Immigration Bill

Debate between Lord Wallace of Tankerness and Lord Hannay of Chiswick

Monday 3rd March 2014 Lords Chamber

[Lord Wallace of Tankerness]

The noble Lord is suggesting that these figures are anecdotal, but in respect of the countries I have just mentioned—the United States, Australia and the United Kingdom—they are genuine figures, as far as I am aware. There is no way that they are anecdotal. Those for the United Kingdom were produced by the Office for National Statistics.

[Lord Hannay of Chiswick]

I honestly think that we had better call the day on this selective quotation of statistics. Why cannot we all just use the Higher Education Statistics Agency’s figures for the most recent year? Just picking figures out or suggesting that two or three years before that there had been an enormous increase and so on will get nowhere. This is not a statistical matter. This is about a growing market in which we are losing market share.

[Lord Wallace of Tankerness]

I did not seek to dismiss this as a statistical matter. I sought to put it into some kind of context: that over the period we have been talking about the drop was less than 3,000, and other countries saw a drop as well. The important point, which I will repeat, is that this country welcomes the brightest and best and there is no limit on the number of overseas students who can come to study here.

My noble friend asked whether students who receive visas go on to use them. All genuine students who qualify will be issued with a visa for the United Kingdom but of course they may ultimately decide to study elsewhere. I know that it may be of interest to my noble friend how many students may go to the trouble of applying for a UK visa and then choose not to travel, but I regret that that information is not available to the Government. I am afraid we cannot meet all her requests but a substantial number of the things that she was seeking in her amendment are already there.

--- Later in debate ---

[Lord Wallace of Tankerness]

My noble friend makes a valid point. We collectively need to think about how to tell a good story better.

The noble and learned Lord, Lord Hope, asked about students staying and working after their studies. While studying, university students can work for up to 20 hours a week in term time and full-time during holidays; they can also undertake work placements. They get four months at the end of their course to gain work experience and after that they can stay if they get a graduate job earning £20,300 or more or are on one of our other postgraduate study work schemes. We have also expanded the post-study work opportunities available. PhD students can stay for a year to gain work experience and those who have a business idea to develop can do so under our graduate enterprise scheme, which I believe is the first of its kind in the world.

In trying to address the issue, the noble Lord, Lord Hannay, has moved an amendment which seeks to add decisions relating to higher education students to the types of decision that can be the subject of an appeal to the tribunal, as set out in Clause 11. The Bill already provides that anyone, including students, can appeal against one of the decisions listed in Clause 11(2): the refusal of a protection claim, the refusal of a human rights claim or the revocation of protection status. The amendment does not change that because it neither adds a new decision type to the list of decisions that attract a right of appeal nor adds to the grounds of appeal that could be raised at appeal. When I was in the other place, I used to cringe a bit when Ministers used to say, “Your amendment is technically deficient” when an important point was being made. Technical flaws aside, we believe the amendment is unnecessary. It is true that a student may no longer appeal against the refusal of an application for further leave to remain in the UK as a student under the Immigration Rules. We are doing that because the appeals system is slow and expensive for those with a genuine concern and presents too many opportunities to frustrate removal for those who seek to break the rules.

The Bill replaces the right of appeal with the administrative review process, which will provide a swifter and cheaper remedy for the majority of those students who would have been successful on appeal. For students who want to move on with their studies, I believe that a quick remedy is better than a drawn out one and that a cheaper remedy is better than a costly one. That relates to the issues which have been raised in this debate in relation to appeals.

Amendment 27 would impose three conditions which must be met before the appeals provisions in Clause 11 come into force. The first is that the Independent Chief Inspector of Borders and Immigration must report on decision-making in entry clearance and managed migration. The second is that the Secretary of State must be satisfied that decision-making for entry clearance and managed migration is efficient, effective and fair. The third is that only once those two requirements have been met can an order for commencement of Clause 11 be laid before Parliament and approved by both Houses.

I understand the reservations that have been expressed about decision-making in immigration cases. They were expressed in the report of the Joint Committee on Human Rights and by the noble Baroness today. However, these concerns must be seen from the perspective of the end-to-end immigration system. In 2012, 14,600 managed migration appeals were allowed by the tribunal. The total number of managed migration decisions taken in 2012 was 291,827. Only 5% of those decisions were overturned. Although our internal sampling indicated that 60% of the points-based system appeals that succeed do so because a case-working error has been made, this does not mean that the majority of decisions are affected by error—far from it. The great majority of applications are successful. Of decisions taken in the UK, only 10% were refused in 2012. Fifty-one per cent of those succeeded on appeal, of which 60%, as I referred to earlier, succeeded because an error was made. Looking at decisions as a whole, it is clear that only a small proportion is affected by the changes being made to the appeals system.

The Home Office has taken action to address historic problems with decision quality. I recognise that these concerns have been genuinely aired. It is why the old UK Border Agency was abolished and its functions brought back into the Home Office. That has made a real difference and work is continuing to improve decision quality. The chief inspector himself acknowledged that positive steps have been taken to improve the process by which decision-makers learn from appeals in his November 2012 report on tier 4 student visas, which in turn led to improvements in process and decision quality.

Administrative review will be a central part of the process to improve decision quality, as its function is to identify errors in decision-making. The administrative review process is being developed to incorporate an element of feedback to the original decision-maker. In this way, administrative review will support the ongoing work to improve decision quality. I can also confirm that those who do the review will not be the same as those who undertook the original decision.

The approach adopted overseas for feeding back administrative review outcomes to decision-makers and improving decision quality is recommended as the right approach by the chief inspector in his September 2013 report on tier 1 visas. In-country administrative review is modelled closely on the approach overseas.

