Orders of the Day — Immigration, Asylum and Nationality Bill

House of Commons, 16 November 2005.

New Clause 1 — Over-staying Leave Pending Appeal

Tony McNulty (Labour, Harrow East)

I beg to move, That the clause be read a Second time.

Michael Martin (Speaker, Glasgow North East)

With this it will be convenient to discuss the following: Amendment (c) to new clause 1, in line 4, at end insert—

'( ) At a time when the conditions in this section are satisfied a person's leave to enter or remain is extended by virtue of this section save that such extension shall not prevent a decision to remove the person from the United Kingdom being made.'.

Amendment (a) to new clause 1, in line 8, leave out subsection (3).

Amendment (d) to new clause 1, in line 8, after 'been', insert ', or could be'.

Amendment (b) to new clause 1, in line 10, leave out '3' and insert '2'.

Amendment (e) to new clause 1, in line 11, at beginning insert

'where a decision to remove a person from the United Kingdom has been made'.

Amendment (f) to new clause 1, in line 11, leave out from 'decision' to '(appeals)' in line 13.

New clause 5—Entry Clearance Applications—

"90 Entry clearance

(1) A person may not appeal under section 82(1) against refusal of entry clearance as a visitor unless the application was made for the purpose of visiting a member of the applicant's family.

(2) In subsection (1) the reference to a member of the applicant's family shall be construed in accordance with regulations made by the Secretary of State.

(3) Regulations made under subsection (2) may in particular

(a) define 'member of the applicant's family" for the purposes of this section;

(b) make provision by reference to the duration of two individuals' residence together;

(c) confer a discretion.

(4) A person may not appeal under section 82(1) against refusal of entry clearance as a student if the application is for entry clearance to follow a course of study and—

(a) the course of study for which he has been accepted will not last more than six months,

(b) he has not been accepted for a course, or

(c) the course of study for which he has been accepted is not at a UK education institution on the approved register.

(5) Where a person has no right of appeal under subsections (1) or (4) above, a person applying for entry clearance as a dependant on his application shall have no right of appeal.

(6) Nothing in this section prevents the bringing of an appeal on either or both of the grounds referred to in section 84(1)(b), (c) and (g)".'.

Amendment No. 47, in page 1, line 3, leave out Clause 1.

Amendment No. 4, in page 1, line 16 [Clause 1], at end insert—

'( ) the leave was granted to a person to follow a course of study at a UK education institution on the approved register; or'.

Amendment No. 33, in page 1, line 16 [Clause 1], at end insert—

'( ) the leave was granted to a person who had applied for but not been given asylum or humanitarian protection as an unaccompanied minor but had been granted exceptional or discretionary leave to enter or remain'.

Amendment No. 3, in page 1, line 21 [Clause 1], at end insert—

'(fc) Variation of, or refusal to vary, a person's limited leave to enter or remain in the United Kingdom if—

(i) the leave was granted to a person to follow a course of study at a UK education institution on the approved register; and

(ii) the result of the variation or refusal taking effect is that the person is unable to—

(a) complete that course of study,

(b) attend or undertake any event or activity in connection with that course of study, or

(c) move from that course of study to another course of study at the same or another institution.'.

Amendment No. 5, in page 2, line 31 [Clause 3], at end insert—

'( ) An appeal under subsection (2) may be brought in the United Kingdom.'.

Amendment No. 6, in page 2, line 36, leave out Clause 4.

Government amendments Nos. 27 to 29.

Tony McNulty (Labour, Harrow East)

I preface my remarks to this group of amending provisions by alluding to what happened in Committee. We had a very fruitful and productive series of sittings, with engaging debate and useful points being made by Members on both sides. On the many occasions—although, I think, not all— when I said that I would look further into particular matters, I have sought to do so and have tabled amending provisions, where appropriate. New clause 1 is the first example.

Much disquiet and concern was expressed in Committee about the gap between the notification of someone's leave coming to an end or being curtailed for whatever reason and the one and only time permitted under the Bill to appeal against removal initially and then all the other elements leading up to the removal. Members of the Committee were concerned, as I said, because they did not want people to be committing an immigration offence if they stayed in the UK while bringing an in-time appeal against a removal decision. That was an entirely fair point and new clause 1 was tabled in the light of those genuine concerns expressed by Opposition Members in Committee. As I said, that was characteristic of the sensible and constructive manner in which the Committee's work was conducted. I am pleased to move new clause 1 in response.

It is entirely a matter for the House authorities, but, under the broad heading of appeals, a significant number of amending provisions and amendments to them are appended that embrace a number of concerns. It is my intention—I believe that it is in order, Mr. Speaker—formally to speak to new clause 1 and then, in the fullness of time, to listen to all the concerns expressed in the debate, including the other amendments, and to respond appropriately to them. I prefer to do that, rather than pre-empt discussion by giving my view on every aspect of every other amendment in the group at this stage of our deliberations.

To finish speaking to new clause 1, where a person has no leave to enter or remain in the United Kingdom, a decision can be made that they should be removed from the country. By virtue of section 82(2)(g) of the Nationality, Immigration and Asylum Act 2002, that is an immigration decision, which gives rise to a right of appeal to the Asylum and Immigration Tribunal.

If the appellant has made an asylum or human rights claim while in the UK, or argues that removal would result in a breach of their rights under EU law, that appeal can be brought prior to their removal from the UK. In all other cases, any right of appeal against a decision to remove can be exercised only once the appellant has left the country.

The purpose of the new clause is to ensure that a person who has complied with the term of their leave—that is, who has made an unsuccessful application for further leave in time, or who has existing leave curtailed—is not liable to prosecution under section 24(1)(b)(i) of the Immigration Act 1971 as an overstayer during any period in which they can bring an in-country appeal against a decision to remove them from the UK, or in which such an appeal was pending.

As I said in Committee, it is not our intention to force people who have observed the conditions of their leave to risk criminal sanction during their appeal. The new clause fits with the principle that there should be a "soft-touch, light-touch" compliance regime for those who comply with our system of immigration control, but far stricter enforcement for those who abuse it.

The new clause fills a gap in the original Bill about which legitimate concerns were expressed. In Committee, I undertook to explore whether we needed to introduce further proposals and, if so, whether existing rules would provide a suitable vehicle or could be modified to do so. I also undertook to consider whether new legislation was needed. After much thought and reflection, we believe that it is on balance right and appropriate to include these provisions in the Bill. That is the intention behind Government new clause 1.

I repeat that I shall return to the Dispatch Box when other hon. Members have had a chance to state their case in respect of the new clause and the other amendments that are grouped with it, quite fairly, under the broad heading of "Appeals".

Dame Cheryl Gillan (Conservative, Chesham and Amersham)

First, I appreciate the spirit in which the Minister has introduced the debate on the new clause. We had extremely valuable discussions in Committee, and we have few disputes about large portions of the Bill, but the Minister knows that some matters remain contentious, both in the House and among a wider audience.

Secondly, this group of new clauses and amendments covers the whole of the first part of the Bill. That amounts to 13 clauses, so I have a lot of ground to cover in my speech. I hope that colleagues will forgive me for boring them to death over a period of time—

Tony McNulty (Labour, Harrow East)

Surely not.

Dame Cheryl Gillan (Conservative, Chesham and Amersham)

The Minister says, "Surely not," but I look forward to hearing his views on the other amendments. I feel that he has an open mind on these matters, and that he may be moved to accept some of the proposals.

As we know, this part of the Bill removes the right of in-country appeal for leave to remain or for variation of leave from all applicants, other than those in the categories covered by clause 1(4). That means, for example, that international students applying for leave to remain or to vary their leave will have no right of appeal against refusal.

The Government intend that such applicants should have one right of appeal against a subsequent decision to remove them from the UK, but that appeal will be exercisable only outside the UK. Another problem noted in Committee is that applicants whose leave expires while they are awaiting a decision on a leave-to-remain application will become illegal overstayers, once they are told that their application has been unsuccessful.

All hon. Members will know that the consequences of overstaying illegally are serious. People in that position lose the right to work or study, and their access to benefits such as primary health care. On their way out of the UK, their passports are likely to be stamped with a record of the fact that they had no legal right to be in the UK. That would affect the likelihood of those people getting visas in future.

One feature of the Bill's passage through the House so far has been that a wide range of bodies have raised grave concerns about the Government's intention to remove people's rights of appeal in respect of refused entry clearance or leave-to-remain applications. Universities UK, the Association of Colleges, the National Union of Students and the Council for International Education have expressed concern about the impact of the measures on international students. I regret that their fears were not allayed by the Minister in Committee. In addition, as the Minister is aware, we have received excellent advice from the Immigration Law Practitioners Association, which has briefed Members on both sides of the House. The association has raised serious concerns over this part of the Bill, which I hope to reflect in some of my remarks.

To set my remarks in context, I remind the House of some basic statistics. In 2004, about 228,035 applications were made for leave to remain, of which 149,250—about 66 per cent.—were from international students. About 30 per cent., which is a large number, had to apply for a variation or extension of their leave to remain during their time in the UK. A significant number of people could be affected by the provisions.

