Immigration, Asylum and Nationality Bill

I am grateful to Members of the Committee who have spoken in this important debate. For those involved in the Committee, this is at the heart of concerns about the Bill. I want to set out how the new system will work and then look at why we think we will be in a position to remove appeals. The principle is to make sure that the resources we use on appeals are used appropriately. I take what the noble Lords, Lord Brooke and Lord Avebury, said about the need to look at all the evidence and at how the system has been working. I hold no brief for the system historically; I accept completely all the anecdotal and other evidence and information about some of the decisions that have been made. The critical aspect is to consider what the system will look like in future and to be clear that a lot of the concerns that noble Lords have rightly raised can be resolved by a better system. In other words, people end up appealing because the system does not work very well. All Members of the Committee have indicated their concern about how the system works and have given evidence to that effect. We need to develop, for students in particular, the relationship they have with the institution where they will study. Members of the Committee have indicated—in particular, my noble friend Lady Warwick—that the subjectivity of the way in which entry clearance officers might consider whether a person would be able to take a particular course could be inappropriate or wrong because they did not have the expertise necessary. There is no question that the institution to which they were applying could do that. Institutions have always had a degree of subjectivity and can determine whether an individual has the necessary qualifications and whether they want to offer him a course. My noble friend referred to the task force and I pay tribute to the work that Universities UK has done within that. The work is very important in identifying the relationship between the institution, the student and the Home Office. As institutions can deal with students effectively, as I said in my letter to the noble Baroness, the approach can become much more light touch. The first argument I would use is that the critical relationship becomes the institution to the student in terms of whether the person fits the criteria and can take up a course. The entry clearance officer is looking at the information that has already been provided, such as the certificate of sponsorship—the proxy for the ability and the intention to study—and the relationship between the institution and the student. The officer checks that the student has sufficient funds, which is usually done by bank statements. There are issues about documentation in various parts of the world—none the less, that is the usual way of doing it. The officer has to ensure that students have the documentation necessary to show their educational qualifications. That will form most of the basis upon which the entry clearance officer will make the decision. The situation will much better for the individual student because they will be looking at the same criteria. In other words, a points-based system will be clear to the individuals who apply in terms of what they are required to do. That will be huge change and goes a little, if not a long, way in making sure that people feel they have to operate effectively when they do not have the fact that they could have their decision appealed hanging over them. The second aspect regarding that is the administrative review, because in my experience from talking to noble Lords and institutions—and I am always willing to talk further about this with either Universities UK or individual institutions—the ability of the individual to recognise what is required, and the way in which they are able to relate to the system and the process will be critical as they move forward, is central and fundamental. So they will be able to identify before they apply whether they are likely to be able to get a place on a course, what the criteria and the relationship between the individual and the institution will be. That is central to how we want to deal with the issue. The administrative review comes about because much of the evidence that has been put forward was about information that was wrongly understood or written, or simply, as in one case, the university was not recognised by the entry clearance officer, who assumed that it did not exist. These are very clear administrative, factual and straightforward matters that relate to form-filling. It was important to make sure that the process was fit for purpose in terms of the review, and I took on board the points made by noble Lords at Second Reading. It is not an appeal in the traditional sense, but it is an important concession, because I said at Second Reading that I would be keen to look at this matter. It is an important way by which the Government are seeking to address the particular point raised by noble Lords. Unless noble Lords indicate otherwise, in Committee or elsewhere, that seems to address the vast majority of the problems that they have raised, and combines an objective points-based system, the role of the institution, the fact that all students see whether they will be eligible with everyone looking at the same criteria, and the opportunity to review the decision in an administrative capacity. I hope that the noble Lord, Lord Avebury, will not feel that this Government are asking the Committee to solve their problems, but that genuinely those organisations and noble Lords who have experience in this field have a major contribution to make in helping the Government to think through what that review might look like. I again pay tribute to Universities UK for providing information which I have not yet studied in detail, but has arrived and for which I am grateful. There is much that we can do as a Committee in considering what that administrative review might look like and achieve. That and the system that is being put in place—the role of the institution and the administrative review—should go a substantial way in addressing noble Lords’ concerns. The question underpinning all of that is whether people have confidence in the system. That was raised by noble Baroness, Lady Warwick, and most noble Lords agreed. We have provided in Clause 52 the opportunity to make sure that we introduce this in a measured an appropriate way, and pilots around the point-based system are already taking place to good effect. Of course we are looking to bring this in appropriately. The measures can be introduced in what one might