The Minister of State, Home Office (Earl Ferrers)
My Lords, I beg to move that the Bill be now further considered on Report.
Moved, That the Bill be further considered on Report.—(Earl Ferrers.)
On Question, Motion agreed to.
§ Clause 10 [Visitors, short-term and prospective students and their dependants]:
§ The Lord Chancellor (Lord Mackay of Clashfern)
My Lords, in calling Amendment No. 36 I should point out that if it is agreed to I cannot call Amendments Nos. 36A or 37 on account of pre-emption.
Lord McIntosh of Haringey moved Amendment No. 36:
Page 7, leave out lines 28 to 31.
§ The noble Lord said: My Lords, when we considered Clause 10 in Committee my noble friends and others on these Benches—indeed others all round the Chamber—took the view that the whole of Clause 10, which denies the right of appeal against exclusion from the United Kingdom to visitors and some categories of students, was offensive and repugnant. We sought to persuade the Committee that the, whole of this clause should be deleted from the Bill. We failed. We recognise that it would not be appropriate for us to bring back a comparable amendment at Report stage. Therefore, we have concentrated in Amendment No. 36, which I now move, and in Amendment No. 38 to which I would like to speak at the same time, on the most important of the evils which are brought about by Clause 10 of the Bill. I refer to the issue of visitors to this country other than students.
§ In case there may be some confusion about the way in which those two amendments are constructed, perhaps I should make it clear that Amendment No. 36 removes the reference to students from the first part of the Bill, which of itself is an amendment to Section 13 of the 1971 Act. The beginning of Amendment No.
763 38 reduces the occasions on which a right of appeal can be denied to a visitor to the occasions when he has obtained leave to enter the United Kingdom by deception; or has been removed as an illegal entrant; or has failed on a previous visit to observe a condition attached to his leave; or has remained without authority beyond the time limited by law.
§ The second part of Amendment No. 38 restores the wording of the Bill, as drafted, in respect of students, with no change whatever. Amendments have been tabled by the noble Baroness, Lady Robson, and the noble Earl, Lord Russell, in connection with students. If, unfortunately, these amendments are defeated, there will be an opportunity for those two amendments to be raised. I appreciate, sympathise and agree with the depth of their concern for students, but we thought that it was right, in accordance with the traditions of this House as a revising Chamber, that we should seek to concentrate in our amendment on what seems to us to be the most important aspect; namely, visitors.
§ We do that for issues both of principle and practicality. Perhaps I may first deal with the issue of practicality. It is a fact that of those entering this country as visitors, something like 72 per cent. are from non-black—I cannot quite say "white"— countries. I do not mean that the individuals are of any particular colour. I have no way of knowing the proportion of citizens from the United States, for example, who are black. Thirty-two per cent. of visitors to this country come from the United States; 22 per cent. from the non-EC countries; 9 per cent. from Japan and 11 per cent. from Canada and Australia. The remainder come from all over the world and very considerably, of course, from the black Commonwealth countries.
§ I now turn to the proportion of refusals to enter this country. The 72 per cent. who come from the countries and the areas which I have named account for only 34 per cent. of refusals. That means that the proportion of those who come from the black Commonwealth countries, in particular from the Caribbean and the Indian sub-continent, and who are refused entry to this country, is very much higher than the proportion from, for example, the United States, Canada or Australia.
§ Of those coming from the white countries, if I may put it that way, only one in 1,154 is turned back whereas of those coming from the black Commonwealth, one in 95 is turned back. I cannot prove any causal relationship which says that, because people are black, they are being turned back. But I can certainly assert a statistical relationship which is clear; namely, that those coming here with black skins are much more likely to be turned back. There is no evidence whatever that those coming to this country with black skins have any less right to visit this country as visitors. Indeed, in many cases they have more right because those arriving from the black Commonwealth are coming with the express purpose of visiting relatives; attending family occasions; perhaps seeing new children or grandchildren, grandparents or parents who may be old and at risk of 764 dying. So if there is any possibility of difference between the right of white and black people coming to this country as visitors, surely the emphasis must be that more black people have good reason to want to come here. The evidence is to the contrary. It is that, even with the right of appeal, refusals at the port of entry are very much higher for black people.
§ The next practicality which we have to look at is that there is a right of appeal now and appeals are frequently successful. In other words, immigration officers and entry clearance officers for visa nationals as opposed to non-visa nationals, frequently make mistakes which are corrected on appeal. If this clause is carried unamended there will be no such appeal and no opportunity for those mistakes to be corrected. It must be added that the very fact that there is that number of appeals does not mean that the same number of problems would not exist if there were no right of appeal. It must be a fact of human nature that immigration officers who have absolute authority and who know there will be no appeal against their decision, can afford to act in a less responsible or less consistent way than if there is the known possibility of an appeal to their actions.
§ In debates in another place Ministers made what was supposed to be a concession, saying that there would be a full statement of the reasons. In debate in Committee, the noble Earl, Lord Ferrers, made the supposed concession; namely, that in large posts overseas there would be a daily review by senior management of decisions made by individual entry clearance officers. We did not and do not accept that those are adequate answers to the problems raised by Clause 10. First, it applied only to large posts; and, secondly, it applied only to those cases where entry clearance is required. It did not apply to non-visa nationals who are entitled to come to this country without obtaining entry clearance before leaving their own country. That applies to Caribbean countries.
§ For all those practical reasons, the removal of the right of appeal is not only likely but certain to lead to greater injustice. It is certain to continue and increase the discrimination affecting visitors as between black and white people which already takes place in admissions to this country.
§ Before I move on from that point, I refer very briefly to Amendment No. 39A in the name of the noble Baroness, Lady Flather. If it comes to a vote, we shall support it because it will certainly make an improvement. However, I hope she will agree that the more general case I am making is a necessary position which has to be put before your Lordships.
I apologise for taking time on this matter; but, in the view of many people, the issue of principle as regards the removal of appeals is the most important single issue in the Bill. I remind your Lordships that when looking at appeals generally, the Home Affairs Committee in another place said in 1990:
The backlog of appeals should not be used as an excuse for reducing rights of appeal".
That is the issue above all on which it is necessary to make this significant but not wrecking amendment to Clause 10 of the Bill.
§ It cannot be right that, because the Government have not allocated adequate resources or made adequate administrative arrangements to deal with what is not, after all, an overwhelming number of appeals (although many of them are successful), the right of appeal should be taken away. I beg to move.
§ 4.30 p.m.
§ Lord Campbell of Alloway
My Lords, perhaps I may briefly support the amendment. I have not been asked to do so, but I entirely accept what the noble Lord, Lord McIntosh of Haringey, has said and that this is perhaps the most important matter in the Bill. Grouped with Amendment No. 38, Amendment No. 36 establishes a fair and reasonable regime both for visitors and students who have been refused entry. It mitigates the harsh incidence of Clause 10 as it stands, to which I referred in Committee when I went into the Lobby to support the amendment of the noble and learned Lord, Lord Ackner, on the understanding that my noble friend the Minister was unable, unfortunately, to take the amendment back. I said expressly that I understood his position.
Subsection (3B) of the amendment tabled in Committee by the noble and learned Lord, Lord Ackner, which I supported, was, in effect, my Amendment No. 50, which I had withdrawn. Perhaps I may remind your Lordships (because this is relevant to what I am going to say) that the object of that amendment was to limit the grounds of appeal from the refusal of an immigration officer.
Amendments Nos. 36 and 38 afford another and, I think, a far more appropriate way in which to limit the appeals by visitors in one way and by students in another. And why? First, because these amendments conform with the broad concepts of fairness to which my noble friend the Minister referred on Second Reading and to our individual concepts of justice. To my mind, they would also square with the manifesto commitment of the party which I have the privilege to support. I referred to that in Committee. As I understood it, that commitment implicitly affirmed some form of right of appeal.
Secondly, as drafted, Amendments Nos. 36 and 38 would avoid the veritable avalanche of judicial review applications which would ensue if Clause 10 were to stand unamended. Noble and learned Lords spoke to that both on Second Reading and in Committee. Surely your Lordships' House can accept that those noble and learned Lords know what they are talking about. Even from my very unimportant professional experience, I agree with everything that they have said about this.
In addition, as drafted, the two amendments would avoid or curtail the substantial area of appeals as regards visitors and, in effect, proscribe in practice appeals by students. As drafted, the amendments take account of the element of administrative inconvenience to which my noble friend the Minister properly referred. They also take account of the imperative necessity to end abuse.
I do not wish to enter into the black/white controversy. However, looking at the matter straight up, surely Clause 10 as it stands will not work fairly 766 —but at least these amendments would. I commend them to my noble friend the Minister for his serious consideration.
§ Lord Hylton
My Lords, I support Amendment No. 38 and do so largely on the strength of evidence that has been supplied by the National Association of Citizens' Advice Bureaux.
