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Lord Cope of Berkeley: I am sure that the whole House--that is, the whole House except perhaps the Minister, for whom we may all have sympathy on this occasion--is grateful to the noble Lord, Lord Judd, for bringing the matter before us today
The noble Lord, Lord Judd, has demonstrated the hollowness of the Government's manifesto commitment in 1997. They may have followed the letter of their promise but, as has become very clear in the course of the debate, they have made it meaningless in practice for most of the people concerned. For those involved, this is immigration for the rich--or visits for the rich. If the family budget can afford to risk an extra £500 for the family wedding, funeral, or whatever the occasion is, then welcome to Britain: if not, forget it.
I remember in another place the difficulties of the Bill in 1993. But I can also guess the reason for this policy. Jack Straw wanted to put it in the manifesto, but it was not cleared by Gordon Brown, so would-be visitors must pay in advance and in 28 days. Therefore, of course, there will not be many appeals. In effect, for most of the people involved, this Government have the same policy as the former government but they try to pretend that it is different. This debate has shown up that pretence.
The Parliamentary Under-Secretary of State, Home Office (Lord Bassam of Brighton): My Lords, contrary to what the noble Lord, Lord Cope, might believe, I, too, am grateful to the noble Lord, Lord Judd, for providing us with the opportunity to debate these regulations. I always think that it is right that government should be obliged to explain themselves. This debate provides the perfect opportunity to do that. It has been a distinguished debate, with contributions from many distinguished Members of your Lordships' House. I have taken careful note of all the contributions.
The regulations deal with two questions: first, the definition of a family visitor; and, secondly, the fees to be charged to deal with the administration of an appeal in the event that the application for a visa is unsuccessful. It may be helpful if I explain in broad terms how we expect the system to work. Since 2nd October, people who have been refused a visa to visit members of their family in the United Kingdom have been entitled to a streamlined appeal against the refusal.
The definition of a family member is set out in Regulation 2(2) of the Immigration Appeals (Family Visitor) (No. 2) Regulations 2000. It is widely drawn and includes stepfamily, adoptive relatives and unmarried couples. If I needed reminding, today has made it patently clear that there has been some disquiet about this definition on the basis that it will exclude some people who could be construed to be
Earl Russell: My Lords, I respect and understand the pursuit of certainty on which the Minister is engaged, but I ask him to read the Renton report on the preparation of legislation, which explains why the pursuit of certainty in this method is almost always self-defeating. When he has done that, I wonder whether he could ask his department to read it, too.
As I said, the fee for administering an appeal has been set at £150. Some 90 per cent of all short-term visa applications are successful. We are talking about only the small percentage of unsuccessful applications.
Lord Judd: My Lords, that is a broad statistic. Given the ethnic dimensions of the debate, is it not important to say a little more about the breakdown of the 90 per cent and the 10 per cent and where the burdens fall?
Lord Bassam of Brighton: My Lords, as always, the noble Lord, Lord Judd, asks a useful and valuable question. I do not have that information. I have only recently managed to get hold of the statistic that I have just given the House. It shows that most applicants are believed and are successful. We are not saying "no" to visa applications. That needs to be borne in mind, particularly as the noble Lord, Lord Dholakia, pointed out that historically the operation of entry clearance officers has perhaps been seen as racist.
I recognise that many of your Lordships are concerned about the decision to charge for family visitor appeals. We have to explain that decision. For a visitor appeal right to be meaningful, appeals must be processed swiftly. Under the new arrangements, family visitors will get preferential treatment. We think that it is right that they should pay for it.
However, providing a priority service has associated costs. Family visits do not have the same fundamental importance for those concerned as some other cases have. For example, asylum applicants often claim that their lives are at stake. Those cases make up the majority of appeals before the immigration appellate authorities. We must not allow those appeals to be prejudiced, even for the benefit of others. It is vital that visitor visa appeals pay for themselves to ensure that the new work that the right of appeal creates does not eat into the resources needed to deal with asylum.
Litigants in most cases in the mainstream civil courts have to pay court fees, which they may recover from the other party if they win the case. The fee will be refunded in all cases when the appeal is allowed. There is no reason for anyone with a good case to be dissuaded on cost grounds. The fees are based on an estimate of the total costs to the immigration appellate authorities of dealing with a projected 19,500 appeals. Those costs include judicial fees and salaries as well as staff costs. The oral fee includes courtroom and interpreter costs, and allows for the fact that the hearing is likely to take significantly longer than the time spent simply on consideration of the papers.
In almost all cases where a fee is charged for government services, that fee is based on the principle of full-cost recovery. Court fees are no exception. There would be no other rational basis for setting the fee level. Nevertheless, when estimating the cost of a new service such as this, there is considerable room for uncertainty. Following this summer's consultation exercise in which we proposed fees from the middle of the range, we decided to base the fees on the lowest possible estimate.