describe as a staggered way, but I am not suggesting that we will bring one in and then wait forever to bring the next one into the appeal system. I am saying that the system will come in as a whole at an appropriate moment. We will want to work very closely with stakeholders to make sure that, as the Bill completes its passage through Parliament, we have everything in place. It may be a helpful reassurance to noble Lords that I am very happy to go away and consider this with my colleagues in the Home Office. Noble Lords are right to assume that the Government have no intention to move away from the fundamental aim of Clause 4, which is to remove the right of appeal. Of course students may reapply. That is very important. There is no desire to stigmatise students in any way if they are refused—unless of course that refusal went alongside forged documents or some other inappropriate behaviour. That would be a different matter. There is a desire for a system that is transparent, objective, easy to understand, easy to follow and very clear. There is also a desire to ensure that those working in the system are able to do so as effectively as possible. We also plan to make sure that the quality of the expertise available is enhanced. Noble Lords have indicated that the current independent monitor’s contract expired in November, as I understand it, and the plan is to have a full-time independent monitor. I have no idea whether the person concerned will apply for that position. The plan is to make it a full-time position where, for three months of the year, there will be an opportunity for the independent monitor to travel and make reports much closer to real time. I am sure noble Lords will accept that that is a much better proposition than the rather long annual reports—helpful though they may be—because it will enable us to speed up the responses to any lapses in quality identified in the reports. So there will be a new role for the independent monitor in the sense of being able to produce his reports much more quickly. I have indicated already that we are looking to pilot what is happening, testing the policy against cases in the UK and overseas, refining and retesting. When this goes live, it will go live having been well established and we will be able to show that there are no unanticipated outcomes as a consequence. We are also looking to make sure that the quality of decision making is as good as it can be. Reviews are going on and quality assurance forms have been introduced for completion by appeals presenting officers to provide feedback on the quality of decision-making. We have an expanded network of regional operations managers looking at best practice and making sure that we improve the quality and consistency of decision making. They will visit key posts in the next few months to support our entry clearance officers and managers in the work that they do. Entry clearance manager training is being expanded, appeals outcomes are monitored and key determinations are fed into the training courses. There is a whole range of different ways in which we are trying to support managers and entry clearance officers in the work that they do. We recognise the need to make sure that quality is of the highest order. We accept and understand why noble Lords have concerns in this area but we believe that the new system which is being brought into play will address those concerns effectively. I have already indicated that we are able to bring the system in within timescales determined post the Bill. I am happy to discuss that with noble Lords if it would be helpful. Turning to the issue raised by the noble Lord, Lord Avebury, in Amendment No. 15, I agree with the principle of what the noble Lord said. We are trying to achieve the same end in a different way. I shall read a very short note, just to put it on the record, and I should be grateful if the noble Lord would tell me, either now or later, whether there is anything he is still concerned about as a consequence. An EEA national and family members have the right to be admitted to the UK, as the noble Lord said, in pursuance of a treaty right, such as the Immigration (European Economic Area) Regulations 2000, as amended. As the noble Lord also said, an appeal right is conferred through these regulations. The amendment of course deals with non-EAA nationals. Following a recent European Court of Justice judgment, we accept that for Bulgarian and Romanian nationals who apply to come to the UK to self-establish under the relevant provisions of the respective European Community Association agreement, there should be a right of appeal against a decision to refuse entry clearance. We will reinstate these rights, which are to be removed under this Bill, using secondary legislation. At present, we do not accept the settled Community law which generally requires any other class of applicants to receive an appeal against a decision to refuse entry clearance to the UK, but if Community law develops and the right of appeal is extended, then of course that will be given effect. Again, that makes the case for doing this through secondary legislation. That takes us to the same point that the noble Lord, Lord Avebury, wished to reach, but by a slightly different route, although I would be grateful if the noble Lord would let me know if he feels that that is not the case. Clear criteria are set out in paragraph 18 of the Immigration Rules about returning residents. In order to qualify as a returning resident, the person must have had indefinite leave to enter or remain when they last left the United Kingdom, should not have been out of the country for more than two years, should not have received assistance from public funds towards the cost of leaving the UK, and must now be seeking admission for the purposes of settlement. Returning residents who are refused entry clearance would retain a limited right of appeal on human rights and, of course, racial discrimination grounds. I accept that not everyone wishes to do that, as the noble Lord, Lord Avebury, said. Those who have indefinite leave also have an opportunity to apply for citizenship. That largely reflects the current position. I hope that I have addressed all of the issues raised by noble Lords although I am not sure that have in any way satisfied them. But our ambition is to create a new structure and a system that will deal with all of those issues in a positive, consistent and transparent way, and give us the benefit of people who wish to come and study or work in the United Kingdom. On that basis, I hope that noble Lords will withdraw their amendments.