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Lord Avebury: My Lords, again the noble Baroness has said, as she did constantly in Grand Committee, that we have to forget about the existing system. The same people are going to operate the new system, which is what makes us anxious. The same entry certificate officers, who, as the noble Baroness, Lady Warwick, has pointed out, had 25 per cent of their decisions overturned on appeal, will be dealing with the new system. Even though one tries to be as objective as possible, they will still have to exercise an element of judgment, which will be subject to only an internal administrative review, about which the noble Baroness has been able to tell us very little.

The issue is not simply whether the documents are forged or not, which is a matter of fact that can be determined by reference to the original institution. However, if the idea, which is so meritorious and which we all accept, of having the sponsorship of an academic institution or an employer removes the element of intention from the decision by the ECO, why have we not introduced it already in the Immigration Rules? I ask the noble Baroness that question and I wonder whether there is an answer to it, or whether we should have embarked on this in a series of steps that would have enabled us to judge whether they were effective. The system whereby academic institutions are on the register is already in place. They are recognised as being responsible for judging the applications of students, so the ECO does not have to go behind those, except to say whether the course is
 
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appropriate or whether the institution meets the particular needs, as in the case of the famous student who wanted to study English in Northern Ireland.

We would not have any of those nonsenses if we had already instituted the system of established sponsorship by an academic institution or by an employer and if we had been able to treat that as conclusive in removing the element of judgment by the ECO on whether something was going to comply with the immigration rules. One could have done that in the existing immigration rules and we would not have had to abandon the rights of appeal because, by definition, there would have been a much smaller number of appeals against decisions which are now made on the basis of someone's assessment of intentions.

As the noble Baroness said—this has been echoed by every noble Lord who has spoken—we do not know enough about the system to evaluate it. I am most grateful to the Minister for saying that at least we will have the report of the consultation on a points system before Third Reading. I honestly believe that we would have a much more fruitful and productive discussion if we had that document before us. As I am about to withdraw the amendment, I look forward to a further discussion at Third Reading and I hope that on that occasion we will be able to make progress. We shall know more clearly what is intended and many of the blanks that we face at the moment will be filled in. We will know how the points system has been evaluated by those who have been consulted on it and we will perhaps know more about the administrative review, about which the Minister has been able to say very little, but which clearly, in the minds of the academic community, and particularly in the mind of the noble Baroness, Lady Warwick, is of vital importance.

We will not get over the subjective decisions when, to quote the noble Baroness's department's document, Tribunals for Diverse Users,

Perhaps the noble Baroness could say—I would be delighted if she interrupted me to do so—whether this document applies to the administrative review that we are talking about. She was referring, as I understood her, to the White Paper, Transforming Public Services: Complaints, Redress and Tribunals, so I rather inferred from that that the comments made in this document applied pari passu to the administrative review to be introduced under this Bill. That would be very important, because we would at least have an independent yardstick by which to judge the process when it is finally introduced. If the noble Baroness does not want to interrupt me, perhaps we can come back to that point on Third Reading. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Lord Avebury moved Amendment No. 7:


( ) entering for settlement as a returning resident in accordance with the provisions of the immigration rules, including cases where the person may be admitted as a returning resident under those rules despite the length of their absence from the United Kingdom"

The noble Lord said: My Lords, Amendment No. 7 deals with returning residents. The matter was raised in Grand Committee on 9 January. In the example I gave then, an elderly couple who were out of the country for more than two years, for perfectly understandable reasons, would have had no right of appeal on grounds of human rights or racial discrimination—the only ones that will remain under these proposals. The Minister did not say at the time whether she thought it would have been satisfactory or fair for that particular couple, who became involved in legal proceedings when they went back to their country of origin to find out how their son had been killed, to have been exiled permanently from their home on top of everything else that they had suffered.

Amendment No. 8 deals with the position of non-EEA nationals who apply to come here under European Community association agreements. In Grand Committee the Minister recognised that they should have a right of appeal under a recent European Court of Justice judgment, but said that the reinstatement of those rights, which were removed under the Bill, would be accomplished through secondary legislation. I wonder if the Minister could point to the order-making powers that allow this to be done. Clause 4 is concerned only with visitors and students and I see nothing that would allow the Minister to do this under the parent Section 82 of the NIA Act 2002.

The Minister said that she did not accept that the settled community law, which applies to the other categories I mentioned—that is, nationals of Switzerland and primary carers of children who themselves have a right of residence—meant that they would forfeit their right of appeal against refusal of entry clearance. Nor did the Minister consider that there should be any general power in the Bill to restore rights of appeal to any other classes of person to whom Community law extends the right of appeal in the future. That also, the Minister said, could be dealt with in secondary legislation. Again, I would be obliged if the Minister could tell us where the order-making power to do that might be found. Assuming the power exists, if exercised it gives rights of appeal to specific EEA nationals in specific circumstances, so an EEA national alleging a breach of some other EEA treaty right, which had not been tested or litigated before, would be unable to appeal. Our approach solves that problem and ensures compliance with Community law.

I am sure the House would agree that where it is possible to leave rights that already exist in primary legislation, it would be quite improper and unwise for the House to remove those rights in primary legislation and then restore them in secondary legislation. What is the point of doing that? I beg to move.

Baroness Ashton of Upholland: My Lords, as the noble Lord, Lord Avebury, says, we dealt with this issue to a degree in Grand Committee. Taking
 
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Amendment No. 7 first, the noble Lord will know that refusal of entry clearance for returning residents is on the basis of objective criteria. I hear what the noble Lord says about the particular case he raised. It is right that if someone has been outside the UK for more than two years, that is a factor to be taken into account. We allow returning residents to retain a limited right of appeal on human rights and racial discrimination grounds. Any argument that would be put forward, for example, under Article 8—the right to respect for family and private life—could still be raised under Clause 4 of this Bill. That does not get taken away. As the noble Lord acknowledged in Committee, many residents who have indefinite leave also have the opportunity to apply for citizenship.

4.45 pm

As the noble Lord, Lord Avebury, has raised the matter again, I have looked at it very carefully. However, I remain of the view that there is already an objective set of criteria that allows for the kind of appeals which would deal with his concerns. He will be disappointed by the reply, but that is the Government's position.

On Amendment No. 8, the Immigration (European Economic Area) Regulations 2000 (as amended) give the issue the ability to be addressed. It is not that we are replacing secondary and primary legislation; it is done through that set of regulations. They are the appropriate place for the appeal rights to be defined. The amendment does not deal with the persons claiming rights under the ECAA arrangements, but we will ensure that we reinstate all the relevant rights that are to be removed under the Bill, using those 2000 regulations, as I have indicated. I reiterate that we do not accept that there is settled Community law which generally requires other classes of applicant to receive an appeal against a decision to refuse entry clearance. However, we have also made it clear that if Community law develops and the right of appeal is extended, of course we will give effect to that within the regulations.

There is therefore no intent to do anything other than restore what the noble Lord primarily seeks, but to do it in the right place, which is where it is now in those regulations. I hope that that will reassure him.


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