increasingly concerned about their business interests and the manner in which this new Bill would adversely affect””," the Chinese community. The letter is signed by Christine Lee & Co (Solicitors) Limited and I raise the issue because the noble Lord, Lord Chan, made a powerful case. I hope that even at this late stage, the Government will seriously consider the amendment with a view to accepting it.