UK Borders Bill

moved Amendment No. 34ZA: 34ZA: Clause 19, page 11, line 18, leave out ““, and at the time of making,”” The noble Lord said: Clause 19 deals with exceptions to the rule that new evidence may not be submitted to the AIT relating to in-country appeals under the points-based system. The general rule under Section 85 of the NIA Act 2002 has been that at the hearing of an appeal, the AIT can only consider the circumstances as they were at the time of the decision to refuse, although there is nothing to stop the person from making a fresh application later on. The Home Office told ILPA that this has caused difficulty where evidence has been submitted close to, or even in some cases on, the day of the appeal, making it difficult or impossible for officials to consider in time what evidence has been supplied and to respond to it properly. This argument would be reasonable were it not for the fact that the AIT has the power in Rule 45(4) of the 2005 procedure rules to give directions on when evidence must be submitted and to exclude evidence where directions have not been followed, admitting that evidence may unduly prejudice a party, including the Home Office. It also has the power to adjourn the hearing or put it at the end of the day’s proceedings to give representatives time to consider the evidence. ILPA contends, and we agree, that these powers are more than adequate for the AIT to manage the appeals process. We have particular concerns about the effect of the exclusion in the clause on appeals under the points-based system, against which it is aimed. That system has yet to be fully rolled out, but there is inevitably a risk at the beginning that an applicant or his representative may miscalculate points or misunderstand certain criteria, with the effect that an appeal fails simply because of an error of fact which there would be no means of correcting. This could be particularly disastrous for people applying to extend their leave to remain in the UK, who are the appellants dealt with under the clause. It could be too late for someone to submit a corrected application after the appeal has been dismissed because his permitted leave to remain might then have expired, with the result that he would have to return to his country of origin and make a new application to enter. In the mean time, it could have a severe effect on, say, his studies at a university, or it could mean the loss of his employment or the disruption of his business relationships. We recognise that the Home Affairs Select Committee in another place recommended a restriction on new evidence similar to that provided in Clause 19. However, the Select Committee added that there should be a further stage at which the case worker issues a minded-to-refuse notice for an extension of leave, giving an applicant an opportunity to counter the draft refusal by submitting further evidence that would be considered by officials rather than by the AIT. However, Clause 19 would preclude the consideration of evidence submitted in response to a minded-to-refuse notice. We therefore suggest that the AIT should be obliged to consider only evidence submitted up to the date on which the appeal is lodged, giving the BIA plenty of time to consider it before the hearing. If there is to be a minded-to-refuse stage, applicants would have the chance to address points made and to correct errors arising from a misunderstanding or miscalculation. It would also accommodate the Home Office’s concern that new evidence should be considered by the BIA before it goes to the AIT. So although we are satisfied that the procedures rules afford the AIT adequate powers to deal with the problem that exists, we have accepted, following consultations with ILPA, that a solution can be found within the framework of Clause 19, and we hope that, without necessarily committing himself to the precise wording of our amendment, the Minister will agree that reasonable opportunities must be given to applicants to submit further evidence related to the circumstances at the time of their application in good time to be considered by the BIA at a stage before the hearing. I beg to move.