It is clear that at present immigration officers possess a high degree of autonomy and that some of them are apt to use that autonomy in arbitrary ways by sometimes employing subjective criteria. That is why I feel strongly that appeals are necessary so that a body of case law may become established, so that there may be greater uniformity between one decision and another, and so that more objective, firm, and hard criteria may be identified.
The noble Lord, Lord Campbell of Alloway, has already mentioned how the drafting of the amendment is quite tight and restrictive. I am sure that your Lordships will have noticed that subsection (3B) is additional to the original amendment and cuts down the number of possible appeals. For that reason alone, I hope that the amendment will commend itself to the Government.
§ Lord Ackner
My Lords, I believe that in some quarters it has been asked, "How is it that so many Law Lords are at odds with the Government on certain specific aspects of this Bill?" Amendment No. 3, so successfully moved by my noble and learned friend Lord Brightman on Tuesday, had the support of no fewer than 10 Law Lords, and no Law Lord voted against it. The answer to that question is, in fact, very simple. It is encapsulated in a very wise observation that was given by one of my eminent predecessors in a case some 50 years ago called the GMC v. Spackman case. Lord Atkins said:Convenience and justice are often not on speaking terms".As regards the Bill now before your Lordships and the Asylum Bill that was considered last year, the Government have taken convenience as their guiding principle in respect of appellant rights and have relegated justice to second or third place. I trust that your Lordships will feel that it is desirable that, whenever that eventuality occurs, this House should expect its judicial Members to intervene and to do so with the appropriate vigour when required. In regard to the previous Asylum Bill, the Government initially preferred convenience to justice by saying, "No rights of appeal to asylum seekers". Under the impact of very heavy criticism, they were able to concede that in that regard justice should be preferred to convenience, but at a cost—and the cost is reflected in Clause 10.
Perhaps I may indicate to your Lordships by using three particular points that my proposition is wholly sound. First, it is convenient to provide the necessary resources now required for asylum seekers to have a right of appeal by removing the rights of appeal enjoyed for over 21 years by the visitors, the subject matter of this amendment—an entirely different category of foreigners. However, it is wholly unjust to take away any entrenched right of appeal without powerful and compelling reasons. The principle or 767 philosophy, if it can be deigned such, of robbing Peter to pay Paul, which is precisely what the Government propose to do, is neither a powerful nor a compelling reason.
Secondly, it is highly convenient to leave to the "ipse dixits" of the bureaucrats to decide who should be allowed on short-term visits. The bureaucrats inevitably say, "Look what happens when you allow independent scrutiny of our decisions. Last year we had to justify, or try to justify, 9,000 decisions. We therefore had to give our reasons, and the Foreign Office had to produce documents. That put us to an immense amount of inconvenience; but, worse still, it published the unpublishable—just how fallible those decisions were. It emerged that we were wrong in 1,500 cases out of 9,000".
That is a highly inconvenient situation for any body of bureaucrats to be faced with and therefore how convenient it is to do away with a right of appeal altogether. But this is not justice. Justice requires—indeed demands—that there should be redress against unfairness or defective judgments whether applied to short-term or long-term visitors. I know that the noble Earl who is always eminently fair will concede that as a general principle.
Thirdly and lastly, it is convenient—once again I stress that motivating factor—to say, "Well, there is always available to the unsuccessful applicant the complex and expensive remedy of judicial review if he can show that the decision about which he complains was quite irrational". However, that overlooks the fact that it is entirely unjust that the grossly overburdened lists in the Divisional Court, for which it appears there will be no relief, should be further swollen for want of a simple appellate process, thus causing cases of far-reaching importance nationally to be put further and further down the waiting list. There must be very few legislative provisions which are so blatantly indicative of a preference of convenience to justice, as is the case with Clause 10, and I too invite your Lordships to give it as much quietus as possible under the terms of the amendment.
§ Lord Renton
My Lords, I had not intended to intervene in this discussion because I have an open mind about the merits of the amendment and I was somewhat impressed by what my noble friend Lord Campbell of Alloway said. However, the intervention of the noble and learned Lord, Lord Ackner, obliges me in my own mind to point out to your Lordships that justice is not one and indivisible. There is social justice. There is economic justice. There is justice which has to be applied by the courts in the judicial application of the law and that is what the noble and learned Lord, Lord Ackner, concentrated upon. However, throughout the discussions on the Bill, we must bear in mind that we have 3 million unemployed in this country, that tens of thousands of people try to get here under the pretence of asylum and that that is a factor, an item of justice, that we should not overlook. Having said that, I should be interested to hear what my noble friend Lord Ferrers has to say about the amendment.
§ 4.45 p.m.
§ Lord Pitt of Hampstead
My Lords, before the noble Earl replies, I intervene to make a plea to the Government to look at the issue with as much humanity as they can. I have a briefing from the CAB which shows large numbers of people who have had injustice done to them as a result of arbitrary actions by immigration officers. It does not follow that immigration officers are in any way not good men; but if you have that degree of power and no one looking over your shoulder and it is a difficult issue, it is easier to send the person back rather than let him in.
I must tell the noble Lord, Lord Renton, that this has nothing at all to do with the number of unemployed. We are talking here about visitors and students. I do not want to repeat what I have said previously; but I am unable to understand why the Government adopt this antipathy to students. A country like ours should regard students, and the opportunity to provide for them, as an investment. Why are we making it difficult for them? We should welcome them. After all, the student of yesterday is the president of today. So why this attitude?
The appeal procedure was introduced in the first instance to relieve hardship. From the figures that we have, it has relieved hardship only to a limited extent. The Government ask that there should be more hardship. What is wrong with allowing people to come here to visit their relatives? If they overstay and are known to have overstayed, when they come next time they will be refused and will have no right of appeal. That makes sense and is just because they have already abused the system. What is wrong with encouraging students to come here?
I do not believe that the Government have thought through the matter. They are probably being encouraged by the immigration officers who do not like the idea of having their decisions revoked in the way that they are being revoked by adjudicators. I hope that the Government will rethink the matter. This issue can land us in a great deal of difficulty. I say in all seriousness that, if we go down this road, I am sure that it will be a very dangerous road for us. I merely plead with the Minister to look at the issue in the broad sense.
It has been said that the fact that the Government are having difficulties in the courts has not encouraged them to abolish appeals to the courts. It seems to me —the Minister admitted this—that because there is a large number of appeals, the Government have concluded that the appeals procedure must be withdrawn. I put it the other way round: the fact that many appeals are successful indicates that an appeal machinery is required. That is the other side of the coin.
Some leeway is granted in the amendment in that people who have transgressed are not allowed to appeal, but the bulk of visitors and students would have the right restored. I hope that the Minister will deal with the point in that way.
§ Lord Boyd-Carpenter
My Lords, I always differ from the noble and learned Lord, Lord Ackner, with diffidence and a feeling of perhaps almost personal 769 alarm, because he is undoubtedly the most effective debater in the legal hierarchy which we have the pleasure of having in the House. I thought he sought to beg one question. He made a passionate appeal for justice. If he will allow me to say so, no one is better entitled to do that than he is, because he has served the cause of justice over many years with the greatest of success and distinction.
If one thinks a little further about the issue, why is entry to this country a matter of justice? Why does justice appear to affect the right of entry of foreigners into this country? We are a small country; we are an overcrowded country, as my noble friend Lord Renton said; and we are a country with substantial unemployment. It is surely the Government's duty to secure that we do not have a free flow of people entering into this country for a wide variety of reasons. I am bound to say that I have some difficulty in seeing why the right of a foreigner to enter this country should raise a question of justice.
There are many foreign countries which raise difficulties over the entry of British citizens. One has to obtain passports and documents of one kind or another. No one has suggested that that is a denial of justice. In those circumstances, we must bear in mind the problem that faces Her Majesty's Government. My noble friend the Minister will speak on that with all his authority and knowledge. But it does not require the knowledge of a Minister of the Crown to know that this country has an overcrowding problem, and that therefore a British government have a duty to restrict the entry of people who will add to that overcrowding unless there is some special reason for their entry. That goes far beyond raising a question of justice. It is raising the question of what is the duty of a British government in admittedly extremely difficult circumstances. I for one am delighted that we have my noble friend on the Front Bench in the Home Office to help guide us in this difficult and dangerous matter.
§ Lord Beloff
My Lords, without wishing to emulate the passion of the noble and learned Lord, Lord Ackner, and going only by the cool light of reason, I thought that I had never heard a more irrelevant speech than that of my noble friend Lord Renton until I heard the speech of my noble friend Lord Boyd-Carpenter. Both of them made a good case which one would have to answer—if that is what we were debating—for a restriction on the entry of foreigners into this country. There are social arguments; there are economic arguments; but that is not what we are discussing, because the visitors whom we are discussing are granted by our present legislation the right to visit. So it is not a question of restricting rights. It would of course be possible to move an amendment that we should have no visitors in this country. But visitors are permitted and there is a procedure for deciding which of them is eligible for that privilege. Let us grant that it is a privilege.
