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

Baroness Browning Excerpts

Thursday 7th July 2011 Lords Chamber

I appreciate that it is unlikely that the Minister will disclose the legal advice the Government received on whether the retrospective effect of the commencement order is lawful, but can she confirm in words of one syllable that it is the Government's judgment that this commencement order is not open to successful challenge in the courts? I look forward to the Minister’s response to the points I have raised and to those raised by other noble Lords, not least by the noble Lord, Lord Avebury.

[The Minister of State, Home Office (Baroness Browning)]

My Lords, I thank my noble friend Lord Avebury for the opportunity to debate this Motion, and I am also grateful to him for correspondence relating to this debate that he has made available to me. A number of points have been raised, and I will do my best to deal with the issues to which they give rise.

The Motion deals with a distinct subject: the manner of implementation of Section 19 of the UK Borders Act 2007. As we have heard, the UK Borders Act 2007 (Commencement No. 7 and Transitional Provisions) Order 2011 commenced Section 19 of that Act and introduced a new Section 85A into the Nationality, Immigration and Asylum Act 2002. That section introduces a restriction on the new evidence that can be presented at points-based system appeals so that only evidence considered by the UK Border Agency caseworker can be taken into account.

The Government believe that migration has enriched our culture and strengthened our economy, but that it must be controlled so that people have confidence in the system. In today's global economy, we need to be able to attract the best and the brightest to ensure that our companies remain competitive and our standard of living remains high. We have already pledged to transform the immigration system so that it does the best by the public. People have a right to know that the Government are protecting their jobs, keeping a firm grip on those who come here and sending home those who break the rules.

The UK Border Agency is committed to improving the quality of initial decision-making across all case categories, overseas and in-country, and has already made good progress with a dedicated programme of work under way to make such improvements. However, where evidence is not supplied with an application, caseworkers are unable to take it into account. They are then seeing their decisions overturned on appeal when appellants submit new evidence. It cannot be said that the PBS application process is complicated. A customer satisfaction survey found that around 85 per cent of applicants are clear about what evidence they need to provide and that up to 92 per cent of applicants find the application process easy to understand. I particularly draw that to the attention of my noble friend Lady Hamwee.

The Government commenced Section 19 to help ensure that applications, and therefore decisions, under PBS are made correctly first time. Before Section 19 was commenced, 63 per cent of allowed PBS appeals were allowed because appellants were submitting new evidence at the appeal hearing that was not provided to the UK Border Agency with their application. Such documentary evidence, for example, relating to a person’s level of funds or demonstrating their English-language ability, will be taken at face value by the immigration judge and cannot be validated by the UK Border Agency. There simply is not time when that new evidence is submitted at the appeal stage. I stress that that sort of information is required at the time the application is made and should not be submitted at a much later date as part of an appeal procedure where no validation can take place.

Section 19 will also help to end unnecessary appeals. Applicants should submit all necessary evidence to allow the caseworker to reach the right decision in the first instance. An expensive and publicly funded appeal is not the remedy for those who fail, deliberately or otherwise, to submit the required evidence with their applications in the first place. Evidence can continue to be presented at PBS appeals where it is in support of a human rights, race relations, asylum or EEA ground of appeal, is provided to prove that a document previously submitted is genuine or valid and is provided in support of grounds that do not relate to the acquisition of points.

The Government carefully considered the best way to introduce this legislation and decided to apply it to all appeals heard for the first time on or after 23 May, the date of commencement. Doing so creates a clear cut-off point.

The view that introducing the legislation in this manner is unfair on those who have already lodged their appeals, because they did so in the expectation that they would be able to introduce new evidence at the appeal stage but are now prevented from doing so, is contrary to the way in which the law was established in the first place. We considered very carefully the manner of introduction of this measure, which is shown in that there are transitional arrangements included in the commencement of this provision. Any appeal where a hearing has already taken place or part heard at the First-tier Tribunal will not be affected by this measure.

I would remind the House that this provision has been on the statute book since October 2007, with a clear intention that it would be implemented once PBS became established in order to give applicants and legal representatives the chance to become familiar with the process. The provision is widely known among applicants and legal representatives, and it can hardly be a surprise that the Government have now chosen to implement it.

The legislation as it stood prior to 23 May did not entitle applicants to delay submitting evidence until the appeal stage. It is the applicant’s responsibility to submit any and all relevant evidence with their application. I would remind the House of the statistics that I gave at the beginning of my remarks. Applicants say that it is easy to undertake that exercise and to understand the paperwork involved. Supplying this information at the time of application will enable caseworkers to make the right decision in the first place and to avoid that unnecessary process of expensive appeals funded by the taxpayer.