The net effect of the first 11 clauses is to make anyone who is refused an extension of leave with right of appeal under the amended section 88(2) of the Nationality, Immigration and Asylum Act 2002 an overstayer. In fact, it is a double blow, as the applicant is not only refused further leave but precipitately finds themselves categorised as an overstayer. As the Minister admitted in Committee, the individual is, in effect, criminalised and can be prosecuted and charged with the criminal offence of breaching immigration control. To be fair, I concur that that is a rare occurrence but, although I appreciate the spirit in which the Minister introduced new clause 1, there are other problems for the overstayer, which the Minister appeared to acknowledge in Committee and that are not rare. For example, an overstayer is immediately denied the right to work and their employer could be liable to prosecution, too. The overstayer is denied the right to access benefits and the right to study, and some rights of access to the health service. They could also be liable to detention.

The new clause does not cover those points at all. Far from clarifying the situation, as we expected after Committee, it merely addresses the question of the criminal offence and does so in a way that offers only a fairly loose promise that the Government will not prosecute in the future. It certainly does not address the range of difficulties facing the overstayer, or the issues we raised in Committee. The Minister must forgive me, but I feel that he has led us—or certainly me—down the garden path a little. I was heartened by what I thought was his real intention to amend the Bill—[Interruption.] He protests, but he certainly gave a greater impression that he would be more flexible than has proved to be the reality.

In the second sitting of the Committee, the Minister said:

"There is confusion about people's status at the tail end of the decision-making process, after the decision to remove, and during the subsequent appeal against removal. I fully accept that."

He continued:

"Let me be clear: if we need to amend the primary legislation in the Bill to clarify section 24(1)(b) of the 1971 Act, I shall. Equally, if I need to clarify the same point in the immigration rules in relation to the gap between a final decision and the commencement of the appeal process, I shall."—[Official Report, Standing Committee E, 19 October 2005; c. 60–62.]

Sadly, the Minister's comments are not reflected in his amendments and some confusion remains.

Later in our Committee proceedings, the Minister was still pandering to our requests and reinforced the Committee's belief that he would grapple with the problem and present a solution. He said:

"The only issue . . . is the difference and gap between the cancellation of leave and removal. I made it clear during the debate on clause 1 on appeals that we would examine that gap and not leave people in limbo. I am happy to give that assurance again in terms of any cancellation of leave."—[Official Report, Standing Committee E, 25 October 2005; c. 245.]

I am certainly not the only one to be disappointed by the proposal in new clause 1—

Evan Harris (Liberal Democrat, Oxford West and Abingdon)

rose—

Dame Cheryl Gillan (Conservative, Chesham and Amersham)

We worked quite closely with the Liberal Democrats and I give way to the hon. Gentleman.

Evan Harris (Liberal Democrat, Oxford West and Abingdon)

I certainly endorse the hon. Lady's remarks; she saves me from having to repeat those points later. As she knows, we have tabled amendments to the new clause to try to tease out some of the issues and we hope that the Minister will explain, in answer to her questions and ours, how he will deal with the problems other than criminalisation of the overstayer.

Dame Cheryl Gillan (Conservative, Chesham and Amersham)

I am grateful to the hon. Gentleman. What is interesting about the group of amendments is that we have all tried to approach the matter from different angles, to move the Minister in the direction we thought he was taking in Committee. He will have a bit of work to do when he responds to both the hon. Gentleman and me.

The Immigration Law Practitioners Association looked at the issue and has set out one element of our disappointment. The association believes that new clause 1 does not even rectify the problem in the limited context of the criminal offence. The Minister acknowledged that there is a long time between refusal of leave and the making of removal decisions. The effect of the new clause is to suspend the chance of prosecution until the appeal is finally determined. However, subsection (3) means that during the time between refusal of leave and the removal decision there is no protection from criminal prosecution—certainly as I read it. The Minister's defence could be that it is not usual to prosecute, but if that is his line the provision looks more like window dressing than real movement.

There is further confusion. People with out-of-country appeals, even if they rapidly leave the UK, could have applications prejudiced by risk of endorsement as an overstayer. Under the immigration rules, leave to enter would normally be refused if the time limits on previous entries had failed to be observed, yet that person has no control over whether he overstays; he is simply in the hands of the Home Office and the timing of its decisions, with no redress. I hope that the Minister will deal with the issues raised by new clause 1 on the position of overstayers, which is still confusing, especially in respect of their entitlements.

I want to move on to some of the amendments tabled by my hon. Friends and me. As I pointed out earlier, about 30 per cent. of international students—about 45,000—apply for variation or extension to their leave. Common reasons for those applications, as I am sure the Minister is well aware, are to complete PhD studies, to transfer courses from one university or college to another, to attend graduation ceremonies or even to attend vivas. With the amendments, I am trying to probe the Government to find out whether they will consider the position of students in those catch-22 situations.

The educational world is seriously concerned, and so am I. I hope that the Minister agrees that, over several years, there has been broad cross-party support for the principle that where a subjective decision-making process could lead to mistakes there should be a right of appeal. That is really not an excessive request in the United Kingdom. However, under the legislation, thousands of individuals could be left on the wrong side of the law through no fault of their own, by becoming illegal overstayers the moment that the decision to refuse their application has been made.

Concern in the education sector has been driven by an awareness of the reputational damage that such a change could have on the UK as a study destination. Already, as we discussed in Committee, a raft of recent measures, which includes substantial increases in fees for leave-to-remain applications and initial visas, has had an impact—possibly damaging—on international student recruitment. There is growing evidence to suggest that international students are beginning to choose to study elsewhere.

Tony McNulty (Labour, Harrow East)

I appreciate that it is early days in the application process, but what the hon. Lady has just said is entirely wrong. Early signs are that international student applications in this country are up 5 per cent., not that they are appreciably down or that there is a trend downwards. That is simply a matter of fact from Universities UK.

Dame Cheryl Gillan (Conservative, Chesham and Amersham)

The Minister needs to consider this in relative terms. Although he believes that applications are up 5 per cent., I suggest that he look at the Organisation for Economic Co-operation and Development's report on the UK's market share in international student recruitment, which shows that the number is down by 3 per cent., although I agree that that covers the period since 1999. Acceptances for international undergraduates through the Universities and Colleges Admissions Service from key markets are also down this year in certain areas—by 22.5 per cent. for China, by 18.6 per cent. for Singapore, and by 7.9 per cent. for Malaysia. Those statistics have been provided by Universities UK.

Some 40 per cent. of vice-chancellors who responded to a Universities UK survey in December last year reported that they had seen a fall or no increase in the number of international student enrolments in the last academic year, and 50 per cent. said that they had missed their targets for international student recruitment. According to a snapshot survey by Universities UK, many institutions report a decline in international student enrolments for entry in 2005 compared with 2004. That decline inevitably means heavy financial losses for institutions—some universities report expected losses of between £1 million and £3 million this year.

UK Visas reports a decline in student visa applications in a number of key posts, including Beijing, Islamabad, Hong Kong, Kuala Lumpur and Chennai. In Beijing, student visa applications are down by 38 per cent. and in Islamabad by about 37 per cent. In the further education sector, colleges report decreases of 20 per cent. in their income from international fees. I find it hard to understand where the Minister's information about an increase in applications comes from when the evidence that Universities UK has put before me shows quite a different position.

At the same time, for example, the USA has had an increase in student applications during 2005, and is issuing about 15 per cent. more student visas this year compared with previous years, encouraged by a US Government campaign in China to attract international students to US institutions. I am informed that US visa officers have been advised to concentrate on the intention or ability to study, rather than on the intention to leave on completion of the course. Visa officers concentrated previously on the intention to leave and often had doubts about applicants' intentions to leave, and therefore refused more applications.

Australia has been running an electronic visa application system in China for several months, and it is proving popular with international students owing to its efficiency and speed. It appears that electronic applications for UK visas in countries such as China are still several years away.

All those indicators certainly show that we are not doing our best to encourage international students to study in this country. Certainly, in the context of increasing global competition and given the evidence that the market may be suffering, the Government should not press ahead with these potentially damaging measures. Although the downturn cannot be attributed to a single factor—I am being fair—visa changes are still the most commonly cited reason for recruitment difficulties this year.

It is always good on Report to go back to read what was said in Committee. Once again, the Minister has certainly admitted that attention needs to be given to illegal overstaying as a result of a leave to remain refusal being communicated after the original leave has expired. That is very welcome. However, he has not addressed concerns about the fact that the appeal against removal will not be exercisable in the UK. He has not adequately explained why he thinks it acceptable that students who find that they need to stay for an extra couple of weeks—for example, to attend graduation ceremonies—must return to their home countries to appeal against a decision to remove them from the UK, when it is absolutely clear that, in many cases that relate to students, that will result in the individuals missing the occasion for which they require leave to remain in the UK.