All the amendment says is that in view of the mistakes which have been made in assessing whether individuals are entitled to that privilege, there should be some mechanism to assure people in the future that such mistakes will not be made or will be made more rarely. Therefore whether a matter is one of social or 770 any other kind of justice, we are dealing with something simple: should British law continue the practice of safeguarding the rights of individuals? That seems to be a narrow but acceptable and universally understood meaning of the word "justice".
§ Lord Acton
My Lords, I too support the amendment. I want to make just one point: the reason justice enters the question is that Britain is a just country.
§ Baroness Flather
My Lords, I am grateful to my noble friend Lord Beloff for his clear exposition of what we are discussing. My noble friend Lord Boyd-Carpenter speaks of foreigners. They are not just foreigners, they are the families of people who are British citizens. Let us not forget that if my brother wishes to visit me he has to go through that procedure. If he is refused entry he has no right of appeal. He can make another application. He will not be a charge on the state; he will be a charge on me. He will not stay permanently, because that is not what he will be permitted to do. He will not be able to get employment in this country, because he is not permitted to take employment in this country.
Let us not confuse asylum seekers—people who want to stay here permanently—with visitors. Let us think of the millions of tourists whom we encourage to come to this country to spend money, although we do not allow members of the families of people who are settled here to come here as visitors. We must be clear about what we are talking.
§ 5 p.m.
My Lords, I am sure that all your Lordships would agree that all countries must have some system of control for people who come into those countries from another country. I do not believe that there will be any dispute about that, because otherwise one would just open the doors and let everyone in. The country would become overwhelmed and all the services would become inundated. I do not believe that any country would say that there should be no form of control. What we are doing is to have a form of control.
The amendments would create a different set of rights of appeal for people who seek entry as visitors from those who seek entry as short-term and prospective students. Under the amendment, the position for students would be the same as it is in the Bill: there would be no right of appeal. The noble Lord, Lord Pitt, asked what is wrong with students and why do we not encourage them. We do encourage them. We encourage all bona fide students provided that they have a place and money, and will not be a burden on the state. But some people come saying that they are students when they are not. That is why we have to have some form of control.
Under the amendment the position with regard to students remains as it is in the Bill. Visitors, on the other hand, would be entitled to appeal against refusal of entry clearance at the post abroad or against a refusal for leave to enter at a port unless on a previous occasion they had entered or stayed in this country in 771 breach of the Immigration Rules. The amendment would allow no appeals for students but there would be an appeals system for visitors.
I congratulate the noble Lord, Lord McIntosh of Haringey, on having devised an amendment which is almost contrary to what was decided and voted upon at Committee stage, which was that the clause should be included in the Bill and that there should not be an appeal back to this country.
Relatively few refusals to visitors are based on breaches of the immigration laws. Many refusals involve first-time applicants. The majority of applications concern visitors rather than students. If the amendment were to be accepted, the position would remain the same had Clause 10 been taken out of the Bill, which your Lordships decided at Committee stage not to do. The amendment would undermine the fundamental purpose of including Clause 10 in the Bill, the point being that the resources of the appeals system need to be directed to big decisions which will affect people's lives when they want to live here. That is where the system is clogged up and we wish to see it released.
The noble and learned Lord, Lord Ackner, has stated that some appeals have succeeded. In almost every walk of life one finds appeals that succeed. There cannot be 100 per cent. accuracy in all spheres. However, just because some appeals have succeeded, I question whether it is necessary to have the whole edifice of the appeals procedure, which would clog up the system for the genuine long-term applicant.
I should like to remind your Lordships of the current position, because anyone would think that under the Bill we are being harsh on anyone who comes to this country, which is not the case. In 1991 there were 918,500 applications for visitors' visas. Seven hundred and eighty thousand were issued. There is no paucity there. Seventy-seven thousand were refused, and of those only 12,300 people decided to appeal. Nine thousand three hundred appeals were determined, of which 1,500 were allowed, 6,300 were dismissed and 1,500 were withdrawn. In the majority of cases visas are issued. At the moment there is a very expensive and heavy bureaucratic procedure to deal with appeals. We are talking only about students or would-be students who are allowed into this country provided that they can show that they have a place to go and that they have money and visitors who are coming for six months. I accept that there may be members of their family whom they wish to see. However, there are sometimes reasons why visas must be refused.
We have set up a new procedure to deal with that situation. Those who are refused a visa will be given a more detailed notice of refusal which will make it perfectly clear why the application has been refused. That refusal will not prejudice a subsequent application and they will be able to reapply. The applicants or sponsors may put forward any new information at a fresh application which will, where possible, be considered by a different entry clearance officer. In exceptional compassionate circumstances or where there are illogicalities or procedural errors, 772 the Foreign and Commonwealth Office will ask the post to review the decision. That review will be done by a senior officer wherever possible.
There will be improved information leaflets to tell the applicants and the sponsors what they have to do and the criteria that are necessary for a visa. There will be new guidance to the entry clearance officers to ensure that applicants have a full opportunity to present their case; and, in post, with the entry clearance managers, they will conduct a daily review of all refusals to ensure consistent standards. That measure will deal with 90 per cent. of all refusals.
If those safeguards were put in place, I do not see how one could justify a whole system of appeals by people who want to come to this country for six months or less by sending them over to this country, having a huge appeals procedure at great cost and a procedure that clogs up the system for the genuine long-term visitor. We have taken considerable steps to ensure that every single case which is refused is looked at a second time.
It would not be right to accept the amendment. I remind noble Lords that your Lordships did not think that it would be right to exclude this provision at Committee stage and I advise your Lordships to remain with that decision.
§ Lord Campbell of Alloway
My Lords, can my noble friend state whether he accepts that the series of distinctions that I drew between Clause 10 as it stands and the amendment are correct? My noble friend appeared to question the suggestion that I was putting forward. There are, are there not, very real and effective distinctions and safeguards, in the light of which we are respectfully asking the Minister and the Government to think again?
My Lords, however much we think again we come back to the simple premise that there is either a large appeals system or there is a new review system in post abroad that enables the procedure to be carried out quickly and relatively inexpensively. That is the position that we think is correct.
§ Lord McIntosh of Haringey
My Lords, I hope that your Lordships will forgive me if I spend very little time on the response of the Minister. He chides me for making a distinction between visitors and students. He then chides me in almost the next breath for seeking to take out almost all of the clause. He cannot have it both ways. What we are doing is entirely proper. We are looking at the greatest evil in a clause that has not been rejected by your Lordships and we are trying to do so constructively.
The remainder of the Minister's speech in response to the amendment was concerned entirely with matters of convenience and the resources that are available for the appeals system. He described an enormous and complicated procedure which would clog up the appeals system. That point has been adequately answered by the noble and learned Lord, Lord Ackner.
I should like to confine my remarks to the question that was posed by the noble Lord, Lord Boyd-Carpenter. He asked why entry to this country is a 773 matter of justice. I almost forbear to suggest to him that entry to any country ought to be a matter of justice. If he has a relative in a country that has entry procedures which might or might not exclude him from visiting that relative in the case of sickness or a family reunion, for example, wherever that country might be, he would be justified in expecting his application to be treated with justice. That is what we are proposing.
It is not just a question of justice, as was made clear by the noble Baroness, Lady Flather, in a moving speech. This is not only about justice for foreigners, although I am not against justice for foreigners; it is about justice for the people of this country as well. We are talking about a very small number of people. Of the 9,300 appeals which have been determined, an astonishingly high number—1,500—has been agreed to. Those people have links with this country. They want to come here but they are excluded largely because their faces are the wrong colour. One in 2,000 people who come from the United States as visitors is rejected. One in five people who come from Ghana or Bangladesh is rejected. That cannot be justice and we cannot agree to such injustice. We cannot agree to the inclusion of that provision in the Bill. I commend the amendment to the House.
§ 5.10 p.m.
§ On Question, Whether the said amendment (No. 36) shall be agreed to?
