Immigration Bill (Third sitting)

Kelly Tolhurst Excerpts

Thursday 22nd October 2015 Public Bill Committees

[The Chair]

Thank you. I am conscious that we still have quite a lot of Members to get in, so I am going to move on—Kelly Tolhurst.

[Kelly Tolhurst (Rochester and Strood) (Con)]

Just a quick one—Mr Yeo, you have used the phrase “bad decisions” a number of times. Could you clarify your definition of a bad decision?

Colin Yeo: A bad decision in an immigration appeal context will be, for example, when evidence that was put to an entry clearance officer abroad or to an official here in the UK simply is not looked at. For example, if that evidence had been properly considered, it would have led to a different outcome. There are more serious cases such as sham marriages, which are very much a topic of discussion at the moment. All practising immigration lawyers have come across cases in which couples are interviewed for hours at a time—sometimes 300 questions each—and not knowing the answer to questions such as the colour of the wife’s toenails or the skin cream she uses leads to a decision that it is a sham marriage and there is no genuine relationship. Those applications are overturned on appeal very often. No doubt, there are some genuine marriages of convenience, but those are bad decisions made on a flawed basis.

[Kelly Tolhurst]

Q 232 To follow on from that, do you regard a bad decision as something that has been overturned by an appeal?

Colin Yeo: That is the best measure a lawyer has to measure the quality of a decision.

[Kelly Tolhurst]

Q 233 Okay. So what do you think is required to enable decision making to be improved in such instances?

Colin Yeo: Clearer immigration law would be a big step in the right direction. Over the past four or five years, increasingly complex rules have been introduced with longer and longer applications forms, which are harder to understand for the applicant and for the poor Home Office official who is responsible for making these decisions. That is one problem. The evidential requirements are now incredibly complicated and are not obvious on the face of the application—you are required to submit documents in a certain format and so on. Frankly, there is also a culture of looking for reasons for refusal in some cases. Cases come across my desk in which I look at the papers that were submitted and then look at the decision, and it is very hard to understand how that decision can have been reached on the papers that were available to the official responsible. I guess they have limited time, or they are not applying their own training or policies properly, or something like that.

Don Flynn: Very quickly, on that point, I think that the right of appeal is the best mechanism we have for ensuring the quality of decision making. At the moment, there are still good grounds for concern about the quality of decisions, but at least it gives us an opportunity to put the decision maker’s reasoning and logic in front of a tribunal and examine it. It seems clear to me that in the absence of a right of appeal, there is simply no other mechanism that can be substituted; at least, if there is, the Home Office has not come up with it. Nothing will automatically improve the very worrying amount of poor decisions being made at the moment if decision makers are not required to justify them before a proper adjudicator.

Manjit Gill: The question that has raised itself more than once—how to sort out decision making and make the quality better—is difficult. One problem is that decision makers on the front line within the Home Office—I suspect; this is my guess—are told to use certain set phrases to pursue certain policy objectives. What tends to be lost in that process is a basic common sense and a basic use of discretion to take a phrase and apply it sensibly.

I will give you one very practical example. I had a case in which a lady who was here lawfully was driving a car for the first time after having passed her test. Unfortunately, she chose an automatic rather than a manual, and she ended up knocking somebody over. Because of her conviction—I cannot remember what the charge was, but I suspect that it was death by dangerous driving—she got a significant prison sentence; I cannot remember, but it was a few years. She was a perfectly nice, genuine lady with a child and a husband who were British citizens. Because of how the decision making is done, and because she only had indefinite leave to remain rather than being a citizen, she automatically got pushed into a process in which, due to the nature of the sentence—a lot of small offences often carry sentences that trigger these provisions—she ended up having a deportation process imposed on her.

Her husband phoned the Home Office, desperate to speak to the caseworker, who was very supportive and indicated that he had been told that this had to be refused. He had had a meeting with his superiors, who knew that they were going to lose on appeal when the case went to the tribunal. He said, “Don’t quote me, but that’s what is going to happen.” It duly went to appeal, and it was allowed, as it inevitably had to be. Why did they make such a decision in the first place? Because they are being pushed by other imperatives. The discretion is taken away from them. The chap who was dealing with it, the caseworker, probably wanted to say, “This is obviously ridiculous. Nobody is going to throw this person out.”

[Kelly Tolhurst]

Q 234 Can I make a comment? Thank you for that. I would say one thing. Every day, people in this country break the law, intentionally or unintentionally, and cause death, and it wrecks their lives—British citizens, who have a legal right to be here. I was not really comfortable with the way you tried to make a death caused by road accident a lower-level activity, because—

Manjit Gill: I’m sorry, that is not what I was saying. Death by dangerous driving is serious. I am not seeking to diminish the offence; please do not misunderstand me. What I am seeking to point to is the fact that sometimes these offences occur, for which someone is rightly sentenced, but that does not mean necessarily that they are to be thrown out of the country. People know that that is the position but they tend to be forced into a certain decision making.

[Simon Hoare]

Chair—