Asylum Seekers: Support

Lord Avebury Excerpts

Thursday 24th January 2013 Lords Chamber

[Lord Taylor of Holbeach]

I hope that I can reassure the right reverend Prelate. There is an ongoing review of our approach to asylum support, which I expect to be concluded by the end of the financial year. That review will take into account the views of partners, including any recommendations set out in the report of the Children’s Society inquiry into asylum support for children and young people, due to be published next week, I believe.

I put on record my thanks to the right reverend Prelate for his involvement in the production of the report. As noble Lords might assume, any changes to the arrangements will be reported to Parliament.

[Lord Avebury]

My Lords, I declare an interest as a member of the All-Party Group on Children. Is my noble friend aware that it is unreasonable and unfair not to uprate the benefits paid to asylum seekers in common with all other recipients of benefit? With respect to Section 4 support, how much is saved by having a different regime for those people compared to those on Section 95 support? Would it not be better if every asylum seeker was on the same level of benefit, to avoid driving those on Section 4 support into destitution, as has happened?

[Lord Taylor of Holbeach]

My noble friend makes a very good point. In the briefing that I had before answering this Question, I was surprised to discover that there were two levels of benefit. It is important to emphasise what I said in answer to the right reverend Prelate’s supplementary question: a review is going on and we should await that to see what recommendations it makes. It must be important to take on board the point that my noble friend makes.

Crime and Courts Bill [HL]

Lord Avebury Excerpts

Wednesday 12th December 2012 Lords Chamber

[Lord Avebury]

My Lords, I am most grateful to the Government for considering the matters raised in my Amendments 148B and 148D in Committee, and for coming up with this new clause which addresses them—as the Minister has explained—in subsections (1) and (2). It appears that subsection (3) of the new clause deals with the problems identified by the Upper Tribunal in the case of Ahmadi, as my noble friend the Minister said, and also that of Adamally and Jaferi. In Ahmadi, Upper Tribunal judge Mr Lane said:

“It would clearly be possible for Parliament to amend s.47 of the 2006 Act, so as to enable the respondent to make simultaneous decisions ... Unless and until that is done ... In practice ... the present usefulness of s.47 is highly questionable”.

This is, I suggest, a good example of the complexity of our immigration law, and the risks incurred by getting the language wrong. If the original Section 47(1) of the Immigration, Asylum and Nationality Act 2006 is being amended, it has taken senior judges and Parliament six years to remedy the flaws that made this particular section unworkable so that it was impossible to remove the persons concerned who had no right to remain in the UK.

We do not even know whether it is indeed the original Section 47(1) that we are amending because the website that is intended to provide your Lordships with the text of Acts as amended carries the warning message:

“There are outstanding changes not yet made by the legislation.gov.uk editorial team to Immigration, Asylum and Nationality Act 2006”.

This is an unsatisfactory situation, which does not apply only in this instance, and I hope that my noble friend might say something about the steps being taken to ensure that legislation.gov.uk is brought up to date, so that your Lordships and another place know what they are being asked to amend.

[Lord Lester of Herne Hill]

My Lords, perhaps I may add to what my noble friend has just said. My wife is an immigration and asylum judge and from time to time she and her colleagues are sent for training in order to try to understand what the Home Office is producing. I hope that she does not mind my mentioning this, but she and her colleagues find themselves in a quite terrible situation in trying to understand the Kafkaesque material that flows out of the Home Office. There are two people in the Chamber who will understand these amendments—one is the Minister and the other is my noble friend Lord Avebury. I do not understand them. For me to understand them I would have to read the three different Acts of Parliament, all of which are put in play in these amendments, and I would have to listen to and read again what has been said by the Minister. The net result would be that we will continue to have a network of regulations that it is quite impossible for ordinary men and women, including Members of this House, to understand unless and until the Home Office does what we have repeatedly asked it to do for the past many years—to consolidate the legislation into a single measure that can be understood by users, whether they be would-be immigrants, refugees or asylum seekers, or lawyers, NGOs or the public. At the moment it is almost incomprehensible and lacks, therefore, legal clarity. I very much hope that, when I do understand these amendments, what I have just said may be listened to by the Home Secretary and other Ministers who will instruct their officials, please, to come up with consolidating legislation that we can understand.

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[Lord Avebury]

My Lords, I agree with the noble Baroness. A great many of the refusals of applications for leave to enter have been due to misunderstandings about what information is required, and there ought to be a simple procedure for rectifying elementary omissions. I think that I recognise the particular case that she mentioned, because that person has already been in touch with me as well. He made every effort by sending numerous e-mails to the people dealing with the case to try to find out exactly what omission he was guilty of, but was never successful in establishing what further information he needed to provide.

Clause 26 removes the right of appeal against the refusal of a visa to visit family members, except where the appeal is brought on racial discrimination or human rights grounds. I had hoped that in the five months since we considered this matter in Committee, and in the light of the arguments that we advanced then, the Government would have had second thoughts about this clause. It is disappointing to see no sign of that on the Marshalled List.

I shall explain why we felt the need to return to this matter. The Government’s hostility to the right to family life is exemplified by the making of new Immigration Rules making it far more difficult and expensive for spouses and elderly dependent relatives to join heads of households in the UK, reducing the number by an expected 35%, over which the Immigration Minister is already crowing. Clause 26 turns the screw further by preventing appeals that would have been successful under the law as it now stands. I pointed out in Committee that if the argument for Clause 26 was that the number of appeals had risen to far greater levels than were expected when the right of appeal was restored in 2000, as was argued before the Home Affairs Select Committee, the obvious remedy was to get UKBA’s decisions right in the first place. Almost one-third of them are overturned, according to my noble kinsman Lord Henley in Committee, involving the taxpayer in a great deal of unnecessary expense. My noble kinsman said that taking away the right of appeal would lift the burden of processing 50,000 appeals from visa staff, but that was based on the assumption that officials would continue to reject bona fide applications at the same rate as they have in the past. We are told constantly that UKBA is undergoing processes of reform, which will enable them to be more accurate in the first decisions that they make.

After the case of Alvi, which your Lordships have discussed, the information required to be submitted with the visa application is now set out in detail in the rules themselves, so that in theory, there should be fewer cases where an applicant has omitted a particular document. However, considering the volume and complexity of the rules, which was mentioned by my noble friend Lord Lester on the previous amendment, it is inevitable that some applications will be refused for that reason. The Government suggest that persons who have omitted a document should put in a new application rectifying the omission at a cost of £78. That may be a trivial sum to my noble friends on the Front Bench, but it is a lot of money to a poor farmer in Gujarat or Sylhet.

I take the point that a new application is less expensive and faster than an appeal; but where the decision-makers have made an obvious mistake, I do not accept that a genuine family visitor should have to pay twice, and suffer the complications affecting future travel, because the refusal has to be declared not only in the UK but to any other intended destinations to which the applicant may travel. Therefore, it is a blot on the person’s copybook that he will want and need to remove if he is to go anywhere without hindrance.

If a person wins the appeal, it is likely that the tribunal will make a costs order against the Secretary of State, so that the appeal will be free in the end. Moreover, if the refusal was due to disbelief that the applicant would return home at the end of the visit, it is only too probable that a fresh application would yield the same result. Only by appealing can the person attack the errors that led to the original refusal, and it was for that reason that I advised Mrs N from Beirut—whom I think was the person that the noble Baroness was talking about a few minutes ago and whose case I mentioned in Committee—to appeal as well as to ask for the original decision to be reviewed.

Therefore, I am afraid that the reasons that were given by my noble kinsman for thinking that an appeal may not be the best remedy for an unjustified refusal do not hold water. I hope that in the light of that consideration, there should be a simple process that would enable the applicant to lodge supplementary evidence supporting the validity of any document or statement which is challenged, rather than having to start again from scratch.

[Lord Lester of Herne Hill]

My Lords, many years ago, in 1967, I did the first case in Strasbourg against the United Kingdom: a case called Mohamed Alam & Mohamed Khan. Sir Roy Wilson had produced his report advocating an appeal system. It was as a result of the Strasbourg case and Sir Roy Wilson’s report that the immigration appeals system was first introduced —a system which has gone on until now. I strongly support the explanations and powerful speeches given by the noble Baroness, Lady Smith, and my noble friend Lord Avebury.

What is the situation at the moment? Instead of there being a proper process at first instance before there is an appeal—a process of proper decision-taking based upon the kind of common-sense approach that the noble Baroness, Lady Smith, is advocating—mistakes are made quite frequently. When the appeal comes to someone who is an immigration and asylum judge, often no presenting officer is produced by the Home Office to present the government case or there is no one to represent the applicant. My wife will come home at the end of the day and say, “I have now for the first time to take a proper decision myself as though I were doing it at first instance because I have nobody to help me on either side and I find that the initial decision is defective. I now, on appeal at great public expense, have to correct mistakes which should not have been made in the first place at first instance. The only way in which those mistakes can be corrected is by having an appeal system. It is the only safeguard”.

The system now resembles the fairy story, The Little Prince, which noble Lords may remember, in which the boa constrictor swallows a sheep. One sees the lump of the sheep passing along the boa constrictor. The sheep is the process of taking decisions in this area. Instead of the process being properly determined at first instance and making the need for appeals rare, a great lump, the creature, passes along the snake, which leads to a first-instance appeal, an upper-tier appeal and judicial review.

The remedy is simply the common-sense one. One has at first level as much information as possible for a well informed decision. The advantage of the amendment tabled by the noble Baroness, Lady Smith, is that it would at least enable proper communication between the officer and the applicant or the applicant’s representative. I can see no argument against that, especially if we were to abolish appeals, which I very much hope will not be the case.

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Quite simply, the tribunal makes a different decision based on different information. That is not a sensible or proportionate use of the appeals system, which is more time-consuming and protracted than a fresh application system. If applicants have additional information that they wish to provide in support of a visa application, they should reapply. The appeals system should not be used as a second application, not least as it is more time -consuming, as I have said, and can be more expensive.

[Lord Avebury]

Will my noble friend deal with the point I made? The exercise of the right of appeal is not only for the purpose of getting the decision reversed but to prevent there being a blot on a person’s record, which may seriously hinder their future ability to travel anywhere?

[Lord Taylor of Holbeach]

I do not accept that at all. If someone’s application to visit this country is refused, then I regret to say that it must be because either they have failed to fill in the application correctly or there are substantial reasons why they should not be allowed to make that visit. I cannot accept the premise of my noble friend’s argument.

The Government are not persuaded by the case for my noble friend’s Amendment 118A. To accept it would introduce a right of appeal for people who have, for example, practised criminal or other dishonest behaviour, while those who have acted honestly would not have an appeal. It cannot be right that that type of behaviour is rewarded.

Regardless of whether an application is refused, relying on a general ground of refusal, the applicant is free to re-apply setting out why the previous refusal was unjustified. All refusals on general grounds are authorised or reviewed by entry clearance managers before being served. If refused under general grounds, it is also open for an applicant to make a fresh application by providing new evidence which an entry clearance officer will take into account. A refusal under paragraph 320 of the Immigration Rules may also be challenged by a judicial review. Prior to making decisions, all entry clearance officers have to pass a three-week training course, part of which focuses on making decisions using paragraph 320 of the Immigration Rules. There is also an e-learning package specifically relating to the sub-paragraphs of paragraph 320 that may lead to an applicant’s future applications being automatically banned. This package is completed by entry clearance officers during their induction training on arrival at their decision-making post.

I think I have demonstrated that the process is thorough and that there will be considerable advantage to the efficiency of the system and, indeed, to applicants themselves if the Government’s proposals are approved. I trust that I have been able to satisfy my noble friend.

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Moved by

[Lord Avebury]

118C: Clause 27, page 24, line 17, at end insert—
“(4) This section does not apply if—
(a) the person concerned is stateless,(b) the person concerned has previously made an asylum claim or a human rights claim and been granted leave on that basis, or(c) the person concerned asserts in his or her grounds of appeal an asylum claim or a human rights claim.”

[Lord Avebury]

My Lords, leaving out this clause would ensure that a person who is outside the country when his or her leave is cut short by the Secretary of State retains the right to return to the UK within the time limit for appeal and thus the right to exercise an appeal in country. At issue are cases where a person’s leave is cut short by the Secretary of State under Section 82(2)(e) of the Nationality, Immigration and Asylum Act 2002 when he is outside of the UK at the time of the refusal.

It happens frequently and not by accident that the Secretary of State takes advantage of a person’s absence to issue the notice, knowing that that person will not be able to return to the UK to exercise the right of appeal. At the moment, that person has an in-country right of appeal against refusal. The courts have had to consider what happens when an individual is outside the UK at the time of the refusal. As I say, these circumstances will not arise by chance. The Secretary of State will have waited until the person is outside the country to serve the notice cancelling their leave. The courts have held that the person has the right to return to the UK and to lodge an appeal within the time limit for appealing if he had been within his previous leave to remain.

Clause 27 provides that such a person will be given no opportunity to return to the UK, reversing the decision of the court in the case of MK. I referred to this case in Committee so there is no reason to repeat the details now. I simply remind your Lordships that MK was a Tunisian refugee in the UK, but was in Italy when his status was revoked by the Home Secretary. His right to contest that decision in the UK was upheld by the court. It is that decision which is reversed by Clause 27.

The clause has been amended to restrict the Secretary of State’s power to exclude an in-country right of appeal to those cases where she exercises the power before the person brings his or her appeal. However, this does not address the fundamental injustice in the clause. In Committee, my noble kinsman said that it was,

“wholly reasonable that judicial scrutiny of the decision should be carried out while the individual remains outside the United Kingdom”.—[Official Report, 4/7/12; col. 719.]

He ignored the fact that a person stranded abroad without access to legal advice and unable to consult face-to-face with his lawyers or to approach witnesses who might testify on his behalf is generally going to be at an overwhelming disadvantage in challenging the Home Secretary’s decision. My noble kinsman said that legal aid would remain available for most applications for judicial review of immigration decisions, and I would be grateful if the Minister would confirm that it will be available in these cases as well.

I mentioned also the Court of Appeal’s finding in the case of MK that the right to an in-country appeal was “valuable” and the fact that pursuing an appeal that turns on character may depend critically on how the litigant appears in court. I submit that it is wholly unreasonable for persons who may have resided in the UK for many years to be put in this position. We are not seeking to undermine what my noble kinsman referred to as,

“the operational integrity of the Home Secretary’s power to exclude an individual from the United Kingdom”.—[Official Report, 4/7/12; col. 721.]

