Baroness Hamwee
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Baroness Hamwee
“Administrative review
(1) Section 11 shall not come into force until a draft of an instrument making provision for the conduct of the review of decisions the subject of that section has been laid before each House of Parliament and approved by each House of Parliament.
(2) Provision under the instrument shall include—
(a) procedures for reviews to be agreed by independent persons;(b) oversight of reviews by an independent person;(c) reports to Parliament by the independent person.(3) Section 11 shall lapse five years after the date it comes into force unless it is continued by an order made by the Secretary of State subject to annulment in pursuance of a resolution of either House of Parliament.”
Baroness Hamwee (LD)
My Lords, Amendment 30 is about administrative review. I am not commenting on the reduction in rights of appeal per se, but if we are to see a reduction of the basis of appeals, and if they are to be reduced on the basis of the use of administrative review, the procedure must be robust and trusted. However much we hear that it will be robust—I have seen the statement of intent—it is fair to say that critics have not been won over. Many noble Lords will have received briefings, including examples of reviews previously undertaken under different—but not so very different—procedures, and I shall give a couple of them to the Committee.
The first is a student applying to transfer his tier 4 leave to a new passport. The university provided letters quoting the relevant Home Office guidance confirming that a new certificate of acceptance for studies was not required because it was not a fresh application, merely a transfer to a new passport, but the application was refused on the grounds that the student did not have a valid certificate. He applied for administrative review. He was outside the UK and needed to be back here quickly to get on with his studies. He waited a couple of weeks and then decided he had to submit a fresh application. The review upheld the original decision on the grounds that he did not have a valid certificate.
My second example is a student applying for leave for a master’s course after having studied as an undergraduate in the UK and undertaken two years of tier 1 post-study work leave. The application was refused because the case officer thought that the five-year limit on degree-level study would be exceeded, taking into account the two years, but in fact the case worker had incorrectly included the two years of post-study work. Reconsideration was requested, but the casework team would not overturn the refusal.
The point that decisions should be got right the first time is entirely reasonable and appropriate, and I am sure my noble friend accepts that. One can also entirely understand the point that reviewing colleagues’ work as a substitute for appeal is counterintuitive. Not only are colleagues being asked to attack, as it were, their colleagues’ work, but they are actually attacking the Secretary of State’s decision. One can understand their diffidence in doing so.
The amendment I propose does not seek not to have administrative review; it seeks to find a way to get procedures into a document that will require the approval of both Houses of Parliament. This might sound a rather heavy-handed way of going about something administrative, but we are talking about a proposed substitute for appeals. The amendment seeks to have procedures agreed by an independent person—I stress the term “independent”—with oversight of reviews as they take place by an independent person and a lapse after five years unless Parliament thinks that the procedures are suitable to be continued. This would be negative.
I am aware that the Home Office proposes that the process which it plans will be included—or, at any rate, it will ask for it to be included—in the chief inspector’s reviews. That is necessary, but I am seeking more than that. I have not tried to define “independent” in the amendment, but I do mean independent. There are in many parts of our legislation provisions for independent persons. By and large, the people who are appointed are independent. Once they have been given a remit, they tend to prove themselves really very independent and sometimes quite forthright.
I have comments on the statement of intent that was included in the bundle which was helpfully circulated. I am not going to take up the Committee’s time on that, other than to say that I note that the time limit for the applicant to seek an administrative review is 10 days, or two days if they are in detention—which seems to be very little if they want to take advice. I wonder how the Home Office will ensure that the limit of 28 days to come to a decision will be met, given the current timescales of which we are aware. I wonder, too, whether my noble friend can explain what opportunity there will be for an applicant—the “customer”, as he is called in the statement—to make representations on the facts to the reviewer.
However, that is not at the heart of this amendment. When I raised the issue of trying to stiffen the arrangements for reviews with those who work in the field, they said that when the issue had been discussed in 2006, when the House was talking about out-of-country reviews, administrative review became a “chimera” chased through many hours of debate, a “red herring”, and a “scarlet pimpernel”. We do not have a “smokescreen” in there; I will not pursue what other metaphors there might be. I thought that that was harsh, but it is important that we have reassurances on how we are going to have real detail on this that both Houses can consider.
In the statement of intent, in answer to the question of how it can be confident that it will be able to operate administrative review effectively, the Home Office referred to the current operation overseas—where there is a strong record, with over 90% of reviews completed within the target of 28 days for the quarter in question—and said that administrative review also makes a difference in entry clearance cases: in 2012, the initial decision was overturned in 21% of cases. I think that my noble friend would understand that some of this is in the eye of the beholder. It rather depends on whether you are the applicant as to how you perceive this. I note that success is expressed here in terms of time limits rather than substance. I suppose we could really know if administrative review is working well only if it were possible to run it as a sort of shadow to the appeals process—but we cannot, to my mind anyway, run two systems in parallel.