Simon Hughes (Liberal Democrat, North Southwark and Bermondsey)

Entirely in support of that proposition, may I tell the hon. Lady something that is not theory, but a real experience that many hon. Members have had to deal with for their own constituents and others? I know of someone from Latin America who did a masters degree for a year, finished in the summer and graduated in December, but was required to go back with all the additional expense entailed. In the meantime they were being encouraged to apply for both jobs and further academic opportunities, but they could not do that if they were not in this country, so their whole career was put in jeopardy because of the imposition of that requirement.

Dame Cheryl Gillan (Conservative, Chesham and Amersham)

I am grateful to the hon. Gentleman for giving that example because it certainly puts the flesh on the bones of the points that I am making and that other hon. Members will make when they speak to this group of amendments. It is sad to think that someone's career can be blighted by archaic rules practised in this country, when it would be easy for the Minister to make exceptions in such cases and dispense with the anomalies that we are pointing out.

Simon Hughes (Liberal Democrat, North Southwark and Bermondsey)

A further anomaly is produced—the Minister is alert to this and I hope that he will be sympathetic—when those people have to return. An integrity issue then arises: what do they say is the purpose of coming back? The purpose is to graduate, but are they seeking to come as a visitor, a student or to continue the job applications? So someone who has been entirely open and honest and has contributed to the British economy and society and wants to contribute further may be caught out completely inadvertently because they are in a no person's land when they come back.

Dame Cheryl Gillan (Conservative, Chesham and Amersham)

Again, I am grateful to the hon. Gentleman for making that point. I have been trying to outline exactly that Catch-22 situation, which is something that the Government need to take seriously, as Opposition Members have done.

Universities UK and the other organisations in the education and immigration sectors firmly oppose the scheme that the Government propose in the Bill. I was disappointed that the Minister was not willing to accept the amendments that I moved in Committee. Unfortunately, these amendments are more narrowly focused on preserving appeals only for international students. Since the Minister repeatedly emphasised in Committee that he understood the education sector's concerns, we hope that he will now reconsider at least some of these proposals. I should like him to tell us whether he has had any representation from the Department for Education and Skills about how it feels about the provisions that he is proposing from the Home Office.

Again, we must put the proposals clearly into context. There are 210,510 international students in higher education in the UK today. International fee income accounts for 8 per cent. of the total income to the higher education sector. That is about £1.5 billion a year. A further 75,000 international students are studying in further education colleges, and they bring £58 million in tuition fees alone into the FE sector. It is estimated that, in the round, international students contribute about £5 billion to the UK economy through their spending on goods, services, accommodation and so on.

Robert Smith (Liberal Democrat, West Aberdeenshire and Kincardine)

May I just reinforce the importance of not just that direct economic contribution, but the long-term lifetime contribution of those students' links with the UK, especially if they have studied a practical subject such as engineering? They are much more likely to look favourably on dealing and trading with us when they go back to become major decision makers in their own countries. How we treat them makes a big difference to how they will relate to this country in the future.

Dame Cheryl Gillan (Conservative, Chesham and Amersham)

The hon. Gentleman is absolutely right. We are sending the wrong message around the world about the way in which we welcome students here. We are underestimating the enormous long-term benefits that people who are educated in this country can enjoy. Many hon. Members will have been to places abroad where people have said proudly that they were educated in the United Kingdom. That is seen as a badge of honour, so the Government must take anything that damages our reputation in that area seriously before deciding to dispense with public relations so readily through such a draconian measure.

Elfyn Llwyd (Plaid Cymru, Meirionnydd Nant Conwy)

I support the hon. Lady's contentions fully. She referred to the large number of international students whom we welcome. Even on the Government's figures, at least 25 per cent. of international students' appeals succeed at the moment. Secondly, it is awful to give out the signal internationally that such young people may be criminalised for wanting to stay on in the course of their legitimate studies. The situation is utterly appalling.

Dame Cheryl Gillan (Conservative, Chesham and Amersham)

I thank the hon. Gentleman for his words. I hope that he will make a contribution to the debate, certainly about Government amendment No. 27, which relates to monitoring. If we were dealing with a situation in which few mistakes were made and the process was not subjective, we might feel more comfortable. Unfortunately, that is not the case, which explains the concerns being expressed in all quarters of the House.

Let me continue to put the matter in context. Education and training exports are worth £10.2 billion a year. I do not know whether the Minister is aware that that is more than the amount for food, tobacco, drink, insurance, trips and aircraft. The Chancellor predicted that the figure could be twice that by 2020. If we send out the wrong messages abroad, we will jeopardise that income to UK plc.

Simon Hughes (Liberal Democrat, North Southwark and Bermondsey)

The consequence of the changes might not be addressing the mischief with which the Government intend to deal. There is mischief because there have been examples of bogus colleges, institutions and courses. It is perfectly proper not to want someone to keep applying to come back again and again when they never pass any exams and are still here seven years after they first came. However, surely reputable, recognised and accepted universities, colleges and other places of learning that offer recognised and accepted qualifications are doing all the right things that Opposition Members—and many Labour Members—would support.

Dame Cheryl Gillan (Conservative, Chesham and Amersham)

I draw the hon. Gentleman's attention to amendment No. 4, which would insert in the Bill the phrase:

"the leave was granted to a person to follow a course of study at a UK education institution on the approved register".

That amendment deals with his point. No one wants to encourage bogus educational establishments and we know that there has been such abuse. With respect, however, the provisions in the Bill are not the best way of dealing with the problem.

Roger Gale (Conservative, North Thanet)

I would hate it if the wrong impression were given. Does my hon. Friend agree that the Home Office's track record on determining whether an educational institution is bona fide is not terribly good, as I hope to demonstrate if I catch the Speaker's eye later?

Dame Cheryl Gillan (Conservative, Chesham and Amersham)

I hope that my hon. Friend will manage to catch the Speaker's eye because he can cite a pertinent and personal example from his constituency that should be brought to the Minister's attention. The Government's track record is far from perfect, hence the problems that we are encountering.

Let me return to the point about engineering made by the hon. Member for West Aberdeenshire and Kincardine (Sir Robert Smith). Some 39 per cent. of postgraduate research students who are here are international. There are especially high proportions of such students in science, engineering and technology subjects. As the European Commission tells us—goodness knows why I believe the European Commission on this occasion, but I think I probably do—Europe is 700,000 scientists short of meeting what was originally the Lisbon goal of making Europe into a competitive and dynamic set of knowledge-driven economies.

The Prime Minister launched an initiative in 1999 to attract an extra 50,000 international students to higher education and another 25,000 to further education by 2004. I understand that the Government plan to renew that initiative, but at the same time they are sending out conflicting messages through the Bill.

The UK attracts 13 per cent. of all international students, with the US attracting 31 per cent. However, we are losing market share. As I said, according to the OECD, the UK lost 3 per cent. of its market share between 1998 and 2002. That was the fastest decline of any OECD country. I admit that the US also lost market share after tightening up on visas following 9/11. It suffered a 2 per cent. drop in 2002–03, but it has learned its lesson and eased up on its visa restrictions. The UK could learn a lesson from the Americans on this matter.

Amendment No. 6 would delete clause 4 in its entirety. Depending on the Minister's response to the debate, I might be forced to press the amendment to a Division. If that happens, I hope that Members of other Opposition parties—and, indeed, some Labour Members—will join me in the Lobby. The amendment is an attempt to address the heart of our concerns about the Bill. The removal of rights of appeal is opposed on principle and on practical grounds by such a wide range of organisations that I wish to focus the Minister's mind clearly on the problems.

The Minister has argued that when the new points system on which the Government have been consulting is introduced, it will represent a new and better system. However, the details have not even been finalised yet, let alone road-tested and proven to be effective. In Committee, the Minister repeatedly asked us to trust him. He said that he was confident that the new points system would improve initial decision making. He implied that if we just wait and see, we shall understand that the Government are correct to predict, as they appear to do, that the right of appeal will be rendered unnecessary by improvements to the immigration system.

The Minister also said that clause 4 was unlikely to commence immediately. I have read carefully what the Minister said in Committee about amendments to clause 4. His words on the timing of the abolition of appeal were not exactly reassuring. He said:

"I cannot say absolutely that clause 4 will not be introduced until after the points system. To be helpful to the Committee—I say this on a personal level, so do not put me up against a wall and hold me to this—I think that it is very unlikely that clause 4 will be implemented before, at the very least, the transition period between the absolute points system and the introduction of elements of the system . . . Do not shoot me should some of clause 4 be implemented before the points system is introduced, but in all likelihood it may not."—[Official Report, Standing Committee E, 20 October 2005; c. 116.]

That was as clear as mud. Quite frankly, on the basis of that performance, I would quite like to put the Minister up against a wall and shoot him, because that was probably one of the most inarticulate utterances that we heard from him in Committee.

Tony McNulty (Labour, Harrow East)

I am sure there were others.

Dame Cheryl Gillan (Conservative, Chesham and Amersham)

The Minister says that, but I have been through the proceedings with a fine-toothed comb and his performance was not that bad.

