Nationality, Immigration and Asylum Bill

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Clause 70


Amendment made: No. 354, in page 37, line 8, at end insert—

    '(2) Subsection (1) does not prevent the bringing of an appeal on either or both of the grounds referred to in section 62(1)(b) and (c).'. —[Angela Eagle.]

Question proposed, That the clause, as amended, stand part of the Bill.

Mr. Malins: I wonder whether the Minister can explain why the clause, which patently concerns students, is not headed ''Non-Students''.

Angela Eagle: Because it deals with those denied a right of appeal against refusal of entry clearance. The clause is about students—or potential students, who would, I suppose, be non-students. I think that it is all perfectly clear.

Simon Hughes: There is a logic competition going on. The Minister may not have done Latin beyond O-level as did the rest of us, but this is a logic test for us to pass.

I shall not repeat the hon. Gentleman's question, which posed itself, but I should like to ask a linked question, drawn from constituency experience, about applications made by students. I appreciate that it may be a matter for the Department for Education and Skills rather than the Home Office. We have all heard complaints about dud immigration advisers, and about dud institutions that purport to teach properly and give valid certificates but do not. There are far too many of them around. I have occasionally had cause to deal with such institutions in my constituency, some of which even pretended to be universities and offered exams for certificates and qualifications that did not exist.

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I should be grateful if Ministers, in consultation with colleagues from the Department for Education and Skills, would consider requiring institutions that want to take students from another country to register. People come to this country with very little money and pay such institutions, which fleece them and leave them completely stranded with no qualifications. They often provide lousy teaching, and deal with any disciplinary or administrative matters badly.

I have heard of some really unsatisfactory experiences in which people were denied the teaching that they had been offered and courses did not live up to their expectations. That is a bit like the hotel industry in the bad old days, when people went to a resort only to find that the hotel had not been built. This problem is in that league. For me, this is the important issue in relation to students coming to the UK. We have some of the best institutions in the world and offer some of the best courses. Our reputation is among the best, but it is undermined by the rogues and fraudsters. I should be grateful if we could consider how we could deal with that.

Angela Eagle: The Home Office works closely with the DFES in identifying bogus colleges, but the hon. Gentleman is quite right to identify registration or any other action to deal with such colleges as matters for that Department. However, I shall certainly draw his remarks to its attention.

Clause 70, as amended, ordered to stand part of the Bill.

Clause 71

Appeal from within United Kingdom: general

Amendments made: No. 355, in page 37, line 13, at end insert

    'under section 10 of this Act'.

No. 356, in page 37, line 35, leave out paragraph (c) and insert—

    '(c) that the appellant is an EEA national or a member of the family of an EEA national and the decision breaches the appellant's rights under the Community Treaties in respect of entry to or residence in the United Kingdom,'.—[Angela Eagle.]

Clause 71, as amended, ordered to stand part of the Bill.

Clause 72

Appeal from within United Kingdom: ''third country'' removal

Angela Eagle: I beg to move amendment No. 357, in page 37, line 43, leave out from 'appellant' to 'and' in line 45 and insert

    'has claimed that his removal from the United Kingdom would be unlawful under section 6 of the Human Rights Act 1998 (c.42) as being incompatible with his Convention rights,'.

The amendment will enable the Secretary of State to certify a human rights claim at any stage in safe third country asylum cases. Current drafting means that the certificate can be issued only after the appellant has

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already appealed against the asylum decision, which defeats the object of the certificate. The amendment puts that right.

Amendment agreed to.

Simon Hughes: I beg to move amendment No. 434, in page 38, line 1, leave out 'in his opinion'.

The Chairman: With this it will be convenient to consider amendment No. 407, in page 38, line 2, leave out 'clearly' and insert 'manifestly'.

Simon Hughes: Amendment No. 434 concerns a matter that we have addressed before in another guise. Subsection (1) sets out when people cannot appeal about third country removal, which is another provision in the league of negatives rather than positives. At least it is not a double negative, which I suppose is a consolation.

Angela Eagle: The vast majority of people can appeal, and the logic behind the drafting is that the definitions are the few exceptions to the general right to appeal.

Simon Hughes: I am with the Minister, but there is also subsection (2), in which the negative does not apply and we have the exceptions to the exceptions.

The Minister amended subsection (2)(a), which defines the first part of the conditions in which subsection (1)—the ''cannot apply'' provision—does not apply. Subsection (2)(b) defines the other conditions, and says that subsection (1) does not apply when

    ''the Secretary of State has not certified that in his opinion the claim mentioned in paragraph (a) is clearly unfounded.''

