Immigration Bill

Debate between Lord Clement-Jones and Lord Wallace of Tankerness

Monday 3rd March 2014 Lords Chamber

[Lord Wallace of Tankerness]

My Lords, this has been an important and interesting debate. It is really about appeals, but I understand why many noble Lords have also used the opportunity to talk about student issues. It is an issue which was well canvassed during your Lordships’ debate at Second Reading. I think the noble Lord, Lord Hannay, has amendments—or at least an amendment—down later in the Bill, where I am sure there will be an opportunity again to debate these matters.

I will of course try to respond to a number of the points that were made but it might be useful to put this into context—the noble Baroness, Lady Smith, spoke to the clause stand part debate and to other amendments with proposed new clauses—and to look at some of the issues regarding students in that context. The key point is that we believe that the present appeals system is complex and costly. The purpose of Clause 11 is to reform and streamline the appeals system so that appeals can be brought only where decisions engaging the fundamental rights of asylum, human rights or EU free movement are made. The clause will also set up an administrative review system to provide a proportionate and less costly mechanism for resolving casework errors.

Clause 11 changes the decisions that give rise to an appeal, the grounds on which that appeal can be brought and the jurisdiction of the tribunal to consider them. As I said, it is intended to simplify an overly complex appeals system. That complexity provides the opportunity for multiple appeals and allows removal to be delayed by the lodging of an appeal as of right where there is no arguable error or where there is a simple casework error that can be corrected more quickly and effectively by administrative review. I will come on to the wider points made by the noble Baroness, Lady Lister, which I am sure we will debate fully. The Joint Committee on Human Rights accepted that there was a legitimate objective to reduce unmeritorious claims, although I accept that other issues arise with that.

Clause 11(2) reduces to four the number of decisions that can be appealed. We recognise the importance of an appeal to an independent tribunal where a case involves fundamental rights such as asylum and human rights, and the provision preserves an appeal right in these cases. A right of appeal is also preserved where the decision was to refuse a claim based on European Union rights. That appeal right is established by secondary legislation under Section 109 of the Nationality, Immigration and Asylum Act 2002 and therefore does not form part of the Bill.

A right of appeal is not the most appropriate remedy for cases that do not involve fundamental rights. The noble Baroness, Lady Smith, mentioned that our internal sampling showed that 60% of allowed appeals against decisions under the points-based system are allowed because of casework error, and asked when that sampling was done. It was a 2% sample between April and June 2013. An appeal is a costly and time-consuming way to correct a casework error but it is not the case, as I think the noble Baroness said, that we are trying to stop a challenge where there is a casework error. There will be an administrative review system, which is what we have been debating and what we believe is the most appropriate remedy in these cases.

Subsection (3) repeals Sections 83 and 83A of the 2002 Act, which provide for a right of appeal on asylum grounds where asylum was refused or revoked but leave was granted on other grounds. They are no longer necessary, as subsection (2) provides for a right of appeal directly against the refusal of, or revocation of, asylum in all cases. Subsection (4) sets out the grounds on which an appeal can be brought. Clause 11 simplifies what is currently a complex system so that the only grounds on which an appeal can be brought reflect the decision under challenge. Subsection (5) restores the Secretary of State’s position as primary decision-maker on asylum and human rights claims and prevents appellants from raising new issues for the first time on appeal. Under the current appeals system, the tribunal has jurisdiction to decide such issues even though the Secretary of State has not had the chance to consider them. For example, a student appealing against the refusal of an application to study in the UK can currently raise asylum or their Article 8 rights, disclosing for example that they now have a family in the UK, which they can do under the present system for the very first time on appeal.

Making this change restores the role of primary decision-maker to the Secretary of State by providing that the tribunal cannot consider any reason that a person has for wanting to stay in the UK that has not already been considered by the Secretary of State, unless the Secretary of State consents to the tribunal considering the new matter. This provision does not prevent a person introducing new evidence about matters that the Secretary of State has already had a chance to consider. The tribunal will continue to be able to make its decision on the basis of all facts relevant to the matters that are before it, as required by case law. Reforming appeal rights will create a better process. Immigration judges at the tribunal will no longer need to consider caseworking errors. Applicants will have those errors considered faster and more cheaply, and those types of case will be removed from the tribunal system, which will reduce overall expense.