Perhaps the Minister is now in a position to offer a little more clarity about the intended timing. He will understand that the phrase

"in all likelihood it may not"

is not an especially firm reassurance to those who believe that it would be entirely wrong to abolish appeals before the points system is up and running and proven to be working.

We need to focus on amendment No. 6, because the quality of initial decision making is so low that an adequate independent appeals system is essential to the credibility and fairness of our immigration system.

I am sure that the Home Office view is that appeals are expensive and time consuming for the applicant and especially for the Government, but they would be far less expensive and time consuming if there were not so many basic errors in the initial handling of cases.

Philip Hollobone (Conservative, Kettering)

My hon. Friend makes a good point about initial decisions being incorrect. Is not that a theme in all the Government's major agencies, including those administering tax credits, child support and immigration?

Dame Cheryl Gillan (Conservative, Chesham and Amersham)

My hon. Friend tempts me to go down an enticing route. Yes, the performance of many Government agencies is sadly lacking, especially the Child Support Agency, which has an appalling record. I had an Adjournment debate on that very agency only the other day: a constituent of mine felt that she had been very badly treated.

The problem is reflected in the statistics. In 2003–04, 65 per cent. of the 225,030 applications for student visas were successful, but 32 per cent. were refused. There is a considerable body of evidence to suggest that the reasons for refusal are frequently inappropriate or based on a simple misunderstanding of the facts of the case in question. In 2003, we were told that 52 per cent. of all applicants who had been refused initial entry clearance appealed successfully. In cases relating to international students, the official proportion of successful appeals is 25 per cent., but the Immigration Advisory Service states that the appeal was successful in 49 per cent. of the cases in which it acted on behalf of students.

In 90 per cent. of the cases involving international students who had accepted offers from the university of Sheffield and who were refused visas, either a successful appeal was made or, more commonly, the entry clearance post reconsidered the case before it reached appeal. Professor Bob Boucher, vice-chancellor of the university of Sheffield, has repeatedly made the point that without the right of appeal the incentive for entry clearance officers to reverse a visa refusal following representations will no longer exist. He is echoing a point that is extremely familiar to the House. In 1992, the then shadow Home Secretary opposed a similar measure in the Bill that became the Asylum and Immigration Appeals Act 1993, which removed the right of appeal for rejected visitors and short-term students. He said:

"When a right of appeal is removed, what is removed is a valuable and necessary constraint on those who exercise original jurisdiction . . . The immigration officer who knows that his decision may be subject to appeal is likely to be a good deal more circumspect, careful and even-handed than the officer who knows that his power of decision is absolute."—[Official Report, 2 November 1992; Vol. 213, c. 43.]

I ask the Minister the question I that asked in Committee, to which his answer then was not satisfactory: what has changed since then? Was the right hon. Member for Sedgefield (Mr. Blair) wrong, or merely naive at that stage?

For the benefit of the House it is important that I give some examples to illustrate my arguments, although I expect that other hon. Members will offer examples of their own. A prospective student with a place at a highly regarded university was told:

"Similar courses to the one you are proposing to follow were available in Sri Lanka at a fraction of the cost of a similar course in the United Kingdom."

Unbelievable. Another university reports considerable difficulty in recent months with the visa application process, especially from China and South Asia. It said that on one academic linkage between the university and a partner institution in China, out of 25 applications only 10 were successful in obtaining a visa and then only after two or three attempts. Only as a result of the intervention of senior university staff and Ministry staff in China was a higher level of success achieved, despite it being a joint programme. It said that there appeared to be little appreciation that students had studied two years in China prior to application with the specific intent to transfer for the third and final year to a UK university. The university believes that it loses between 200 and 300 genuine students each year due to careless screening, inappropriate questioning and unsympathetic consideration by some visa clearance officers sending the signal of fortress Britain, where students are not necessarily welcome.

Another university reports difficulties with visas. For one student, doubts were expressed about the student's ability to maintain and accommodate herself—notwithstanding the fact that she had a grant from her own home Government to cover all of her costs. The immigration officer in the case also said that there was no reason for her to experience the British education system, which runs contrary to the spirit of the Prime Minister's initiative. There seems to be scope for further training of ECOs on the importance and quality of UK education. One institution reported that a prospective student from China was told that the course he proposed to study was widely available in China, led to the same qualification at significantly cheaper cost, and said that he could not satisfactorily explain why he did not undertake the course in China.

Difficulties for sponsored students have been reported by other institutions. Two students were refused on the basis of insufficient funds despite both producing evidence of scholarships that covered the full cost of living and studying in the UK; the decisions in their cases were overturned by entry clearance managers on review following institutional representations.

I think that I have given the House the flavour of the problem. We are in danger of damaging our reputation further. I do not know whether the Minister has read the article in The Independent of 20 October, which stated:

"The drop in overseas students becoming obvious this term is affecting old and new universities alike. The big boys such as Warwick and Birmingham are experiencing falls, just as Derby, Greenwich and Southampton Solent are. We won't know the exact figures until mid-November . . . so we don't know yet whether overall overseas student numbers will be down. But we do know that a substantial number of universities are worried. Overseas students have kept British universities afloat, particularly in some subjects. Universities cannot afford a meltdown.

The reasons for the fall are complex. According to . . . the director of education and training at the British Council, huge competition is building in the overseas student market. Australia, New Zealand, America and Canada have raised their game, and new competitors are emerging, such as Singapore and Malaysia. And China, which used to send large numbers of students abroad, is now recruiting overseas students to its shores."

If the Minister fails to heed that warning, it will be at the expense of our education establishments.

I have probably spoken for far too long on this group of amendments, but I feel strongly about the subject. I shall listen carefully to the Minister and if I am less than satisfied by his response, I hope to register our protest against the measures by dividing the House.

My final comment is on Government amendment No. 27, to which the Minister did not speak. I am pleased to see at least some response to our concerns about the quality of entry clearance decisions, but I ask the Minister to make it clear whether the monitor mentioned in the amendment is a new person, what case load is envisaged and what resources will be allocated to the role. Although I welcome the post, it should not be seen as a plaster to cover the wound of the removal of the appeals system; a monitor will in no way substitute for that system.

Neil Gerrard (Labour, Walthamstow)

I shall try to be briefer than the hon. Member for Chesham and Amersham (Mrs. Gillan) was in explaining my concerns about new clause 1 and amendments Nos. 47, 6 and 33.

New clause 1 is generally welcome because it goes some way to meeting some of the concerns raised in Committee about the position of people whose leave had been curtailed or whose application for variation of leave had been refused and whether they would immediately be committing an offence. There are still some uncertainties. What exactly does it mean and how will it operate? I would be grateful if the Minister could address some of those issues when he replies.

Subsection (3) is in the middle of the list of conditions that someone has to fulfil in order not to commit an offence. The condition is

"that a decision has been made to remove the person from the United Kingdom."

What does that mean in practice? Does it mean that the person has been served with notice of decision to remove, for example? There are many examples where decisions are taken to refuse an application of one sort or another. The decisions having been taken, there is then quite a considerable gap before anything happens about a removal decision. There is certainly a gap before the removal decision is served on the person concerned. I would like there to be clarify on what that condition will mean in practice.

Secondly, if somebody is covered by new clause 1, is not committing an offence and is awaiting an appeal, exactly what rights do they retain given the permissions that they already have? If someone had an entitlement to work, will that entitlement continue until the time where either removal or appeal occurs? People might be entitled to benefits or other forms of support. They will certainly be coming under some of the conditions in the clause in future. There are those who have been given refugee status—which will now be a temporary protection—whose leave has been curtailed. Will someone in that position still be entitled to any form of support when they are awaiting a decision on appeal? It would be helpful to have some clarity. The clause is well intentioned, but I am not convinced that it is drafted perfectly to cover all situations that might arise.

Simon Hughes (Liberal Democrat, North Southwark and Bermondsey)

I endorse and underline the point about the need for certainty, especially as regards the right to continue in employment. The benefits system is also important. In my experience, there are many cases where people have had the right to work and then find themselves in the in-between period. They need to be able to produce something to confirm that they continue to have the right to work, that they are self-sufficient and are independent, otherwise they suddenly have to look to the state or to other people for benefits. That means that their prospects are again put at risk. Clearly, an employer does not want to break the law. It is an important issue and clarity is needed.

Neil Gerrard (Labour, Walthamstow)

That situation frequently occurs now. Someone may have been given temporary permission and perhaps exceptional leave to remain, which is coming to an end. They submit an application for indefinite leave, but that will take months to determine. Although their entitlements continue, if they do not have a piece of paper that proves that, there will be problems. I have come across many cases of people having employment problems who have been in that situation. There are also many people who have problems in accessing benefits where the Benefits Agency has not been prepared to accept that the earlier permission still existed. There is then the performance of having to get in touch with the Home Office for confirmation. We need absolute clarity and certainty about what someone's rights will be during the interim period. We must be clear about the meaning of the clause. I suspect that the drafting still has some holes in it.