Therefore, the amendment focuses on how to get as robust and trusted a system as possible. Having said that—this is a trite point but it needs to be made again at this point in the debate, and I am sure that my noble friend will agree—there should be a robust, trusted system of internal review in any event, because this is about making the right decision as efficiently, effectively and quickly as possible. I beg to move.
Lord Paddick (LD)
My Lords, I support Amendment 30, at least in principle. I support the move that the Government are trying to make to avoid abuse of the system of appeals, whether by unscrupulous organisations which try to make money from endless and inevitably futile appeals that exploit not only the taxpayer but also the applicant, or by those who are not entitled to be here or come here but who want to exploit the system in order to extend their stay, despite not having legitimate grounds to stay. However, before I can support removal of the right to a judicial tribunal appeal, I would ask the Minister for reassurance that the proposed replacement with an administrative review will provide an equally reliable route of appeal.
My noble friend Lady Williams of Crosby and I share a common concern about the culture within the Home Office to which my noble friend Lady Hamwee alluded—that it would be very difficult for an officer in the Home Office, particularly someone of equal grade to the original reviewing officer, to overturn a decision made by their colleague. Perhaps I can help the House with a definition of “independent”, to which my noble friend Lady Hamwee refers in this amendment. Nobody can be a commissioner of the Independent Police Complaints Commission if they have previously been a sworn police officer. One would expect a completely independent person who reviews these decisions to be somebody who has not been and is not currently a member of the Home Office.
Under the current system, even when the presenting officer for the Home Office at the judicial tribunal has reviewed the case, a high proportion of those appeals are still successful. Can the Minister tell us how the new system of administrative review will differ from that, and, therefore, give us more confidence that it will be far more effective than the current one? Of course, decisions made under the new administrative review system can still be challenged by judicial review with an appeal to the High Court. Can the Minister reassure us that this route will not be even more expensive than the current judicial review process; or, bearing in mind the recent cuts in legal aid, does the Minister believe that far fewer people will be able to afford to go down that judicial appeal route?
In short, I am not in principle against the new system of administrative review if—but only if—the Minister can reassure the House that it will be far more effective than the current system in achieving swift and just outcomes for applicants. Neither does my noble friend Lady Hamwee call in her amendment for an abandonment of the new system. In the absence of the Minister being able to convince the House on the matters that I have raised, perhaps it would be better for him simply to support my noble friend’s amendment.
Baroness Smith of Basildon
That is really helpful and I apologise. I shall reread Hansard. I am sure that I did not doze off at that point.
As other noble Lords have said, we should focus on improving the efficiency of those initial decisions and making sure there is little need for appeals in the first place, because that is what will create confidence in the system, which itself will reduce the number of appeals. I am raising these points again now because it cannot be right that the Home Office’s response to its own inefficiency is simply to stop people challenging this inefficiency. I know the Minister pointed to an administrative review, but we have heard strong arguments today and previously that that is not the way forward. He said that the person reviewing the decision will not be the person who made the original decision but a cohort of immigration staff drawn from those who already make decisions. However, my understanding is that the Home Office already has a system whereby, in some cases, senior staff already review certain decisions. I cannot, therefore, see how an administrative review would be particularly significant if a number of decisions are currently overseen and reviewed by senior staff. Given the very high proportion of appeals allowed, which in most cases result from caseworking errors, it is clear that this problem with the quality of decision-making has to be addressed. Should that not be looked at by someone who is completely independent for there to be a real confidence in the system?
The noble Lord, Lord Avebury, raised the issue of the Government’s reliance on judicial reviews as recourse. A number of noble Lords today and previously have raised concerns about the cost. Not only do judicial reviews cost more than appeals but costs can be sought from the other party, and damages may be claimed but the Government have to recognise—indeed, they do so in their assessments—that the number of judicial reviews is likely to increase. The noble and learned Lord will be aware of the comments by the Joint Committee on Human Rights that the Government’s proposals on judicial reviews do not take into account the committee’s comments and do not look at how,
“the Government’s other proposals to reform both legal aid and judicial review itself”,
impact on the ability to seek judicial review.
I can understand why the noble Baroness has brought forward her proposal but I do not really understand why it had to be a stand-alone debate, considering that we had a similar debate on Monday, when her points could have been made. I see that the noble and learned Lord agrees. However, there is a strong case to oppose this clause as a whole, and I see this amendment, which is similar in principle to our proposal on Monday, as a fallback position and not the solution. I also hope that the Minister will recognise that there are great concerns about the principle and implementation of the Government’s proposals, and will look at them again, given that there have now been two lengthy debates on this issue.