Amendment No. 434 would remove the phrase ''his opinion'' and take away the Secretary of State's right to be subjective. Of course, a Secretary of State, who is subject to judicial review, cannot come to an unreasonable opinion. The courts would not interfere if it were an opinion to which a reasonable Secretary of State could have come--that is the usual test. However, many parallel pieces of legislation do not have that additional phrase. Indeed, the sufficient and more usual basis for the decision is that ''the Secretary of State has not certified that the claim is unfounded''. I do not see why we need the additional subjective test.

6.45 pm

Amendment No. 407 tries to make the definitions as consistent as possible, not just for the lawyers but for us all. The end of the phrase as drafted describes the claim as ''clearly unfounded'', and the amendment would change that to ''manifestly unfounded'', which is again based on previous experience. That is a better option, first because it would retain the current wording for third country certification. In particular, there is plenty of case law for the description ''manifestly unfounded''. Therefore, there are plenty of ways in which adjudicators, tribunals and, ultimately, present and future Secretaries of State can make such a decision. Secondly, I understand that

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''manifestly unfounded'' also has a European Union or European Community law basis. It is used regularly in that context and recognised in UK courts.

Perhaps the Under-Secretary can explain. I and those to whom I have talked might have failed to spot something, but the provision seems to give wider executive power to the Secretary of State and less opportunity to appeal. I am sure that the hon. Lady accepts that there is no general review power for a decision made at such a level, because the Secretary of State's decision obviously falls outwith review by the adjudicators or the tribunal.

I think that I am right to say that review by an adjudicator has existed in the past, when under previous legislation the Secretary of State has been given similar powers to certify cases that were manifestly unfounded. If that has always been so, it is clear that for the first time we are taking away one level of review. However, there may be a more innocent explanation, and I would be happy to hear it. We tabled a probing amendment, but it is based on our concern about the provision.

Mr. Malins: I rise to speak briefly to amendment No. 407. I am glad to have the support of the hon. Member for Southwark, North and Bermondsey. He has deployed the relevant arguments and I shall not repeat them all. ''Manifestly unfounded'' has a legal meaning under European Community law and it is recognised by our courts. It is comforting to find a legal precedent.

''Manifestly unfounded'' has been used over the years, and we have become used to judges interpreting it in a certain way, so why are the Government departing from it to use ''clearly unfounded''? I am not sure whether there is a clear difference between ''manifestly'' and ''clearly''. If there is, I should be pleased to know what it is. I should also be pleased to know why ''clearly'' is used rather the more obvious word ''manifestly''.

Concern has been expressed about the phrase, especially if the Bill contains no provision for an independent review by an adjudicator of the Secretary of State's decision that a claim is unfounded. Provision has been made for review by an adjudicator when previous legislation has given the Secretary of State powers to certify cases as manifestly unfounded. If such a power was good enough then, why is it not good enough now? Why is ''clearly'' better than ''manifestly''?

Angela Eagle: I hope that I can reassure Opposition Members that there is no difference between ''manifestly'' and ''clearly''. Both words have the same meaning. There is no difference in their effect, nor is a change in the policy implied by use of the word ''clearly''. ''Manifestly'' is not really in common use. There is an increasing feeling that statute should avoid words that have ceased to be part of everyday speech.

The debate on the clause reflects some of our earlier debates, in which a great deal of suspicion was expressed about the switch from ''is satisfied'' to

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''thinks''. The change of words does not signify an intention to change policy, nor is there a different legal meaning. ''Manifestly unfounded'' in the EU context applies to asylum claims, not human rights claims. There is no direct crossover or implication in the readover from that.

To answer the question from the hon. Member for Woking about what might have happened in the past, there has been no previous provision for safe third country cases to be heard by an adjudicator where the human rights claim is clearly unfounded. The cases he mentioned are entirely different; therefore the arrangements are different and they have a different effect.

In respect of amendment No. 407, I hope that I have reassured Committee members that the Government are not trying to achieve a narrowing effect by using ''clearly'' rather than ''manifestly''. Anyone who cares to look in a dictionary will see that there is no difference between the meaning of those words.

I am not attracted to the idea of leaving out ''in his opinion'', as proposed in amendment No. 434. The Secretary of State cannot make an application ''clearly unfounded'' merely by certifying it. He can say that ''in his opinion'' it is unfounded. Like all administrative actions, the issuing of such a certificate based on the Secretary of State's opinion is the subject of judicial oversight in the courts. That remains the case in respect of the matter under discussion.

I hope that those reassurances will enable the hon. Member for Southwark, North and Bermondsey to feel confident enough to withdraw the amendment.

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