Sarah Teather (Liberal Democrat, Brent East)

Does the hon. Gentleman agree that the problem is exacerbated by the time that it takes the Home Office to make decisions and by the complete opacity of its replies to constituents and to their solicitors? There is no information contained in the letters detailing whether these people really have the right to work or what their status is. This causes the problem. If we could have clarity and speedy decision-making, the situation would be improved.

Neil Gerrard (Labour, Walthamstow)

That is right. Ministers agreed fairly recently that they would look at the form of the letters that are being sent out to ensure that they are clearer in what they say. I hope that there will be improvements and that we shall get away from the notorious 30-week letters that state that decisions will be made within 30 weeks, and then six months later a constituent is asking his MP what is happening.

Irrespective of the contents of the letters, it is important to be clear about how the new clause will operate and what people's rights will be. We need to know what they are entitled to and what is meant by, for example, a decision to remove. If we do not have that clarity, many people will be in confused situations, with the Benefits Agency, housing authorities and employers not really knowing quite where they stand. Many people will be ending up on our doorsteps wanting help and wanting to know just where they are in the process.

I welcome the intention behind the clause because it addresses issues that were raised in Committee, but I am not convinced that it is right, given the way in which it has been formulated.

I move on to the amendments that relate to new clauses 1 and 4. There are amendments that suggest that we leave out, in their entirety, both new clauses. I am gratified that the Conservative party has been converted to the cause of appeals. The hon. Member for Chesham and Amersham quoted my right hon. Friend the Prime Minister, when he was shadow Home Secretary. I think that I have heard the quote about half a dozen times during debates on the Bill. My right hon. Friend was responding to a Conservative Government who were taking away a swathe of appeal rights. At least the Opposition have moved in the right direction.

All of us who deal with these matters in our constituencies have concerns about the quality of the initial decision-making and about who will lose appeal rights under the provisions that are before us. I hope that my hon. Friend the Minister will say in some detail how he intends to use the powers that he is given within clauses 1 and 4. There are regulation-making powers. In clause 1(4)(fb), the right is given to the Minister effectively to restore appeal rights to more or less whoever he chooses by regulation. He has indicated already that he will intend to use that provision in respect of people who have been given humanitarian protection rather than full refugee status. That is one clear category of person. I hope that he will consider using the powers rather more widely. There are, for example, unaccompanied minors. There are other categories of people whom I hope my hon. Friend will consider.

Before coming to this place, I worked for a considerable period in further education and dealt with many overseas students. I am familiar with the arguments. Much has been done to get rid of fake colleges. The hon. Member for North Thanet (Mr. Gale) has raised some scepticism about the Home Office. It is probably the Department for Educations and Skills that he needs to direct his fire at if he thinks that a wrong decision has been made on whether an institution is on the approved list.

I have been pleased with much of what has been done to get rid of some of the fake institutions. For a start, they were conning students. They were taking large amounts of money from people who really did not have that much money, only to give them nothing worth while. Some of them were facilitating entry into the country of people who had no intention of being genuine students.

We have done quite a lot to get rid of much the abuse in the system. I am a little wary of proposals to delete clause 1 entirely without replacing some of the appeal rights. People who are given refugee status are no longer given indefinite leave to remain and receive only temporary protection, and clause 1 creates a right of appeal for them if their leave is curtailed in future. Caution is therefore required in removing that provision.

Evan Harris (Liberal Democrat, Oxford West and Abingdon)

Members who think that there are various problems with clause 1, including the things that the hon. Gentleman has raised, cannot redesign the provision on Report. We shall seek to delete clause 1, but we also want the other place to grasp the small kernel of good provisions in the clause and replace the rest. I want the hon. Gentleman to know that we accept his concerns.

Neil Gerrard (Labour, Walthamstow)

I am grateful, as that is obviously important. I do not like the new measure which removes indefinite leave for people who are given refugee status. We have had an Adjournment debate on that issue, but the change has been made so it is vital that those people should have the right of appeal if their leave is curtailed.

In Committee, I raised the issue of unaccompanied minors and, encouragingly, the Minister suggested that he was prepared to look at the issue. Quite a few minors who apply for asylum are simply granted discretionary leave for a year—in some cases, it is less than a year—every year until they reach the age of 18. When they do so they are refused variation of leave on the ground that leave was only granted on the basis of age. People who are given leave for one year or less after being refused asylum do not have the right to appeal against that refusal. Unaccompanied minors or children are given a decision on the variation of leave at 18, but they do not have the right to appeal against the initial refusal. If clause 1 ends the right to appeal against the variation of leave, many of those unaccompanied children will not have any right to appeal at any point in the process against the substantive decision on their asylum claim. That serious problem has been created by the legislation.

Simon Hughes (Liberal Democrat, North Southwark and Bermondsey)

I hope that we can rid of clause 1, but if we do nothing else today, I hope that Ministers will respond positively to what the hon. Gentleman says. People come here on their own—often without any family to leave behind—from Afghanistan, Iraq, Sierra Leone and central Africa, which has suffered from civil war. They do not have anyone else in the world, but they do brilliantly here—they gain a place at university or college and can contribute to the British economy. Suddenly, at 18, 18½ or 19, they are told that they must go home. However, they do not have a home to go to, so they must have a chance to appeal.

Neil Gerrard (Labour, Walthamstow)

I accept that. In Committee, the Minister accepted that this was a serious issue and that he needed to explore what could be done. He could make a statement that he will use the powers available to him under clause 1 to ensure that unaccompanied minors, as well as people who are granted humanitarian protection, will keep the right of appeal. I hope that at the very least that is what we achieve. Support for unaccompanied minors could also be a problem under Government new clause 1, as it is not clear that such children are still entitled to support from the local authority if they are leaving care, as is supposed to be the case for all children leaving care.

Clause 4 leaves a great deal of regulatory discretion to the Minister. He has received representations from many hon. Members, so he will know of concerns about the removal of appeal rights under that provision. Many Members are very worried about the possible removal of oral appeals for family visitors. It would be extremely helpful if he could further clarify his approach this afternoon. The Government restored appeal rights to family visitors and we do not want to reverse that positive change.

John Leech (Liberal Democrat, Manchester, Withington)

Young single men have been disproportionately affected by the regulations on family visitor appeals. They may have a low-paid job, and they do not have a wife, children or other family connections in their country of origin. As a result, they are told that they do not have a tie to make them return to their own country.

Neil Gerrard (Labour, Walthamstow)

I have seen similar cases. Again, the quality of the initial decision making is crucial, but an appeal mechanism should be retained. I hope that the Minister can provide us with comfort on this point.

Sarah Teather (Liberal Democrat, Brent East)

May I echo the comments of my hon. Friend the Member for Manchester, Withington (Mr. Leech)? I raised the issue when I was in Delhi with the head of UK visas there, and I have seen many such cases in my constituency. A family may be allowed to visit for a wedding or another event, and the only person who will be refused entry will be the young man.

Neil Gerrard (Labour, Walthamstow)

I am sure that Members who deal with such cases will know of similar instances. For example, I recently learned that two sisters applied for a visa to visit. One was granted a visa, but the other was not. It is difficult to see the logic behind those decisions. If there is no right of appeal there is clearly a problem, which is why I am seeking assurances from the Minister.

I echo what has been said about Government amendment No. 27 and I welcome the extension of powers. It would be useful to know exactly how that will operate and whether the extension applies to the monitor who deals with other types of case or whether there will be an additional monitor. Many hon. Members are concerned about appeal rights in the Bill. Powers in Government new clauses 1 and 4 essentially give the Minister considerable discretion to retain appeal rights as he wishes. I hope that he can give us assurances that, in addition to appeals for people given humanitarian protection, he will give serious consideration to maintaining lone appeals for other significant groups.

Evan Harris (Liberal Democrat, Oxford West and Abingdon)

I shall deal with our concerns about clause 1, and I shall also speak to amendment No. 47, which would delete clause 1. I shall look at the problem of overstaying in clauses 1, 3 and 11, and the way in which the Government attempt to solve that problem in new clause 1, as well as the amendments to that provision that my hon. Friends and I have tabled. Finally, I shall say a brief word about clause 4, as a great deal has already been said about it.

The problem with clause 1 is that people will not be allowed to appeal against a refusal of extension of leave in country. Students, workers and spouses will lose their in-country right of appeal and will have to leave the country in order to appeal. That seems an unfair way of treating people who are in the United Kingdom legally, have abided by the terms of their leave and are simply seeking to extend it.

Sometimes the initial leave is given with a view to the likelihood of further leave being granted in future. A spouse or an unmarried or civil partner is expected to stay with their partner for more than the initial two year period, of course. If there were doubts about that, they would not have been given leave in the first place. The granting of leave in such a case presupposes a reasonable right to apply for leave and therefore to appeal against decisions that are wrong, without having to seek human rights grounds on which to do so. In addition, business people are welcomed to the UK with limited leave in order to set up a business. I presume the expectation is that they will grow that business once they are here, and therefore seek leave to remain more than two years, particularly in view of the provision that they invest more than £200,000.

