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

Lord Hylton Excerpts

Thursday 7th July 2011 Lords Chamber

[The Lord Bishop of Ripon and Leeds]

My Lords, I support the Motion of the noble Lord, Lord Avebury. Like the noble Lord, Lord Judd, I thank him for his persistence on this issue of justice for those coming to or remaining in this country, in particular to work or study. That includes a significant number of people who come at the invitation of churches and other faith communities, as well as academic bodies, to be a part of the life of churches, universities and so on in this country.

The points-based system has proved problematic for many long-established relationships with other countries. It is in some danger of causing the lack of warmth to which the noble Baroness referred moments ago. The order adds to the perception that we are more interested in obtaining decisions in favour of UKBA than in achieving justice for applicants.

I stress again the point made by the noble Lord, Lord Judd. Why do we move so fast on immigration law? Why does it appear to be different from other laws that we consider in this House? I would like the Minister to indicate as clearly as she can what we are doing here. What we should be doing is seeking justice for claimants based on all the evidence that we can possibly have at a particular moment. Any legislation that looks as though it is seeking to exclude available evidence must be dangerous and problematic. The order also appears to ignore the fact that many of those applying have little in the way of resources, and that new applications, which would be possible, will add significantly to the costs.

There ought to be an absolute rule, first, that our legislation is not retrospective, and, secondly, that commencement orders such as this should provide proper notice to those affected. As the noble Lord, Lord Avebury, indicated, this order applies to appeals already in the pipeline, and there was only a weekend between it being published and coming into effect, so it fails the test on both counts. I, too, regret this unnecessary threat to justice being done and being seen to be done for those applicants whom it affects.

[Lord Hylton]

My Lords, the noble Lord, Lord Avebury, made a very strong case, and we are all grateful to him. I will ask one question. Will the Minister tell the House how many appeals were still pending on 23 May of this year? That would be very helpful in indicating the scale of the problem.

[Lord Rosser]

My Lords, I, too, thank the noble Lord, Lord Avebury, for tabling this Motion of Regret and enabling us to probe the reasons for the Government’s actions in relation to the retrospective effect of this commencement order, which brings into force Section 85A of the Nationality, Immigration and Asylum Act 2002, inserted by Section 19 of the UK Borders Act 2007. The noble Lord, Lord Avebury, explained in some detail the background and significance of Section 19 of the 2007 Act. I do not intend to repeat all the ground that he covered, although inevitably there will be some repetition, for which I apologise.

The noble Lord raised the issue of the retrospective effect of the commencement order and, as a result, its legality. Section 19 is entitled “Points-based application: no new evidence on appeal”—which is exactly what it is about. As the noble Lord said, in immigration cases the general rule is that immigration tribunals can consider any evidence that is relevant to the substance of the UK Border Agency’s decision, including evidence from after the date of the decision.

An exception to this is entry clearance applications, and Section 19 makes provision for a new exception; namely, points-based-system cases which relate to cases about people coming to or remaining in the UK for the purposes of work and study.