Points-based applications: no new evidence on appeal

I beg to move amendment No. 136, in clause 19, page 10, leave out from line 23 to line 11 on page 11 and insert—

‘(5) The Secretary of State shall lay before each House of Parliament regulations setting out exceptions that may be considered on appeal.

(6) Regulations shall only be laid under subsection (5) after full consultation with all interested bodies.’.

With this it will be convenient to discuss amendment No. 132, in clause 19, page 10, line 38, at end insert—

‘(d) there is clear evidence that the applicant was unclear about the conditions required; and

(e) a failure to consider new evidence would be in clear breach of natural justice.’.

We now move to the points-based application, a different aspect of the immigration process and a relatively new section of immigration law that is not yet fully operational. I understand the reasons for having a points-based application, which will clarify matters for people who submit an application to come to this country. They will know from the operation of the points system whether their application will be successful.

However, I am concerned that because the proposal is so new it virtually excludes any exceptions, except in one very narrow sense. As members of the Committee are aware, however tightly something is set up in law something or someone will always find a way around it. Rather than the proposals setting out that there will be no new appeals and a very narrow basis on which an exception might be allowed, in tabling amendment No. 136, I am seeking to ensure that the Secretary of State reflects on how the clause might operate, and then, having consulted and discussed it with relevant bodies, comes forward with what the allowable exceptions might be.

When dealing with a new system that is not yet in operation, it is good practice before shutting the door to consider what sort of exceptions might be allowable. If we do not do so, the end result may be that new case law drives a coach and horses through what the Government intend. In that case, we might need another immigration Bill because of not dealing properly with earlier measures. A later clause on the sale of assets comes readily to mind; in previous immigration legislation, the Government allowed themselves the power to seize assets but not to dispose of them. That is being dealt with in the Bill, but there could nevertheless be exceptions.

Amendment No. 132 is slightly different. In my experience of dealing with applications to enter the country it can happen, for genuine reasons, that the applicant is unclear about the operation of the system and does not provide the necessary evidence in a form that allows the officer to make a decision. I readily admit that even though a case may have been formally determined, once one asks an officer to reconsider it, especially if it is at a port, he will do so if one can demonstrate that the applicant has not presented all the required information. The problem is sometimes that the many people who make money offering advice about completing the forms are the least able to advise properly; they take lots of money from people and then give them poor advice.

Amendment No. 132 would allow natural justice to apply if there was evidence that what was needed had not been explained properly or not fully made clear. Another example comes to mind. The Department for Education and Skills keeps a list of what might be deemed allowable UK courses for those coming into the country to study who have qualifications from their own country. I have come across cases in which the course for which the applicant is qualified is not on the Department’s list, but once one engages in conversation with the Department, it concedes and accepts that the course is allowable.

I accept that that may well come under the narrow point about exceptions in clause 19, but amendment No. 132 would allow a little leeway so that people can demonstrate in a positive way that they meet the criteria. I do not want them to be admitted if they do not meet the criteria. I merely want to ensure that when people submit applications, they are given every opportunity to put forward their best case. Otherwise, as usually happens, they will be forced to make another application, and if the increases in costs go through it will be a considerable burden to those seeking to come here to study.

I hope that the Minister will take the amendments in the spirit in which they were intended. I seek to ensure that the new system is allowed to operate properly before being overtaken by events.

As the hon. Gentleman said, the Bill is intended to make much clearer the points-based system by which people can apply for extended leave to remain or the right to come here to work or study. I understand his points about clarity, but perhaps I can offer him some reassurance.

The hon. Gentleman’s amendment would extend the circumstances under which a tribunal would be prohibited from considering new evidence, although that might simply be a problem with the wording—I accept that it is a probing amendment. I think that his intention was to allow the tribunal to consider evidence that was not submitted with the original application if the applicant was

“unclear about the conditions required” and if the

“failure to consider new evidence would be in clear breach of natural justice.”

Why is that problematic? Because it would make the evidential rules in points-based system cases very vague. The key consideration would be what the applicant knew, so different rules of evidence would apply to different applicants. That approach could be seen to reward applicants who could show that they did not know what the rules required, while penalising those who took care when making their applications. Any applicant who did not supply evidence on time could claim that he was unclear about the requirements. That would present a difficulty with the whole aim of the system. People could take a chance on the judge believing them and letting them submit further evidence with their appeals. We are trying to ensure that appeals are not simply an extension of the application process, but the intention behind the hon. Gentleman’s amendment means that late evidence could still be submitted at appeal.

Under the system, the majority of people will apply online. We will stipulate what evidence is required so that it is clear and there can be no misunderstanding as to what is needed. If an applicant is unable to provide a piece of evidence, in exceptional circumstances, we will give advice as to what evidence can be submitted instead. That should not present a problem with late evidence. With online applications, there will be tick boxes and if applicants cannot tick them to say that they can submit what they need to, they will be told that there is a problem and that they need to submit a certain document. If they are unable to do that, they will be told to take different steps or to make contact. It will be clear what evidence is required, what replacement evidence can be provided when the necessary evidence cannot be produced and what to do if there is still a problem.

I am grateful for the Minister’s explanation, but given what we learned in the papers last week about the operation of a similar system for medical graduates, I am not sure that this system will take account of all the circumstances. I return to the example that I gave about qualifications. When the relevant box is ticked, the system does not necessarily accept the stated qualification. What route would an applicant then take to prove that that qualification was acceptable? If the computer is not satisfied with the application, it will reject it.