Various groups of people would be affected by the clause. I have mentioned some of them. They include a person married here who has been living two years with their British citizen or British resident spouse, perhaps with children, who has been refused indefinite leave to remain on the basis of that marriage. I will deal in a moment with the proportion of decisions that are won on appeal. It is pretty significant to get that wrong and separate people from their spouse and/or their children.

The clause would also affect a work permit-holder—for example, a nurse, a maths teacher or a head of an export department in a big company, whose employer wants them to extend their contract but whose application is refused, at least in the average third of cases where that decision is wrong; a person established in a business, who has invested £200,000 or more, and who has created, under the regulations, at least two jobs for people settled in the UK; and a student several years into their studies—we heard examples of how they might be affected in respect of graduation.

The Government's position seems extremely unreasonable. It is not as though such people had hopeless cases. There is no right of appeal in the case of mandatory refusals—that is, where there is a mandatory requirement on the basis of age or nationality, or specific requirements to switch from one category of leave to another. Those cases do not attract a right of appeal. As I said, 33 per cent. of in-country non-asylum appeals succeeded in 2003, the last year for which figures are available. The Government have never justified the sweeping powers in clause 1.

The Minister suggested in Committee that it was unfair to give a right of appeal against a refusal to vary leave in cases where the decision results in people having no leave left, whereas those who applied and were refused before their original leave runs out get no such appeal. However, that unfairness does not exist in practice, because as we know, the Home Office urges people not to apply for a variation, such as an extension, until shortly—usually a month—before their leave expires. When a person applies for a variation and is refused before their leave runs out, the normal practice would be for them to make a fresh application before the leave expires. It is not an appeal, but it provides an opportunity to address what are said to be the shortcomings in their original application, which are identified in the refusal.

At present, people prefer not to do that because of the cost, but if they are faced with the prospect of becoming overstayers if they do not, more will apply earlier. If more people apply more than a month before their leave runs out, that will create more bureaucracy or a replacement bureaucracy for the Home Office. That does not make sense. I see one of the Ministers—the Under-Secretary of State for the Home Department, the hon. Member for Leigh (Andy Burnham)—in his place. Can he confirm that it will be his policy to continue to tell people not to apply for a variation more than 28 days in advance, or does he recognise that the effect will be that people will want the opportunity to get their refusal while they still have leave to remain?

I endorse the points made by the hon. Member for Walthamstow (Mr. Gerrard) in respect of unaccompanied minors. I shall not repeat what he said in the Chamber or in Committee, but he is right.

Our main concerns about clause 1, in summary, are that the Government's desire for a single appeal can be achieved using existing powers. If the object is streamlining, we demonstrated in Committee that there are alternative ways to achieve that. We are not opposed absolutely to streamlining, but the provision is not a fair way of doing so. It is misleading to say, as the clause does, that people will still have a right of appeal against removal, if they will be able to exercise it only after they have left the UK. That is not the same thing. It puts people at a significant disadvantage and it is no cheaper for the Home Office to run the appeal from abroad. If anything, it may well be more expensive. The Government are relying on people not bothering to appeal. Denial of justice is not a substitute for justice.

We have already explained that the Home Office decision making is poor, so the best thing the Home Office could do is improve decision making, not deny appeal rights. The rights at stake are important. We have discussed the situation of spouses and people who are investing or working or who want to continue their rights to education and training. The opportunity for all these good things—family life, more education and training, investment—will be lost if people have to leave the country for an appeal against removal. The current system is not broken in terms of its structure. Decision making could be improved, but it does not need fixing on the suggested basis.

In Committee the Minister spoke at length about the new managed migration schemes. I am not inviting him to do so again, as he spoke eloquently and with passion on the subject then. Whatever the system is, there will still be the problem of people seeking to extend their leave. The Government say there will be a new and better scheme, but that does not solve the problem of injustice. There will still be human rights applications, which will still be allowed, but because of the fracture to family life that will result from the provision, more people will attempt to make such appeals than would otherwise be the case. The Government will not gain as much as they anticipate.

On the new clause, the problem that the Government have created in respect of clauses 1 and 11, which was clause 9 earlier, is, as we heard from the hon. Member for Chesham and Amersham (Mrs. Gillan), that people are effectively overstayers when they receive the first judgment—that is, they do not get extended leave. I am disappointed by new clause 1, which is why I tabled a series of amendments. The hon. Lady and the hon. Member for Walthamstow spoke to those amendments, so it will not be necessary for me to speak to them at length.

The Minister said he would deal with the problem of criminalisation, although he did not accept the language adopted. However, as we heard from the hon. Lady, the new clause does not do that very effectively. He also said in Committee, at column 60, that he intended to clarify matters. However, given all the issues that were raised, not least by the hon. Member for Walthamstow, the new clause does not do so at all. It does little more than reflect the status quo and is quite inadequate.

On the basis of what he has heard in the debate, can the Minister say whether there will be other provisions to follow new clause 1? If he can give that undertaking, it would be welcome. However, if the Government propose nothing more than new clause 1 to deal with the issues raised by calling people overstayers before they have had a chance to exercise their right of appeal, that is a problem. Does he recognise that people who lodge a human rights appeal have an in-country right of appeal, and that, like everyone else with an in-country right of appeal now, they are allowed to stay in the country on the basis of their existing conditions while that appeal is heard? Even when there is a human rights appeal to be heard and it is not certified as clearly unfounded, the Government are saying that those people will still be treated as overstayers. That is a real change for people in the country who are arguing a non-certified human rights claim. Will the Minister at least concede that those people should not be considered as overstayers and that their existing leave should carry through to the appeal stage, as it does now? Does he think that anyone should be entitled to carry through their appeal right, and if so, who?

Is the Minister going to do something about the problem, which the hon. Member for Chesham and Amersham has already identified, that people who leave the country to appeal will do so as overstayers, which will blot their records? That problem is caused by the architecture of the Bill, and new clause 1 does not deal with it effectively.

I will deal with the Liberal Democrat amendments to new clause 1. Amendment (c) would insert the following:

"At a time when the conditions in this section are satisfied a person's leave to enter or remain is extended by virtue of this section save that such extension shall not prevent a decision to remove the person from the United Kingdom being made."

That is the key point that the hon. Members for Walthamstow and for Chesham and Amersham and I were trying to capture in Committee. I cannot see why it is not possible for the right to remain to carry through to a simple right to appeal against the decision to remove.

Amendment (a) would leave out "Condition 2" to probe why none of the rights not to be persecuted apply until after a decision has been made to remove, when we know that a decision to remove can happen many days, weeks or months after the decision on the extension.

Amendment (b) is a consequential amendment. Amendments (d) and (e) are another way of making the point to the Government that their approach is not reasonable. They seek to clarify that people are entitled to some consideration when a decision could be made to remove a person.

In his introductory remarks, the Minister said that he would not discuss the amendments until they had been introduced. I hope that he will address not only their structure, but the real reasons behind them, which have been politely put from both sides of the House.

We have a major problem with clause 4 in and of itself. It is not right when the quality of decision making is so poor to sweep aside appeal rights. The priority should be to improve decision making, and in Committee we recognised the Government's willingness to implement programmes to improve decisions. Sweeping away appeal rights is wrong, regardless of the consequences for the universities and for family life.

I endorse the points made by the hon. Member for Chesham and Amersham and will not repeat them, but I have a number of questions. Are the Government planning to define "family visitor" more narrowly? And will Parliament have an opportunity to examine the draft regulations to see who will have appeal rights before hon. Members are asked to vote on the legislation?

Dame Cheryl Gillan (Conservative, Chesham and Amersham)

The hon. Gentleman is right that whether an applicant is a member of the family needs consideration. The definition will be determined by regulation, and it could be extremely restrictive. Does he agree that, for example, an unmarried partner may have no right of appeal under the regulation?

Evan Harris (Liberal Democrat, Oxford West and Abingdon)

That is right. It is not clear whether an unmarried or civil partner is a dependent relative. Given that the Government are keen to recognise civil partners—I commend them for doing so—the point is important.

In Committee, I raised the question of conformity with European Community law, and the Minister expressed his willingness to return to that matter. If I have missed a letter from him, or if I misunderstood him in Committee, I apologise, but that question needs to be addressed. If the Bill is to conform with EC law, when will regulations be laid before Parliament?

In Committee, I also raised the question of returning residents. Returning residents are people with indefinite leave to remain in the UK who have been out of the country and who are refused entry when they seek to return. Will they lose the opportunity to return to their long-term home with no right of appeal, and if so, what is the Government's purpose? The Government must think again about clause 4.

I am giving the Government an opportunity to provide assurances on improving new clause 1, which would be something. The hon. Member for Walthamstow has said that he has found the kernel of something good in new clause 1, but he must have looked very closely.

Neil Gerrard (Labour, Walthamstow)

The hon. Gentleman has put the words into my mouth, because I do not think that I said that new clause 1 is "good". New clause 1 is obviously necessary if refugees are no longer to be given indefinite leave to remain, which is a change that I do not like.