Baroness Hamwee
My Lords, before my noble and learned friend responds, perhaps I may make it clear—I thought I had at the start of this debate—that I am not seeking to debate Clause 11. This amendment proposes inserting a separate clause after Clause 11 and is intended to be constructive on administrative review, not destructive of Clause 11.
Lord Wallace of Tankerness
I am afraid that I do not have a figure for that further subcategory. If it exists, I will make sure that I inform the noble Baroness and others who have taken part in this debate, and will put a copy in the Library. That certainly could help to inform the debate as I am sure this issue may well arise later in our deliberations. All staff undertaking administrative reviews will receive full training in all routes and categories before they commence their work as part of the review team. I believe that the statement of intent indicated that it is intended to have a separate dedicated team of reviewers in each specialist area. Regular reports on the performance of the administrative review process as a whole will be sent to senior management. We will establish feedback mechanisms to ensure that lessons learnt are fed back to case workers.
I think I indicated in our debate on Monday that, within a year of the administrative review process being established, the Home Secretary will ask the independent chief inspector to include a review of the administrative review process in his inspection plan. Again, it is important to remember that the procedure will be set out in rules that Parliament can scrutinise. As I have said, we have committed to an independent oversight by the chief inspector in the public statement of intent that I have just read out. He has the power to undertake an inspection off his own bat and may do so if there are concerns about the administrative review process. His reports are published and Parliament may hold the Government to account in respect of those reports by means of questions and debates. Having to meet these additional requirements may also, if we were to go down the road proposed by my noble friend Lady Hamwee, delay the commencement of Clause 11. She quite properly said that there might be certain attractions in having two systems running in parallel, although I suspect that that would be a bureaucratic nightmare and would not properly serve the interests of anyone, least of all the applicants.
The delay in commencement is undesirable because it would delay migrants who would benefit from these changes, which would provide faster and cheaper resolution of caseworking errors. This delay could arise because the Home Office needs to identify an independent person who could take on the role envisaged in this amendment. This would also add an administrative layer to the development and operation of the administrative review. It is envisaged that the chief inspector would take on this role, a point that I already have made. We intend to benefit appellants and those who will no longer have a right of appeal under Clause 11. My noble friend Lady Hamwee proposes that it should lapse in five years unless there is parliamentary approval for it to continue in force, which I feel would not be of benefit.
Clause 11 fundamentally reforms appeal rights. It is a reform that is needed to simplify an overcomplex framework and to provide a faster and cheaper remedy for caseworking errors. However, because this reform is fundamental, reversing the change after five years could cause even further upheaval. The changes made to the appeals process and the court system would need to be undone. That could come not only at cost but also at the expense of considerable uncertainty.
My noble friend Lady Hamwee also made reference to the administrative review system that is already operating overseas. Some 90% of these reviews have been completed within the target of 28 days for the quarter ending June 2013. The proposed process for in-country, which we are debating here, mirrors the approach taken overseas. My noble friend also made the point that we are asking people to reverse the decision of their work colleagues and, as she quite properly put it, to overturn the decision of the Secretary of State. She mentioned the figures, including that in entry clearance cases in 2012 for operating overseas the initial decision was overturned in 21% of cases. I sometimes think that in this area you are damned if you do and damned if you do not. The figure of 21% is a sizeable number, which suggests that those who are doing the review are not necessarily intimidated by having to overturn the Secretary of State’s decision. Equally, one might say that 21% is far too high and that the figure should be lower, in which case they may say that they were frightened. The point is that the system that has been operating overseas has had 90% of cases completed within the target of 28 days. It shows that those who are doing the reviews are not scared off or hesitant in overturning decisions when mistakes have been made.
I recognise that there are concerns and I suspect we will return to this and that amendments will be tabled on Report, which will offer us a chance to reflect further on the points that have been made both today and on Monday. However, I believe that what we are putting in place will bring considerable simplification and lead to quicker and cheaper decisions. Therefore, for the reasons I have given on some of the detail but also because of the delays that could take place, the fact that there will be an opportunity for noble Lords to scrutinise the rules that will be put in place and because the chief inspector will be able to conduct his own review, I invite my noble friend to withdraw her amendment.