The Immigration Rules, the UK Border Agency website and associated policy guidance make it clear that all relevant evidence should be submitted at the time of application. The commencement of Section 19 does not change what is already expected of applicants. The immigration system’s integrity relies on UK Border Agency officials being able to conduct all necessary checks on applications to ensure that the right people are allowed to stay in the United Kingdom. It is vital that all relevant information is given in order to enable them to perform these checks. Simply presenting additional information at appeal, which effectively circumvents those checks, is not acceptable. The practice needs to be stopped as soon as possible.

My noble friend suggests that a better way to have implemented Section 19 would have been to exempt all those who had already lodged their appeal. I realise that this may sound reasonable but I believe that it would in practice have created confusion in the system. A person refused under PBS has 10 days to lodge an appeal. Two persons refused on the same day a week prior to 23 May could have lodged an appeal either side of 23 May, one being caught by the legislation and the other not. Implementing in that way would have led to considerable confusion on behalf of appellants and the courts.

Several noble Lords have asked for precisely the number of people in that situation on 23 May. I do not have the exact figure and I will not give a guesstimate. I think that the House would like the exact figure: I promise to write to noble Lords and to lay a copy of that figure in the Library of the House.

The UK Border Agency is working hard to improve the overall appeals system. The commencement of this legislation is just one element in an overarching appeals improvement plan which, through a mix of operational changes and longer term policy solutions, focuses on reducing the number of appeals in the system, on improving representation and organisation, and on working in partnership with Her Majesty’s Courts and Tribunals Service to modernise the system over the next 12 to 18 months. For example, we are committed to embedding a right first-time, every-time approach to decision-making in the agency and we use information we learn from appeals heard to make continuous improvement to our processes. We have already increased representation at appeals from 74 per cent last year to 83 per cent so far this year by making more flexible use of our resources and increasing productivity.

--- Later in debate ---

[Lord Rosser]

Could the Minister give me a reply to a question that I asked? Can she confirm that it is the Government’s judgment that this commencement order is not open to successful challenge in the courts, bearing in mind that the issue is the retrospective effect of a commencement order?

[Baroness Browning]

My Lords, I think the noble Lord has been in the House long enough to know that the Government do not comment on the legal advice that they receive. Certainly, in bringing this measure into being, as I have outlined, it is our understanding that, unlike other statutory instruments, commencement orders are subject to no parliamentary procedure. It would not be appropriate for me to comment on any legal advice that the Government have taken in this matter.

[Lord Avebury]

My Lords, I did not expect my noble friend the Minister to be able to respond to that question from the noble Lord, Lord Rosser, knowing that there are already actions before the courts that have not yet been heard. She obviously cannot predict the result of those actions. Nevertheless, it is worth underlining that legal advisers of some applicants believe that they have a chance of success; otherwise they would not have been able to launch their actions in the courts. The precedent and the lawfulness of the order are still under review. We will not know the answer to the noble Lord’s question until those cases have been determined.

I thank the noble Lord, Lord Rosser, and all others who have spoken in this debate—my noble friend Lady Hamwee, the noble Lords, Lord Judd and Lord Hylton, and particularly the right reverend Prelate, who made the extremely valid and useful point that to do justice to applicants, all the evidence must be heard. By this order, we deny that to many people who would otherwise be successful, as illustrated by the Government’s own figures, which were just cited by the noble Baroness. Sixty-three per cent of those who produce fresh evidence after being refused were successful on appeal. I understand perfectly well her point that 92 per cent of the applicants found the process easy to understand.

However, looking at this the other way round, 8 per cent had some difficulty with it. As I said, even those who are very used to filling in forms occasionally omit a document or make a mistake on the statement that would invalidate the whole application. These minor errors cannot then be taken into consideration at the appeal stage because the documents must stand on their own merits without exception. As the right reverend Prelate pointed out, this means that any applicant who is in that position will have to formulate a new application simply because he omitted a document or made a literal error on one of the forms. This seems an unnecessary burden on both the applicant and the tribunals.

I am extremely grateful to my noble friend for her comprehensive answer to all the points that were raised in the debate. She gave full value for money in her reply, and answered many of the points that we dealt with. We look forward to receiving answers in due course to those that she did not manage to squeeze into her time, particularly to the question about the number of people who were affected at the time.

Needless to say, I did not accept my noble friend’s point when she said that my suggestion would have led to further difficulties if it had made it into the transitional provisions. With respect, nor do I think that she answered adequately the question about why it was necessary to bundle this order before your Lordships with such haste over a weekend, with no adequate opportunity for either consideration by your Lordships or consultation with outside interests that might well be affected by it. I wish my noble friend had been able to give me the assurance that I asked for: that this would not happen again on future occasions, and the Government would not make retrospective orders unless doing so was given express authority in the parent Act. However, I look forward to these points being dealt with by my noble friend in the reply that she has kindly promised to give. I beg leave to withdraw the Motion.