As I have said, it will be clear exactly what is required for each tier. If an applicant still has difficulties it will be possible, ultimately, to make contact, but we want a clearer, more streamlined system. We want to stop the situation in which the appeals process is simply an extension of the application process.

If it is very clear what evidence should be submitted with an application, I do not think that there can be a reason that is acceptable at appeal for an individual to appear suddenly with the evidence that they were asked to submit at application. Of course, that will not stop people having the ability to reapply, as long as they are in time to do so. If they submit an application but do not provide the evidence that is requested and have their application refused, if they are in time they can submit a further application and that application will not be prejudiced by the outcome of the previous  application. That is the appropriate measure, as long as it is absolutely clear to the applicant what is being asked of them.

Of course, we want to ensure that there are a number of safeguards and clause 19 already contains a number of safeguards that will ensure that we do not cause an injustice, which covers the hon. Gentleman’s other point.

Where IND case workers believe that a document is not genuine or valid, the applicant will be able to submit evidence to try to rebut that allegation and thus clear their name. In those circumstances, for example, it is possible to submit further evidence. However, where an applicant is trying to demonstrate that they meet the clearly stated requirements, it is not appropriate that further evidence should be given at appeal. Application is about deciding, on the evidence that the applicant has submitted, whether a decision can be made. Appeal is about deciding, on the basis of the evidence that the applicant has submitted, whether an unfair or wrong decision has been made. At the moment, appeal is often used simply to submit evidence that should have been submitted with the initial application and we want to move away from that situation. In order to do so without creating injustice, we want to make it absolutely clear to applicants exactly what evidence they need to submit.

Regarding the point that the hon. Gentleman raised about difficulties with different qualifications, he will be aware that in tier 1, for instance, which is for highly skilled migrants, the only measure is the qualification at degree level. So, it is absolutely clear; if you are a highly skilled migrant, the qualification is a degree, and what is the level of the degree? In tier 4, for students, qualifications are assessed by colleges themselves, not by the IND.

The hon. Gentleman asked about people who apply to study at colleges that are not on an approved DFES register, but which are added to the list after an application is made. That question seems to be connected with applications for entry clearance. If an applicant was using the pre-checking online system prior to making an application, it would be clear to them that their application would be refused. In that situation, the applicant would be clear that they should not be applying until the college is added to the register. That is the way that the system should work. So the pre-application online system will assist individuals in not submitting an application that will be refused, by making it absolutely clear whether or not they meet the criteria.

I am grateful for the Under-Secretary’s explanation, which is important to the operation of the system, because hon. Members need to understand how it will operate. If I may, I shall give her two other examples of cases that I have dealt with in which the current system allowed the appeal and therefore allowed migrant workers to come into the country. In one case, which I dealt with last year, a number of stonemasons were allowed into the country to carry out some work. They were allowed in because they were to be working on a local mosque and we were able to show that although a British stonemason might have the qualifications to be a stonemason, they would not be able to carve the Arabic words that were wanted on  the front of the mosque. That to me was an example of a case in which the qualification is there and is equivalent to a qualification that exists in this country, but someone could say that extra evidence has to be shown, which is the ability to do that—

Order. Interventions should be brief. Perhaps the Under-Secretary will reply now.

Thank you, Mr. Amess. It is not the intention of the points-based system that where there are skills gaps and specialist skills are needed, we are unable to avail ourselves of those specialist skills. Of course that will be possible through the points-based system and we would want to ensure that that was the case. There are situations in which individual skills are required and we need to be able to and will take account of those.

Amendment No. 136 would mean that instead of being laid down in primary legislation, the circumstances in which new evidence would be excluded in an appeal would be contained in regulations. Parliament could not amend such regulations, so there would be a significant reduction in parliamentary scrutiny of the proposed changes to the appeals process. Also according to the amendment, we would have a statutory obligation to consult stakeholders before regulations could be laid.

Secondary legislation would make the appeals system more complicated; our long-term goal is to simplify legislation. Parliamentary procedures, as we have seen during proceedings on this Bill, give interested parties plenty of opportunities to make their views known throughout the legislative process. The involvement of stakeholders is possible at a number of points in the process. For instance, Ministers met  representatives of the Immigration Law Practitioners’ Association before the Bill was introduced, and ILPA, along with other interested organisations, gave evidence at the recent public evidence session at which the hon. Member for Rochdale was present. Such groups can also lobby MPs, expressing their views on proposals in a Bill and offering amendments.

We have shown in the course of proceedings on this Bill just how much involvement stakeholders can have, so I see no additional benefit from the latter aspect of amendment No. 136. Overall, the amendment would reduce parliamentary scrutiny of the changes to the asylum and immigration tribunal’s jurisdiction, without improving the opportunities that stakeholders have to contribute to the law-making process. I hope that the hon. Gentleman has had sufficient reassurance that he feels able to withdraw amendment No. 136 and not to press amendment No. 132.

I am grateful for the Under-Secretary’s response. However, our debate has demonstrated that we have not had sufficient chance to discuss how some of the measures will apply. Clearly, many more issues will arise when the Bill is put into operation. By tabling the amendments, I sought to give the Government a little longer to consider some of the issues. I am happy to withdraw them, because I think that case law will instead be made through the AIT. The Government might think that they have produced a cast-iron case that does not allow any exceptions, but I suspect that the reality will prove to be otherwise. I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Further consideration adjourned—[Mr. Alan Campbell.]

Adjourned accordingly at fifteen minutes pastSeven o’clock till Thursday 15 March at Nine o’clock.