Immigration, Asylum and Nationality Bill

moved Amendment No. 24:"Page 4, leave out lines 10 and 11 and insert—" ““(b)   section 92(3C) applies.”” The noble Lord said: Clause 6 deals with rights of appeal against refusal of leave to enter for those who arrive at a UK port. It will mean that those whose right of appeal is currently in-country will henceforth have only an out-of-country right of appeal after they have left the United Kingdom. Those who currently have an out-of-country right of appeal—those refused on the basis of the purpose of their visit—will have no appeal at all. There will of course be no independent check on whether cases are properly categorised as being about the purpose of the visit, because of the lack of a right of appeal. Rights of appeal on grounds of asylum, human rights and race discrimination are obviously preserved. Moreover, Clause 6 would reverse the current burden of proof. It assumes that a person arriving at a port has a purpose in entering other than that for which entry clearance has been granted by an entry clearance officer abroad, and places the burden on the person to show that that is not the case. Our amendment is to probe the Government’s intention on the clause. The effect is to preserve the status quo, as set out in the Nationality, Immigration and Asylum Act 2002, whereby a passenger who arrives with a valid entry clearance and is then refused entry to the United Kingdom has a right of appeal from within the country before removal, unless the reason for refusal is that entry is sought for a purpose other than that for which the clearance was granted, in which case the person has a right of appeal from outside the country after removal. The amendment achieves that by: removing new Section 89(1)(b) of the Nationality, Immigration and Asylum Act 2002, inserted by Clause 6, which would deny a right of appeal altogether to a person refused entry on the basis that the entry is being sought for a purpose other than that for which the clearance was granted; and replacing that with a cross-reference to Section 92(3C) of the 2002 Act, which provides for an out-of-country appeal in such circumstances. The amendment also provides an opportunity to probe the Government on why they seek to deny any right of appeal to those refused on the grounds that the purpose of the trip is not the same as that specified in the entry clearance, denying any chance to challenge the immigration officer’s decision. Clause 6 looks difficult and technical and, perhaps for those reasons, has attracted little attention to date. However, the situations that it covers are easy to understand. A person arrives at a UK port or airport, having already obtained a visa where one is required. He or she has satisfied the entry clearance officer as to the purpose of the trip and has gone to the trouble and expense of making arrangements for it, which may be envisaged as prolonged, both in sorting out matters at home and in making arrangements in the United Kingdom. He or she has paid for a ticket and has undertaken the journey. Then, on arrival in the UK, the person is refused entry. The amendment is about what happens next. The current position does not give everybody a right of appeal. For example, there is no right of appeal for students entering for a course of study of less than six months duration who are refused entry. Under Clause 6, a person refused entry on grounds that the purpose of the visit is not the same as that specified in the entry clearance will have no right of appeal, whether within or out of the country. He or she will be sent home, with no redress. That replaces the current position, where the person has a right of appeal after removal. If entry is refused on any other ground, the person will have a right of appeal, but not within the United Kingdom. The right of appeal will be after removal. The current position is that such an appeal would take place within the United Kingdom. That matter was discussed at some length in the House of Commons. Unfortunately, at that stage, the amendment was incorrect, and I understand that the Minister there had a field day and more or less gave it short shrift. I hope that my contribution will put that right. The purpose of a visit may not be easy to determine. It demands a subjective decision, in contrast to statements made by Ministers that the intention in moving to the points system is to focus on objective decision-making. This is another clause that recalls the primary purpose rule in marriage cases, repealed by the Government in 1997. It is difficult to satisfy a court of someone’s intention when they are not available to give oral evidence. The clause removes any right of appeal at all where the refusal is on the basis of the purpose of the visit. Worse than that, new Section 89(1)(b) puts the onus on the person coming to satisfy the immigration officer that the purpose of the visit is the same as that specified in the leave to enter. It thus starts from the presumption that the purpose is not the same. The arriving passenger will already have satisfied the entry clearance officer overseas of the purpose of the visit and that he or she meets all the requirements of the immigration rules. In those circumstances it is wrong to place the burden of proof on the person arriving, as is done by the clause. If an immigration officer at a port in the United Kingdom is considering taking away a status already granted by a colleague, there should be safeguards. These are entry cases where the disruption to the person refused is the maximum it could be, because they have already travelled. If you refuse someone on the basis that the purpose of their visit is not the one specified in the entry clearance, they get no right of appeal, whereas if you refuse them on any other basis, they get a right of appeal. What check will there be that the refusal on the basis of purpose has been made and classified properly? Leaving out Clause 6 would have the same effect as Amendment No. 24. However, as our proposal is better drafted than the existing provision, we propose to amend Clause 6 rather than to leave it out entirely. I suggest to the Minister that she looks at the case that has been presented to see whether the Government would consider it. I beg to move.