§ Their Lordships divided: Contents, 108; Not-Contents, 123.775
|Division No. 1|
|Ackner, L.||Flather, B.|
|Acton, L.||Foot, L.|
|Addington, L.||Gainsborough, E.|
|Annan, L.||Gallacher, L.|
|Archer of Sandwell, L.||Geraint, L.|
|Ashley of Stoke, L.||Gilmour of Craigmillar, L.|
|Auckland, L.||Gladwyn, L.|
|Aylestone, L.||Graham of Edmonton, L. [Teller.]|
|Beaumont of Whitley, L.|
|Beloff, L.||Gregson, L.|
|Birk, B.||Halsbury, E.|
|Blackstone, B.||Hampton, L.|
|Blake, L.||Hamwee, B.|
|Bonham-Carter, L.||Harris of Greenwich, L.|
|Bottomley, L.||Hertford, M.|
|Bridge of Harwich, L.||Hollick, L.|
|Brightman, L.||Houghton of Sowerby, L.|
|Broadbridge, L.||Howell, L.|
|Brookes, L.||Hughes, L.|
|Bruce of Donington, L.||Hylton, L.|
|Callaghan of Cardiff, L.||Jay, L.|
|Campbell of Alloway, L.||Jay of Paddington, B.|
|Campbell of Eskan, L.||Jenkins of Hillhead, L.|
|Carmichael of Kelvingrove, L.||Jenkins of Putney, L.|
|Castle of Blackburn, B.||John-Mackie, L.|
|Chester, Bp.||Kilbracken, L.|
|Cledwyn of Penrhos, L.||Kirkwood, L.|
|Clinton-Davis, L.||Lawrence, L.|
|Cocks of Hartcliffe, L.||Llewelyn-Davies of Hastoe, B.|
|Darcy (de Knayth), B.||Longford, E.|
|David, B.||Lovell-Davis, L.|
|Dean of Beswick, L.||Lowry, L.|
|Desai, L.||McIntosh of Haringey, L.|
|Diamond, L.||McNair, L.|
|Donaldson of Kingsbridge, L.||Mallalieu, B.|
|Eatwell, L.||Mayhew, L.|
|Erroll, E.||Merlyn-Rees, L.|
|Falkender, B.||Milner of Leeds, L.|
|Mulley, L.||Serota, B.|
|Murray of Epping Forest, L.||Shannon, E.|
|Nicol, B.||Shaughnessy, L.|
|Ogmore, L.||Stoddart of Swindon, L.|
|Park of Monmouth, B.||Strabolgi, L.|
|Peston, L.||Swinfen, L.|
|Pitt of Hampstead, L.||Tenby, V.|
|Prys-Davies, L.||Thomson of Monifieth, L.|
|Rea, L.||Tordoff, L. [Teller.]|
|Richard, L.||Underhill, L.|
|Ritchie of Dundee, L.||Wallace of Coslany, L.|
|Robson of Kiddington, B.||White, B.|
|Rochester, L.||Williams of Elvel, L.|
|Russell, E.||Williams of Mostyn, L.|
|Sainsbury, L.||Winchilsea and Nottingham, E.|
|Saltoun of Abernethy, Ly.||Woolf, L|
|Aberdare, L.||HolmPatrick, L.|
|Abinger, L.||Hooper, B.|
|Aldington, L.||Howe, E.|
|Alexander of Tunis, E.||Hylton-Foster, B.|
|Archer of Weston-Super-Mare, L.||Kitchener, E.|
|Astor, V.||Layton, L.|
|Banbury of Southam, L.||Lindsay, E.|
|Barber, L.||Long, V.|
|Birdwood, L.||Lyell, L.|
|Blatch, B.||McColl of Dulwich, L.|
|Boardman, L.||Mackay of Ardbrecknish, L.|
|Boyd-Carpenter, L.||Mackay of Clashfern, L.|
|Brabazon of Tara, L.||Macleod of Borve, B.|
|Bridgeman, V.||Mancroft, L.|
|Brougham and Vaux, L.||Marlesford, L.|
|Buckinghamshire, E.||Melville, V.|
|Butterworth, L.||Merrivale, L.|
|Cadman, L.||Mersey, V.|
|Caithness, E.||Monk Bretton, L.|
|Campbell of Croy, L.||Montgomery of Alamein, V.|
|Carnegy of Lour, B.||Morris, L.|
|Carnock, L.||Mottistone, L.|
|Chelmsford, V.||Mountevans, L.|
|Chilver, L.||Mountgarret, V.|
|Clanwilliam, E.||Mowbray and Stourton, L.|
|Clark of Kempston, L||Moyne, L.|
|Coleraine, L.||Munster, E.|
|Colnbrook, L.||Murton of Lindisfarne, L.|
|Craigavon, V.||Nelson, E.|
|Crathorne, L.||Oxfuird, V.|
|Cullen of Ashbourne, L.||Pender, L.|
|Cumberlege, B.||Platt of Writtle, B.|
|Davidson, V.||Prentice, L.|
|Denham, L.||Prior, L.|
|Denton of Wakefield, B.||Quinton, L.|
|Dudley, E.||Rankeillour, L.|
|Eccles, V.||Reay, L.|
|Eccles of Moulton, B.||Rennell, L.|
|Ellenborough, L.||Renton, L.|
|Elles, B.||Rodger of Earlsferry, L.|
|Elliott of Morpeth, L.||Romney, E.|
|Elphinstone, L.||St. Davids, V.|
|Elton, L.||St. John of Bletso, L.|
|Ferrers, E.||Sandford, L.|
|Finsberg, L.||Skelmersdale, L.|
|Forbes, L.||Stewartby, L.|
|Fraser of Carmyllie, L.||Stockton, E.|
|Fraser of Kilmorack, L.||Strange, B.|
|Gardner of Parkes, B.||Strathclyde, L.|
|Geddes, L.||Strathcona and Mount Royal, L.|
|Goschen, V.||Strathmore and Kinghorne, E. [Teller.]|
|Harmsworth, L.||Swansea, L.|
|Harris of High Cross, L.||Terrington, L.|
|Harvington, L.||Thatcher, B.|
|Hayhoe, L.||Thomas of Gwydir, L.|
|Henley, L.||Trefgarne, L.|
|Hesketh, L. [Teller.]||Trumpington, B.|
|Ullswater, V.||Westbury, L|
|Vaux of Harrowden, L.||Wise, L.|
|Wakeham, L.||Wolfson, L.|
§ Resolved in the negative, and amendment disagreed to accordingly.
§ 5.19 p.m.
Baroness Robson of Kiddington moved Amendment No. 36A:
Page 7, line 29, after ('accepted') insert (", except if the course is an adaptation course for nurses").
§ The noble Baroness said: My Lords, I know that I was told that if the last amendment were agreed to, my amendment could not be called. Although I look forward to moving the amendment, I wish that Amendment No. 36 had been agreed to.
§ This amendment seeks to reinstate the right of appeal against refusal of entry to nurses wishing to study on adaptation courses in the UK for a period of less than six months. I suppose that one can say that those nurses are not students in the ordinary sense because they are fully qualified nurses in their own country. They come here to take part in adaptation courses for the purposes of obtaining registration on the United Kingdom Central Council. That is one of their reasons for coming here. They wish to study here because of the reputation that nursing qualifications gained in this country have all around the world.
§ They also come here to take part in adaptation courses to acquaint themselves with new equipment and to make themselves familiar with new medications and drugs that exist in this country but perhaps do not exist as yet in their own countries. They want to become qualified so that they can use modern equipment to the best advantage if they have the opportunity to do so.
§ They are not coming here purely to obtain a qualification. They are coming here to learn about modern medicine which may not be known in their own countries. The students are of great value to the nursing profession in this country as UK health professionals can become acquainted with different cultures and different outlooks on health care. The Royal College of Nursing estimates that, of the nurses wishing to follow adaptation courses who come from countries where an entry visa is required to enter this country, over 90 per cent. will come for a period of less than six months. There are no adaptation courses that last more than six months. If a nurse wishes to study for that qualification in this country, he or she cannot apply for a longer period of leave to study. I sincerely hope that the Minister can see his way to accepting this amendment. I beg to move.
§ Lord McIntosh of Haringey
My Lords, I do not wish to detain the House for long but I believe the noble Baroness has made an unanswerable case for what is, after all, a modest amendment. There are many kinds of such courses for students. It is not just a case of nursing courses. I am sure the noble Baroness would agree there are half a dozen other examples of courses which normally last less than six months. The Government's behaviour seems to be a case of rigidity carried to extremes in that they have so far been 776 unwilling to consider the very modest concession demanded by the noble Baroness. I support the amendment.
§ Lord Pitt of Hampstead
My Lords, before the Minister replies to the amendment, I must say that I hope he will accept it. On Second Reading I referred to the diploma in child health. That course lasts less than six months. There is no point in trying to keep such students out of the country.
My Lords, I should first like to assure the noble Baroness, Lady Robson, that the Government recognise the important contribution made by nurses from overseas. That is why the Immigration Rules already contain specific provisions intended to assist the recruitment of nurses. An applicant for training as a nurse or midwife will be granted entry clearance unless there is evidence to show that he or she obtained acceptance by misrepresentation or does not intend to follow the course. Unlike all other students, a nurse or midwife is permitted to stay here to work on completion of his or her training at a hospital in this country subject to Department of Employment approval. So under the current Immigration Rules, an overseas nurse is able to come here without first obtaining a work permit, undergo an adaptation course, which normally lasts between three and 12 months and involves undertaking nursing work under the supervision of a registered nurse, obtain registration with the United Kingdom central council and enter employment here as a nurse. That is a concession not available to other groups of workers whose potential employers must obtain a work permit before the worker comes here.
