CURTAILMENT OF LEAVE TO ENTER OR REMAIN (Hansard, 21 January 1992)

§ Sir Timothy Raison
I beg to move amendment No. 31, in page 4, line 25, after 'person', insert ', other than a student on a recognised course,'. Clause 4 provides that when a person who already has limited leave to enter or to remain in the United Kingdom has his or her claim for asylum refused, the Secretary of State for the Home Department may curtail that limited leave for him or her to remain. Amendment No. 31 is designed to exempt students on recognised courses from the risk of removal until they complete their courses. Whatever may be the arguments in respect of clause 4 as a whole, there is a strong case for exempting students. My hon. Friend the Minister seemed to concede that pretty fully in Committee, when he said: Of course, my right hon. Friend the Home Secretary is not obliged to curtail leave and there will be various cases in which he will not wish to do so, such as that of a bona fide student who has made an unsuccessful application before the end of his course because of events at home."—[Official Report, Standing Committee B, 5 December 1991; c. 156.] What could be clearer than that? Why should we not exempt the bona fide student?
I have been trying to imagine a case in which a student might be able to abuse the system if my amendment were accepted. He might try to use asylum to prolong his stay, but, if his case for asylum were not accepted, he would have to leave at the end of his course, just as he would if he had not made a bid. If it were accepted, he would not have to go anyway.
It could, I suppose, be argued that the student could delay his asylum application until nearer the end of the course, so in a sense the problem does not arise. As I understand it, however, the draft immigration rules require prompt and full disclosure of material factors. The Government seem to be saying that if someone is going to apply for asylum, he should do so sooner rather than later. In the light of that, it would surely be most unjust for a student to have to give up his studies as a result of an unsuccessful asylum application.
No doubt my hon. Friend will point out that this is no more than a discretionary power; he will say that the key 270 word is "may", and that the provision will not be applied unjustly. I do not believe that my hon. Friend would apply it unjustly, as I have great respect for him and for the fairness that he exercises; the applicant, however, may not be aware of his sterling qualities. He may simply recoil at the possibility of losing his education, and feel that he cannot take the risk entailed in that. In such circumstances, a student might withhold a perfectly reasonable application for asylum—an application that would succeed. Surely it cannot be right to use the possibility of the termination of his course to deter the exercise of what is accepted as a legitimate right.
It is, of course, possible that my amendment is not valid technically. I feel, however, that the case for my argument is overwhelming; indeed, my hon. Friend the Minister confirmed that in Committee. My amendment neither should nor would help a bogus student to prolong his stay; there are other ways of dealing with that. I hope that my hon. Friend—who has handled the whole issue so sensitively—will feel able to accept the amendment.

§ Mr. Jim Lester (Broxtowe)
I support the amendment. Those of us whose constituencies contain universities know that such circumstances arise. A young person may arrive at university, intending to stay for two or three years, with no knowledge of what may happen in his country of origin. He cannot plan when to apply for asylum; that will be dictated by the situation in his country.
Those who remember the Iran-Iraq war will recall that students from both countries found themselves in very difficult personal circumstances. I cannot imagine a case in which someone could use an application to act other than reasonably. As my right hon. Friend the Member for Aylesbury (Sir T. Raison) pointed out, those who apply for asylum and are unsuccessful will stay only for as long as their education visas last; there is no way in which they will abuse the system.
I hope that the amendment will be accepted—or, at least, that its spirit will be accepted, and it can be altered in another place.