We simply seek to ensure that in exercising this power to change someone’s life drastically for the worse, the Home Secretary must abide by the rule of law.

If the repercussions of Clause 27 are serious for those to whom it applies in general, they would be exceptionally so for stateless persons, refugees and persons granted humanitarian protection. Therefore, retaining for these persons the right to return to the UK within the time limit for appeal and to exercise an appeal in country is only fair. They will find themselves, and possibly their families also, stranded outside the UK and with no other country to which they can legally resort in safety if this clause goes through.

My noble kinsman said in Committee in response to this amendment that it could provide every individual refused under the provision with an in-country right of appeal, as they would merely need to raise human rights or asylum grounds in their appeal. Proposed new subsection (4)(c) would have this consequence, but of course the appeal would succeed only if the asylum or human rights claim was found on appeal to be justified.

The Government are proposing a hugely oppressive measure of stripping a person of their leave to remain while they are outside the UK and leaving them in limbo. They must accept the need to put in place safeguards. It may not be possible to ensure that no one other than those in genuine need of the safeguards benefit, but if that is the only objection to the amendment, my noble friend should say so and we can preserve at least proposed new subsections (4)(a) and (4)(b) on Third Reading. Those who are already stateless or who have been granted leave to remain on the basis of an asylum or human rights claim are surely not to be deprived of a meaningful right of appeal against a decision that will ruin their lives for ever. I beg to move.

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[Lord Mackay of Clashfern]

My Lords, just before my noble friend sits down, I would like to understand the position. Somebody is outside the country having had leave to remain in it previously; the Secretary of State gets information to suggest that that person would be dangerous to the country if he or she returns; and the Secretary of State decides, on that information, that that is so. Is the position then that, in order to comply with the amendment of the noble Lord, Lord Avebury, the Secretary of State would have to allow that person, whom he or she believes to be a dangerous person to the security of the country, back to lodge an appeal? Why should that be? Why should the Secretary of State allow somebody, whom he or she thinks to be a danger to the country, to come back into the country solely for the purpose of appealing against that judgment? If he does come back into the country, there is at least a risk that his activities will not be confined to appealing but may include doing what the Home Secretary has considered constitutes the possibility of danger to the country.

[Lord Avebury]

My Lords, the crux of the matter is that the Minister suggests that credible evidence exists for the Home Secretary to have made this decision that the person has been involved in serious criminality, terrorism and so on. The Secretary of State waits until the person goes abroad for some reason, whether it be for compassionate reasons, as the noble Lord, Lord Pannick, has suggested, or for any other reason, and then pounces—

[Lord Taylor of Holbeach]

I realise we are on Report, but I will just say to the noble Lord that it may be that the conduct that leads to the Home Secretary making this decision takes place while this individual is abroad. I think the notion that this is a premeditated trap is false. It is more to do with the possibility that the individual, while abroad, makes contact with someone, or evidence comes to light as to their true intent, or what they might do when they return to this country becomes apparent, and the Home Secretary wishes to deal with the problem.

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[Lord Avebury]

I do not know. The noble Lord has raised this for the first time. It has often been suggested that the Home Secretary does pounce when somebody is abroad for personal reasons. In the case of MK, which I quoted in Committee and mentioned again briefly during this debate, those acting on behalf of MK certainly believed that the Home Secretary deliberately waited until he was abroad before exercising this power.

The Minister was relying on the Home Secretary having credible evidence of this person’s activities being in the nature of serious criminality, terrorism and so on. One has to take that on trust. In nine cases out of 10, this individual is not going to be able to appeal. The individual will be stateless, as the noble and learned Baroness has just suggested, and that was the case with MK. He was a recognised refugee in this country when he went to Italy, I think. He was in Italy when the Home Secretary made the order against him, making it virtually impossible for him to exercise a worthwhile right of appeal.

I know of cases where it has been alleged that somebody’s presence in the United Kingdom is non-conducive to the public good. I had long correspondence with successive Secretaries of State trying to discover the issue in a particular case—that of the leader of the Jammu Kashmir Liberation Front, who was formally a refugee in this country and was declared by the Home Secretary to be non-conducive to the public good after he had been arrested on charges of terrorism and acquitted. Nevertheless, he was sent packing and has not been readmitted to the United Kingdom since then. I made great efforts to persuade Secretaries of State that he is no danger to the public in this country and that his activities as the leader of the Jammu Kashmir Liberation Front have been peaceful, but I have never been able to get behind the decision. The decision that somebody’s presence is non-conducive to the public good is one that the Secretary of State exercises by his or her absolute authority, and it is difficult to challenge.

I am grateful to the noble Lord, Lord Pannick, and my noble friend Lord Lester for the support that they have given to this amendment. I was thinking of testing the opinion of the House. I have decided at this stage not to, but to think further about what my noble friend has said in reply and to consider what methods we have for dealing with this situation. It is a serious flaw in our procedures to force somebody, who is in exile and has no access to lawyers or to witnesses, as my noble friend has just said, to attempt to refute allegations of which he may be only dimly aware. For the time being, I beg leave to withdraw the amendment.

Amendment 118C withdrawn.

Immigration: Home Office Meetings

Lord Avebury Excerpts

Monday 3rd December 2012 Lords Chamber

[Lord Taylor of Holbeach]

I do not agree with that description. The arrangements for graduate students are that they can come, but they have to show that they have an appointment that is capable of earning £20,000 a year. That is a reasonable expectation that we should have for people coming in as graduate students.

[Lord Avebury]

My Lords, who is accountable for the false statement made by the UKBA last spring that the legacy cases had all been resolved when it now emerges that there were still 147,000 in the queue?

[Lord Taylor of Holbeach]

As we know, there is a huge number of legacy cases. This was referred to in the Question we tackled last week. It is a matter of concern that these legacy cases were not cleared up promptly; they are being cleared up now and are being tackled so that those students who have been discovered to be here improperly are being sought and obliged to leave.

UK Border Agency

Lord Avebury Excerpts

Tuesday 27th November 2012 Lords Chamber

Asked by

[Lord Avebury]

To ask Her Majesty’s Government what is their response to the report by the Independent Chief Inspector of Borders and Immigration on the UK Border Agency’s handling of legacy asylum and migration cases.

[The Parliamentary Under-Secretary of State, Home Office (Lord Taylor of Holbeach)]

My Lords, the UK Border Agency’s response to the report of the Independent Chief Inspector of Borders and Immigration was published on its website on 22 November. We accept that there are lessons to be drawn from the UK Border Agency’s handling of these legacy cases. The agency’s response to the report accepts all of the chief inspector’s recommendations. However, as the chief inspector himself states, since April 2012 the agency has,

“started to tackle the problems”,

and,

“a much more robust approach [has] been introduced to locate and trace”,

individuals.

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[Lord Avebury]

My Lords, considering the appalling record of irresponsibility, obfuscation and mendacity revealed by this report, does not my noble friend agree that control of immigration and asylum should be returned to the Home Office so that responsibility can rest on the Home Secretary herself, where it properly belongs? Will the Government allow time for a debate on this report and on the Government’s response to it?

[Lord Taylor of Holbeach]

I cannot pre-empt the usual channels and their negotiations on these matters, but I note my noble friend’s interest in this subject. This Question reminds me somewhat of the situation in which the noble Lord, Lord Rooker, found himself in dealing with the Rural Payments Agency. This agency has had a poor record on delivery but as the new transformation plan has been developed, and as the chief inspector highlights, it has started to tackle the problems.

Statement of Changes in Immigration Rules (Cm 8423)

Lord Avebury Excerpts

Monday 26th November 2012 Grand Committee

[Baroness Smith of Basildon]

My Lords, I have put forward this Motion to take note of the statement of changes in the Immigration Rules to make sure that the Government give your Lordships’ House an opportunity to debate a very serious matter. You just have to look at the Explanatory Memorandum to see the range of criteria covered by these changes to the Immigration Rules. The changes were brought in by negative resolution, so this is the first opportunity that your Lordships’ House has had to discuss the matter, despite the legal judgment that led to these changes being given on 18 July this year and the fact that the rules have already come into effect. It would have been helpful to your Lordships’ House had there been an opportunity for an earlier debate and an explanation of why the matter had to be dealt with in this way. I do not intend to go into the individual areas of guidance but I have a number of questions for the Minister. It would be helpful, first, to hear about the circumstances that led to the statement of changes being laid.

I think it is appropriate to say how grateful we should be to the Secondary Legislation Scrutiny Committee, whose work on this matter has been extremely helpful. Perhaps the summary at the beginning of its report is the best place to start. To give some background, on 18 July the Government lost a major immigration case in the Supreme Court. In the case involving Alvi v Secretary of State for the Home Department, the Supreme Court maintained that substantive changes affecting immigration applications must be laid before Parliament. Mr Alvi had been refused leave to remain under tier 2 of the points-based system because his level of skills and salary did not meet the criteria. However, the Supreme Court quashed that ruling as the criterion used to make the decision was not part of the rules as laid before Parliament under Section 3(2) of the Immigration Act 1971 but had been published only in the guidance, which had not been subject to parliamentary scrutiny procedure and, therefore, approval.

The last compete revision of the Immigration Rules was laid before Parliament in 2008, but since then considerable guidance from the previous Government and this Government have been added. The question raised by this and previous cases was whether this was really guidance or a substantive change in the rules.

As we can see from this weighty document, Cm 8423, there are 290 pages of what had been issued as guidance but on 19 July, the day following the Supreme Court judgment, the Government laid the document before Parliament to take immediate effect on 20 July, even though the House of Commons was not then sitting— of course, your Lordships’ House was and a Written Statement was made by the Minister at that time. Does the ruling of 18 July 2012 mean that all immigration cases decided on the basis of guidance issued since 2008 have been decided on without a legal basis for that decision?

Paragraph 4.3 of the Explanatory Memorandum states that the changes apply to all applications on and after 20 July, when the statement to change the rules was laid, but what about the decisions taken before? What is the status of the decisions taken before Cm 8423 was laid? Have there been any further appeals against refusal since 18 July on the basis of the court’s judgment? It would be helpful if the Minister could say whether all the guidance issued is included in the statement. If it is, I am not 100% clear why all the guidance is imported into the rules—the Secondary Legislation Scrutiny Committee referred to that as well. Was any work undertaken to see what should legitimately remain in guidance or whether it should all be imported into the rules?

It strikes me that within the rules—that is, what was in guidance—are lists and lists over pages and pages referring to banking organisations where the financial information will be accepted by the Government. That was previously in guidance but is now in the rules, so does that mean that any deletions or additions to the list can be made only by rules and in future not be changed in the guidance? Because of the volume of the material, the Secondary Legislation Scrutiny Committee was unable to verify the Government’s statement that the new statement of changes includes all and only that previously issued in the guidance. It would be helpful if the Minister could confirm that there is nothing in the rules other than what was previously in guidance.

The basis of the Supreme Court decision was that the guidance was not subject to any parliamentary procedure. Now that the Government have brought in this statement of changes by negative resolution, are they satisfied that they have done enough to ensure that this has the full force of law? One of my concerns relates to the negative procedure, which I shall mention again in a moment. If we had not requested this debate today, there would have been no debate in your Lordships’ House on this issue. We will not be asking for a vote on this, as the Minister is aware.

As the Secondary Legislation Scrutiny Committee said, the statement of changes provides a short-term solution, but I know that from previous debates the Minister is aware of concerns that have been raised about the interaction between the Immigration Rules and the ECHR. The committee also raised further concerns about this on that occasion, as it had done previously. Is the Minister able to make any comment about that? I noted that paragraph 6 of the Explanatory Memorandum states that no statement is needed on the ECHR as the order is subject to the negative resolution procedure. However, unless I have misunderstood, that is not the view taken by the Secondary Legislation Scrutiny Committee.

We all understand that from time to time Governments have to bring forward emergency legislation or react immediately to events such as court judgments. Can the Minister confirm that that was the Government’s reason for laying the statement of changes by negative resolution on the day following the judgment in the case of Mr Alvi? If it was, I am then unclear about why the Government waited until then, because they had been aware of this problem for two years. It was pointed out to the Government by the then Merits of Statutory Instruments Committee, following a previous statement of changes—HC96—in 2010 that was also laid urgently following two other court judgments.

Having read through the judgments, it seems that in 2010 the situation could not have been clearer. In July 2010, the challenge made in the case taken by an education charity, English UK, was that the decisions were taken ultra vires. It said it was challenging the change made to the Immigration Rules because it,

“ought to have been introduced by a change to the Immigration Rules and was not capable of being introduced by a change in the UKBA’s Guidance”.

In his judgment on that case, Mr Justice Foskett said that,

“the revised criterion could not be put in place by virtue of a process of issuing guidance. The ratio of the decision appears to me to be that a provision that reflects a substantive criterion for eligibility for admission or leave to remain must be the subject of a process that involves a true Parliamentary scrutiny”.

He made other comments on that in his judgment, such as that:

“It would follow from this that, if a change to current practice (even if reflecting the requirement of a rule) did not involve any alteration of a substantive criterion for admission or for leave to remain, there would be no objection to the change being effected in some form of extrinsic guidance”.

Basically, if it is a substantive change to the rule, it cannot be in guidance but has to be via legislation. He also said:

“I do not doubt that the changed approach in the new guidance does operate to change materially the substantive criteria for entry for foreign students”,

and that that,

“cannot be achieved by a change in guidance—it must be achieved through the medium of a rule change”.

That was in July 2010.

He recognised the complexity of the issues and said that the difficulty,

“arises when something is done by means of a change in existing guidance which arguably constitutes a change in the practice adopted by the Secretary of State in the administration of the rules regulating the entry into the UK of non-nationals”.

He said that the,

“word ‘guidance’ itself would ordinarily connote something less prescriptive than a rule”.

He said that it was a very complex area. He then went on to say that, if that is correct, simply,

“extrinsic guidance cannot be used in the manner in which it was sought to be used in this case to make a material or substantive change in existing immigration policy without the negative resolution procedure set out in section 3(2) of the Immigration Act being implemented”.

There was a similar case in June 2010 in the Court of Appeal, where it was said that,

“immigration rules are today different from and more than policy”.

The Government also lost that case a month earlier.