We are not aware that overseas nurses have experienced any problems whatsoever in obtaining entry clearance or leave to enter. If the noble Baroness knows of such cases, I would certainly be grateful if she would send me the details so that they may be looked into. I believe that fears that Clause 10 would make it more difficult to recruit overseas nurses are misplaced. I hope that that reply gives the noble Baroness some satisfaction.
§ Baroness Robson of Kiddington
My Lords, I am sad that the Minister cannot accept this amendment which is so modest. It is not a measure that would hurt the Government. I am sure it would make nurses who are applying to enter this country to take part in adaptation courses feel much more relaxed. I shall read the Minister's words in Hansard and I shall decide whether I wish to return to this matter at a later stage. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Earl Russell moved Amendment No. 37:
Page 7, leave out lines 30 and 31.
§ The noble Earl said: My Lords, like my noble friend Lady Robson I, too, am sad that the amendment standing in the name of the noble Lord, Lord McIntosh of Haringey, was not carried. I would say to the noble Lord, Lord McIntosh, that I claim no priority for students. I agree with everything the noble and learned Lord, Lord Ackner, said about justice being no respecter of persons. In speaking of students 777 I am speaking of that of which I know. The words this amendment seeks to delete from the Bill deny the right of appeal to people who enter this country with the intention of studying but without having been accepted for any course of study.
§ In Committee the Minister gave the unfortunate impression that he believed that all students entering this country with serious academic purposes were entering to accept courses at British universities. Having been director of graduate studies in a history department in a foreign university, I know that that is not the case. Large numbers of serious scholars come to this country to carry out work for degrees at foreign universities. My colleagues in other countries working on the history of this country regularly have occasion to come here. Their livelihood demands that they should. The Minister did not appear to know anything about that.
§ I was rather dismayed in listening to the Minister replying to the noble Lord, Lord McIntosh of Haringey, to find that he is still under a misapprehension—not once but twice. He said that students may enter this country provided that they have a place here. He said they are allowed in provided they can show they have a place to go. He still does not appear to be aware that the international comity of scholarship—I believe the noble Lord, Lord Beloff, used that phrase in Committee—demands that members of universities travel from one country to another in the course of their studies.
§ If the Minister is not aware of that a fortiori I suspect that entry clearance officers are not aware of it either. Not merely are people doing degrees in foreign universities to be denied right of appeal; they are to be made subject to decisions which, as the noble and learned Lord, Lord Ackner, explained extremely clearly in Committee, are subjective decisions and subjective decisions made by people with a very limited awareness of the perfectly legitimate category to which they belong. That is likely to lead to a great deal of injustice, with very little chance to remedy it.
§ In Committee the noble Earl, Lord Ferrers, talked about distinguishing between those decisions which have a most fundamental impact on a person's future life and those which do not. With respect to the noble Earl, if one earns one's living from the study of a particular country and one is denied the right to enter that country, that is a threat to one's livelihood. In my book that is a matter of fundamental importance. If a scholar is placed in that position his career is likely to be brought to an end, unless he has the wit to turn himself into a martyr. I have known scholarly careers built on that principle. It is not in the interests of this country that people who have worked on our history or our literature should want to turn themselves into martyrs because they have not been allowed entry here. After all, they might be successful.
§ The noble Lord, Lord Boyd-Carpenter, asked why entry to this country is a matter of justice. Has the noble Lord any idea of the sort of reaction that that would produce if repeated to the graduate students of a major American university? A great many of them study in this country because, like the noble Lord, Lord Acton, they believe that it is a just country. 778 When they hear a remark like that they may begin to wonder whether the reason which led them to study the history of this country was mistaken in the first place. It might be very difficult to persuade them to change their minds.
§ If we do not delete the clause we shall gravely diminish the international standing of this country. We shall diminish our political influence and our reputation, and we shall do a great deal of harm. I beg to move.
§ 5.30 p.m.
§ Lord Boyd-Carpenter
My Lords, the noble Earl, Lord Russell, has selected a curious category to remove from the class of those who are, under this clause, being deprived of a right of appeal. They are, in the words of the subsection which he seeks to delete, people who come to this country,with the intention of studying but without having been accepted for any course of study".Therefore, they would have no evidence other than their own word that they had come for the purpose of study. If they have come for the purpose of study but have not bothered to obtain entry to any institution which they can name, that would seem to be a good reason for being suspicious of their claim to have come for the purpose of studying.
Therefore, I find the noble Earl's idea that one is depriving such people of justice fantastic in the circumstances. If there was anyone one would have no hesitation in excluding from the clause it is surely those people. I hope that the amendment will be rejected.
§ Lord Beloff
My Lords, I am afraid that once again the noble Lord, Lord Boyd-Carpenter, has failed to understand the argument which is being put forward. The argument could perhaps be improved if it were made clear that it related to the fact that such students have not been accepted for a course of study in a British university because they are studying for the degree of another university in their home country. For the purposes of their research they may well not require to be accepted by a British academic institution since they may need to examine documents in the Public Record Office in order to complete their studies. There is no reason why they should ask the noble Earl, Lord Russell, or someone from another British university to enrol them briefly. Universities have enough administration forced upon them for them to be spared that requirement. Nevertheless, those people would be perfectly bona fide students because in many cases they would be students of universities of equivalent rank to our own.
All that is suggested is that that should be a normal reason for coming to this country, and if that purpose is questioned such people should have the right to demonstrate it. Otherwise we are talking about something which exists only in the imagination of the noble Lord, Lord Boyd-Carpenter.
§ Lord McIntosh of Haringey
My Lords, I was stung by the remarks of the noble Lord, Lord Boyd-Carpenter. I am sure that he will be pleased to hear 779 that, because I usually like to get the noble Lord to his feet during my speeches rather than the other way round.
The noble Lord said that such people had not bothered to obtain admission to a course of study in this country. I do not know whether he was present at the debate on a comparable amendment during Committee stage when we went over the ground fairly thoroughly. Using examples from Yale and less distinguished universities, we established that a large number of colleges, universities and other places of education do not admit people, even for short courses, without seeing them. Students have to obtain admission to this country in order to be interviewed before gaining acceptance. Those people will almost certainly be able to show an immigration officer that they have applied for a course of study in this country. These are not cheats and people who will use the false status of a student in order to achieve entry to this country illegally. They are people who are fulfilling the very natural and reasonable demands of colleges and other places of education for an interview before admission to a course. It is as simple as that. Such people ought not to be denied a right to appeal against refusal.
§ Lord Renton
My Lords, there is another factor in this matter. Perhaps I may give your Lordships the benefit of my personal experience some years ago as vice-chairman of the Council of Legal Education, which trains people for the Bar. A great deal of planning and expense were required by the Inns of Court, as well as by the students themselves and local authorities, which paid some of the students' fees.
At the beginning of each academic year we had to plan in advance how many people we were prepared to admit to the course. I think that I am right in saying that we had arranged that 600 students would start at the beginning of the academic year in October. A week or so before the beginning of the academic year 100 more students came to the office of the Council of Legal Education saying that they wished to take the course. We had no previous record of their names. Our facilities did not enable us to take an additional 100 students. We inquired into the matter and found that those people had found it an easy way round the Commonwealth immigrant Act which then applied. That was some years ago and it does not happen now because we prevailed upon the immigration authorities to deal with the matter. It is not true, as the noble Lord, Lord Beloff, claims, that all such cases are necessarily genuine. They may not be.
The noble Earl, Lord Russell, has a distinguished position in the academic world. I believe that he would have some thought for the universities and colleges which have to plan in advance. They have to know what their obligations will be. They therefore need to work on the principle of educating the people whom they have prepared to accept.
The noble Lord, Lord Boyd-Carpenter, has rightly draw attention to the words which the noble Earl, Lord Russell, wishes to leave out. They are,without having been accepted for any course of study".I believe that is asking the impossible.
§ Lord Clinton-Davis
My Lords, perhaps I may intervene to ask the noble Earl, Lord Ferrers, a question which arose from some observations that were made earlier. My understanding was that prospective students are a legitimate category of people under the Immigration Rules. However, perhaps in the light of some of the observations made by his Back Benchers, he will indicate whether I am right or they are right.
§ Lord Finsberg
My Lords, the noble Earl, Lord Russell, raised the point about the impact that the Bill might have on American students. He referred to justice when he attacked my noble friend Lord Boyd-Carpenter. I remind the noble Earl that people can go from this country to America with a valid visa and be rejected by the immigration people there with no right of appeal. That situation is nothing unusual.