§ Mr. Darling
We support the amendment. Both the right hon. Member for Aylesbury (Sir T. Raison) and the hon. Member for Broxtowe (Mr. Lester), being former Ministers, speak with some authority, and I hope that they have persuaded the Minister to accept the amendment.
We should remember that the whole point of clause 4 is to provide a disincentive: the applicant must be aware that, once asylum has been applied for, he runs the risk of having his existing leave curtailed. The intention is to discourage someone from applying for asylum. It is not just students who are in this difficult position. Visitors sometimes find that they are in the same position. A couple of my constituents have visitors from Croatia where the situation will change between the time that they entered the United Kingdom and the time that they are due to leave this country. The point made by the right hon. Member for Aylesbury about students has even more force. Events may have dramatically changed in the home country after the lapse of three or four years.
If the Minister intends to say that we should not worry because of the Secretary of State's discretion, I ought to mention to him that if the point of clause 4 is to discourage such applications and it then becomes known that the discretion is to be used generally, it will undermine the 271 Government's reason for including clause 4. If there is general agreement that if a student applies for asylum he or she should be allowed to continue the course, even if the application is unsuccessful, I cannot see what harm will be done. The right hon. Gentleman dealt very well with the possible abuses that the Minister might conjure up. I look forward with interest to the ingenuity that the Minister will use to reject the amendment. What would be even better, however, would be for the Minister to tell us that if additional amendments are to be tabled in another place, this one will join them.

§ Mr. Peter Lloyd
My right hon. Friend the Member for Aylesbury (Sir T. Raison) made a sympathetic and persuasive case, though the different categories are dealt with in the rules rather than in the primary legislation. We do not intend routinely to use curtailment in all cases where there is extant limited leave. Discretion will be exercised, taking into account all the circumstances of the case. The bona fide student who continues to meet the requirements of the rules is a good example of someone whose leave will not be curtailed. That is not the only example. The same will apply to business men, work permit holders and others.
However, we cannot assume that all those who gained entry as students should not have their leave curtailed. Some of them may have no real intention to pursue a serious course of study and to leave this country when it is completed. A specific exemption would only encourage more dubious attempts to get into that category.
My hon. Friend the Member for Broxtowe (Mr. Lester) said that he could not imagine that there would be no merit in any student's claim to be a student. If he had seen as many cases as I have of people who gained entry as students, but who have not attended college for many months, sometimes even years. I believe that he would modify his opinion. There are people who gained leave as a student but who are not students at present, and they have not been pursuing a course of study for a considerable period of time.

§ Mr. Lester
The amendment refers to students being granted leave until they have completed their course. Therefore, one assumes that the students about whom we are talking are pursuing a course of study at a university or college.

§ Mr. Lloyd
The trouble is that they do not complete the course and that they have no real intention of doing so. As soon as the authorities contact them, many of these people embark on yet another course.
The new power is aimed primarily at those who enter as visitors and seek asylum shortly afterwards. It is right, however, to be able to consider other categories. Even though I cannot accept my right hon. Friend's amendment, I can assure him that the Secretary of State will not automatically curtail the leave of a student simply because his asylum claim has failed. If a student appeals, due to the refusal of his asylum claim, he can at the same time appeal against the curtailment of his leave as a student. His case would, however, already have been very sympathetically considered if he was in good standing with his college and if his desire to complete his studies was convincing.
I am sorry that I cannot accept my right hon. Friend's amendment, but I hope that he has been somewhat encouraged by what I have said.

§ Mr. Maclennan
I listened with care to what the Under-Secretary said, but he has not answered the case put by the right hon. Member for Aylesbury (Sir T. Raison); nor has he said what mischief would arise from accepting the amendment. If his concern is with those who are claiming to be students but are not pursuing a course of study, that would negate the effect of the exclusion. They would be subject to the law if they were not students.
The other place would be wise to return to this matter, as there is strong support for it in this House.

§ Mr. Lloyd
I understand what the hon. Gentleman said. However, that would mean that it would be open to the so-called student to appeal in the ordinary appellate system and there would be an opportunity for that person to remain in this country for a considerable time in the queue for the hearing of the appeal.

§ Sir Timothy Raison
With the leave of the House, I shall reply to the debate.
I am not persuaded by the argument of my hon. Friend the Under-Secretary that this would be a way of policing students who are trying to abuse the system by not pursuing their studies or are trying to stay indefinitely. I remember from my Home Office days that that problem exists and it was one with which I had to grapple. However, I do not think that this is the mechanism for dealing with it.
I know that the House wants to get on to Third Reading and I do not want to prolong matters, but, as the hon. Member for Caithness and Sutherland (Mr. Maclennan) said, this has not been fully answered. It would be desirable if the matter were pursued in the other place and I hope that it will be. Having said that, I beg to ask leave to withdraw the amendment.