Immigration, Asylum and Nationality Bill

moved Amendment No. 17:"Page 3, line 20, at beginning insert ““for the purposes of subsection (1)(b),””" The noble Lord said: Amendments Nos. 17 and 18 are in the names of my noble friend Lord Avebury and me, and Amendment No. 22 is grouped here in the name of the noble Baroness, Lady Anelay. I will speak to Amendments Nos. 17 and 18 and let her talk about Amendment No. 22; if need be, my noble friend Lord Avebury or I will comment on that amendment after she has spoken. Amendment No. 17 limits the reference to the person in the UK needing to be settled here to cases where the person seeking entry clearance to join them is applying for settlement, not just to visit. Clause 4 removes all right of appeal against the refusal of entry clearance, and provides limited powers to restore such rights by order to visitors and dependants. New Section 88A(2), inserted by Clause 4, sets out a non-exhaustive list of ways in which the restoration of rights may be further restricted. One of its provisions, new paragraph (c)(i), is by reference to whether the person whom the applicant seeks to visit or on whom he depends is lawfully settled in the United Kingdom; that is to say, he is a person with indefinite leave to remain in the United Kingdom. The effect of the amendment is that the regulations can, in deciding on the circumstances in which a dependant should have right of appeal, make reference to whether the person on whom they depend is settled or not. If the amendment is accepted, it will be clear in the Bill that the regulations may not make provision for settlement to be a relevant factor in the case of visits, so we are distinguishing between the two categories. People working or studying here may be here for many years and would expect during that time to receive visits from family members. For example, if their spouse, partner or child is refused a visit, it would be a serious matter and should attract a right of appeal. It is also pragmatic. It would save the family member within the UK having to challenge a refusal for a judicial review, alleging breach of human rights, or through channels such as a complaint to a Member of Parliament to be brought to the attention of the Parliamentary Commissioner for Administration. The purpose of Amendment No. 18 is to avoid making a subjective test—that of intent—the determinant of whether or not a person has an appeal against refusal of entry clearance. New Section 88A(2)(d) refers to the applicant’s purpose in entering as a dependant. It recalls that famous ““primary purpose”” rule, if the Minister is aware of that, and the agony and distress that it has caused over years to many families can be compared to what is on paper here. It could be used to make a subjective test—that of purpose—the determinant of whether the person has a right of appeal or not. The Minister of State in the Commons stated:"““We are looking for the most productive . . . transparent and clear set of rules and regulations so that everyone, including the applicants, understands exactly what is going on and, if a decision goes the wrong way, understands the precise reasons why . . . It is in that context that we need to understand what is going on in clause 4””.—[Official Report, Commons Standing Committee E, 20/10/05; cols. 113-14.]" To justify removing rights of appeal, the Government have attempted to rely on the notion that the points system will be objective, transparent and simple. We doubt that justification: objectivity is not so easy to achieve and establishing whether the most objective criteria are met may involve people weighing complex evidence. Moreover, mistakes will always be made, as has often happened with the primary purpose rule, frequently by an administration that is not subject to oversight by the courts. In any event, the subsection in question expressly envisages that the points system will involve entry clearance officers abroad making subjective decisions. That calls into question the whole rationale that the Government have presented to us for making these changes. If new Section 88A(2)(d) were intended to cover only objective criteria, that could be achieved by specifying categories of dependants in the legislation. That approach would be preferable and would meet the criticism of the House of Lords Constitution Committee on setting out appeal rights in secondary legislation. Entry clearance officers are poorly placed to assess purpose, as the Government have recognised, in that they have indicated in their consultation on the points system that they would like to get rid of the subjective test of whether the person is going to leave the United Kingdom. Why then introduce a new subjective test here? The outgoing Independent Monitor for Entry Clearance noted in her evidence to the Home Affairs Committee on 13 December 2005:"““Most cases focus on the intention to return and it is there that things get very complicated because basically an entry clearance officer has ten minutes to decide whether somebody is going to go back—they have a ten-minute interview or roughly about the same amount of time if they are looking at some pieces of paper—and I do not think they are given any sensible criteria on which to do that. I am not sure how easy it would be to formulate sensible criteria anyway, but the ones presently used are not, and I think the courts have said that as well, but entry clearance officers just carry on””." The independent monitor goes on to say:"““I really do not know, and I would like to see UKvisas write it down how entry clearance officers assess intention to leave the UK at the end of the visit on paper. I have asked them to do that as one of my recommendations to give guidance to ECOs as to how they are to do that. They have said they will but it has not happened, and I think it is because it is very difficult to articulate””." Those are striking comments from the independent monitor and ought to be taken very seriously. Unless we get a specific assurance from the Minister on the matter, we would have great difficulty in supporting this measure. I beg to move.