I was confused. I listened to my noble friend Lord Beloff attacking again my noble friend Lord Boyd-Carpenter. However, the discussion arises from the confusion created by the noble Earl, Lord Russell. He spoke about a different kind of student. He used the words "graduate student". He stated that they were highly distinguished people who come to this country for a course of study perhaps of history. Such people will not come on the spur of the moment. They will have planned their courses well ahead. They will have been in touch with the authorities. If they have not done so, I feel sorry for them. They will have planned well ahead because they cannot suddenly take off on the spur of the moment. If they are studying seriously, they will come to this country having planned whom they wish to see and what they wish to find out and they will therefore not be caught by this provision.
I have had too many cases of students (I almost put the word in inverted commas) who come to this country, having made no arrangements, with a view to taking one of the all too many phoney English language courses which last for six months or less. Many are taken for a ride; they believe that those courses will do them good. What is proposed in the Bill is right. I believe that we make a great mistake if we accept the amendment.
§ Lord Tordoff
My Lords, irrelevancies in your Lordships' House are increasing by the minute. We are talking about appeals. There may well be people who seek to enter the country spuriously. They will be rejected at the port of entry. Occasionally the people at the port of entry will have made a mistake; and therefore people should have a right of appeal. That is all that is being dealt with.
§ I hope that we may continue our discussions in a calm and orderly manner without interventions from outside because they do not help anyone. All that we are talking about today is the need for those people who have been wrongly excluded to have a chance to appeal.
§ Lord Ackner
My Lords, perhaps I may add one sentence to that. We are talking of a little more than that. We are clearly talking about appeals, but we are 781 not talking about putting in an appeal. We are talking about the justification for taking away a right of appeal which has existed for 21 years. That is taking away an established right. With the deepest respect as always to the noble Lord, Lord Boyd-Carpenter, those concerned with justice have for the past 21 years been convinced apparently that that right of appeal should exist. It is a right of appeal which is to be taken away.
The other point I wish to make is this. My recollection of the aborted asylum Bill which we debated last year did not remove those rights of appeal. Despite all the references to over-clogged lists, as I understand it the Government were content to keep that right of appeal last year. One therefore asks: why is it going now? It is going now purely in order to gather in the extra resources which result from removing the entrenched right of appeal to offset the extra demand for resources by providing at long last an appeal system for asylum seekers. That is why there is a total absence of any justification except on the basis that we cannot afford justice at that level. If that is the Government's admission, let them make it clearly.
§ Lord Monson
My Lords, I had not intended to intervene on the amendment. I do so only because the noble Earl, Lord Russell, suggested that refusing entry to American postgraduate students would lower Britain's reputation in the eyes of Americans. I wish to enlarge on what the noble Lord, Lord Finsberg, said.
Has the noble Earl, Lord Russell, read a newspaper item which appeared within the past week in, I believe, the Telegraph and other newspapers? It reported the case of an unfortunate British student who went to the United States for a visit of a few months, partly to study and partly to stay with relations. He was refused entry at Logan International Airport, Boston, by immigration officers not because he was too scruffily dressed but because he was too well dressed. The immigration officers believed that anyone who was so well dressed could not possibly be a genuine student; he must have been on the look out for work and would therefore take the bread out of the mouths of unemployed Americans. The unfortunate young man was therefore sent back to this country and is consequently several hundreds of pounds out of pocket. No one in the press, or in either House of Parliament, has complained about the position or has suggested that it lowers Americans' reputation in the eyes of Britain.
§ 5.45 p.m.
My Lords, I can only repeat what I said in Committee and to the noble Lord, Lord Pitt, earlier today. We have always encouraged genuine students from overseas to come to this country. We shall continue to do so. I do not believe for a moment that anyone will suggest that we should encourage non-genuine students to come, saying that they are students. There is nothing between us on that. Of course we shall always encourage genuine students to 782 come. However, as my noble friend, Lord Renton, said, some people come to this country saying that they are students when they are not.
Perhaps I may interrupt the conversation of the noble Lord, Lord Clinton-Davis, for one moment. He is momentarily distracted. I am sure that his conversation was much more valid than what I was about to say. I was about to say that he was right; I thought that he would like to hear that. He was right to say that prospective students are allowed to come in under the rules.
My Lords, the noble Lord now has conversation with me and perhaps will have better advice than he received from his noble and mischievous friend by his side.
Nothing in Clause 10 makes it any more difficult for a genuine student or a prospective student to gain entry to this country. Nor do I believe that Clause 10 will make it any less likely that genuine students will choose this country as the one in which they wish to pursue their studies.
The noble Earl, Lord Russell, is concerned with students at overseas universities who wish to come to this country for a short period to pursue some academic project, perhaps involving research in libraries, without enrolling in a college. Those people are not prospective students, they are treated, for the purposes of the Immigration Rules, as visitors. Paragraph (c), which the noble Lord's amendment seeks to delete, is concerned with the person who claims that he intends to study at a college in this country but has not yet been accepted on a course. I do not think that it would be right to put those students at overseas universities in any different position from other visitors.
For the purposes of the Immigration Rules, a student is someone who has enrolled at a bona fide educational institution in this country. That is what they are under the Immigration Rules. People who are registered at a university overseas such as Princeton, which the noble Lord mentioned, or who are graduate students and come here for the purposes which the noble Earl describes, such as studying but not being enrolled, are treated under the Immigration Rules as visitors, so they may come. If a person who is here as a visitor then finds that he can enrol as a student, he can change his status. I say to my noble friend Lord Beloff that there is no reason to treat a visitor to this country who wishes to look at documents in a public records office, for example, as being any different from anyone else under the terms of the appeal rights, who wishes to come here to study anything else.
The noble Lord, Lord Tordoff, said that we are talking about something quite simple: whether a person should have an appeal. The noble and learned Lord, Lord Ackner, said that we are removing the rights of appeal which have existed for 21 years. If a person is a genuine bona fide student, he can come in. But if he were rejected, what is the use of an appeal which will take 12 months or more to conclude? He will only come for six months. Under our new 783 arrangements, if he is rejected, it will be explained perfectly clearly why he was rejected and he can apply again forthwith. So the anxieties which the noble Earl, Lord Russell, had are unfounded.
§ Earl Russell
My Lords, first I wish to thank the noble Lord, Lord Monson, for the example of the student rejected for being too well dressed. I have heard no better example of the point made by the noble and learned Lord, Lord Ackner, that the officers are making subjective decisions. However, I do not agree with the noble Lord, Lord Monson, that the process in the United States does nothing to discredit that country. I have heard a great many people who have been subjected to that kind of process speaking ill of the United States as a result. There was a particular occasion in my own family when my mother attempted to enter the United States. She was asked to sign a declaration saying that she thought resistance to authorised government was not justified under any circumstances whatever. She said that she agreed with the proposition. She thought that the United States should still be subject to the British Crown! As your Lordships can imagine, that produced a lengthy discussion.
I agree with the noble Lord, Lord Boyd-Carpenter, that verification is necessary. We are not dealing here with claims for people who wish to make totally unverifiable claims. But it is no use saying that verification is necessary, until we allow that working for a degree in a foreign university is worthy of verification. If the Minister will allow that it is a legitimate ground for entry, provided it can be verified, then I am wide open to discussing verification. It would then be necessary. However, it is no good verifying something until it is recognised as a relevant reason for coming here.
I am afraid that I agree with my noble friend Lord Tordoff that standards of relevance in this House are declining, and that fact is showing. Most people have in their minds an indissoluble association between the notion of a student and the notion of a course in this country. That is the main problem. The noble Lord, Lord Renton, said that he hoped that I would have given some thought to the universities and colleges themselves. I would have done if I had been discussing only people who were going to enrol. But the whole point of the amendment is that I am not, so the noble Lord's observations were beside the point under the amendment.
The noble Lord, Lord Finsberg, said that surely a student would not come on the spur of the moment. I can tell him that if one is discussing a nearly completed thesis with its author, one goes over the argument in very much the same way as we go over the last stages of a Bill on Report—to see whether it is watertight. At that stage, one often discovers something where it is necessary to do perhaps only two days' work in the archives in another country. Unless that work is done, the thesis is not watertight and cannot be submitted.
Thus I say to the Minister that it would make a difference to have the right of appeal, even if it took a year, because often people are in a position where the work can never be completed until those few extra 784 days of verification are completed. It is like tightening the final bolts on an aircraft at the end of maintenance. One knows what happens if that is not done.
I am grateful to the Minister for pointing out that students registered for degrees in foreign universities are classified as visitors. That narrows the area of disagreement and limits the confusion, but I do not believe that it removes the disagreement. The Minister is still arguing that these are decisions not of fundamental importance to the person's livelihood. He is still arguing that it is in just the same category as someone who is refused the chance to have what would have been an enjoyable holiday. The Minister still does not understand that someone denied entry to a country from the study of which he intends to earn his living is being denied the means to earn that living. When we deny somebody the right to earn their living, we are depriving them of something which in a great many senses is of value to them. People suffering such a deprivation are entitled to justice. For that reason, I commend the amendment to the House.
§ 5.57 p.m.
§ On Question, Whether the said amendment (No. 37) shall be agreed to?