Meeting the requirements that the amendments seek to impose before commencing Clause 11 will inevitably cause delay. That will mean that those migrants whose decisions are affected by case-working error will have to continue to challenge decisions by costly and time-consuming appeals rather than being able to take advantage of a swifter and cheaper administrative review process.

Amendment 28 also relates to the commencement of Clause 11. It would require an impact assessment to be laid before Parliament setting out the number of appeals that will be affected by the changes to appeal rights introduced in this Bill and the costs that these changes would cause the First-tier Tribunal to incur. However, as was referred to by the noble Lord, Lord Lea, an impact assessment has already been produced and was published prior to the introduction of the Bill. It contains the information that this amendment seeks to have laid before Parliament. Given the existence of the impact assessment, I hope that the noble Baroness will not press the amendment.

Amendment 29 would require the Secretary of State to produce a review within 12 months of Royal Assent of the numbers of persons deported under Clauses 11 to 14. I rather suspect that the amendment is based on a misapprehension as deportations do not take place under these clauses but rather under Section 5 of the Immigration Act 1971. However, I assume from what was said that the aim is to question what difference the changes in the Bill will make to our ability to deport those whose presence is not conducive to the public good, including foreign national offenders.

The changes made in the Bill are not about large increases in the number of foreign criminals we deport but about the principle that Parliament is rightfully the body to set out the public interest in the importance of seeing foreign criminals deported and that the tribunal is the right body to weigh the strong public interest in deporting foreign criminals against the specific Article 8 rights of the criminal and their family. Success will be seen as these deportation cases progress through the Immigration Tribunal with outcomes that clearly show that the tribunal decision has had particular regard to Parliament’s legitimate view on the public interest. Case law will take some time to develop and settle once these provisions are commenced. It is not sensible to have a set period on the face of legislation for when a report must be presented when we may well at that point have only a very partial picture of the impact of the changes.

The statement of intent published in relation to the Bill also indicated that:

“Within a year of the administrative review process being established, the Home Secretary will ask the independent chief inspector to include a review of the administrative review process in his inspection plan”.

It is certainly my understanding that, off his own bat, the chief inspector can also take up any issue at any time. The Government have committed to asking the independent chief inspector to include a review of the administrative review process established under this clause, with that to be done within a year of the process being established. On the basis of these reassurances, particularly with regard to appeals, I hope that the noble Lord will be willing to withdraw his amendment and that noble Lords will agree that Clause 11 should stand part of the Bill.

[Lord Hannay of Chiswick]

My Lords, I will be very brief because the noble Lord, Lord Singh, and others who are involved in the next debate have been sitting with mounting irritation, I seem to think. He has been very patient and I will not say much.

The point I am making here is that the cumulative effect on students and post-graduates is damaging. The evidence is there and we would be foolish to ignore it. I hope that Ministers will, between now and Report, look carefully at the cumulative issue. That is important. The noble and learned Lord, Lord Wallace of Tankerness, suggested that the drafting of my amendment is somewhat short of perfect. I asked someone who shall remain nameless about that earlier today. He said, “Don’t worry, Ministers always say the drafting is imperfect but, if the House’s views are made known to them, somewhere before Third Reading they will get it right. They have lots of lawyers who can get it right”. I do not wish to continue further now other than to say that we will have to come back to this issue both in the debate on Amendment 49 and on Report. Meanwhile, I beg leave to withdraw the amendment.

European Union Bill

Debate between Lord Wallace of Tankerness and Lord Hannay of Chiswick

Wednesday 13th July 2011 Lords Chamber

[Lord Hannay of Chiswick]

My Lords, I express gratitude to the noble and learned Lord, Lord Mackay of Clashfern, for his work on the previous amendment Will the Minister confirm the Explanatory Notes that were made when the original Clause 18 was put forward and confirm that the Government stand by these Explanatory Notes now? For the avoidance of all misunderstanding, the Printed Paper Office handed to me yesterday a copy of the Explanatory Notes. I shall make two references. My first is:

“This clause does not alter the existing relationship between EU law and UK domestic law; in particular, the principle of the primacy of EU law. The principle of the primacy of EU law was established in the jurisprudence of the European Court of Justice before the accession of the United Kingdom to the European Communities”.

The second reference is:

“Thus this clause is declaratory of the existing legal position. The rights and obligations assumed by the UK on becoming a member of the EU remain intact. Similarly, it does not alter the competences of the devolved legislatures or the functions of the Ministers in the devolved administrations as conferred by the relevant UK Act of Parliament”.

It would be very helpful if the noble and learned Lord could confirm that those Explanatory Notes, only as Explanatory Notes, remain as they were originally applied to a different Clause 18 from the one that this House is about to accept.

[Lord Wallace of Tankerness]

My Lords, I thank my noble and learned friend Lord Mackay of Clashfern, my noble friend Lord Lester of Herne Hill and the noble Lord, Lord Hannay, for the support that has been given to these amendments. With regard to the Explanatory Notes, I can confirm to the noble Lord and the House that, as is customary, the Government will review the Explanatory Notes in their entirety. The notes on this clause will be considered as part of the exercise and we expect that there will have to be some consequential change to reflect the new wording of the clause. But that apart we have reviewed the Explanatory Notes in the light of proposed changes and consider that the notes, as drafted, accurately reflect the purpose and effect of Clause 18. I hope that that gives the reassurance that the noble Lord is seeking. In the belt-and-braces spirit which my noble and learned friend mentioned, I hope that the House will support these amendments.