That is the context in which we are looking at the issue of students, although I accept and acknowledge the much wider issues that have been raised in this debate. I agree with my noble friend Lady Hamwee and with others. In fairness, the noble Lord, Lord Hannay, said as he opened the debate and moved his amendment that there was much common ground between what he was arguing for and the Government’s position.

We agree on the importance of students to the United Kingdom. My noble friend Lord Maclennan gave illustrations of the soft-power benefit that can come from that. Overseas students contribute a great deal to our economy and to the reputation of our academic institutions internationally. There is no limit to the number of genuine overseas students who may come here to study. As the Government have repeatedly said, this country welcomes the brightest and best. It is important to stress that.

On the specifics of the amendment of my noble friend Lady Benjamin, who said that she accepts nothing but compromise, I hope that I can perhaps give her more than compromise. Most of the data sought by my noble friend’s amendment is already published. Data on visa applications, grants, and refusals of tier 4 general visas, and on other visa categories, and corresponding admissions data for those entering the UK, are published quarterly by the Home Office. These statistics also show the number of visa applications made by students sponsored by higher education institutions as distinct from other types of education provider. In addition, the Office for National Statistics publishes quarterly reports on international migration statistics that now include estimates of the number of former students emigrating from the United Kingdom. The Higher Education Statistics Agency is responsible for publishing detailed data about non-EU students in the higher education system.

It might be useful to inform the debate with some statistics. I think that it was said by the noble Lord, Lord Hannay, and my noble friend Lord Clement-Jones mentioned it, too, that there had been a drop in the number of international students. To put it into some kind of perspective, in 2010-11 the number in the UK was 428,230; in 2012-13 it was 425,260, a drop of less than 3,000. Australia had a drop of 10,000 and France of 2,000. There were increases in the USA and Canada, but the drop in the UK was relatively small and much smaller than that in Australia. There was specific mention of Chinese students. Between 2010 and 2013, the number of Chinese students increased in the United Kingdom by 24.5%. Admittedly in the United States the figure was 49.5%, but the increase in Australia was only 1% and in France there was a drop of 4.4%. There is a good story to tell. We are still an attractive proposition for people wishing to come and study.

[Lord Clement-Jones]

Perhaps my noble and learned friend can tell us what the figures for Indian students are.

[Lord Wallace of Tankerness]

My Lords, disappointingly the figures for India have gone down and there may be some historical background to that. The figures have gone down from 39,000 to 22,000 over these three years. They also decreased in the United States from 103,000 to 96,000 and in Australia from 21,000 to 12,000. It is interesting that there were decreases in the UK, Australia and the United States, which suggests that there may have been other factors. As my noble friend Lord Taylor said, there had been a big increase at an earlier stage in students coming from India, but I will certainly look for more detail on that.

Legal Aid, Sentencing and Punishment of Offenders Bill

Debate between Lord Clement-Jones and Lord Wallace of Tankerness

Wednesday 18th January 2012 Lords Chamber

[The Advocate-General for Scotland (Lord Wallace of Tankerness)]

My Lords, I welcome this debate and in particular thank my noble friend Lord Clement-Jones for introducing an important amendment that would seek to make a change to paragraph 2 of Part 1 of Schedule 1 to the Bill. This is the paragraph that brings special educational needs within the scope of the new scheme.

The Government, in response to our consultation on this package of reforms, recognised the compelling arguments that stakeholders made concerning special educational needs cases. As a result, we altered our position on special educational needs, which has been recognised in the contributions to the debate. The Bill included provision for these cases when it was published.

Our intention is to cover all matters that can legitimately be classed as special educational needs issues. It has been brought to our attention by stakeholders, particularly the Special Educational Consortium, that the current wording in paragraph 2 does not cover all SEN matters—in particular, learning difficulty assessments under the Learning and Skills Act 2000 for 16 to 25 year-olds. My noble friend and others made a very compelling case on that point. Although I have no reason to doubt the drafting skills of my noble friends, I hope that they will understand if I do not accept their amendment at this time. The focus on Section 140 of the 2000 Act would include Wales only. That might be because of the hand of my noble friend Lord Thomas of Gresford—that is no criticism—but I can assure the Committee that my officials are working closely with the Department for Education to ensure that the issue that noble Lords have raised is addressed and that the contents of paragraph 2 encompass all SEN matters. I assure noble Lords that the Government in principle accept the point and that we will table a technical amendment on Report to ensure that SEN matters are fully within the Bill’s scope.