I know that I have already asked the noble Lord a couple of questions but I struggle to understand this and perhaps he can help. Why did the Government not act earlier when the judgment in those two cases seems very clear? In both cases, the judge said that guidance was different from rules and substantive change could not be made by guidance. Were there any further challenges between those two dates, from June and July 2010 through to July 2012? Clearly, changes were not made in 2010 that should have been made. By bringing this order forward now, the Government recognise that perhaps changes should have been earlier. It would be helpful if the Minister could tell the Committee what changes there will be in practice from now on to ensure that the Government do not find themselves in this position again.

The other point concerns scrutiny. In his final comments, Mr Justice Foskett referred to the negative resolution procedure, but earlier in his judgment he said that there had to be true parliamentary scrutiny. It would be helpful to the Committee to be given an assurance that the negative procedure now being adopted satisfies the courts and the parliamentary process that this matter has been subject to parliamentary scrutiny.

This is a complex area. The bit that I struggle with most is that the measure was introduced as an emergency process to deal with the 2010 judgments. Anything that the noble Lord can say to enlighten me on that position will be very helpful.

[Lord Avebury]

My Lords, a month ago we debated the first of the post-Alvi statements of changes in Immigration Rules, on a Motion to Regret tabled by the noble Baroness, Lady Smith, not so much because she disagreed with the Government’s objectives but on the narrow ground that the minimum annual income requirement for a person wanting to bring in a spouse from a non-EEA country was not the most effective way of protecting the taxpayer and delivering fairness for the would-be sponsors and their partners. We wanted to highlight the far more questionable government objective of reducing the number of net immigrants below 100,000 by fair means or foul, picking on easy targets wherever they can find them.

As the noble Baroness has explained, the purpose of this statement, which is 295 pages long, including its Explanatory Memorandum, is to transfer requirements that were previously embodied in guidance into the Immigration Rules, satisfying the Supreme Court judgment in the Alvi case that only rules approved by Parliament could have the force of law. It is a weighty document and I cannot help feeling that it is a good thing the Almighty did not have anything to say about the Immigration Rules or Moses would have had a hard time carrying this lot down from the summit.

The Secondary Legislation Scrutiny Committee suggests that we should ask the Government to clarify the status of cases decided on the basis of the guidance since 2008, when the last complete revision of the Immigration Rules was laid, and I will come back to that point. The committee goes on to observe that, in the light of its previous reports and a number of unresolved questions about the interaction between the rules and the European Convention, changes to the primary legislation might be necessary to put its application beyond question. I hope that we shall hear something from the Government on both those matters.

There is a further detailed point about the salary threshold for IT workers. These thresholds are now subject to parliamentary scrutiny, and we are prompted to ask the Government to set out the methodology for calculating them. The statement contains 74 pages specifying the salaries for particular occupations. How often is it intended to revise the figures, with presumably a statement requiring parliamentary approval every time? The problem with this approach is that every minute requirement that has to be satisfied by an applicant for leave to enter or remain in the UK now has to be set out in the rules without any element of discretion whatever being provided to the decision-makers. If a rule leads to an outcome that is unreasonable, it can be rectified only by a further statement of changes, and if there is a minor error in the documentation that has to be submitted in connection with an application, the decision-maker has no option but to reject it. The applicant has to submit a fresh application with all the delay and expense that that involves.

I give an example of the rigidity of the system. Mr AD is self-employed, and in connection with an application to bring his partner in from a non-EEA country he has to prove that his earnings exceed £18,600. For every other purpose “certified” accounts are acceptable, but on page 280 of this statement, the rules demand a full audit, at an additional cost which may exceed £1,000. In response to a letter from Mr AD’s MP, Stephen Lloyd, the Minister for Immigration, Mark Harper MP, says that the Home Office is currently considering whether it needs to insist on audited accounts—a requirement that must have already imposed an unnecessary burden on dozens of sponsors. That is clearly inconsistent with the Government’s declared policy of reducing the load of bureaucracy on small businesses and I would like the Minister to say this afternoon that it will be removed, presumably by a further statement of changes in the rules.

Statement of Changes in Immigration Rules

Lord Avebury Excerpts

Tuesday 23rd October 2012 Lords Chamber

[Baroness Lister of Burtersett]

My Lords, it is always a pleasure to follow the noble Baroness, Lady Browning. She has raised some very pertinent questions. While I want to focus on the income thresholds, I want also to draw attention to the concerns raised by BID, Bail for Immigration Detainees, about the implications for children of measures to ensure the deportation of foreign criminals.

BID’s experience is that wide powers already exist to deport foreign national ex-offenders, and in the very few appeals against this which are successful it is often because the courts have found that grave harm would be caused to a child by deporting the parents. It says that the Government are now seeking to prevent the courts from upholding the law to protect these families. In the view of BID, the measures do not allow for adequate consideration of the child’s best interests. For example, it does not follow that it is in a child’s best interests, if there is another relative that they can live with in the country, to live with that relative and to be permanently parted from their parents; or, say, if the parents have been in prison and the child has been living in foster care, for them to be deported with their parent to a country that they have never visited before.

Liberty, too, raises concerns about the implications of the changes for children and concludes:

“It is clear from the Government’s proposals that it is paying little more than lip service to the importance of UK children’s interests in immigration decisions … Far from placing children at the heart of immigration decisions, the proposed changes seek to relieve officials of the responsibility for weighing up the interests of a child in any but the most clear cut cases”.

I would welcome the Minister’s response to that and his explanation of how children’s interests will be safeguarded.

As we have heard, the Home Office’s human rights statement and the Home Secretary have emphasised that Article 8 of the European Convention on Human Rights, on the right to respect for privacy and family life, is a qualified right. As my noble friend Lady Smith has already said, we accept that. However, as Liberty argues, there is,

“a delicate balancing exercise to be struck between the rights of the individual and wider social interests in, for example, the reduction of crime and disorder and the protection of the economic interests of the UK”.

Liberty and I do not accept that the proposed changes,

“properly accommodate the fact-sensitive balancing exercise that the right demands”.

Liberty argues that instead they,

“represent a one-size-fits-all approach to complex immigration decisions. … Far from better reflecting the proportionality required under Article 8, the proposed changes seek to circumvent the crucial fact sensitive consideration of decisions involving fundamental rights”.

The Government argue that the income threshold is proportionate in meeting their legitimate aims of safeguarding the economic well-being of the UK. It is a sad day when the economic well-being of the UK depends on keeping apart a few thousand poor families each year without adequate attention being given to safeguarding the well-being of children and their families.

The Migrant Rights Network points out that, because of differences in earnings across different social groups, the new income requirement will disadvantage women, who we know are still on average paid less than men, some minority ethnic groups and people living outside the south-east. My noble friend gave an example that illustrated the unfairness of that fairly arbitrary or one-size-fits-all limit.

The Home Office human rights statement acknowledges that the income threshold may be challenged under Article 14 of the European Convention of Human Rights in terms of its equalities impact, particularly with regard to whether this constitutes unjustified indirect discrimination against these groups—for example, women and those nationalities who the evidence shows are likely to have lower earnings. Having raised this possibility, the Home Office’s only answer was that this will be mitigated in some cases by the exemption from the income threshold of those in receipt of carer’s allowance, and that certain contributory benefits such as maternity allowance will be allowed to count towards the income threshold. That is welcome as far as it goes, but it does not go very far. Otherwise, the Home Office considers that any indirect discrimination is proportionate to public policy objectives. We will see, but I imagine that this will be tested in the courts.

I find it repugnant that we are going to means test family life. Means-testing generally purports to target help on the needy and exclude the better off. This is a reverse means test that excludes the needy, as if people on low incomes have nothing to contribute to this country. The existing “recourse to public funds” rule is already designed to prevent the supposed burden on the taxpayer that we hear so much about. According to Liberty, and as my noble friend has already said, it is being replaced by a far blunter instrument.

The impact statement makes a virtue of the shift from a more discretionary approach, which it says is complicated for caseworkers to operate, yet in other areas of policy the Government favour more discretionary approaches and say that we have to get away from a one-size-fits-all approach. Indeed, as Liberty argues, the proposed changes as a whole contain an armoury of blunt instruments which, far from better reflecting Article 8 and the Immigration Rules, may well leave the rules in breach of it.

The changes reflect badly on a Government who claim to be the most family-friendly Government ever and who are supposed to be applying a family test to all their domestic policy decisions, as they suggest that some families are considered not to matter because of their immigration status and their poverty.

[Lord Avebury]

My Lords, this is a very important debate, focusing as it does on family and children’s rights. We have all heard from organisations such as the ones that have been mentioned, including by the noble Baroness, Lady Lister—Liberty, Bail for Immigration Detainees, and so on—and I shall rely on the evidence that has been given to them in my later remarks.

Since these changes were published, a further three sets of changes have appeared: HC 514 of eight pages, HC 565 comprising 56 pages and Cm 8423 with 276 pages. These latter two statements spell out in detail how decisions on leave to enter or remain are to be made, following the rulings of the Supreme Court in Alvi. To summarise, at the risk of oversimplification, Alvi said that statements in guidance and elsewhere that were not in the Immigration Rules, such as particular types of evidence that have to be submitted with an application, were unlawful because they had not been laid before Parliament as required by the parent Act. I realise that we are not talking about these subsequent statements of changes this evening, but obviously the legal advisers and their clients who are considering the effects of HC 194 will have to look at these other instruments as well. It would be astonishing if, given the length and complexity of all the changes taken together, there were not a steep rise in the number of applications rejected because of some minor omission or mistake.

My first example is from the organisation BritCits, which defends the interests of families who are affected by this set of changes. Rob is a British professional musician with a first-class degree in music. He has taught music and performed at concerts, has an eight year-old son and lives in a detached house in Huddersfield. He fell in love with and married an Indonesian woman and his wife applied for a spouse visa on 26 June. As a self-employed worker, he submitted three years of bank statements—originals and copies—and everything as requested, leaving no stone unturned. For over two months the message was that the application was under process at the British embassy, until early September when an e-mail arrived asking for the spouse to take an SELT English test. The e-mail indicated that if she did not submit this within seven days, the application would be rejected. Despite the short notice, the wife took the test and submitted it on time. A month later, they received a message saying that the application was refused because of the English test. Rob was amazed because his wife’s English was extremely good. On inquiry, they found that she had passed the reading, writing and listening requirements but had inadvertently omitted the speaking part. A lawyer advised them that the only remedy was to lodge a fresh application, at a cost of £900. The same thing happened to a friend of mine. It is not an uncommon experience for people to make a minor error and find that the whole application has been rejected. The UKBA does not give applicants a chance of remedying minor omissions of this sort.

The Motion says that the Government have not demonstrated that the specific minimum financial requirement is the most effective way to deliver fairness. That stricture can also be extended to the provisions dealing with savings. This may answer part of the question put by the noble Baroness, Lady Browning: I quote the example of a woman with three children applying to join her husband who would have to show evidence of savings of £62,500, which is well beyond the resources of most young families.

A four-page guide produced by UKBA tells applicants that they need to read Appendix FM-SE, another 26 pages of dense prose, which was added to the rules on 20 July, specifying what supporting documents may or not be supplied as evidence of compliance with particular financial requirements. The sums involved are undoubtedly substantial and they mean that many spouses and children who would have been able to satisfy the previous requirement—that they could be supported and accommodated without reliance on public funds—will now be denied entry. That is, indeed, the letter of government policy. The Migration Advisory Committee estimates that if the financial requirement in this set of rules had been in force in 2011, it would have excluded 45% of successful applicants, even though all those spouses and children were assessed as not needing access to public funds.

--- Later in debate ---

The Government consider this to be a fair and adequate basis for family migration that is right for migrants, local communities and the country as a whole. My noble friend Lady Browning rightly got to the nub of this issue when she asked why the income is set at £18,600. It is set at this level because people earning this amount will have skills to contribute to the UK economy, and it is the level of income at which the Migration Advisory Committee advised that a couple once settled generally cease to be able to access income-related benefits.

[Lord Avebury]

My Lords, if that is the case, why have the Government refused to take into account the income provided by the spouse? Surely, if the £18,600 figure is sufficient to ensure that recourse to public funds is not on the cards, then that £18,600 should apply to the joint incomes, not to the income of the sponsor.

[Lord Taylor of Holbeach]

That is the decision that was made. The Migration Advisory Committee was asked to look at the amount of money that a couple would require on the single income—the sponsor’s income. Indeed, it is the sponsor’s income that is vital to understanding this case.

My noble friend also asked how the capital should be dealt with. As pointed out by my noble friend Lady Hamwee, the multiplier is two and a half times the shortfall in income, and that, too, I believe, came from the same recommendation from the Migration Advisory Committee.

EU Drugs Strategy: EUC Report

Lord Avebury Excerpts

Thursday 19th July 2012 Lords Chamber

[Lord Avebury]

My Lords, I welcome this opportunity to say a few words about the report on the EU drugs strategy by Sub-committee F and, in doing so, pay tribute to the effective and experienced leadership of our chairman, the noble Lord, Lord Hannay.

We need to be realistic about the competence of the European Union and the objective of its drugs policy. It is not clear from the Government’s response whether they agree that neither of the two main objectives of the 2005-12 strategy, the reduction of demand and supply, has been achieved. According to the independent evaluation by the RAND Corporation, although there have been reductions in demand for cannabis and recently a slight decrease in cocaine consumption, there is little evidence on whether these successes can be attributed to the strategy and its action plans. It goes on to say that if there are trends on the supply side, there is no evidence that they can be attributed to the strategy or its action plans. That does not mean that the 2005-12 strategy was not of some value, but that we need more focused objectives, as has been said already, than the 158 actions in the strategy’s so-called “wish list”. The Government say that while it is necessary to articulate broad ambitions and guiding principles, they should be,

“underpinned by specific, and where possible, measurable objectives”.

The preparation of the next drugs strategy, which has to be ready by the end of 2012, falls on to the agenda of the Cyprus presidency over the next six months. With all respect to Cyprus, the APPG for Drug Policy Reform suggests that the Justice Directorate, which has the responsibility for drug control policy at EU level, should be taking the lead. It would be useful to hear from my noble kinsman the Minister what mechanism there is for the presidency to seek its input, and indeed that of the largest member states where drugs are a huge problem, in formulating the draft.