As I said, we expect the majority of appeals to be handled on paper because most people will want a decision to be taken as speedily as possible. If the appeal requires an oral hearing, the appellant may qualify for representation funded by the Legal Services Commission. That funding would cover the appeal fee.
All appellants will be eligible to seek the assistance of the Immigration Advisory Service. The services of the IAS are free to all appellants, regardless of their means. They extend to providing representation at appeal hearings, although not to paying the appeal fee. As of May 2000 the cost to the public of providing an Immigration Advisory Service representative was £772.89 per hearing completed.
All visitors who come to the United Kingdom must meet their travel costs. For those who come from outside Europe, those costs are likely to amount to several hundred pounds. In order to obtain a visa at all, they must show that they are able to meet the costs of their maintenance and accommodation while in the UK.
In the past, the immigration system has been prone to lengthy delays. We have done much to rehabilitate it, streamline it, and make it more efficient and more effective. Those efforts continue. However, family visitor appeals represent a large amount of new work. Without new funds, the immigration appellate authorities could be overwhelmed and our much-needed reforms jeopardised. Family visitors themselves would have to endure lengthy waiting times which would ruin their plans to visit.
After a year--I believe this to be an important commitment--we shall review the arrangements and costs and issues such as the definition of what may or may not be a family member. That review period is important. However, for the moment, we have a system that we believe will be not only fair and just, but will work and be sustainable. That must remain the priority.
During the debate a number of questions were asked, and I shall try to work through some of the important points raised. My noble friend Lord Judd raised the question of indirect discrimination. We do not consider that the fees could or would amount to indirect discrimination under the Race Relations Act 1976. First, we are not aware of statistics which show that it would bite disproportionately. I believe that that is an important consideration. Secondly, even if it did bite disproportionately, it would be justifiable. The aim of the fees is not in itself to discriminate; it is to cover the cost of appeals and to allow family visitor appeals to be processed more rapidly. We believe that the level of fees is appropriate to meet that aim.
My noble friend also asked how a person would cope in terms of obtaining legal advice within 28 days. We expect family visitors to be helped by their sponsors. The relationship with their sponsors in the United Kingdom will be very important. I believe that consular advice will also be available and, where there is a question over whether they can make or lodge the appeal within the 28-day period, the adjudicator can be invited to extend that period. Therefore, there is room for flexibility.
My noble friend also suggested that fees marked a significant departure in immigration appeals. I can only reply that Parliament intended fees to be charged when it passed the Immigration and Asylum Act. We made that clear at the time, and that was the view of Parliament.
My noble friend Lord Judd also suggested that this was a new duty to be covered by the Lord Chancellor's Department. The new duty relates to the Race Relations (Amendment) Bill which amends the original Race Relations Act to put the LCD, among others, under a duty not to discriminate. We fully accept that duty.
My noble friend also asked how many appeals so far have been lodged. We do not yet know how many have been lodged overseas. So far, only one appeal has been received at the Immigration Appellate Authority. But the right of appeal applies only to visas refused on or after October 2nd and the 28-day period for lodging such appeals has only just passed.
The noble Earl, Lord Russell, asked about the Witham judgment. This judgment concerned fees restricting the right of access to a court. There is no right of access in this country for family visitors, so Witham does not apply.
The noble Earl also asked how immigration lawyers would be found with LSC contract. It is worth repeating that consular advice would be available. For those with access to new technology, the LSC contract is promoted through its website. I made the point earlier that the sponsor in this country would be well placed to seek information and to guide a relative who is seeking to exercise their right of appeal.
The noble Earl, Lord Russell, also asked about appeals and how many appeals one family group should make. We would expect it to be just the one appeal, the outcome of which would decide the case for the other family members.
My noble friend Lady Uddin cannot be here to hear my answer to her point. I shall try to settle one question that she asked, which was whether it was secondary legislation within the spirit of Article 6 of the ECHR. Article 6 does not give a right of access to the courts in respect of immigration disputes. That has recently been confirmed by a judgment of the European Court of Human Rights at Strasbourg.
We believe that these regulations will be workable. We believe that they are just, fair and proportionate. We think that they do conform--to pick up the point raised by the noble Lord, Lord Newton--with our human rights obligations. However, it is open to anybody who believes that they do not conform with these, to make an appeal based on the application of the Human Rights Act. Of course that would be a more narrowly confined basis for a case.
For my part, as a government Minister, I am proud that we have stuck by our manifesto commitment. It was an important one. I disagree with the noble Lord, Lord Cope, that this is a measure which undermines that commitment in any way, shape or form. People will see and understand this as giving effect to that manifesto commitment. It was utterly shameful that the original appeals system was abandoned in the way in which it was. We have done all that we can to right that wrong and much more in the field of race relations. I am proud of that fact too as a Minister.
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