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

Baroness Hamwee Excerpts

Thursday 7th July 2011 Lords Chamber

[Lord Avebury]

My Lords, I am very grateful for the opportunity to discuss this Motion, which relates to an order that brings into effect Section 85A of the Nationality, Immigration and Asylum Act 2002, inserted by Section 19 of the UK Borders Act 2007. The title of Section 19 is “Points-based applications: no new evidence on appeal”, and that is a succinct description of its effect. The general rule that applies to immigration cases is that the immigration tribunals have power to consider any evidence relevant to the substance if the UKBA decision is under appeal, except in entry clearance cases—that is, cases relating to applications from abroad. In such cases, if there is a new development, the individuals have to make a new application to UKBA.

Section 19 makes provision for a new exception: all points-based system cases dealing with people either coming to or remaining in the UK for the purposes of work or study. A good deal was said about the substance of this section in the debate in Committee on the Bill which became the UK Border Act 2007, although there is no point in recapitulating the arguments against it that were deployed in both Houses, including in your Lordships' Grand Committee, on an amendment which I moved on 1 July 2007. If anyone is interested, it starts at col. GC 70, but I am afraid that the arguments are now only of historical interest.

In this short debate, I invite your Lordships’ attention to the specific reason for this Motion: namely, what I consider to be the unlawful retrospective effect of the commencement order. On Thursday 19 May, the immigration Minister, Damian Green, made a Written Ministerial Statement, announcing that this change would come into force the following Monday, 23 May, and advancing as an argument that around two-thirds of successful points-based system appeals were those at which further evidence had been submitted after the dismissal of the initial application. At some point on Friday 20 May, the commencement order was placed on the website www.statutelaw.gov.uk and printed copies were available in Parliament some time on that day.

There was hardly any time for your Lordships or Members of another place to consider the merits of the order or its lawfulness, let alone to consult with persons who might be affected by it or their legal representatives. On the Localism Bill, we have just had a discussion on the unwisdom of allowing discussions on the further edges of that Bill to be channelled into the Recess, the only opportunity between the last sitting day and the first day that we come back—it is a similar case. Your Lordships are not being given adequate opportunities for discussions on what may be very important details or of consulting with outside experts or lawyers on the way in which these matters are being dealt with.

This is not the way to treat Parliament and I would be grateful if the Minister could explain the reason for such unseemly haste when Section 19 has been lying unused on the statute book for the past four years, during which time six commencement orders relating to other sections of the 2007 Act have been approved by Parliament. It could not have been for the reason sometimes given for orders changing immigration law being brought in with little notice, which is to prevent a spike in applications before the change comes into effect. In this case the only persons affected were those who had already received a refusal from the UK Borders Agency and had either lodged an appeal or were within the 10-day working window for deciding whether to lodge an appeal.

The Immigration Law Practitioners Association, ILPA, wrote to UKBA protesting about the lack of notice and, in its reply, UKBA said:

“The order is not required to be laid before Parliament and it is not subject to the 21-day rule, as such no parliamentary conventions have been ignored in the introduction of this measure”.

No doubt that is true, but your Lordships still have the right to consider these orders, by tabling a Motion before they come into effect, as I have done. I respectfully suggest that, to table these Motions on a Friday when generally neither House sits in the hope that no one will notice them on Monday when they arrive for a busy week, is a sneaky way of preventing any parliamentary scrutiny. This case is not only an insult to Parliament, but it creates major problems for the affected applicants, their legal representatives and tribunals.

Looking at the order, the new provisions on evidence do not apply to appeals that were part heard on 23 May, but they apply to appeals that were pending before the tribunal on that date; in other words, when a person has lodged an appeal and is waiting for it to be heard. The gravamen of my Motion is that it is a violation of the principle of legal certainty when a person has gone to the trouble and expense of lodging an appeal on one legal basis only to find the rug pulled from under their feet by a change in the legal basis, which has come into effect without warning or notice. Indeed, they would have had every reason to believe that, as Section 19 had been dormant for the past four years, they would be very unlucky if it suddenly came to life during the interval between the refusal of their application and the hearing of their appeal. Such a person may have concluded or may have been advised that their prospects of an appeal succeeding were good because there was substantial new evidence available, but they would have those expectations dashed because that evidence was instantaneously disqualified.