Baroness Hamwee
My Lords, I suppose that if the chief inspector will have added to his workload checking to see if and how anyone is damned, one question he may be asking privately is what extra resources there will be for that. I take the point about the rules, which now have to be in the form of an order, being an opportunity for scrutiny. However, as we all know, one cannot amend an order. I also need to ask, although I do not expect my noble and learned friend—
Lord Wallace of Tankerness
If I am wrong I will correct this, but my understanding is that if Parliament does not support the order when it is scrutinised, the Secretary of State is obliged to lay new rules within 40 days. It does not annul the rules but new rules have to be promoted within 40 days.
Baroness Hamwee
I am grateful for that. I do not think that it negates the question that I am about to ask, although my noble and learned friend may not be able to answer it at this point. It is about opportunities to feed into the draft rules before they come into final form. It is clear that there are a lot of points that could be constructive and helpful, which do not oppose the policy but come from the experience that so many people have of similar forms of process. What opportunity will there be to feed into the construction of the rules?
Also, how much detail will there be in the rules when they are proposed? The statement of intent, which to my mind raises some questions—I asked one or two of them—is probably more detailed than the rules. Anyway, as my noble and learned friend says, we may well return to this whole issue. Therefore, for today, I beg leave to withdraw the amendment.
Baroness Hamwee
“( ) An appeal to which subsection (3) applies must be brought from within the United Kingdom if there is a child of the appellant in the United Kingdom.”
Baroness Hamwee
In moving Amendment 31, I will also speak to Amendment 32 in this group. The amendment takes us to Clause 12, which deals with the place from which an appeal may be made. The first amendment is particularly concerned with children.
Clause 12(3) proposes that “foreign criminals”, as defined, and people whom the Home Secretary deems not to be conducive to the public good can be deported first and appeal after unless that would cause “serious irreversible harm”. The concern raised by the amendment relates to the consequences for child welfare, something which this House discussed on Monday in the context of detention and which we have so often discussed.
Baroness Hamwee
My Lords, I think that when I introduced Amendment 32, I acknowledged that it is not an amendment that I want but it was a convenient way of probing.
On the legal aid point, I cannot resist saying that a child cannot choose his parents. If a child finds that he has a parent who is a criminal or someone whose presence the Home Secretary regards as not conducive to the public good, that is not the child’s fault.
I must apologise to the noble Lord, Lord Pannick, and the noble Baroness, Lady Lister. I misread the order in which their names were given on the amendment. I saw a look crossing the noble Baroness’s face showing that she was thinking, “What am I expected to do now?”.
The noble Lord, Lord Bourne, referred to being conducive to the public good. There is an issue of balancing interests here. I think there is a very strong argument that the interests of the child are also a public good. I take the point that he and my noble and learned friend made about there being issues about how long the child in question had been in the UK, whether the parent had caring responsibilities and so on. I am conscious that there could be a danger of a child being used as a pawn in this situation.
The Minister talked about circumstances where there might be suspensive certification and so on, and Hansard will certainly bear being read and reread. I come at this from preferring to reverse the positions. Rather than the legislation allowing the Secretary of State to ensure that something does not happen, the Bill should ensure that it does not happen with a discretion the other way around—in other words, reversing it. I am probably being a bit confusing in saying that because I am not entirely clear in my own head about how that would look. I will read Hansard to try to understand the points a bit better.
I apologise that I had not warned my noble and learned friend that I would ask him about whether the Government have assessed the impact on children settled in the UK in these circumstances. If he is not able to answer that point now, I wonder whether it might be pursued after this stage. He is agreeing, and I am grateful. I beg leave to withdraw the amendment.
Baroness Hamwee
“Assessment of financial circumstances
When the financial circumstances of an applicant who seeks to enter or remain in the United Kingdom are to be considered account shall be taken of—(a) the national minimum wage, (b) the benefit to taxpayers and to society of the applicant acting as a carer, (c) the applicant’s prospects of employment (including likely earnings),(d) the prospects of employment (including likely earnings) of the spouse or partner of the applicant, and (e) the interests of any child of the applicant who as a result of the refusal of the application may be separated from a parent.”
Baroness Hamwee
My Lords, Amendment 47 deals with financial circumstances when they fall to be considered in respect of an applicant seeking to enter or remain in the UK. I have quite deliberately framed the amendment as a new clause rather than seeking to amend Clause 14, where I am sure that I would be told that there was a very delicate balance that I should not be disturbing.
The Minister and I have debated before, and I suspect that we will again, the issue of the family migration laws that were introduced in July 2012, under which new financial thresholds are required to be met for an applicant to join a British citizen to whom he or she is married, or is a partner, in this country. The Minister will recall our discussions both about the financial threshold and about the impact on children who, as a result of the rules, find themselves separated from one parent. The impact is on families of British citizens and taxpayers.