Evan Harris (Liberal Democrat, Oxford West and Abingdon)

I take the hon. Gentleman's point. If new clause 1 is not improved, or if the Government do not indicate that they will consider our amendments, with your permission, Mr. Deputy Speaker, we will seek to vote on amendment No. 47, which would delete clause 1. We would ask hon. Members on both sides of the House to support us in such a vote because of the real problems that the Bill will create. I feel that if we do not do it here, another place could, should and will.

Roger Gale (Conservative, North Thanet)

I want to discuss amendment No. 3 and the right of appeal for would-be students, and I will use the example of a particular educational establishment to demonstrate why the Government's approach is profoundly wrong.

Before I do so, as a generality I endorse entirely the observations made by my hon. Friend the Member for Chesham and Amersham (Mrs. Gillan) in her opening remarks. The measures undoubtedly damage the interests of universities in the United Kingdom, and, perhaps much more importantly, they also damage the interests of UK Ltd.

Tony McNulty (Labour, Harrow East)

indicated dissent.

Roger Gale (Conservative, North Thanet)

My hon. Friend the Member for Chesham and Amersham has made the point that educational establishments—universities and colleges—are experiencing a decline in the numbers of foreign students. Those of us who have the good fortune to travel abroad as election observers in developing countries with the Inter-Parliamentary Union or the Commonwealth Parliamentary Association see China, which is the largest developing country in the world, moving into a whole host of other countries, where it seeks to gain an advantage in the same way as the former Soviet Union.

The British legacy—let us be proud of it—across the continent of Africa is significant, but scores of Africans are now looking to other places and other institutions both to the east and to the west of this country because they feel that it will be difficult to get here, that it will be expensive to pay their way and that they will not be made welcome. Nothing could be further from the truth: if one asks the university vice-chancellors, they say that they want to welcome overseas students with open arms, but the impression has been given—impressions are vital, particularly in the developing world—that it will be difficult and unpleasant to study in Britain and that overseas students are not wanted, which is a sad state of affairs.

I ask the Minister to consider the effect of that impression in a generation's time. All those people are ambassadors, many of whom have brilliant brains and very good qualifications. They have traditionally come to the United Kingdom, qualified, and gone back home having become the friends of this country. Now, they are going to be lost to us. It is no good the Minister shaking his head, as he did a few moments ago. The Bill will have a profound effect on British business and our power and influence throughout the world. That is the backdrop to what I want to say.

I want to take one very specific point to prove why I believe that this part of the Bill is nonsense and amendment No. 3 is so important. The Institute of St. Anselm in Cliftonville in my constituency is a highly reputable Roman Catholic college. Some of its buildings were opened by Archbishop Basil Hume. For most of the early years of my membership of this House, students—nuns, priests and ordinands—came from around the world, but particularly from Africa, to study theology there. In 2002, we suddenly experienced a spate of visa refusals for students to attend the institute.

I have a file on this subject that is more than 12 in high. I am holding in my hands 87 separate pieces of paper. Hon. Members will be delighted to know that I do not propose to quote from most of them, but I will quote from some of them. On 25 June 2002, I wrote to the right hon. Member for Stretford and Urmston (Beverley Hughes), who was then a Home Office Minister, about the problems that the Institute of St. Anselm was having:

"the Institute is a bona fide organisation and . . . therefore applicants of this kind"—

the students—

"should have their requests granted rather than turned down and forced to go to appeal."

I have personally dealt with 19 cases that would have been ruled out of court under the Bill.

When I intervened on my hon. Friend the Member for Chesham and Amersham to say that the Home Office's track record on defining a bona fide institution was not entirely brilliant, the Minister said from a sedentary position, "It's just as well that the DFES does it then, isn't it?" That sentiment was broadly echoed by the hon. Member for Walthamstow (Mr. Gerrard).

Dame Cheryl Gillan (Conservative, Chesham and Amersham)

Does my hon. Friend agree that is therefore important that the Minister tells us whether the Department for Education and Skills has made any representations—and, if not, why not?

Roger Gale (Conservative, North Thanet)

My hon. Friend is absolutely right. It would perhaps have been helpful to hear from the Foreign and Commonwealth Office as well, because interdepartmental responsibility is involved.

On 25 July, following my letter to the then Minister, Lord Filkin—a Home Office Minister—responded. He said that

"as a result of the enquiries by my officials,"—

that is, Home Office, not DFES, officials—

"it was decided that the institution did not fully meet the requirements of a bona fide institution, hence the reason for the refusal decision."

We challenged that in the light of the institute's background and support from the Catholic church, including eminent people such as Cardinal Basil Hume.

On 8 August, I wrote to Lord Filkin. I said:

"I feel that the time has come when I have to ask formally that the status of The Institute of St Anselm be investigated and recognised formally in view of the assertion pertained in your letter that 'The Institute did not fully meet the requirements of a bona fide institution'."

I had to write to him again on 17 September, saying:

"I would be grateful if you would be kind enough to confirm that this matter is now being dealt with as a matter of urgency . . . and would like your assurance that it has been satisfactorily resolved."

Throughout this time, students were being turned away and having to appeal on grounds that would be denied under the Bill.

On 12 September 2002, Mr. Lawrence from the integrated casework directorate of the immigration and nationality directorate wrote to Louise Cuming at the Institute of St. Anselm, saying:

"I can confirm that from the information submitted, I am happy that the Institute of St Anselm meets the requirements of the Immigration Rules."

We thought that we were back on track—that the students seeking to apply would have their visas granted and there would be no need for them to appeal—but no. That is what the IND said in September, but on 1 October Lord Filkin wrote to me to say that

"further enquiries are already being made by the Immigration Service to establish whether or not St Anselm is now deemed to meet the necessary requirements to qualify as 'bona fide'."

Although one part of the immigration service believed that the institute was bona fide, Lord Filkin was pursuing further inquiries.

On 7 October 2002, Lord Filkin wrote to me to say:

"You will be pleased to hear that those investigations are now complete and my officials are now satisfied that all of the requirements of the Rules have been met.

I understand that a letter to this effect was sent to Louise Cuming on 12 September and I am enclosing a copy".

That was despite his having written to me on 1 October to say that inquiries were still going on, at the same time as students were still being turned down and required to go to appeal. Those appeals would be denied under the Bill. That is why amendment No. 3 is so important.

Following Lord Filkin's letter, the director of the Institute of St. Anselm wrote to me to say:

"However it has to be said that this information had clearly not penetrated Heathrow Airport three weeks later, where three of our students were held for between six and twelve hours while our status was clarified . . . It is therefore disappointing to see that the same information . . . does not appear to have reached Lord Filkin."

We can begin to see a pattern emerging.

Perhaps the Minister will begin to understand why I have very little confidence in the ability of the system—part of which may be the responsibility of the DFES and the FCO, and a significant part is certainly that of the Home Office—to ensue that fair decisions are reached. Unless we are absolutely certain that decisions are fair, students who are unfairly treated, or feel unfairly treated, must have some right of appeal.

After all that, one would have thought that things would be all right. Geoffrey Filkin had told me that it was a mess and that he was going to sort it out. However, I had to write to him again on 8 November of that year. I said:

"On Sunday the 30th September Jabulani Khumalo, a student intending to commence a course at the Institute of St Anselm arrived at Heathrow Airport at 7am. Mr. Khumalo carried letters of invitation from the Institute, a letter of designation from the Bishop . . . and confirmation that the fees would be paid directly by the Diocese."

I will not go through the whole sorry incident, but Mr. Khumalo was held for three hours. Investigations were conducted and correspondence was opened, and he was finally escorted to the plane and escorted off it when he arrived back in Johannesburg. Eventually he came back to the United Kingdom.

In my letter to Lord Filkin, I went on to say:

"It is . . . plain that the assertion made by Mr. Lawrence to the effect that 'I have today notified staff and Ports' is . . . nonsense".

The fact is that the undertakings given by the Home Office throughout this sorry episode have not been worth the paper that they are written on. I appreciate that I am talking about one educational establishment, but I have no reason to suppose that such errors are not being made time and again.

Lord Filkin wrote to me on 15 May—we are now in 2003, so this has been going on for more than a year—to say that

"following our previous correspondence, assurances were given both to yourself and the Institute that the establishment now met the requirements of the Immigration Rules and that immigration staff had been advised of this fact. It is most regrettable however that whilst the Institute was informed of this on 12 September 2002, the central computerised records were not amended until early October. It is now apparent that students intending to study at St Anselm's continued to experience difficulties".

He was so right about that.

More time passed, and more students were affected. We are about halfway through the 19 cases now, Mr. Deputy Speaker—they are piling up. On 6 May 2004, a year later, I had to write to the hon. Member for Sunderland, South (Mr. Mullin), who was by then at the Home Office, to say:

"In spite of this and Geoffrey Filkin's clear undertakings, the message does not appear to have reached Entry Clearance Officers around the world",

and more in the same vein. On 29 June 2004, I wrote again to the Minister to point out

"the failure of successive government ministers to properly resolve this issue in spite of assurances given to me".

On 30 June 2004, there was more of the same. The Minister wrote to me to address the issues, and effectively to apologise, mentioning an "error". He wrote:

"As each student application will be checked against this information, I hope that there will be no repeat of mistakes of the past by entry clearance officers about the status of the Institute".