On the Government’s refusal to sign and ratify the convention on money laundering for the second time of asking, does my noble kinsman have anything to say about the scandal of HSBC’s dealings with Mexican drug barons, revealed in a US Senate report published on Monday, which was referred to by the noble Lord, Lord Hannay? Here, as in the US, financial institutions and their employees face civil and criminal penalties for failing to properly file suspicious activity reports. What steps are being taken to ensure that the SARs regime is not being widely flouted by HSBC here as it obviously was over there? Does he think that this disgraceful conduct reveals a need for tightening EU legislation on money-laundering?

One important recommendation by the committee on which the Government agree, for instance, is that greater use should be made of Europol’s databases. The Government say that they are calling for more voluntary information sharing between member states, but this is an area in which there could be a specific objective, to increase the proportion of information routed through Europol’s liaison bureau which is cross-checked with their central databases. There is no reason why that should not become routine, with specific encouragement, such as the publication of the percentage that is so cross-checked, broken down by member state.

The Government agree that the EU could do far more to reduce the supply of drugs through encouraging producing countries to diversify their agricultural economies away from illegal drugs. The Government quote the success of the UK-led project in Helmand province, Afghanistan, for supplying wheat seed to 160,000 farmers, and they say they are working to make alternative livelihood programmes sustainable for the long term. How can this be done, can my noble kinsman explain, after the UK has withdrawn from Afghanistan? If my noble kinsman says the scheme does not require the British presence, why is it working only in Helmand? Why is this a specifically UK project, when we are talking about an added emphasis in EU development policies? Can my noble kinsman quote any large-scale agricultural diversification projects sponsored by the EU in Latin America, and is there scope for co-operation between the EU and the US in this area which is so clearly of mutual benefit?

As the noble Lord, Lord Hannay, has already said, one alarming development which has occurred during the present EU strategy is the appearance of an ever-increasing array of new psychoactive substances, the NPSs. The EMCDDA, whose work, as the noble Lord, Lord Hannay, said impressed the committee greatly during our visit to Lisbon, reports that in 2011, 49 NPSs were notified, compared with 41 in 2010 and a mere 24 in 2009. The European Commission says that it will propose stronger EU legislation on these products, which are freely sold on the internet and in clubs, taking into account scientific evidence on the risks that they pose. Mephedrone and BZP, for instance, are identified as potentially harmful, but how can we or the EU satisfactorily assess the effects of substances coming on to the market at such a rate, particularly when some of them may have cumulative or delayed-action consequences for the user? Would my noble friend say if we attended the EU-US meeting in June on new drugs, and what conclusions were reached there?

As an aside, what is the Government’s current thinking on the drug khat? A thoughtful article by Howard Swains in the Independent magazine suggests that banning khat would mean the imprisonment of more Somalis, damaging their job prospects and creating a recruiting ground for al-Shabaab. However, regulating supply and applying health and safety laws to the mafrish where khat is chewed would help both legitimate suppliers and consumers. Probably the UK is the largest market in Europe for this drug and we could pave the way for European regulation, perhaps also for other relatively less harmful drugs as well as khat. The Government responded to the committee's suggestion of exploring alternatives to banning new psychoactive substances—such as regulating them as we do alcohol and tobacco—by saying that they were going to publish an NPS action plan in May. Will the Minister say whether our proposal has been taken up and how the Government action plan dovetails with the Commission's report on the information exchange, risk assessment and control of NPSs, published on 11 July?

As has already been mentioned, the Committee recommended prioritising the evaluation of harm reduction strategies. The Government replied that there must be caution in the absence of more robust and comparable evidence. It would be a mistake to neglect the Portuguese and Czech experience and similarly other member states could benefit from the development of an evaluation framework setting out the evidence base and assessing the value for money of our own 2010 drugs strategy. It should be a matter for discussion whether this is best achieved by promoting a European area network on illicit drugs to improve co-operation in drugs research—as the Government suggest—or perhaps by extending the remit of the EMCDDA. The EMCDDA already reports on drugs research, as for example on the use of supervised injectable heroin treatment for a small group of heroin users formerly thought to be untreatable. One thing is certain and that is that the problem of dangerous drugs is international. The Committee and the Government are agreed on the value of a comprehensive EU drugs strategy and the framework it creates for practical co-operation between member states.

--- Later in debate ---

[Lord Henley]

We will certainly look at the American experience. We are aware that there are a great many more lawyers in America than there are in this country, and that the Americans are keen on making use of lawyers. However, obviously we would want to learn from their experience. While I am on the subject of the ACMD, I should also say to my noble friend Lord Avebury, who asked about khat, that the advisory committee is currently reviewing the harms associated with it. We will not prejudge that advice, but we will look at it in due course.

[Lord Avebury]

I am most grateful to my noble friend. I also mentioned, in the context of the examination of khat, the possibility of applying regulation. The committee looked at regulation although it did not express a firm opinion on it. However, it is another way of tackling harmful drugs, and it may particularly apply to the use of khat. I would be grateful, given that the advisory committee is looking at khat, if it would also examine the possibility of using regulation to control it.

[Lord Henley]

I think that that must be a matter for the advisory committee to decide. I want to make it clear that we will not prejudge its advice. We will look at it when it comes and then make an appropriate decision. I understand that that is likely to be later this year.

I want to try to make progress because the House wishes to get on to the next debate. One of our key priorities for the next iteration of the drug strategy is to ensure that we agree a principle of transparency that would allow greater oversight of the available EU funding streams and the actions they are driving. It is vital that we ensure that EU funding for counternarcotics and EU co-ordination in external third countries is effectively targeted and aligned with overall EU drug strategy priorities. We would like to see concrete actions intended to tackle drugs covering both action to enhance local capability against the drugs trade and alternative development.

The noble Lords, Lord Hannay and Lord Liddle, and others mentioned the European Monitoring Centre for Drugs and Drug Addiction in Lisbon, which is rather inelegantly known as the EMCDDA. I will refer to it as the European monitoring centre. I was asked what our view is of this body. I agree with everything that the noble Lord, Lord Hannay, said about its valuable work. We accept that it should continue and that we should make increased use of it where possible, and similarly of its early-warning system through the use of intelligence gathering and forensic analysis via Europol and Interpol. This will also help with our collective understanding of the current EU drugs market.

There were those who took the debate further and asked that we look at alternative approaches. The noble Lord, Lord Hannay, said that he was somewhat constrained because he was worried that the Daily Mail might be listening. I looked up at the Gallery and I do not think that anyone from that paper was there at that stage. We fully respect the fact that different ideas and policies will be put forward in the ongoing debate. We believe that policies should be discussed, challenged and reviewed. That is what we are doing in the United Kingdom through our annual review of the drugs strategy that we produced back in 2010, and the development of our evaluation framework. We continue to discuss efforts to tackle the drugs trade with our international partners.

Similarly, within this country, the noble Lord mentioned a conference that my right honourable friend Oliver Letwin will be addressing in November on these matters. My right honourable friend, as a Minister in the Cabinet Office, is also part of the inter-ministerial group on drugs that I chair on behalf of the Home Office. There were those who said that it should not be the Home Office that led on this subject and that this matter should be transferred to the Department of Health. However, we in government think it should cover all the Government but be led by the Home Office. The inter-ministerial group that I chair also has representatives from Health, Education, the Cabinet Office, Work and Pensions, the Ministry of Justice, Communities and Local Government and, last—one should never say least—Her Majesty’s Treasury. Meetings of the inter-ministerial group are roughly once a month and all those Ministers regularly attend. I think that it is a very fine example of the Government being non-siloised—if I can put it in those terms—and thinking across the board in these matters.

I will say a word or two about Portugal and decriminalisation. Again, we will continue to look at what happens in all countries and we are determined to study the effects of the work they have done in Portugal. There is an excellent policy review by the EMCDDA of what Portugal is doing, which I commend to noble Lords. We will look at what it does and make our decisions in due course. Lastly on the subject of decriminalisation, I do not think that this is the time or place to go on to that wider subject. However, the legal framework that we have in this country—the Misuse of Drugs Act 1971—allows the criminal justice system some flexibility to deal with the best way to reduce reoffending and gives both the police and the judiciary discretion to take into account all the circumstances of the offence, such as when it involves possession of a relatively small amount of some drug.

As noble Lords will be aware, government officials are closely involved in the development of the new EU drugs strategy. It is currently on course to be adopted at the Justice and Home Affairs Council in December. I can assure the noble Lord and his committee that officials from the Home Office will keep the committee informed of progress with the new document as appropriate.

UK Border Agency

Lord Avebury Excerpts

Thursday 19th July 2012 Lords Chamber

Moved by

[Lord Avebury]

That this House takes note of the role and performance of the UK Border Agency.

[Lord Avebury]

My Lords, it is not before time that your Lordships examined UKBA, a service whose own officials said yesterday is “falling apart at the seams”. There are more than 150,000 people, including 3,900 criminals, who have been refused an extension of stay but whose whereabouts are unknown. Nor is there a strategic plan to manage these cases. The location and removal of absconders is considered a low priority for UKBA and the effectiveness of the intelligence used to support arrest visits is not measured to ensure an efficient use of resources.

The Commons Home Affairs Committee recommended that bonuses amounting to £3.5 million should be withheld from senior UKBA staff but it seems that the banks are not the only enterprises where failure is rewarded. The Prime Minister told the Liaison Committee that he believed in,

“a small bonus … that you only get if you meet some stretching targets”,

so why are UKBA staff still getting bonuses?

The failure over the missing persons is not an isolated case. Major organisational changes at Heathrow, including the introduction of team-based working, a new shift-working system and the amalgamation of immigration and customs roles, were not effectively planned and were introduced at Heathrow’s busiest time of the year. In spite of deploying extra staff to reduce the scandalous queues at Heathrow, the delays were even worse in June, only a few weeks ahead of the Olympic Games. UKBA is bringing in volunteers who will receive three days’ training instead of the six weeks plus four weeks of mentoring that UKBA staff have to undergo before they are let loose on passengers at our ports of entry. The independent monitoring board was scathing about the short-term holding facilities for children at Heathrow, which it described as “disgraceful” and “deplorable”.

Then there was the fiasco of the so-called legacy cases, which were laid aside for a variety of reasons until they reached an estimated total of 450,000, which UKBA promised had to clear by July 2011. It failed in spite of repeated assurances given by Ministers, and there are still 80,000 cases today. Mr Whiteman, the new head of UKBA following the abrupt departure of his predecessor, has said that all these cases will be resolved by the end of the year. But how can anyone have confidence in this new promise when they consider the broken undertakings of the past?

Where cases in the new archive have been processed since July 2011, nine out of 10 have been granted three years’ discretionary leave, so that they have to reapply at the end of that period and yet again after another three years. Is this an efficient way of using UKBA’s diminished resources? Staff numbers are being slashed by 22% in the five years from 2010 to 2015, which means the loss of 5,300 jobs. Asylum Casework is already understaffed, so inevitably less time will be available for individual decisions and more applicants will be wrongly refused.

The wrong way to reduce the workload is to take away the right of appeal against refusal of family visit applications. The success rate of appeals in these cases rose from 19% in 2004 to 45% in 2010 so, in future, half of all applicants who are wrongly rejected will have to reapply, at a cost of £78 for a single visit, to get the decision reversed. By the time the second application is granted, the occasion for the visit, be it a wedding or an anniversary, will be long past and there will be a stain on the person’s record, which is bound to affect any of their future applications. It is contrary to natural justice to refuse an application on the grounds that information has not been supplied, the requirement for which could not have been known at the time the application was made, as the agency is doing. It is up to the UKBA to explain clearly and unambiguously what information the applicant has to supply.

The tribunal statistics for the year to March 2012 give a stark picture of the unreliability of UKBA decisions on immigration and asylum applications overall. Fewer than half the appeals made were dismissed and my noble kinsman may be able to confirm that the 36% of appeals allowed was an all-time record. These figures show that the criteria being applied are too harsh. In addition to the incalculable personal consequences of faulty decision-making, there is also an avoidable burden on the tribunals. The Government told the Home Affairs Select Committee that they are committed to driving up their appeal win rate by improving the quality of decision-making and by withdrawing cases that are no longer sustainable. Should not the UKBA have a definite target for reducing decisions overturned by the First-tier Tribunal, and would my noble kinsman care to give an estimate of the savings if it could be reduced to, say, 20%?

In a high proportion of the cases where people lose an appeal for leave to enter or remain, the decision is taken to deport them. As an official told the chief inspector, the UKBA is operating as though,

“a decision to deport equals a decision to detain”,

despite the presumption of liberty in policy. A study by Matrix Evidence for the NGO Detention Action shows that the UKBA is wasting £377 million over a five-year period on the detention of migrants who are ultimately released. That rises to £390 million if the persons who cannot be deported are given the right to work. No account is taken of the cost of treatment for the mental and physical ill health of long-term detainees, or of their loss of productivity.

About 27,000 migrants enter detention per year and nearly 11% of them are detained for more than three months. Of these longer-term detainees, nearly 40% are ultimately released on bail or temporary admission. The right way to deal with this unacceptable situation would be to detain only migrants who can be deported within a lawful or reasonable period. This applies, for example, to prisoners who are detained at the end of their sentences, even when it is known that their country of origin will not accept them back. Where the decision to detain is based on the risk to the public, the agency should provide the evidence that the migrant would reoffend. Perhaps my noble kinsman could say whether this recommended practice has been adopted.

Some people are being deported with inadequate documentation and are being returned here by their countries of origin. As the Minister will be aware, there are serious allegations of ill treatment during deportation, though G4S was replaced as the contractor following the death of Jimmy Mubenga on a flight to Angola. Its successor, Reliance, admits that its staff are loutish and aggressive and lack respect for minorities and women. On asylum, the Minister for Immigration has received two reports from the UNHCR about errors in the detained fast track, a matter also raised by the chief inspector, who points out that one in three of those initially routed through the DFT is subsequently released.

The treatment of women in the asylum system is raised by Women for Refugee Women and in a recent report for Asylum Aid on gender-related claims in the EU member states, including the UK. Asylum Aid says that although we are often in advance of other EU countries, the UKBA rarely refers to the UNHCR gender guidelines, and practice by the courts is variable. The Minister points to the revised instructions on managing gender-based asylum claims and to a thematic review of relevant cases, but he does not mention the UNHCR guidelines. That review uncovered faults in the decision-making process, such as a lack of investigation in cases involving domestic violence and whether an applicant’s gender would affect her ability to seek state protection. According to Asylum Aid, our own guidelines are not well implemented and they do not include important procedural aspects that are found in the UNHCR gender guidelines.