I am well aware of the case of MM. I am not sure whether it is still being heard in the Court of Appeal. It started at the beginning of this week and we await the Court of Appeal’s judgment. I am aware that the Home Office has suspended decisions where the issue is a financial one, pending the outcome of the case. However, I could not let the Bill go by without a reference to what, week after week, I see as being very distressing circumstances. I say “week after week” because those who are affected by the rules, and noble Lords will understand this, cast around for those who may be interested and who may be able to take up their case. I am not really in a position to take up cases but I am certainly interested, and I therefore have a steady stream of e-mails and letters telling me of sets of circumstances that I do not think anyone could possibly have envisaged when the rules were brought into effect.
My amendment would seek to ensure that, where financial circumstances were to be considered, account would be taken, first, of the national minimum wage. The financial threshold where there are no children, in the case of the family migration rules, is £18,600, while the national minimum wage, worked for a 40-hour week, is in the order of £13,200. Secondly, account would be taken of,
“the benefit to taxpayers and to society of the applicant acting as a carer”.
I have come across a number of situations where the British citizen is caring for—usually—a child, and if that British citizen could be joined by his or her spouse then caring responsibilities would be shared, which would be to everyone’s benefit in a social, humane sense, but would also be a benefit to the taxpayer because it would lift the burden from them, too. Thirdly, I have referred to,
“the applicant’s prospects of employment (including likely earnings)”,
and those of the spouse or partner. I am aware of quite ironic situations where high-earning people have been defeated by these rules, even though they have great prospects not only of earning themselves but of bringing economic goods to the country, because there is no contract in place or history of earnings here to which they can point. I am aware of a number of situations where people have taken the decision to go and live in another country and apply their earning power there. Lastly, and very importantly, I refer to,
“the interests of any child … who as a result of the refusal of the application may be separated from a parent”.
I have already referred today to the impact on children separated from parents, and this is something that concerns me very much.
In the first instance decision, Mr Justice Blake referred essentially to these factors in the concerns that he expressed about the rules that are in place. One of his suggestions was reducing the minimum income requirement of the sponsor alone to £13,500 or thereabouts —very close to the figure that I have referred to.
I could speak on this for a long time, but I am of course aware of the debate that is to come and that noble Lords are gathering for it. I also know that the Minister is not in a position to roll over tonight, given the case that is in train. In all conscience, though, I had to raise this; it expresses my position and keeps the faith. I beg to move.
Baroness Lister of Burtersett
My Lords, I support this amendment. I remember that when we debated the original regulations in your Lordships’ House, I said I found it quite distasteful that we were introducing a means test for family life—a means test that, unlike other means tests, excludes the most disadvantaged rather than includes them.
Last summer I chaired a packed meeting for the Divided Families Campaign. We heard some heartbreaking examples of families who had been broken up as a result of these new regulations. Many noble Lords will be aware of the report produced by the All-Party Parliamentary Group on Migration on its inquiry into the new family migration rules. I will not go into any detail now because of the other debate that is about to happen, but there are plenty of examples there of the harmful effects of these regulations.
I cannot help but reflect that yesterday in your Lordships’ House the noble Lord, Lord Freud, created a false divide, suggesting that that side of the House supported marriage while this side could not care less about it. My concern is less about marriage as such; I am concerned about family relationships. It would seem that, when it comes to immigration, some marriages are more important than others and other marriages simply do not count. I am very glad that the noble Baroness, Lady Hamwee, has used this opportunity to remind your Lordships of the heartache that is being caused. Noble Lords may not receive a steady stream—I receive perhaps not quite such a steady stream—but we certainly receive a steady trickle of e-mails and letters about this. It is important that we keep this in the public domain because I do not think we can carry on like this for much longer.
Baroness Hamwee
My Lords, about 20 minutes ago, as I reread my amendment just before we started the debate, I recognised the technical flaw in my drafting. I am sure that my noble and learned friend does not really hold that against me too much.
It would be inappropriate for me to take the Committee’s time to deal with everything that was said; there is much more that I could add. I will simply make a couple of points. On the specified disability allowance, it seems from the experience of somebody who has been in touch with me very recently that this is not quite what it seems on the face of it, because she is having great trouble. If the wife of a gentleman caring for an autistic daughter who is inevitably a burden on the state—I hate putting it that way—could come and join him, there would be much less of a burden on the state. To pick up the point of the noble Earl, it means that if there has to be a firm job offer, we are not welcoming in those with the entrepreneurial spirit that we say we wish to welcome.
I will not tax noble Lords’ patience further, because I want to retain some credit in order to be able to bring this back at a later stage—not necessarily in this Bill, but certainly in the future. I beg leave to withdraw the amendment.