§ Their Lordships divided: Contents, 68; Not-Contents, 117.785
|Division No. 2|
|Ackner, L.||Irvine of Lairg, L.|
|Acton, L.||Jay of Paddington, B.|
|Addington, L.||Jenkins of Hillhead, L.|
|Airedale, L.||Jenkins of Putney, L.|
|Archer of Sandwell, L.||Kilbracken, L.|
|Ashley of Stoke, L.||Kirkwood, L.|
|Aylestone, L.||Lawrence, L.|
|Beaumont of Whitley, L.||Longford, E.|
|Beloff, L.||Lovell-Davis, L.|
|Birk, B.||McGregor of Durris, L.|
|Blackstone, B.||McIntosh of Haringey, L.|
|Blake, L.||McNair, L.|
|Bonham-Carter, L.||Merlyn-Rees, L.|
|Carter, L.||Murray of Epping Forest, L.|
|Clinton-Davis, L.||Nicol, B.|
|Darcy (de Knayth), B.||Ogmore, L.|
|David, B.||Park of Monmouth, B.|
|Dean of Beswick, L.||Peston, L.|
|Eatwell, L.||Pitt of Hampstead, L.|
|Erroll, E.||Rea, L.|
|Falkender, B.||Richard, L.|
|Foot, L.||Ripon, Bp.|
|Gladwyn, L.||Robson of Kiddington, B.|
|Graham of Edmonton, L. [Teller.]||Rochester, L.|
|Russell, E. [Teller.]|
|Halsbury, E.||Simon of Glaisdale, L.|
|Hampton, L.||Stoddart of Swindon, L.|
|Hamwee, B.||Strabolgi, L.|
|Harris of Greenwich, L.||Tordoff, L.|
|Hollick, L.||Underhill, L.|
|Holme of Cheltenham, L.||White, B.|
|Howell, L.||Williams of Elvel, L.|
|Howie of Troon, L.||Winchilsea and Nottingham, E.|
|Hughes, L.||Woolf, L.|
|Abinger, L.||Banbury of Southam, L.|
|Ailesbury, M.||Barber, L.|
|Alexander of Tunis, E.||Belhaven and Stenton, L.|
|Archer of Weston-Super-Mare, L.||Blatch, B.|
|Ashbourne, L.||Boyd-Carpenter, L.|
|Astor, V.||Brabazon of Tara, L.|
|Braine of Wheatley, L.||Macleod of Borve, B.|
|Bridgeman, V.||Mancroft, L.|
|Brookes, L.||Marlesford, L.|
|Brougham and Vaux, L.||Melville, V.|
|Butterworth, L.||Merrivale, L.|
|Cadman, L.||Mersey, V.|
|Caithness, E.||Monk Bretton, L.|
|Carnegy of Lour, B.||Monson, L.|
|Chelmsford, Bp.||Montgomery of Alamein, V.|
|Chilver, L.||Morris, L.|
|Clark of Kempston, L.||Mountevans, L.|
|Coleraine, L.||Mountgarret, V.|
|Colnbrook, L.||Mowbray and Stourton, L.|
|Colwyn, L.||Moyne, L.|
|Craigavon, V.||Munster, E.|
|Cranborne, V.||Murton of Lindisfarne, L.|
|Crathorne, L.||Napier and Ettrick, L.|
|Cumberlege, B.||Nelson, E.|
|Davidson, V.||Orkney, E.|
|De La Warr, E.||Oxfuird, V.|
|Denham, L.||Pearson of Rannoch, L.|
|Denton of Wakefield, B.||Pender, L.|
|Dudley, E.||Platt of Writtle, B.|
|Eccles of Moulton, B.||Portsmouth, E.|
|Elliott of Morpeth, L.||Prentice, L.|
|Elphinstone, L.||Rankeillour, L.|
|Elton, L.||Reay, L.|
|Ferrers, E.||Rees, L.|
|Finsberg, L.||Renton, L.|
|Fraser of Carmyllie, L.||Rodger of Earlsferry, L.|
|Gardner of Parkes, B.||Romney, E.|
|Geddes, L.||St. Davids, V.|
|Gisborough, L.||Saltoun of Abernethy, Ly.|
|Goschen, V.||Skelmersdale, L.|
|Haddington, E.||Sterling of Plaistow, L.|
|Harmsworth, L.||Stewartby, L.|
|Harvington, L.||Stockton, E.|
|Hayhoe, L.||Strange, B.|
|Henley, L.||Strathclyde, L.|
|Hertford, M.||Strathcona and Mount Royal, L.|
|Hesketh, L. [Teller.]|
|HolmPatrick, L.||Strathmore and Kinghorne, E. [Teller.]|
|Howe, E.||Swansea, L.|
|Howe of Aberavon, L.||Swinfen, L.|
|Hylton-Foster, B.||Thatcher, B.|
|Knutsford, V.||Thomas of Gwydir, L.|
|Leigh, L.||Trefgarne, L.|
|Lindsay of Birker, L.||Trumpington, B.|
|Long, V.||Ullswater, V.|
|Lyell, L.||Vaux of Harrowden, L.|
|Mackay of Ardbrecknish, L.||Wakeham, L.|
|Mackay of Clashfern, L.||Wolfson, L.|
§ Resolved in the negative, and amendment disagreed to accordingly.
§ 6.5 p.m.
§ [Amendment No. 38 not moved.]
§ [Amendment No. 39 had been withdrawn from the Marshalled List.]
Baroness Flather moved Amendment No. 39A:
Page 7, line 36, at end insert:
("() Any decision to refuse entry clearance or to refuse leave to enter shall be reviewed from time to time by a special adjudicator.").
§ The noble Baroness said: My Lords, at every stage of the Bill I have expressed my deepest concern over the removal of the right of appeal from short-stay students and visitors. We have had a very full debate on other amendments on the matter so I shall not proceed to say any more about it.
§ I am grateful to my noble friend the Minister for his reiteration of all the safeguards that the Government have built into the administrative procedure to provide an option to the appeals system. The question 786 of whether we feel they are sufficient to compensate has been fully answered: they are not sufficient. A second application is perhaps the most important of the safeguards. But we have not been given an assurance that the second application, which will go to a different entry clearance officer, will be a completely new application inasmuch as the second entry clearance officer will not know about the first refusal. It is my fear that if the second officer has the file of the first refusal in front of him, he will be affected by that refusal. That is one aspect that concerns me. The second compensation offered is a review by a superior officer. That is very important and should be carried out. A third safeguard which is perhaps almost equally important is that of giving more detailed reasons. That will probably cut down many of the applications which should not be made a second time.
§ As a matter of principle, it is wrong that a right enshrined for 21 years should be taken away. The Minister himself said that 1,500 applications were successful-1,500 out of 9,000; 9,000 out of (if I remember correctly) 77,000 people who applied. It seems a very small proportion when one looks at the huge number of refusals. But I am always concerned about this numbers game. Each of those 1,500 people who were successful is very important—to themselves, to their families and in whatever they are trying to do with their lives. It is not a small matter. The proportion is small, but it is not one or two applications which were allowed; it is a full 1,500, which is a very substantial number.
§ However, if one is obliged to accept the Government's argument that the machinery has become overloaded and therefore unworkable, there is still a very important need to find a way of keeping a check on how the entry clearance officers discharge their duties.
§ As I said earlier, I see that as the most important factor in the equation. No member of the Executive should be able to make decisions of that nature without a review by an independent authority. My amendment is designed to provide just such a check through a random audit of refusals—perhaps of 5 per cent.; if possible, 10 per cent. I would personally prefer a 10 per cent. audit. The effect of that would be threefold.
§ First, it would provide consistency. After all, the posts are scattered throughout the world, with different conditions and pressures on the entry clearance officers. It is therefore understandable that different or indeed more stringent criteria may gradually evolve. Secondly, by making each entry clearance officer aware that any of his decisions may be reviewed at any time by an independent adjudicator, it will provide a measure of safeguard against possible unfairness. Thirdly, it will allow the Secretary of State to be able to reassure the public that through this mechanism he is in a position to keep the procedures under review and that the danger of arbitrary decisions will be avoided.
§ Perhaps I may say further to my noble friend the Minister that it will not be a costly exercise. The adjudicator will not be receiving complaints or calling for both sides of the argument. He will look only at a 787 percentage of refusals. I would expect him then to make his recommendation direct to the Secretary of State in the same way as many other bodies do at the present time. I hope that the report would then be made public, as I am a firm believer in the Government's policy of more openness. The information would also be open to parliamentary scrutiny.
§ If a major right is to be removed, at the very least there should be some external check on those who exercise an unfettered right to make decisions which can have a profound effect on individuals. I feel sure that the entry clearance officers will welcome such a move, which will go some way to allay justifiable public anxiety. I urge my noble friend to take on board the measures that I propose should be built into the clause. I beg to move.