Women for Refugee Women says that under the LASPO Bill the withdrawal of legal aid in non-asylum cases will undermine the availability of vital legal representation in complicated and often ill-understood asylum cases and it asks whether the UKBA will monitor the impact of LASPO to see whether its apprehension is justified. Its also says that two-thirds of the women who participated in its research become destitute during the asylum process, having to rely on charities for food. This needs to be pursued within the NGO. Our legislation requires that the special needs of asylum seekers and their family members who are vulnerable persons must be taken into account when providing or considering support, but there is no obligation to carry out or arrange for the individual evaluation of a person’s situation to determine whether she has special needs. This is a gap that needs to be filled.

Turning to LGBTI asylum seekers, the UKBA conducted a quality audit to assess the impact of the training. There seems to have been a definite improvement, with a higher proportion of these claims being accepted, but the audit uncovered some concerns. I would be grateful if my noble kinsman could say why the audit has not been published nearly a year after it was produced.

Finally, I would like to mention torture victims, who are routinely being held in immigration detention centres in breach of the Immigration Rules. This is according to a Medical Justice report, The Second Torture, which details 50 such cases. Fourteen of them have now been granted leave to remain in the UK, but only one of the 50 was released from detention pending determination of the asylum claim, as the rules provide. Two of the 50 were forcibly returned to their countries of origin and endured torture for a second time. Both managed to flee again, claimed asylum for a second time, and were detained again in the UK. One of them now has leave to remain on the basis of the risk he faces in his country of origin. All but two of those 50 in the sample have now been released, underlining the failure to house them in the community when they first made credible allegations of their torture. That would have cost £5,000 instead of the £23,000 bill for keeping them in custody for 226 days. That was the average length of time for which the 50 were detained.

The effects of wrongful detention on these torture victims were catastrophic, including attempted suicide, self-harm and hunger strikes. Five of them have now launched individual judicial review proceedings, claiming damages for false imprisonment based on the UKBA’s breaches of Rule 35. The UKBA’s response to this report is to say that it is anecdotal and based on a small number of cases. Obviously a small charity does not have the resources to carry out an investigation of every one of the thousands of asylum seekers detained every year to see whether each one has made a torture claim and been ignored. What is needed is an independent review by the chief inspector with help from independent medical experts on torture. Rule 35 is not working and has not worked ever since it was first introduced. In the face of such an abysmal record of failure extending over many years, this survey by Medical Justice is a wake-up call.

Sacking nearly a quarter of the staff, taking away migrants’ appeal rights, refusing applications without just cause, detaining people who are never going to be deported and ignoring torture claims are not the route to sorting out the enormous problems that beset the agency. The cuts should be stopped before things get even worse and the Home Office should address the many recommendations made by the UNHCR, the chief inspector, the Select Committee on Home Affairs and the many expert NGOs whose wisdom is freely available. I beg to move.

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[Lord Avebury]

My Lords, I thank the Minister very warmly for his comprehensive winding-up and for his kind promise to write to those whose questions he could not deal with. I am also grateful for the assurance he gave to my noble friend Lady Williams that what has been said in this debate will be drawn to the attention of the head of the UKBA, and I am sure that it will not be difficult for the agency to find a means of disseminating the Hansard report of the debate to the whole staff. It is important that people in the UKBA should be aware of the widespread concerns that have been expressed.

If I may say so, I thought that my noble friend was a little complacent about some of the issues that were raised. There was the failure to listen to criticisms made by the chief inspector, which were dealt with by the right reverend Prelate and the noble Lord, Lord Marlesford, among others. We have heard repeatedly about the culture of disbelief that prevails in the UKBA. The noble Lord, Lord Judd, and my noble friends Lord Alderdice and Lord Dholakia raised that point. The dangers of outsourcing were particularly emphasised by the noble Lord, Lord Ramsbotham, and I agree with him entirely that the responsibility for escorting deportees needs to be thoroughly examined. Personally, I would take this function away from the sub-contractors who have dismally failed to look after the people in their charge and return it to the UKBA itself so that we can see exactly where the responsibility lies.

My noble friend Lady Williams mentioned discretionary leave to remain, which I do not think was dealt with in the noble Lord’s reply. I am open to correction, but I think that the legacy cases, which she did mention, are nearly all being dealt with by giving people three years’ discretionary leave, for which they have to reapply after three years, instead of giving them indefinite leave to remain. That surely cannot be right. The detained fast track system was raised by the right reverend Prelate and my noble friend Lady Williams, but we did not hear anything from the Minister on that matter. I raised the issue of the failure to have regard to the special needs of women. My noble friend Lady Williams also talked about this, and it has been comprehensively covered by Women for Refugee Women and Asylum Aid.

Finally, this country’s reputation and the effect on our future prosperity and well-being will likely be harmed if we do not attract the people we need in business, management and higher education because of the difficulties that are placed in their way. This was mentioned particularly by the noble Baroness, Lady Hooper, and my noble friend Lord Alderdice. I mention also, of course, the problems that have arisen at Heathrow, which were the subject of a powerful contribution from the noble Lord, Lord Birt. I hope that we shall hear from the Minister about these other matters. They are of equal importance to the ones that he dealt with in his winding-up speech. I hope that, as a result of the distribution of this debate to the UKBA, some attention will be paid to the forceful and legitimate criticisms that we have heard this afternoon.

Motion agreed.

Crime and Courts Bill [HL]

Lord Avebury Excerpts

Wednesday 4th July 2012 Lords Chamber

Moved by

[Lord Avebury]

148A: Clause 24, page 23, line 2, at end insert—
“( ) This section shall not have effect in relation to an appeal against a refusal of entry clearance where that decision was taken wholly or partly on a general ground for refusal in rules as laid by the Secretary of State for the purposes of section 1(4) of the Immigration Act 1971.”

--- Later in debate ---

[Lord Avebury]

My Lords, the intention of Clause 24 is that refusal of a family visit visa will no longer be subject to a right of appeal, save on human rights or race discrimination grounds. However, as I shall explain, the race discrimination ground has been inadvertently removed, except in Northern Ireland.

In July 2011, the UK Border Agency stated in the publication Family Migration: A Consultation:

“Many British citizens and persons settled in the UK have family members living outside the UK. This results in a high volume of visa applications from people wishing to visit family in the UK”.

It goes on to say that such visits,

“are a means of maintaining family links and of enabling family members living abroad to participate in important family occasions in the UK, such as births, weddings and funerals. Such visits and associated tourism also bring economic benefits to the UK”.

The following month, the Prime Minister said:

“If it hurts families, if it undermines commitment, if it tramples over the values that keep people together, or stops families from being together, then we shouldn't do it”.

Clause 24 will undoubtedly stop many families being together by denying persons refused a visa to visit family a right of appeal to an independent tribunal to correct wrong assertions by entry clearance officers that otherwise would lead to the refusal of their current and future applications to visit family.

The rise in the success rate of appeals in family visit cases, from 19% in 2004 to 45% in 2010, underlines the necessity of the right of appeal against refusal. If Clause 24 remains in the Bill, nearly half of all applicants in future will be wrongly rejected and will have to reapply at a cost of £78 for a single visit or £270 for multiple visits over two years to get the decision reversed.

So what is the argument for this proposal? The Immigration Minister, giving evidence to the Home Affairs Select Committee, complained that there were many more appeals than had been anticipated in 2000, when the right of repeal was restored. He suggested that the removal of the full appeal rights would be better for applicants because, if a genuine mistake has been made on the application, the amended version is normally dealt with in 15 days, whereas an appeal takes eight months. Clearly, one good reason for the increasing volume of appeals is that the quality of first decisions has progressively deteriorated, as shown by the steady increase in the proportion of successful appeals. Another is that, as successive reports of chief inspectors have revealed, many refusals are not to do with a mistake by the applicant but a mistake by the ECO, or because applicants had to submit additional material, the need for which they could not have anticipated at the time of the original application.

Mrs N, who lives in Beirut, where she is the carer of her 89 year-old mother, has been here a dozen times in the past decade and has had no difficulty getting visas to visit her husband, a Londoner who is a close friend of mine. Now she has been refused a family visit because, they say, she has insufficient ties to Lebanon. This is one example of the way in which applications are being refused on the basis of failure to supply information, the need for which the applicant could not have anticipated. The agency dealing with applications for family visits in Beirut now wants a doctor’s certificate and bank statements from the applicant’s mother, documents that have never been required in the past. The Minister turned that sort of situation around and said that 63% of the appeals lost by the UKBA were the result of new evidence introduced at appeal stage. One way in which to reduce the number would be for the UKBA to make it clear exactly what information it wants in the explanatory notes that it sends to family visit applicants.

In 2011, the UKBA chief inspector, as he was then, looked at entry clearance decisions where there is currently no right of appeal. He found that the ECO had not properly considered the evidence in one-third of the 1,500-odd cases examined and, in a further 14% of the sample, it was not possible to determine from the file whether the evidence had been properly examined. In 16% of the cases, the refusal was based on failure,

“to provide information which”,

the applicant,

“could not have been aware”,

was required,

“at the time of making their application”.

When an ECO wrongly impugns an applicant’s integrity in the reason for refusal, if the applicant is not able to clear his or her name it may well be relied on to refuse any future application whether for a family visa or some other type of visa, whether in an application to the UK or some other country. In some circumstances the previous allegation by the ECO will require any future visa application to be refused for up to 10 years—for instance, when the ECO alleges that the applicant has made a false statement in his or her application. Among the reasons given for refusal of family visit applications are that the applicant is not genuinely seeking entry as a visitor only or is not intending to leave the UK at the end of the visit. Refusals may also include reasons impugning the character of the applicant, such as that she has made a false statement in her application. Any false statement would require the application to be refused. The right of appeal, at which family members appear and can give oral evidence, is essential to afford a proper opportunity to answer allegations as to the integrity of the applicant or her relations.

If your Lordships approve Clause 24, it will normally be possible to challenge these refusals only by way of judicial review or administrative review, a process internal to the UKBA, introduced in 2008 to replace the full right of appeal against refusal of entry clearance in student and worker visa cases dealt with under the points-based system. That involves a review by an entry clearance manager of the decision by the ECO, a procedure which means, as David Winnick MP observed in the Home Affairs Select Committee, that the UK is “judge and jury” in its own cause. The chief inspector, in his global review, looked at 475 such internal reviews and found that in 30% of the cases the entry clearance manager failed to pick up on poor decision-making by the ECO. He was explicit in finding that the internal review system is not working effectively.

The Immigration, Asylum and Nationality Act 2006 required the Secretary of State to lay before Parliament a report on the effect of removing the full right of appeal in points-based system entry clearance cases. That report, in March 2011, was by the UKBA itself and was therefore not independent. It sets out what is expected of entry clearance managers in conducting reviews whereas the chief inspector’s findings show that, in many cases, those expectations are not met. The report argues that it is reasonable to substitute an internal review for the right of appeal in points-based system cases and emphasis is placed on the context of the new, more objective and transparent process of making decisions under the points-based system.

The points-based system has not resulted in an objective and transparent process as intended but even if it had, it would not be an argument for applying internal reviews to the entirely different process of deciding on family visits. There is no suggestion that family visit visas are to be decided on criteria in relation to which scope for subjective decision-making is removed. The defects of the internal review system would therefore be intensified if applied to family visit refusals.

The Labour Party made the restoration of appeal rights a manifesto commitment in 1997, and when it implemented that undertaking in 2000 my right honourable friend Simon Hughes said:

“The Conservative Government … abolished the right of those who had applied for visas to enter this country to appeal against rejection. That caused widespread disapproval, dissatisfaction and anger. Understandably, the Labour Opposition, like the Liberal Democrats, were committed to restoring the right of appeal”.—[Official Report, Commons, 20/11/00; col. 109.]

This feeling was shared on all sides of another place and of this House. The late Lord Newton of Braintree was among many who emphasised the importance of family members in the UK being able to attend an independent tribunal to address implicit or explicit allegations as to the integrity of the would-be visitor or the family members. My friend the late Earl Russell, in his inimitable way, related a 17th century anecdote to illustrate a point about family relationships and the noble Lord, Lord Cope of Berkeley, speaking from the Conservative Front Bench, criticised the restoration of appeal rights in family visit cases only on the grounds that fees were to be payable which would mean that there would not be many appeals.

Last Tuesday, the noble Lord, Lord McConnell of Glenscorrodale, drew attention to the latest report of the chief inspector of the Border Agency on visa applications. Mr Vine points out that on entry clearance decisions as a whole ECOs had not considered the evidence properly in 33% of cases, and that rose to 37% for Africa and to 50% for the region covering the Gulf, Iran and Pakistan. The poorest performing posts on the use of evidence were Abu Dhabi, Abuja, Moscow and New Delhi and these same posts were the worst on failure to seek initial information as well. Three of them were among the five worst posts on the retention of documentation. The Government say that a right of appeal is to be retained on race discrimination and/or human rights grounds against the refusal of a family visit visa. Section 84(1)(e) of the Nationality, Immigration and Asylum Act 2002 permits as a ground of appeal that a decision is,

“not in accordance with the law”,

which includes a ground of race discrimination on an appeal, but unlike the specific race discrimination ground that had resided in Section 84(1)(b), it is only applicable when a full right of appeal is available. Reference to the Race Relations Act 1976 was removed from Section 84(1)(b) on 5 April 2011 by the Equality Act 2010 (Public Authorities and Consequential and Supplementary Amendments) Order 2011 and no substitute was included in its place. I hope that my noble kinsman, when he comes to reply, can give me an assurance that an amendment will be introduced to remedy this problem on Report.

In conclusion, the reasons advanced for Clause 24 are those given in the UKBA consultation document Family Migration: A Consultation in July 2011; namely, assertions about the use of new evidence in a sample of 363 determinations in family visit appeals that it had considered. ILPA put the following questions to the UK Border Agency regarding this sample:

“Of the allowed appeals, was the new evidence produced, evidence that is clearly required on the application form or website?”,

and:

“Of the allowed appeals, was any contact made by the entry clearance officer making the decision with the applicant to request that the evidence be supplied?”.

The UK Border Agency’s response to each of these questions was:

“The information requested was not collated when the sampling was carried out”.

--- Later in debate ---

[Lord Henley]

My Lords, without knowing more about the sort of cases that my noble friend refers to, I do not think that I can respond to him at this stage. The more general point, and the reason for bringing this clause forward, is that we feel that many of the applications can be dealt with by a new application and so the process of a right of appeal is not the right way forward. We are bringing it into line with other parts of the immigration system. In the main, we have found that so many appeals have been on the basis of new information. This is a more appropriate way of dealing with it.

[Lord Avebury]

My Lords, I dread to think of how many occasions I have sat here and listened to Ministers from the Front Bench saying that they will make amends for the all the criticisms that have come from the chief inspectors of the UK Border Agency or their predecessors; yet on the next occasion we debate precisely the same thing. It is with some reluctance that one accepts the assurances that the Minister has given that the Government are going to sort out the UK Border Agency so that fewer false decisions are made. I am sure that he has been told by the officials that they have this matter in hand but the benefit of past experience shows us that we cannot rely on that.

In relation to the suggestion made by my noble friend Lady Hamwee, that there should be some mechanism whereby, if the entry certificate officer needs some further information that the applicant could not possibly have known would be required on his original application, that should not be the cause of a refusal but of a communication from the ECO to the applicant to say exactly what kind of information is needed and that that would be considered in making the decision. There is no such mechanism at the moment and I am not satisfied that the assurances the Minister has given, that he will look at the proposal, are sufficient. My suggestion is that we could perhaps think about this before Report and come back to it then, to hear further from the Minister about what progress he has been able to make on my noble friend Lady Hamwee’s suggestion.

Even so, there remains a problem: that the applicant has a black mark against them in the Home Office records, which may have deleterious effects on any further application that he makes. When he comes to make another visit and officers look up what happened in the past, they will see that he has had a refusal. In the case that I mentioned of Mrs N in Beirut, who made a number of visits to her husband in London, no problem was ever encountered. It was rather like the case cited by my noble friend Lord Hussain. Quite simply, they granted the entry certificate. She came to visit her husband in London and went back to Beirut afterwards, for the very simple reason that she had an 89-year-old mother there for whom she is the primary carer, as I explained. That was known—it must be on the files—yet on this occasion, after she has been from Beirut to London perhaps a dozen times without any problem, suddenly she was refused.

Mrs N’s solicitor advised her not only to put in a fresh application, which my noble friend thinks is the ultimate solution, but to appeal because she does not want a stain to appear on her record. That is not going to vanish. There is no way in which you can rub off a record of a refusal, except by means of an appeal. Although people may be able to get permission more quickly to come here by putting in a fresh application, as my noble friend says, that application will have to be considered in the light of the fact that there is a record of a refusal. It is less likely that that person will be able to come here in future. The solution that my noble friend has suggested is not the answer and I say again that we will have to return to this on Report, when I hope we can make some further progress on it. Meanwhile, I beg leave to withdraw the amendment.

Amendment 148A withdrawn.

--- Later in debate ---

Moved by

[Lord Avebury]

148B: After Clause 24, insert the following new Clause—
“Immigration appeals: race discrimination grounds
In the Nationality, Immigration and Asylum Act 2002, in section 84(1)(b), after “Race Relations (Northern Ireland) Order 1997” insert “or relates to section 115 of the Equality Act 2010 in relation to the protected characteristic identified in section 9 of that Act”.”

[Lord Avebury]

My Lords, the specific race discrimination ground of appeal in immigration cases now relates only to Northern Ireland. The 2002 Act continues to allow an immigration judge to find an immigration decision to be unlawful by reason of race or other unlawful discrimination, because Section 84(1)(e) provides a ground of appeal,

“that the decision is otherwise not in accordance with the law”,

but only where he or she has jurisdiction to hear the appeal in the first place.

The importance of the specific race discrimination ground of appeal is that it is one of two statutory grounds that generally preserve an appeal right that would otherwise be precluded by the 2002 Act. Thus, in the various and complex sections restricting appeal rights in that Act, the following general formula is repeated several times: that the relevant restriction,

“does not prevent the bringing of an appeal on either or both of the grounds referred to in section 84(1)(b) and (c)”.

This general formula previously preserved the right of appeal against an immigration decision, where the would-be appellant sought to challenge the immigration decision on race discrimination or human rights grounds. This has particular relevance to Clause 24 of the Bill, by which it is intended to remove the right of appeal against the refusal of a family visit visa. The provisions that Clause 24 amends will continue to retain the general formula intended to preserve a right of appeal on race discrimination or human rights grounds. Preserving the right of appeal on those grounds is clearly intended, as is stated by paragraph 373 of the Explanatory Notes. It was also made clear on the UK Border Agency website when the Bill was first published, as well as in a more recent announcement on that website concerning changes to remove the right of appeal for aunts, uncles, nieces, nephews and cousins against a refusal of a family visit visa.

However, the omission of the relevant words in Section 84(1)(b) undermines all this. The general formula now preserves appeal rights only where the appeal is brought on human rights grounds in England and Wales or Scotland, and on both race discrimination and human rights grounds in Northern Ireland. The Immigration Law Practitioners’ Association has raised this with the Home Office, and it has been confirmed that this was not intended. ILPA informs us that the Home Office is looking at how best to remedy the omission, and we hope that it can be done while this Bill is in progress. Ideally, the Government will be able to say how and by when this omission is to be corrected in answer to this amendment, and we would then expect to see it implemented on Report.

The events that led to the inadvertent omission of the specific race discrimination ground of appeal highlight once again the notorious complexity of immigration law, including the highly complex statutory appeal provisions. We have just enacted the Legal Aid, Sentencing and Punishment of Offenders Act 2012, in the face of widespread concern both within and outside Parliament about the removal of legal aid in areas such as immigration, which, as the noble Lord, Lord Pannick, said on the last day of debate in the House of Lords before enactment,

“will hit hardest the weakest and most impoverished sections of our society, often on complex questions of law such as are raised by immigration law”.—[Official Report, 25/4/12; col. 1797.]

If the Government cannot even foresee the consequences for the statutory immigration appeals scheme when they draft legislation with an impact on that scheme, they can hardly expect individuals without legal advice or representation to understand the rules and to know what appeal rights they still have, if any. I beg to move.

[Lord Henley]

My Lords, my noble kinsman has spotted something, and it will be suitable for me to intervene at this stage and save ourselves a debate. As he has explained, Amendment 148B is intended to reinstate a right of appeal against an immigration decision on race relations grounds. Such a right of appeal existed prior to the commencement of the Equality Act 2010, but many noble Lords will remember that the latter stages of that Act were rushed through rather fast in the run-up to the election, and that right was inadvertently removed by the consequential amendments made under that Act. That might encourage us to think more carefully about the wash-up process in the future because of the mistakes that can creep in.

The Government’s stated policy remains that there should be a right of appeal on race relations grounds, and we agree that this appeal right should be reinstated. My noble kinsman asked how we can do that. We do not apparently need primary legislation to rectify this problem as we could effect the necessary change through secondary legislation made under the Equality Act 2010, a point that has been recognised by the Immigration Law Practitioners’ Association in its briefing on this amendment.

I am happy to give a commitment that the problem will be rectified and to explore further over the summer —my noble kinsman will be aware that we have quite a few months before we get to Report—how best this might be achieved. In light of this reassurance, I hope that he will withdraw his amendment.

[Lord Avebury]

I am happy to withdraw the amendment on the basis of that assurance.

Amendment 148B withdrawn.

Moved by

[Lord Avebury]

148C: After Clause 24, insert the following new Clause—
“Immigration appeals: asylum and humanitarian protection
In the Nationality, Immigration and Asylum Act 2002, in section 83(1)(b) omit the words from “Kingdom” to the end.”

[Lord Avebury]

I shall speak also to Amendment 148D. Section 83 of the Nationality, Immigration and Asylum Act 2002 currently provides that a person may appeal to the tribunal against the rejection of his asylum claim where,

“he has been granted leave to enter or remain in the United Kingdom for a period exceeding one year (or for periods exceeding one year in aggregate)”.

This amendment would extend the right of appeal against refusal of asylum in any case where the Secretary of State had granted the person leave to enter or remain for whatever period. Asylum seekers who are not granted leave to enter or remain when refused asylum have a right of appeal under the provisions of Section 83(1), thus currently it is only asylum seekers who are granted leave to enter or remain for 12 months or less who are unable to appeal when refused asylum.

Where an asylum seeker is refused, there are various reasons why he or she might none the less be granted leave to enter or remain for a limited period. For example, a person refused asylum may be granted humanitarian protection because it is accepted that he or she is at risk of serious harm if returned to his or her country of origin, but it is not accepted that that harm is for a refugee convention reason—that is to say that the harm is not,

“for reasons of race, religion, nationality, membership of a particular social group or political opinion”—

or because it is accepted that his or her removal would constitute an unlawful interference with his or her private or family life. Grants of leave on either basis would normally be for more than 12 months. In these situations, Section 83 provides a right of appeal against the asylum refusal.

The group of asylum seekers most affected by the 12-month stipulation in Section 83(1)(b) is unaccompanied children. Unaccompanied children refused asylum are often granted discretionary leave on the basis that there are no adequate reception arrangements in their country of origin to which they could be returned. Discretionary leave granted to an unaccompanied child on this basis is granted for whichever is the shorter period of three years or until he or she is aged 17 and a half. Thus an unaccompanied child aged 16 and a half or over at the time of being refused asylum will not be granted discretionary leave of sufficient length to allow him or her to appeal against the refusal of asylum. He or she will have to wait until his or her discretionary leave is nearing its expiry and apply for an extension of the discretionary leave. If that extension is refused or granted for a period that when added to the period in the original grant comes to more than 12 months, he or she can appeal against the refusal of asylum.

This has serious implications for such a child. First, in many cases the UKBA does not decide an application for an extension of discretionary leave for many months, or sometimes years, after the application is made, so a child age 16 and a half when originally refused asylum may be well into adulthood before he or she is provided any opportunity of bringing an appeal against the refusal of asylum. Delay in establishing refugee status can cause substantial harm to the child’s welfare and development over and above the ongoing uncertainty as to the child’s longer term future. For example, children and young people with only discretionary leave to remain rather than refugee leave may have difficulty accessing further or higher education or accessing financial support for this purpose. Generally, unaccompanied children and young people awaiting a decision on their application for an extension of discretionary leave may have difficulties accessing a range of entitlements because, while in law they continue to have discretionary leave, the document by which that leave is given will show it to have expired.

Secondly, changes in circumstances as regards the child or his or her country of origin may mean it is more difficult or not possible to now succeed on appeal. This is because in an asylum appeal the issue for the immigration judge is not whether a person was a refugee when he or she originally claimed or was refused asylum, but whether the person is now at risk of persecution. For example, the child wrongly refused asylum but at risk of being recruited as a child soldier may be unable to establish his or her asylum claim by being denied a right of appeal until after he or she has ceased to be a child. Additionally, a child, like any other person, will normally be best able to recall events and give evidence in an appeal the closer in time the appeal is to those events.

Thirdly, provisions and guidance designed to protect a child’s interests in immigration procedures, including appeals, will be unavailable during procedures that take place after the child reaches adulthood. These provisions and guidance include judicial guidance on dealing with child applicants and witnesses, UK Border Agency guidance on dealing with children and Legal Services Commission guidance on availability of legal aid. The protections stipulate that particular care is needed in taking evidence from a child, that children are not to be detained and that a child should not be left without legal representation at appeal.

In the light of these considerations, the current provision acts contrary to the UK’s international and domestic obligations to safeguard and promote the welfare of children. It is contrary to the children’s best interests and hence to Article 3 of the 1989 UN Convention on the Rights of the Child. Given that the provision overwhelmingly acts to prejudice children, it is contrary to Article 2 of the convention as being discriminatory in practice on grounds of age and a person being a child.

I turn to Amendment 148D. Section 94 of the Nationality, Immigration and Asylum Act 2002 empowers the Secretary of State to prevent an asylum seeker or person making a human rights claim from exercising a right of appeal before his or her departure, voluntary or enforced, from the UK. The provision is often referred to as a non-suspensive appeals provision because ordinarily where an asylum or human rights claim was made by a person in the UK, the power to remove a person from the UK is suspended while he or she may bring or is pursuing an appeal.

When Section 94 was first debated by your Lordships in July 2002, the late Lord Archer of Sandwell asked:

“How many basic principles can be brought into contempt in 65 lines?”.

Having noted that succeeding on an asylum or human rights appeal after one has been removed from the UK may simply be too late, he cautioned:

“Once the claimant has passed out of the jurisdiction of the United Kingdom, we have no control over what happens to him”.

He also highlighted the great difficulties presented in trying to exercise one’s appeal from outside the country, including in particular where,

“the outcome may—usually does—depend on the assessment”,

by the immigration judge,

“of the applicant's evidence … and … to a substantial degree on seeing and hearing the witness”.—[Official Report, 23/7/02; cols. 344-45.]

The amendment removes the presumption of safety contained in Section 94(8) where the Secretary of State intends to remove the person to what she claims is a safe third country—not the person’s country of origin—and where she says the person will not suffer any human rights abuse and where she has issued a certificate under Section 94(7).

--- Later in debate ---

[Lord Henley]

My Lords, I will deal with the amendments in the same order as my noble kinsman did. Amendment 148C would create a right of appeal whenever someone is refused asylum but is granted any form of leave. It would also have the effect of providing for multiple rights of appeal against the refusal of asylum for a group of cases where no right currently exists, as there will be a right of appeal every time a fresh grant of leave is given. That is possibly an undesirable position.

The original purpose of Section 83 of the Nationality, Immigration and Asylum Act 2002, which, again, the noble Baroness will well remember, was to provide a right of appeal where an asylum application has been refused but the applicant was granted more than 12 months’ leave. Normally when a claim for asylum is refused, there is a right of appeal against the subsequent removal from the UK rather than against the refusal of asylum itself. The appellant can raise asylum grounds as part of that appeal against his removal. However, where someone has been refused asylum but granted leave of less than 12 months, removal directions will not be set and therefore no appeal right arises. In these cases, the short duration of the leave necessarily means that the case will be considered again quickly, reducing the need for an appeal. Where there are no grounds to grant asylum but there are other valid reasons why someone cannot return to their home country, another form of immigration leave is sometimes granted. If leave is granted for more than 12 months, Section 83 of the 2002 Act provides for a right of appeal against the refusal of asylum.

