UK Borders Act 2007 (Commencement No. 7 and Transitional Provisions) Order 2011

My Lords, I, too, thank the noble Lord, Lord Avebury, for tabling this Motion of Regret and enabling us to probe the reasons for the Government’s actions in relation to the retrospective effect of this commencement order, which brings into force Section 85A of the Nationality, Immigration and Asylum Act 2002, inserted by Section 19 of the UK Borders Act 2007. The noble Lord, Lord Avebury, explained in some detail the background and significance of Section 19 of the 2007 Act. I do not intend to repeat all the ground that he covered, although inevitably there will be some repetition, for which I apologise. The noble Lord raised the issue of the retrospective effect of the commencement order and, as a result, its legality. Section 19 is entitled ““Points-based application: no new evidence on appeal””—which is exactly what it is about. As the noble Lord said, in immigration cases the general rule is that immigration tribunals can consider any evidence that is relevant to the substance of the UK Border Agency’s decision, including evidence from after the date of the decision. An exception to this is entry clearance applications, and Section 19 makes provision for a new exception; namely, points-based-system cases which relate to cases about people coming to or remaining in the UK for the purposes of work and study. As the noble Lord, Lord Avebury, said, Parliament had no proper opportunity to consider the order since the change was announced on a Thursday in May this year to be effective from the following Monday. Such haste creates difficulties for applicants, their legal representatives and the tribunals. Why such haste—not for the first time—was necessary in this instance is not clear. As has already been said, sometimes immigration provisions are brought in with little notice to prevent a sudden increase in applications before the change, but I assume that would not have applied in this case as the only people affected by the change were those who had already received a decision from the UK Border Agency and had lodged an appeal or were deciding whether to appeal within the allowable period of 10 working days. Under the commencement order we are discussing, the new provisions on evidence do not apply to appeals that were part-heard on 23 May 2011, but they do apply to appeals that were pending before the tribunal on 23 May 2011; namely, where the person had lodged an appeal and was waiting for it to be heard. This is the issue that this regret Motion is about. The rules have suddenly been changed so rapidly and so quickly, without warning and without notice, that a person who concluded, or was advised, that their prospects of success on appeal were good, because they could challenge the reasons for refusal with new evidence, suddenly finds that their prospects of success are poor because they cannot now produce that new evidence. As I am sure the Minister must know, a clear view has been expressed by the Immigration Law Practitioners' Association that the terms of the commencement order are not lawful and that it is an abuse of the principle of legal certainty. It argues that unless the language clearly indicates a contrary parliamentary intention, a statutory provision has to be construed as not interfering with existing accrued rights and that there is a presumption against retrospectivity which can be displaced only by clear statutory language, which cannot be found in Section 19 or in Section 59 of the UK Borders Act 2007, which deals with commencement. I am not a lawyer, and I am not qualified to offer a legal opinion, but I understand that challenges to the lawfulness of the commencement order are likely to be coming before the courts. I would like to put some specific points to the Minister to which I hope she will respond. The first is a question that she has already been asked: what is the Government's estimate of the number of people who had lodged an appeal before the tribunal on 23 May 2011 and were waiting for it to be heard? What is the Government's estimate of the maximum number of people who on 23 May 2011 could still have been deciding whether to appeal within the allowable 10 working-days window? Why was it necessary to announce the change on a Thursday and make it effective just four days later, including a weekend, on the following Monday? Why could it not have been implemented over a timescale that would not have left people who had gone to the time and expense of lodging an appeal on one basis finding that the legal basis had been changed without warning and without notice? Is it the Government's intention to follow the practice on implementation in this order in future, or do they intend to give Parliament a longer period of time to consider the implications and legality of such orders? Is it the Government's intention to make clear in future Bills that some measures will be introduced with a retrospective element so that this issue can be debated? I appreciate that it is unlikely that the Minister will disclose the legal advice the Government received on whether the retrospective effect of the commencement order is lawful, but can she confirm in words of one syllable that it is the Government's judgment that this commencement order is not open to successful challenge in the courts? I look forward to the Minister’s response to the points I have raised and to those raised by other noble Lords, not least by the noble Lord, Lord Avebury.