The noble Lord, Lord Stevenson of Balmacara, spoke to Amendment 82ZA, which, as he indicated, would bring into scope all education matters not already covered by Schedule 1. As he said, we have retained legal aid for any education case that involves a contravention of the Equality Act 2010, such as cases concerning disability discrimination, and current legal aid funding for appeals on special educational needs matters, as we have just discussed. We have also retained legal aid for education judicial reviews.

In practice, the amendment would retain legal aid for all education matters, including advice on admissions and exclusion decisions and for educational negligence damage claims, and would mean lost savings of approximately £1 million. The judgment that we have had to make has been to prioritise funding on the most important education cases, which are special educational needs, discrimination and judicial review. We believe that those are of the highest priority, and that advice on, for example, admissions, exclusions and damages claims are not. Of course, those are not unimportant, but where parents are not satisfied with an admissions refusal they can appeal to an independent panel. That requires them to set out in writing why they disagree with the admissions decision, and why they think that the admissions arrangements have not been followed correctly. Those are not usually legal arguments, and the local authority choice adviser can assist parents and attend the appeal hearing with them.

Parents who wish to challenge a temporary or permanent exclusion may do so by writing a letter to the school governors, setting out their reasons for challenging the exclusion. Again, if they are unhappy with the decision permanently to exclude their child, they can appeal—currently to an independent appeal panel, but from September this year to an independent review panel. The Department for Education will fund the Children’s Legal Centre to provide advice to parents on appeals to the independent review panel both online and through a telephone advice line.

Parents can also appeal to the First-tier Tribunal if the appeal concerns disability discrimination, and legal aid is being retained for advice and assistance in such cases. Advice is also available on admission and exclusion matters, although I recognise that the organisations involved, such as the Advisory Centre for Education and the Children’s Legal Centre, face the same difficulties as others in the current financial climate.

The other tier or category is education negligence claims, which have been excluded from scope, along with most other damages claims, because we do not consider that claims for money will generally be of the highest priority. We have therefore focused legal aid only on money claims that concern a significant breach of human rights or abuse of position or power by a public authority, an abuse of a child or vulnerable adult, or sexual assault. The vast majority of education negligence claims will not fall under one of these three headings and will be removed from scope. For many meritorious cases, a conditional fee agreement will provide a suitable alternative funding arrangement.

I have heard my noble friend Lord McNally say from this Dispatch Box on a number of occasions that very difficult tough choices have had to be made on these issues and that there has had to be prioritisation. We believe that we have focused resources on education cases of the highest priority. I hope that the House will recognise that, and I urge my noble friend to withdraw his amendment.

[Lord Clement-Jones]

My Lords, I propose simply to respond on Amendment 36, so if those on the opposition Front Bench wish to respond on Amendment 82ZA, I shall briefly pause. I see that they do not.

First, I should have declared an interest as the president of Ambitious about Autism, the education and special needs charity for autistic children. I know that both it and the Special Educational Consortium will be delighted by the Minister's response. I thank the noble Lord, Lord Howarth, and the noble Baroness, Lady Browning, for their contributions. The noble Lord, Lord Howarth, used a very felicitous phrase, “something of a cliff edge”, about the 16-to-25 period. Of course, the experience of the noble Baroness, Lady Browning, in this area is enormous, and I particularly welcome her contribution.

I very much welcome the Minister’s response and the fact that he has recognised the compelling arguments that have been made to him and to the Department for Education not only for the phase up to 16 but for the 16 to 25 year-old phase. I recognise that the amendment might not be fully technically correct but it might cover other sections—Section 139A is a possibility—that may need to be covered in the drafting.

I think that many noble Lords around the Committee are hoping that this is but the first swallow of summer as we progress through the Bill, but I am very content with the response today and beg leave to withdraw the amendment.