Amendment 148C would remove the 12-month restriction and would create a right of appeal against the refusal of asylum, even where a short period of leave is granted. It is not unusual for these short periods of leave to be extended more than once, and recent case law means that the amendment would create a right of appeal against the earlier refusal of asylum every time further leave was granted. If a decision to remove the applicant from the UK was ultimately taken, a separate right of appeal would arise against that decision. The amendment would possibly undermine the intention of the existing asylum appeals framework, which aims to prevent multiple, fruitless appeals being used to prolong someone’s time in the United Kingdom, often at significant cost to the taxpayer.

My noble kinsman and the noble Baroness asked about the impact on children, particularly unaccompanied children, who are refused asylum. They are normally granted leave until they reach the age of 17 and a half. The 12-month restriction therefore means that some unaccompanied children will be refused asylum and granted less than 12 months’ leave, which means that they do not get an appeal right under Section 83 of the 2002 Act. Those children may not have their asylum considered by a court for more than a year after they first claimed asylum. That is an unfortunate consequence of the otherwise very sensible 12-month restriction, and I can assure my noble kinsman that we will review our policies concerning the length of leave granted to children to ensure that there are no unintended consequences of the sort that he and the noble Baroness implied.

Amendment 148D concerns the Secretary of State’s powers to certify, under Section 94(7) of the Nationality, Immigration and Asylum Act 2002, that removing a person to a safe third country will not breach his or her human rights. The effect of the certificate in such cases is that an appeal can be brought out of country only after that person has been removed. This provision is designed to prevent spurious appeals being used to delay removal in hopeless cases. When determining whether such persons may be removed, the third country must be a place from which the person will not be sent to another country other than in accordance with the refugee convention; we want to make that clear. If the certificate is challenged by judicial review, the court is required to regard the third country as one where the person’s rights under the refugee convention will not be breached. I believe, therefore, that Amendment 148D is unnecessary because the courts are already able to consider whether the person’s human rights may be breached by way of judicial review challenging the issue of that certificate. Once the person has been removed to the third country, an appeal may be brought and refugee convention issues can be considered. In light of that assurance, I hope that my noble friend will feel able to withdraw his amendments.

[Lord Avebury]

My Lords, I am grateful to my noble kinsman for what he has said about Amendment 148C. I look forward to hearing further from him, perhaps on Report, about the results of the policy review on the length of permission granted for a child and the effects of an appeal being heard after the child has reached the age of adulthood. I hope that I may take it, from what he said, that we will be able to have a more concrete idea of what the Government propose to do to remedy the situation before Report. If legislation is required to remedy it, we must not miss the opportunity presented by the Bill.

On Amendment 148D, the question of whether we need changes in the statute to cope with the cases that I have mentioned, where it was found that the presumption was not justified, is a matter on which I need to take further legal advice, so I will not pursue the matter any further at this point but may well return to it on Report. I beg leave to withdraw the amendment.

Amendment 148C withdrawn.

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Moved by

[Lord Avebury]

148E: After Clause 24, insert the following new Clause—
“Appeal in progress
In the Nationality, Immigration and Asylum Act 2002, in section 99(1), omit “96(1) or (2)”.”

[Lord Avebury]

My Lords, under Sections 96 to 99 of the Nationality, Immigration and Asylum Act 2002, the Secretary of State may issue a certificate causing a properly initiated and extant appeal before the First-tier Tribunal, Immigration and Asylum Chamber, or onward appeal against a decision of that chamber, to be summarily terminated. The cases dealt with in Sections 97 and 98 concern matters of national security or certain cases where the Secretary of State has certified that a person’s presence in the UK is, or would not be, conducive to the public good, and these amendments do not affect those provisions.

Section 96(1) and (2) concern situations where the Secretary of State asserts that the subject matter a person now relies upon could and should have been raised in previous appeal proceedings. However, the Secretary of State’s opportunity to make such an assertion and issue a certificate to exclude a right of appeal to the First-tier Tribunal is when she is making her decision in relation to the subject matter, not after she has rejected it and an appeal initiated. Indeed, Section 96 expressly recognises this. Section 96(7) states:

“A certificate under subsection (1) or (2) shall have no effect in relation to an appeal instituted before the certificate is issued”.

Section 99 was commenced on 1 April 2003 by the Nationality, Immigration and Asylum Act (Commencement No. 4) Order. Section 96, however, was later revised and Section 96(7) inserted on 1 October 2004 by the Asylum and Immigration (Treatment of Claimants, etc.) Act 2004 (Commencement No. 1) Order 2004. However, when this revision was made, Section 99 was not amended so as to reflect the change introduced under the 2004 Act. The ineffective and erroneous part of Section 99, which the amendment seeks to remove, is another example highlighting the degree of complexity in the statutory immigration appeals provisions. I beg to move.

[Baroness Smith of Basildon]

My Lords, I can be very brief on this, as the noble Lord, Lord Avebury, explained his amendment in great detail. My understanding from the briefing that I received is that this proposal would be a modest tidying and simplification of what the Immigration Law Practitioners’ Association said was a highly complex statutory appeals process. On that basis, it appears to be a tidying-up amendment, but it would be helpful to know whether the Minister shares that view or whether he believes that it represents a significant change. My legal knowledge is not great enough, but I would like to hear the other side of it, and if it is just a simplification and tidying-up I hope that the Government would agree to it.

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[Lord Henley]

My noble friend is absolutely correct. It is always difficult to make sure that any law is understandable to the ordinary man or woman in the street or the ordinary man or woman on the Clapham omnibus. It is obviously, as our noble friend Lord Lester of Herne Hill put it, sometimes difficult to make the law intelligible to even the extraordinary lawyers let alone the ordinary ones. We try to make sure that it is as intelligible as possible but, as I think my noble friend Lord Lester is aware, even with some of the simplest laws one lawyer will take one view and another will take another view. These matters are often argued in the courts at some considerable length. We try to do what we can to make things as simple as possible. I hoped that this would be a very short amendment, and I hope that the reassurance that I offered to my noble kinsman will be sufficient for him to withdraw the amendment.

[Lord Avebury]

The important thing is that my noble kinsman has agreed to tidy up Section 99 of the Nationality, Immigration and Asylum Act 2002. I am most grateful to him for that assurance and beg leave to withdraw the amendment.

Amendment 148E withdrawn.

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Moved by

[Lord Avebury]

148F: Clause 25, page 23, line 22, at end insert—
“(4) This section does not apply if—
(a) the person concerned is stateless, (b) the person concerned has previously made an asylum claim or a human rights claim and been granted leave on that basis, or(c) the person concerned asserts in his or her grounds of appeal an asylum claim or a human rights claim.”

[Lord Avebury]

My Lords, in moving Amendment 148F, I will speak also to Amendments 148G, 149A and Clause 25 stand part.

Clause 25 is unjust and oppressive. It is contrary to the principles underpinning a fair trial. It applies where the Secretary of State cancels or curtails a person’s leave to be in the UK while that person is outside the UK, using the power in Section 82(2)(e) of the Nationality, Immigration and Asylum Act 2002. If the Secretary of State certifies that the decision is or was taken wholly or partly on the grounds that it is no longer conducive to the public good for the person to have leave to enter or remain in the United Kingdom, the person will be precluded from exercising any right of appeal from within the UK. Even when the person has returned to the UK and launched an appeal before the certificate is issued, Clause 25(4) means that when the Secretary of State issues the certificate, the appeal will lapse and the person will be excluded from any right of appeal until he or she has again left the UK.

That persons are outside the UK when their leave is cancelled is not an unhappy accident; it is a result of the policy of waiting until a person is outside the country to serve the decision to cancel their leave. A person whose leave is cancelled is normally entitled to an in-country appeal against the decision to take away their leave, as well as the continuation of their leave on the same terms and conditions during the period within which an appeal can be brought and, if they do appeal, while the appeal is pending. The Home Office took the view that a person who was outside the country at the time when the leave was cancelled was not entitled to an in-country appeal. The courts held that as a matter of statutory construction, a person’s leave continues on the same terms and conditions during the 10-day period within which an in-country appeal can be brought and that they must be given the opportunity to return to the UK to launch the appeal within this time limit. If the person does not take that opportunity, they do not have an in-country right of appeal, but if they do, they have such a right and their leave continues until that appeal is finally determined. It is this ruling that Clause 25 would reverse.

Why should the Secretary of State use the information she holds about a person’s whereabouts to cancel their leave when they are out of the country and thus dictate whether or not they have an in-country right of appeal? That one party to litigation can control whether the other party has an in-country right of appeal offends against the principles of fairness. Why should one person have an in-country right of appeal and another, who has received the very same immigration decision, not do so just because one of them happened to have left the UK for a few days at the time the decision was served? There is no rational basis for the differential treatment.

The case of MK illustrates the oppressive nature of Clause 25. He was a recognised refugee and lived in the UK for several years with his wife and daughters. A European arrest warrant was issued for his arrest in connection with terrorism-related activities. Extradition to Italy was sought. His challenge to extradition failed. It was accepted in the course of the extradition proceedings that he was at risk of torture in Tunisia, his country of nationality. No real risk was seen that Italy would refoule him to Tunisia. MK’s wife and daughters, his dependants, remained at home in the UK.

MK was tried in Italy and acquitted of all charges except one, relating to the procurement of a false travel document, which all agreed did not relate to terrorist activities. He was sentenced to 12 months’ imprisonment but had already served that time on remand. Nevertheless, he continued to be held in immigration detention in Italy against his return to the country of his nationality, Tunisia, because a request was immediately made by the Italian police for his expulsion there. What had been considered unthinkable by the court in the UK extradition hearings was actually happening.

MK told the Italian authorities that he was a refugee and they took steps to determine whether he could be returned to the UK, his country of refuge. Meanwhile, the European Court of Human Rights intervened at MK’s request, indicating to Italy that under rule 39 of the rules of court he should not be returned to Tunisia. Seven days later, the Secretary of State wrote to MK’s solicitors in the UK that she had decided to revoke his refugee status and had also decided to cancel his indefinite leave to remain on the grounds that his exclusion from the UK would be conducive to the public good. MK’s solicitors lodged an appeal within the time limits applicable. It was argued by the Secretary of State that she was under no obligation to facilitate his return so that he could exercise an in-country right of appeal. The judge disagreed, concluding that the proper construction of Section 3D of the Immigration Act 1971 was that leave was extended for the 10 days that would enable the individual wishing to do so to make arrangements to return to the UK to pursue the appeal against the cancellation.

MK’s case is chilling but it is far from as bad as it could be. He knew of the decisions taken against him. They were not simply sitting on the mat undiscovered but served on him as a matter of law, which provides that a decision is deemed to be served two days after delivery to a person’s last known address. He had at all times the benefit of lawyers on the record ready to act in the UK, overseas and at the level of the European Court of Human Rights to protect him. He had challenged his extradition in the UK prior to its execution and thus had findings of fact as to the risk of torture in Tunisia. He was extradited to a country that is party to the European Convention on Human Rights, being thus able to benefit from an intervention by the European Court of Human Rights, designed to prevent onward refoulement from Italy.

MK lodged an appeal before the Special Immigration Appeals Commission, and also had a claim involving asylum matters, on both of which grounds, even after the coming into effect of the LASPO Act 2012, he would continue to be eligible for legal aid. It is not difficult to imagine cases to which Clause 25 will apply when the facts are very different and the risks enormously increased.

In MK, the Secretary of State accepted that there are advantages in being present in the UK to pursue an appeal. The Court of Appeal in that case described the right to an in-country appeal as “valuable”. It is difficult to pursue an appeal that turns on your character when you cannot appear in person before the court. It is difficult to find and work with legal representatives to bring an appeal if you are outside the UK and particularly, as was the case with MK, you are not in your country of nationality but stranded in a third country. It can be costly. Under the LASPO Act those who come before the SIAC or who claim asylum continue to be eligible for legal aid for their appeal, but those who are heard before ordinary tribunals and who make no claim for asylum will not.

If a person does return to the UK to appeal, they submit to the UK’s powers. They can be prosecuted for any criminal offence they have committed. The Home Secretary loses none of her powers of administrative detention under the immigration Acts. The person gains the advantage of continuing leave to be in the UK but at a price. The only reason for wanting to be in the UK to challenge the decision is that a person thinks that they have a chance of winning.

On Amendment 148F, I draw noble Lords’ attention to the concerns expressed by the UNHCR. It has exercised its good offices for many persons recognised as refugees by the UK but who, having left the country temporarily for personal reasons, found themselves unable to return here. They can turn only to us, as it was the UK that granted them international protection. The UNHCR says that if they are now to be deprived of the right to return to the UK to challenge a decision to cancel or curtail their leave to enter or remain in the UK, this would increase their vulnerability and leave them at a risk of refoulement. Amendment 148F addresses this concern by disapplying Clause 25 to stateless persons, refugees and persons granted humanitarian protection, and persons who challenge the cancellation of their leave on the basis that it would breach their rights under the UN convention relating to the status of refugees.

The UNHCR refers specifically to new Section 97B or the NIA Act, which deprives a person of his normal in-country right of appeal if the Secretary of State deems him to be a person whose presence in the UK is not conducive to the public good. The 1951 convention and its 1967 protocol list exhaustively the means by which a person can have their refugee status abrogated, and these do not include the procedure of the kind specified in proposed new Section 97B. The UNHCR says that a UK refugee labelled as “non-conducive to the public good” while he is out of the country should be able to return here and challenge the decision before the courts. The same principle should apply to stateless persons. The reduction, if not eradication, of statelessness is a shared responsibility of states. As was demonstrated at a conference to mark the 50th anniversary of the Convention on the Reduction of Statelessness organised jointly by the UNHCR and the Parliamentary Human Rights Group last December, the UK has effectively assumed responsibility for many different stateless communities, such as the Kuwaiti Bidoon, altogether numbering thousands of people, by granting them leave to remain and ultimately, after a lapse of years, UK citizenship.

--- Later in debate ---

My noble kinsman may wish to come back to these but in the light of those remarks and my commitment to write to the noble Baroness with any further points that need covering, I hope that he will feel able to withdraw his amendment. I hope that all noble Lords will support the Government’s amendment in my name and that of my noble kinsman.