§ Lord McIntosh of Haringey
My Lords, as Ministers tend to say, I have enormous sympathy with the amendment. The noble Baroness is trying to set up a more informal appeals procedure in place of the formal procedure which is taken away by the clause. What she is suggesting is clearly better than the modest offers made by Government, first, of greater detail in a refusal statement and, secondly, review by higher management at large posts outside this country. For that reason the amendment deserves the support of the House.
I suggest that the amendment deserves the support of government as a way forward. As the noble Baroness would be the first to recognise, we would rather not have the right of appeal taken away at all. I know that she agrees with that point and has shown that by her actions this afternoon and in Committee. But as a significant and worthwhile extension of the tiny concessions so far wrung from government, I wish the amendment success.
§ Baroness Flather
My Lords, I do not know whether I am allowed to speak again at this stage. I merely want to correct a wrong impression. The amendment is not meant to be a back-door right of appeal; it is just a check on the administrative function of the entry clearance officers.
§ Lord Finsberg
My Lords, I have a lot of sympathy with the amendment. It also meets one other main objection to the other amendments; that is, that it will not impose a time delay. Thinking back to the time when I was a Minister, I would not have been unhappy to have been given from time to time a record showing whether there were any inconsistencies with or departures from the broad guidelines and principles that had been laid down.
As my noble friend Lady Flather said, it will not be expensive; it will not be time consuming, but it will be valuable for Ministers. It does not in any way open a right to appeal; it is merely proposing the review of a number of cases. I am sure one needs to work out in more detail the points raised by my noble friend in regard to publication and so forth. But I have some sympathy with the principle and would like to know what my noble friend the Minister feels is wrong.
§ 6.15 p.m.
§ Earl Russell
My Lords, anyone who has been here any length of time must agree that half a loaf is better than no bread. We on these Benches are happy to welcome the amendment of the noble Baroness, Lady Flather, as providing half a loaf in this situation. We should be glad to hear that the Minister is prepared to contribute his half a loaf to meet us. That would be an honourable resolution of what has been at times a heated discussion.
I agree profoundly with what the noble Baroness said about how unwise it is to ignore erroneous decisions simply because there are only a few of them. That is an unjust way of looking at things, and I am glad that the noble Baroness said what she did on the subject.
§ Lord Ackner
My Lords, the publication produced by the Civil Service for the benefit of the Civil Service, which I believe is a best seller, entitled Judge Over Your Shoulder, is issued in order to keep decisions straight. The result of removing the rights of appeal is to make that work superfluous so far as immigration officers are concerned. There is no one looking over their shoulder except a superior in their own office who will apparently make a judgment as to the merits of a decision on credibility after the applicant has left the office. How he will do that is difficult to imagine. Therefore I too support the amendment as being a check particularly to avoid inconsistencies and spurious decisions.
§ Lord Pitt of Hampstead
My Lords, I too welcome the amendment and hope that the Government will accept it. It at least makes it necessary for the immigration officer to think through his decision, knowing that it will be reviewed. It is important. Many of the instances about which one hears suggest that subjective decisions are made and consequently injustice is done. If the immigration officer knows that his decision will be scrutinised by a special adjudicator, he will take more care.
§ The Lord Bishop of Ripon
My Lords, I too support the amendment in the name of the noble Baroness, Lady Flather, on similar grounds to those put forward by the noble Lord, Lord Pitt. We argued at Committee stage and brought forward examples of the way in which the decisions of entry clearance officers may be based on subjective assessments. It is that element of subjectivity which disturbs some of us. This modest amendment will furnish one way of providing a check on the consistency between decisions that are made and to some extent overcome that element of subjectivity.
My Lords, I am grateful to my noble friend Lady Flather for informing me in advance of the debate of what the intention was behind her amendment. Before I deal with that intention I should say that I do not believe that the amendment is appropriately worded to achieve what she intends.
I was therefore surprised when the noble and learned Lord, Lord Ackner, with all his legal expertise, supported the amendment. He perhaps did not read it 789 quite as well as his customary practice. He referred to the booklet Judge Over Your Shoulder as fascinating reading. It must be almost, but not quite, as formidable as Judge Face to Face when I see the noble and learned Lord supporting an amendment which will not work. Perhaps I may explain why.
The amendment refers to a special adjudicator. Special adjudicators will be those who are designed to hear asylum appeals under Clause 8 of the Bill. Clause 10 has nothing to do with asylum; it deals with people whose stated intention is to come here as visitors or students.
On the face of it, the amendment seems to be aimed at creating a right to have a review of individual refusals of entry clearance of leave to enter. That would amount either to an appeal by another name, or to some kind of half-way position between having a right of appeal and not having a right of appeal.
The powers of adjudicators in determining appeals are defined by the 1971 Act. That sets out quite clearly the duty of the Secretary of State or of an officer to comply with any directions which may be given by an adjudicator when allowing an appeal. It provides for an avenue of appeal to the tribunal against an adjudicator's determination of an appeal. It provides for the making of procedure rules for the lodging and conduct of appeals. It enables the Secretary of State to fund organisations to assist persons who have rights of appeal.
All those provisions concern appeals under the 1971 Act—and appeals on asylum. They do not concern "reviews" by an adjudicator. It is not at all clear what would be the status or the effect of the suggested review. Nor is it clear what is meant by inquiring that any decision shall be reviewed "from time to time". That would, taken literally, require all decisions to be reviewed more than once, a point which I think even the noble and learned Lord, Lord Ackner, would find rather unsuitable.
For all these reasons the amendment would be unsuitable. I realise that my noble friend is concerned not so much with what the amendment actually does as with what it is supposed to do. Trying to replace the present right of appeal with an alternative right of individual review would be an unsatisfactory kind of compromise. Either there should be a statutory right of appeal against immigration decisions or there should not. The Government think, for reasons which have been well rehearsed, that in the case of visitors and short-term students who are denied entry there should be no right of appeal. Your Lordships, both in Committee and today, have endorsed the Government's view.
My noble friend Lady Flather said that she was concerned that if an entry clearance officer had an applicant who had been previously refused he would refuse that person again. The previous refusal will not lead automatically to another refusal. The entry clearance officer has to consider each application on its personal merits.
My noble friend has, though, made quite clear that her aim with the amendment is to seek to ensure proper standards of consistency and fairness in the taking of decisions by introducing an independent 790 periodic review of cases which have been refused. We have made it perfectly clear that we are concerned to ensure that decision making is both consistent and fair. Your Lordships will be familiar with the administrative measures which I have announced and which will be introduced when rights of appeal are removed. I shall certainly look carefully at whether it would be practical and helpful to reinforce the measures with an independent review of the kind which my noble friend has in mind. The involvement of adjudicators would, though, raise some problems as such a review would be outside their statutory functions.
As I have explained at earlier stages, the Government have already put a great deal of effort into devising measures to ensure proper quality control of entry clearance decisions once the appeal right is removed. I shall certainly look further at the principle of introducing an independent element into the quality control of entry clearance decisions and let my noble friend know the outcome of our discussions with the interested departments as soon as I can. I hope, though I cannot be certain, that it will be before the next stage of the Bill. I cannot give my noble friend or your Lordships any guarantee of what the result of that consideration will be. I would also point out that as these are administrative matters concerned with the management of the entry clearance system, I doubt whether it would be appropriate to put them into primary legislation.
I hope that I have been able to give my noble friend the satisfaction which she seeks when she says that the whole purpose of her amendment is to ensure fairness and consistency. That is our desire too.
§ Baroness Flather
My Lords, I am grateful to my noble friend for some tiny chinks of light. They are very small, but beggars cannot be choosers.
I should like to say a few words about one or two of the items that he has mentioned. I think that he has been very unfair to the noble and learned Lord, Lord Ackner, who had nothing to do with the drafting of the amendment. Any faults of drafting are not his. It was a hurriedly put together amendment to try to reiterate the principle. As I received so much support from all sides of the House, for which I am very grateful, I clearly have made my point. It has been taken on board by so many noble Lords. I hope that my noble friend the Minister will also take on board the underlying point and not treat it as an individual review. It is not intended as a backdoor appeal. I repeat: it is not intended to replace the right of appeal. It is not intended to be a review of all the applications. It is not intended to be a review more than once. In fact it is only intended to be a review of a percentage of applications.
I want to say something on a matter which concerns me deeply. I refer to the question of whether this is purely an administrative device or whether it should be enshrined in primary legislation. If it is not in the Bill it will not fulfil the purpose of allaying the fears and anxieties of the general public. If the public is to have a sense of this being done in the way that it ought to be done, then something of this nature has to be in the Bill. Some commitment has to be made in the Bill 791 itself. I hope that my noble friend will look at it carefully. Perhaps I will have a chance of speaking to him on this matter. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Lord Bonham-Carter moved Amendment No. 40:
After Clause 10, insert the following new clause: