Immigration, Asylum and Nationality Bill

: This brings us to the major issue in the Bill, as far as I am concerned. A large number of organisations, including universities, colleges and students as well as business leaders and immigration law practitioners, firmly oppose measures in Clause 4 that would abolish the right of appeal in entry clearance cases. I am delighted that the Minister has agreed to talk again to her colleagues in another place about appeals in Clause 1, but I wish to make it absolutely clear that, from my point of view, Clause 4 appeals are a much bigger and more fundamental issue. So far, we have not been given any reason to hope that the Government are willing to move away from the principle that there should, in future, be no appeal in entry clearance cases. Like other noble Lords, I hope that the Minister will be prepared to reconsider, because I think it is absolutely clear that to abolish the right of appeal when there is currently no confidence in the quality of decision-making in entry clearance cases would be a grave mistake. The Committee is, by now, familiar with the arguments. More than 25 per cent of student appeals against refusal of entry clearance are successful. That is an astonishing rate, indicating a high proportion of bad decisions. What is worse is that when one looks behind those figures, it is clear that the real number of bad decisions in respect of students, certainly those in higher education, is much higher. As has already been said, the University of Sheffield has told us that it successfully overturns 90 per cent of refusals, either on appeal or before they reach that stage. Universities UK has gone to some lengths to establish the reasons for this high rate of success on appeal. What it found only goes to support what the Government’s own independent monitor in entry clearance cases has found: inappropriate reasons for refusal are routinely given. The entry clearance monitor’s report has been refereed to by the noble Baroness, Lady Anelay, and the noble Lord, Lord Avebury, and I do not wish to repeat the trenchant comments they quoted. But the evidence that Universities UK has gather entirely confirms the independent monitor’s conclusion. I do not wish to reiterate the cases to which I referred at Second Reading. Several examples were cited in that debate and I shall not repeat them here, but I am sure that Members of the Committee will be aware of the appalling examples that were used not only in my contribution but also in contributions made by other noble Lords. However, I can not resist repeating the astonishing example, given by the noble Lord, Lord Laird, at Second Reading, of a student from Cameroon who was refused a visa to study at an English language school in Northern Ireland and was told:"““You have further stated that you intend to study this course in Northern Ireland so that you can also improve your English. If this is your aim and English is not your first language, I do not find it credible that you would choose a school in Northern Ireland to do these studies””.—[Official Report, 6/12/05; col. 570.]" I should say that although I have not given at Second Reading or here in Committee the names of the institutions which provided examples, Universities UK would be happy to provide the Minister, in confidence, with evidence supporting them. The arguments produced by the independent monitor are enormously important here. The argument which Universities UK and others have been having with the Government rests on a very simple consideration: the Government intend to introduce a new points-based immigration system, that they hope will improve the quality of initial decision-making, which they acknowledge to be variable. They assert that the abolition of appeals at this point is appropriate because the new system will remove the need for appeals. For my part, I am not so confident. We hope, and believe, that the new system will improve decision-making. Indeed, through the Joint Education Task Force and other routes, we are working with the Government to ensure that it will. However neither we nor, I suggest, government Ministers really believe that the new system will solve all problems overnight. Indeed, I have doubts that the new system will be able to remove the kind of subjectivity which inevitably leads to decisions which are open to challenge. The Minister Tony McNulty has admitted that; he said:"““100 per cent objectivity is a fool’s errand””." It is not at all clear how it will be possible to avoid subjective judgements about, for example, intention to leave the UK. But even leaving aside the question of whether the new system will be perfect, there remains room for human error. The examples I have given of reasons why some students have been refused visas generally relate to circumstances where the facts of the case were plain, and yet some piece of evidence already in the hands of the ECO was ignored or overlooked, or they relate to cases where ECOs have failed to follow their own rules or to use the appropriate criteria for refusal. How will the new system avoid this? I would argue that it cannot. Where subjective decision-making and human error are in play, it cannot be right to abolish the only means by which a student refused a visa may formally seek redress. The Minister has already undertaken to bring forward proposals for an administrative review of immigration decisions. That is very welcome, but on its own, it is not enough. The experience our universities have had suggests that pre-appeal review works because there is the formal mechanism of an appeal hanging over ECOs. What will be the incentive to review decisions when appeals are gone? How can it be satisfactory to allow ECOs and their managers to be the final arbiters in decisions that they have taken themselves? Where I would agree is that a robust pre-appeal review procedure would reduce reliance on appeals, and hence the administrative burden on UK visas. Since reducing the administrative burden appears to be the only reason why the abolition of appeals has been suggested, I see this as a solution that would potentially benefit all parties. I hope that the Minister will be persuaded that this is not the right time to take away appeal rights in entry clearance cases. If not, I hope that at the least the Minister will consider international students as a special case: after all, there is no manifesto commitment to abolish the right of appeal in the case of students. Amendment No. 12 provides this opportunity. It would retain appeal rights for students who wish to follow courses lasting longer than six months at institutions on the approved register. That would weed out the more suspect operations, while protecting bona fide students at bona fide colleges and universities. This would be a small concession. It would recognise that it is vastly in the UK’s interest to attract international students—as has been advocated so passionately by the noble Lord, Lord Dearing, who, sadly, is no longer in his place—and it would not put unnecessary barriers in their way. It would recognise that the administrative costs in providing an appeal would be more than offset by the economic and financial contributions made by international students. It would recognise that the danger of pressing ahead with these measures is that bona fide students who have been offered and have accepted places at British universities will be turned away at the visa stage. Poor decisions will go unredressed. Students who have been refused visas will go elsewhere, carrying with them what has been called the ““mark of Cain””, the stigma of having been refused a visa. It cannot be right to approve this feature of the Bill currently before us. So I believe that Ministers should introduce the new immigration system and demonstrate that it works before legislating to remove appeals. As things stand, the appeals mechanism is a very necessary constraint on a system that would otherwise fail thousands of potential students and the universities who seek to attract them. I hope that the Government will be persuaded to reconsider.