[Lord Avebury]

My Lords, we will not quarrel about the priority of tabling subsection (4) and I express my gratitude to my noble kinsman for agreeing that that provision should be deleted. With regard to the question of the noble Baroness, Lady Smith of Basildon, about the criteria for declaring a person non-conducive to the public good, of course they do not have to be stated. It is the Secretary of State’s right to make such a declaration without explanation and no appeal can be mounted against that because the individual concerned has no knowledge of the reasons why that order was made in the first place. The power to declare somebody non-conducive to the public good is a very draconian power and it is a pity we have to invoke it without giving the target any legal right of challenge.

On Amendment 148F, I am not sure that my noble kinsman fully addressed the concerns that were expressed by the UNHCR, which, I agree with the noble Lord, Lord Judd, have to be taken very seriously indeed, because they are the guardians of the people who are concerned by this amendment. As the noble Lord suggested, we will probably have to return to this matter on Report. Meanwhile, I beg leave to withdraw the amendment.

Amendment 148F withdrawn.

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Moved by

[Lord Avebury]

149B: After Clause 25, insert the following new Clause—
“Immigration and nationality appeals from the Upper Tribunal
Section 13(6) of the Tribunals, Courts and Enforcement Act 2007 (right of appeal to Court of Appeal etc.) does not apply in relation to immigration and nationality appeals from the Upper Tribunal.”

[Lord Avebury]

My Lords, in moving Amendment 149B, I shall also discuss Amendment 149C. These are alternative amendments reducing the impact of the additional and highly restrictive requirement to show an important point of principle or practice, or some other compelling reason, in immigration and nationality appeals from the Upper Tribunal to the Court of Appeal. This additional requirement is referred to as the “second-tier appeals test”. The second of the two alternatives I have tabled is narrower, removing this test in asylum and human rights appeals but not other immigration appeals.

The second-tier appeals test was introduced by Section 13(6) of the Tribunals, Courts and Enforcement Act 2007 for certain appeals from the Upper Tribunal to the Court of Appeal. During the passage of the Borders, Citizenship and Immigration Bill in 2009, your Lordships voted through amendments to prevent the test applying to immigration and nationality appeals. This amendment derives from the wording of the amendment originally tabled by my noble friend Lord Lester of Herne Hill, QC, the noble Lord, Lord Pannick, QC, and the noble and learned Lord, Lord Lloyd of Berwick, and subsequently adopted by my noble friend Lord Thomas of Gresford and the late Lord Kingsland as part of a wider amendment concerning the Upper Tribunal. The Joint Committee on Human Rights had concurred with the legal opinion of Sir Richard Buxton, a recently retired Lord Justice of Appeal in the Court of Appeal, that the introduction of such restrictions might not be compatible with the UK’s international obligations.

The same considerations apply now as they did then, and there is a new factor. The increased rotation of judges under the Crime and Courts Bill will mean that there are more judges in the Upper Tribunal who are not immersed in these cases making asylum and immigration decisions, and they will be without the supervision of the Court of Appeal if the clause is unamended. At the moment, we continue to see the higher courts engaged on these issues. There are some poor tribunal decisions but, to be fair, this is an incredibly complex, difficult and fast-moving area of the law. The tribunal judges sitting from time to time in the immigration and asylum chambers of the tribunal may be excellent tribunal judges. However, they are not infallible, and the effect of the LASPO Act 2012, whether directly, in immigration, or indirectly, in asylum, will be that more appellants are unrepresented.

Among the concerns expressed in 2009 was the impact of the second-tier appeals test in potentially excluding appeals to the Court of Appeal where the individuals faced removal in breach of the refugee convention and their human rights as a result of errors of law by the tribunal. Ministers gave assurances in both Houses that these sorts of cases would be the ones that could be expected to meet the test. Phil Woolas said,

“the test would not stop cases that raise important issues concerning human rights or asylum being granted permission to appeal to the Court of Appeal”.—[Official Report, Commons, 14/7/09; col. 210.]

There were other soothing comments, of which I will cite only one, made by the current Immigration Minister, Damian Green, who said:

“The widespread feeling is that Home Office failings must not be compensated for by a lessening of appeal rights in those complex cases that involve human rights issues or constitutional principles, and that the inadequate handling of judicial reviews by an untested tribunal risks increasing the work load of the supervising court, the Court of Appeal, and reducing supervision at the Home Office”.—[Official Report, Commons, 14/07/09; col. 212.]

Those assurances have proved to be ephemeral following the judgment of the Court of Appeal in the case of PR (Sri Lanka). The Court of Appeal considered the ministerial assurances given in 2009, concluding that,

“it would be wrong in principle”,

to be constrained by those assurances and, in applying the second-tier appeals test, refused permission to appeal in each of the three asylum cases before the court. In one of those cases the appellant had been detained and tortured in Sri Lanka. Applying the test, the Court of Appeal concluded:

“The claimed risks are, unhappily, in no way exceptional in this jurisdiction, and not in themselves such as to require the attention of the Court of Appeal”.

In another of the three cases, the judge identified an error of law in the failure of the tribunals below to correctly apply country guidance in respect of Zimbabwe asylum claims, but concluded that the test none the less precluded any appeal to the court. In the last of the three cases, Lord Justice Pitchford found the reasoning of the tribunals below to be, “obscure and contradictory” and such as to give rise to a real prospect of success on the appeal if permission had been granted.

In the case of JD (Congo), however, the Court of Appeal granted JD permission to appeal on the basis that there was an error of law in the Upper Tribunal’s conclusion that the First-tier Tribunal had erred in law, but the UT’s criticisms of the FTT’s decision amount to no more than a disagreement as to the proportionality of removal. The consequences of removal for JD and his partner were acknowledged to be very severe.

Taken together, these two judgments show that asylum and other human rights cases are neither exempt from the test, nor grounds in themselves to meet the test. That an error could lead to a person being returned to a country where he or she may be tortured will not necessarily mean that the test is met, as in the case of PR (Sri Lanka).

There are other significant conclusions to be drawn from these cases, as the Immigration Law Practitioners’ Association emphasised in its briefing for your Lordships on these amendments. I hope that my noble kinsman has had an opportunity of considering them carefully in making up his mind as to how to respond this afternoon.

In conclusion, leaving aside all the complexities of the second-tier appeals test, which have preoccupied the Court of Appeal, it has been shown that without Amendment 149B, or at least Amendment 149C, we shall be in breach of our obligations under both the refugee convention and the ECHR and that we have been warned by no less an authority than the UNHCR itself. I beg to move.

[Baroness Smith of Basildon]

My Lords, we are again grateful to the noble Lord, Lord Avebury, for the detail with which he explained his amendment. I think that these are amendments drafted by the Immigration Law Practitioners’ Association. As I understand the noble Lord, they are alternative amendments. The first removes the requirement to show an important point of principle or practice, or some other compelling reason, in immigration and nationality appeals from the Upper Tribunal to the Court of Appeal: that is known as the second-tier appeals test. The second, if I understand it correctly, is a lesser amendment and would apply to all immigration and nationality appeals concerning asylum and human rights. The noble Lord indicates that I do understand correctly.

The noble Lord referred to the impact the second-tier appeals test has had and I would like to hear the response of the noble Baroness, Lady Northover. There were some serious points raised by the noble Lord, Lord Avebury. If the Government are opposing the amendment, we need to understand their case for doing so, including their views on the impact this would have if implemented and the reasons and evidence used to justify holding those views. It would be helpful to hear from the noble Baroness. The noble Lord, Lord Avebury, has made a detailed and interesting case and there must be some justification if the Government are not going to accept the amendments.

[Baroness Northover]

My Lords, Amendment 149B, tabled by my noble friend Lord Avebury, seeks to remove immigration and nationality appeals from the provisions in Section 13(6) of the Tribunals, Courts and Enforcement Act 2007. Similarly, Amendment 149C seeks to remove a narrower class of appeals—those which relate to the refugee convention or the European Convention on Human Rights—from the provisions in that section. Section 13(6) of the 2007 Act enables the Lord Chancellor to set out, by order, the test which applications have to meet for permission to appeal to the Court of Appeal from the Upper Tribunal. That order-making power has been exercised so that where a party seeks permission to appeal on a point of law against a decision of the Upper Tribunal, the second-tier appeals test will be applied, as noble Lords have said. That test requires that in order to grant permission, the Upper Tribunal or Court of Appeal has to consider that the proposed appeal would raise an important point of principle or practice, or that there is some other compelling reason for the Court of Appeal to hear the appeal.

The Government, like the courts themselves, fully appreciate the gravity of the subject of these appeals. Amendment 149C is concerned with appeals of the most serious kind, where the claim may be that if the appellant is returned home they may face torture or even death. Such cases undoubtedly deserve what has been called anxious scrutiny. In the Government’s view, that is what the system currently provides. At present, if a person makes a claim to asylum in the United Kingdom, for example, and that claim is rejected, he or she can appeal to the First-tier Tribunal. If that tribunal dismisses the appeal, there is a right of appeal to the Upper Tribunal. Alternatively, if the appeal is allowed, the UK Border Agency may appeal to the Upper Tribunal.

Both the First-tier Tribunal and the Upper Tribunal are composed of judges who are experts in this most sensitive of subjects. Therefore, if the Upper Tribunal rejects the appeal, it seems right to the Government that the test to take the matter to a third judicial body should be high. The courts have been clear that there is no case for saying that the UK would be in breach of its international obligations if appeals from the Upper Tribunal are available only in these circumstances. At present, all appeals from the various jurisdictions of the Upper Tribunal to the Court of Appeal are considered under the second-tier appeals test. That same test, under the Access to Justice Act 1999, also applies where there is an appeal against a decision of the High Court and where the latter was acting in its appellate capacity.

The Government believe that the same level of consideration should be given to all types of appeals, even to the sorts of cases with which Amendment 149C is concerned. One reason for this is that not all claims which are made are substantiated when they are put to the test. The second-tier appeals test gives judges appropriate control over the cases that reach the Court of Appeal. Removing this test could cause the Court of Appeal to be inundated with cases that may not justify their consideration. This would cause delays in the provision of justice for the whole range of decisions that are brought to the Court of Appeal and put further pressure on the judicial resources available to that court.

The courts have made a number of important judgments recently that help to clarify the application of the test for cases seeking permission to appeal to the Court of Appeal in the immigration and asylum context. For instance, if a person maintains in their application for permission to appeal that they will be persecuted if they are returned home, that will be a matter which the Upper Tribunal can consider in determining whether the “some other compelling reason” limb of Section 13(6), is met in reference to the second-tier appeals test. If it refuses permission, it is open to the appellant to apply direct to the Court of Appeal for permission.

There is no doubt that the class of cases dealt with by Amendment 149C can be both complex and of the utmost importance. It is our belief that the current structure, including applying the second-tier appeals test in appeals from the Upper Tribunal to the Court of Appeal, is the right one. That was of course the position of those who are now the Opposition when they were in government, as they argued the case then. As we consider that the case is not made out to change the test for the most serious kinds of cases—and as we also heard the other day from the noble and learned Lord, Lord Woolf, in defence of the Upper Tribunal’s track record in what has happened since this was debated a few years back—it follows that we do not accept that that test should be removed for the wider category of cases covered by Amendment 149B. I therefore urge my noble friend to withdraw this amendment.

[Lord Avebury]

I cannot say that I am not disappointed by that reply, because, as I said initially, there have been cases where people at very serious risk of torture have not been allowed to appeal to the Court of Appeal. For example, in the case that I mentioned of PR (Sri Lanka), the individual had been tortured in Sri Lanka and that was acknowledged by the courts but not deemed to be sufficient reason for the second-tier appeal test to have been satisfied. There have been conflicting decisions by the courts on the second-tier appeal. The only safe thing would be to ensure that where considerations of human rights are involved, as they were in the case of PR, the right of appeal to the Upper Court should be retained and the second-tier appeal test should be modified in the manner that I suggested. However, since my noble friend has suggested that we defer this matter until Report—

[Baroness Northover]

Perhaps I might point out to my noble friend that it is not the case that the second-tier appeals test does not allow for materially wrong decisions to be challenged by the Court of Appeal and that in the JD (Congo) case, three of the four appellants seeking permission were granted it. The immigration and asylum chambers of the First-tier Tribunal and the Upper Tribunal have been set up specifically to deal with these kinds of matters. My noble friend mentioned the complexity and sensitivity of these kinds of cases, and I should have answered by addressing that point.

[Lord Avebury]

I mentioned the case of JD (Congo) in my first speech—I have it in front of me—and I accept that in that case, the second-tier appeals test was found to have been met. However, there are other cases in which the circumstances were equally compelling and where that test has not been met. It was in the hope that we would clear up that ambiguity in how the second-tier appeals test is interpreted that I tabled my amendment. As I was about to say, we will have to reflect on this and perhaps come back to it on Report. Meanwhile, I beg leave to withdraw the amendment.

Amendment 149B withdrawn.

UK Border Agency: Visa Applications

Lord Avebury Excerpts

Tuesday 19th June 2012 Lords Chamber

[Lord Henley]

My Lords, I join the noble Lord in paying tribute to John Vine for the work that he does and for his report. I think that he has slightly overegged the pudding—if I can put it in those terms—in his criticism. The chief inspector found some very good practice in three out of four sections that he visited. He found that they were good on timelines, although I accept the criticism that there was possibly an attempt to push things forward purely to meet targets. There was obviously some criticism about accuracy.

We will obviously move forward as fast as we can on producing responses to this, but, as the noble Lord will be aware, there have been quite a number of reports from the chief inspector’s office and we are still processing some of the others. Some of the facts that he deals with in his report relate back to as early as February or even to last year. Things have moved on since then, but I can assure the noble Lord that we are treating this matter with urgency.

[Lord Avebury]

My Lords, neither entry clearance manager reviews nor complaints procedures are of sufficiently high quality and cannot be relied on. Will my noble kinsman say how family visitors who are to be denied a right of appeal in the future will be able to get redress without an appeal mechanism? Bearing in mind that the ability to apply the law correctly is poor, how will the Government ensure that the errors detected in this report will not happen when decisions are made under the new rules on family immigration?

[Lord Henley]

My noble kinsman is right to draw attention to the changes we are making, which we discussed at Second Reading of the Crime and Courts Bill. We will have further discussions on this in due course when we get to the appropriate stage of that Bill in Committee. However, I can say, and I think I said it at Second Reading, that someone who has been refused a visit visa can reapply and address the reasons why they were refused. A decision will be received more quickly as a result. Typically, that will take 15 days compared with going through an appeal, which can take eight months. On top of that, the application fee is cheaper when reapplying than when pursuing an appeal.