We are advised by ILPA that the terms of the order are not lawful. 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. There is a presumption against retrospectivity which can be displaced only by clear statutory language and there is nothing in Section 19 or in Section 59 of the parent Act 2007 dealing with commencement that displaces the presumption in the case of Section 19. It is particularly telling that Section 59 displaces the presumption in the case of other sections of the Act, such as Section 26.

Without going through all the consequences of what Section 19 will mean in practice, there is one on which I seek an assurance from the Minister. This is the refusal of appeals on the grounds that mandatory evidence is missing or faulty. UKBA has issued a notice to its consultative forum, the employers’ task force, stating that a validation stage is being trialled in which applicants are contacted when mandatory evidence is missing and given the opportunity to provide it before the decision is made. Those with pending appeals on the date on which this order came into effect had not had the benefit of that validation stage and I ask my noble friend to check that none of them had their applications rejected solely on the ground that a mandatory document had not been produced. As we all know, when dealing with complicated applications, it is easy enough to omit accidentally some piece of information that is required and we would expect to be reminded of the omission rather than to be told that the service requested would not be granted to us because of the omission.

Entry clearance appeals have always been held under the law which applied when a negative decision was made by UKBA and before that by the Home Office on the application, going right back to the original immigration Act 1971. Not surprisingly, challenges to the lawfulness of this order are coming before the courts, a situation which could have been avoided if the Government had made transitional provisions for the small number of points-based system cases where the application had been refused but the appeal had not yet been started when the order came into effect. The wording of the order could simply have been amended so that it applied to appeals against decisions made on or after 23 May.

For the sake of this handful of cases, the Government are breaching a fundamental principle of law and it is the duty of Parliament to warn them of the enormity of what they are doing. We ask them to lay orders in proper time to allow Members to judge whether they are lawful and never again to scurry them in furtively over a weekend. We ask them never again to fail to make it clear in primary legislation where it is the intention to make the commencement of a section or sections retrospective. I beg to move.

[Baroness Hamwee]

My Lords, I will not repeat the arguments that my noble friend made so powerfully. I have one point and one question for the Minister. My noble friend mentioned the validation pilot. Before hearing about that, it struck me that the problem may lie in a lack of clarity about the evidence required, and in poor initial investigation. Can the Minister say anything about that?

I will not talk about making rods for our own back, but as a country we owe it to those who are applying for visas to be as clear as possible about what is required. We have talked in many debates about immigration and the importance of warm feelings on the part of other countries towards this country—the reputational area. I will mention that in this context.

[Lord Judd]

I will follow on from that sentiment, but first I feel that it is important to congratulate the noble Lord, Lord Avebury, on raising this matter. In this House, there is sometimes—shall I say?—exaggerated and even slightly operatic flattery, but it is impossible to overdo our appreciation of the noble Lord. Throughout his parliamentary career, he has been a model of what disciplined, detailed scrutiny is about. We may have big and emotional debates and focus on sensational issues, but the noble Lord has demonstrated that for Parliament, doing scrutiny well requires a great deal of detailed application and thoroughness. He does not easily let points of principle escape his attention, and we should all be grateful to him.

The issues on which it would be important to hear comments from the Minister include retrospective legislation of any kind. I deprecate retrospective legislation because on the surface it always casts doubt on the principle of legal certainty. From that standpoint, there has to be a very special case for anything that involves retrospective legislation.

My second point is one that the noble Baroness has just emphasised, namely that we spend a lot of time preaching to the world about the absence of the rule of law. Immigration policy puts us in the front line of relationships with people from other countries. It is terribly important that in our policy we demonstrate an absolute commitment to the rule of law. There is a perception—we could debate this more fully on another occasion—that what we take as important in the general administration of law does not always apply to immigration; that the task of immigration is to say no and to get people to go home rather than to find the truth behind the application; and that it is not to put ourselves in a position to understand a person’s desperate plight and to determine that no stone shall be left unturned in ensuring that justice is fulfilled in their case. From that standpoint, what the noble Lord has put before us today is an applied illustration of why it is so important to take these matters seriously. I hope that the Minister will deal fully and convincingly with what he has put before us.