This was two years after the Department had determined that everything was all right.

On 1 July 2004, Jessica Mabbutt, the head of the correspondence section at UKvisas, wrote to me:

"The Institute of St Anselm's correct status as an educational establishment is now available to all Entry Clearance Officers and I hope that the Institute's status should no longer be cited as a reason for refusal in any application."

Yet still the cases were coming in. Without the right of appeal that would be made available in the amendments tabled today, these students would have been denied access to the education that they were finally, in most cases, able to enjoy in the United Kingdom.

We come, at last, to this year. On 8 February 2005, I wrote to Bharat Joshi, head of section at UKvisas. I want to place on it record that Bharat Joshi is one of the most helpful and sympathetic civil servants that it has ever been my privilege to work with. He is a super guy, and he tries his level best to sort things out. I wrote to him, and he was immensely helpful, but even he could not sort this out. I received a letter from UKvisas on 21 March 2005, which stated:

"Although at the time of Fr Okora's application the Entry Clearance Officer was satisfied that Fr Okora met the other student criteria, the Institute of St Anselm was not at that time"—

this is 2005—

"on the list of recognised educational establishments."

This is three years later—[Interruption.] The Minister says from a sedentary position that there was not one. If that is so, why does UKvisas go on to say:

"His application therefore fell to be refused"?

What would Father Okora have done if there had been no right of appeal?

I wrote to the Home Secretary, the Minister's boss, on 30 March this year, to say that I would be grateful if he would look into the matter. The hon. Member for Pontypridd (Dr. Howells) was by then the Minister in charge—we have got through quite a chapter of Ministers in the Department, have we not? Let us bear it in mind that the institute has been recognised, then not recognised and then recognised again. The Minister wrote on 14 April:

"I am satisfied that there was no fault within the Department's procedures and that the Institute of St Anselm was included on the Register at the earliest opportunity."

Four years? Are we serious?

On 8 July, I wrote to the head of correspondence at UKvisas, Peter Hooper—another extremely helpful civil servant—and told him that

"I was given Ministerial assurances that our Embassies and High Commissions would be notified of the approval of the institute".

On 1 August 2005—we are nearly there, Mr. Deputy Speaker—I received a letter from UKvisas concerning Sister Bernadette Mwita, saying:

"The Entry Clearance Manager in Nairobi reviewed the decision to refuse entry clearance in the light of your representations . . . and decided, given the information enclosed with your letter, to overturn the refusal decision."

What would Sister Bernadette Mwita have done about her education at the Institute of St. Anselm, had there been no right of appeal?

Sister Matilde Adong, Sister Joan Tombe, Sister Anna Patrick, Sister Teresa Hanh, Sister Mary Kim, Yaqub Gill, Jabulani Khumalo, Mary Ebbele, Leopold Kashama, Cajetan Metu, Barthelemy Namdeganaramna, Rita Dube, Lourdes Manrique, Hye Ko, David Okeke, Leo Rozario, Ambroise Bahiya, Bernadette Mwita and Joyce Hoedoafia are all real people whose initial applications to come to this country to study—in many cases as sisters in the Catholic faith—were rejected by entry clearance officers because of the blinding incompetence of the Home Office and its inability to recognise this one institute. I recognise that this is one case, but it involves 19 real people. If this can happen in the case of the Institute of St. Anselm, what might be happening in all the other educational establishments across the country?

I am firmly convinced that the Government are making a profound error. In all equity, a right of appeal must be granted to students whose applications to come to this country to study on bona fide educational courses are rejected. I hope, for that reason, Mr. Deputy Speaker, that you will allow my hon. Friend the Member for Chesham and Amersham to move amendment No. 3 and to press it to a vote. I shall most certainly support it.

Elfyn Llwyd (Plaid Cymru, Meirionnydd Nant Conwy)

I rise to support amendment No. 3, amendment (c) and the consequential amendments tabled by the Liberal Democrats. The most controversial parts of the Bill, clauses 1 and 4, also cause the most concern. They would result in there being no more in-country appeals in variation cases in which people had applied to extend their leave or to change from one category to another. I understand the need to tidy up in this area, but the Bill is not the right vehicle for that exercise—at least, not the Bill as currently framed.

The hon. Member for Chesham and Amersham (Mrs. Gillan) and others have said that one of the most insidious consequences of these measures will be their effect on international student numbers. All our universities depend to a large degree on international students. We should be proud of the fact that people come here to study, succeed, and make an economic contribution to society—whether in the UK or abroad, it matters not.

I went to Aberystwyth university in Wales in the early 1970s, and I was proud to have friends there of many nationalities, including people from sub-Saharan Africa and many from Iraq. Most of them were studying agriculture, and many went on to study for an MSc or PhD. They would probably not be allowed to do that now because their time would be up. In March this year, I met two members of the Iraqi Cabinet who had studied in Wales, but it will be far more difficult for such people to study here in future, which is a great sadness—[Interruption.] The Minister, in his usual way, shouts, "Rubbish".

Home Office decision making is, as we all know, of poor quality, and one of the most important things that must be done is to improve the quality of that decision making. Even a cursory look at the figures shows that many appeals are granted because of mistakes made at an early stage. Whether they were innocent mistakes or not I do not know, but we are all aware that some pretty basic mistakes are made.

We have heard many statistics today, one of which was that, according to the Government's figures, 25 per cent. of student appeals are successful. Other statistics show a figure as high as 49 per cent. Even the lower figure represents tens of thousands of students who, under the Bill, would be forced to leave the UK to present their appeal.

It was said earlier that the Bill might be a way to get rid of such people because they will not bother appealing once they have left this country. That is insidious. It is unfortunate that this Government, of all people, are presenting such a measure and it is misleading to say that there is a right of appeal against removal when it will be exercised only when the person has left the UK. That is nonsense. There are things that the Government can do under existing legislation. I understand their desire to achieve a single appeal, but many commentators say that that can be done under current powers. I must stress that decision making needs to be improved.

The hon. Member for Oxford, West and Abingdon (Dr. Harris), who spoke for the Liberal Democrats, said that many things are at stake. He and I, and others, have received the Immigration Law Practitioners Association briefing, which I found very useful. He mentioned the right to be with a spouse and children and the right to continue in business. All those rights are important.

Many variation cases will involve human rights claims, and as was said earlier, there is a right to present those human rights claims within the UK jurisdiction. Therefore, even on that basis, I fail to see how the Bill can be certified as being compliant with the Human Rights Act 1998, although time will tell. It is obvious to me—to anyone, I think—that human rights points will become stronger if people are forced to leave the UK pending appeal. It will, inevitably, bring the legislation into disrepute if, time after time, human rights cases are presented to defeat it.

If the Government insist on taking these powers, one would have hoped they would redesign the clauses to achieve a broader in-country appeal process that could anticipate the consequences of removal, and that they would not base their new proposals on an appeal right that was available only to those who have left the UK. That has been stressed; it is worthy of being stressed again.

I shall not keep hon. Members any longer. The amendments are sensible and I hope that the House, if it divides, will support them.

Simon Hughes (Liberal Democrat, North Southwark and Bermondsey)

I, too, shall be brief, but I hope that the Minister, as I have heard him do in other contexts recently, pays heed to some of the strong cases that we are making in calling for clauses 1 and 4 to be substantially rethought. I do not dissent from the points put by the hon. Members for Meirionnydd Nant Conwy (Mr. Llwyd) and for Walthamstow (Mr. Gerrard), as well as other colleagues. The hon. Member for North Thanet (Mr. Gale) made a particularly good case, which I hope has resonated among hon. Members.

I want to make three observations, which relate to the two categories of people that the debate is about and which support amendments Nos. 47 and 6, which, effectively, would allow us to start again in this area by removing those parts of the Bill. Those categories of people are students and those who come here aged under 18 and are suddenly told when they are over 18 that they can no longer stay.

I make my observations from three pieces of experience. First, as a constituency MP, I have regularly dealt with such cases, which have caused unnecessary additional trauma to people who come here with the best of motives, wanting to give of their best and to contribute. They come with the intention of learning and then leaving or because they can think of nowhere better in the world to come to.

I am dealing with several cases at the moment, and I alluded earlier to some of the countries involved, such as Iraq and Afghanistan. Another that comes to mind is Liberia—often, the African countries involved have a very poor recent history. Other people come here as students from perfectly peaceful countries. They are regular people who come to Britain because they think it is either the best place to learn or the best place to come to having had to flee their own country.

Secondly, I make my observations on behalf of institutions such as those in my constituency that either want these people to come to them if they are students or want to take them on if they come fleeing from torture. I represent London South Bank university and a large part of King's college, London. The medical and dental schools are in my constituency. Many London School of Economics students live in student residences in Southwark, as do students from other universities and colleges and, locally, students from Southwark college.

Institutions such as those not only benefit from and rely on such people coming here, but contribute hugely because they are coming—not just from the Commonwealth, but from all over the world. The institutions benefit in particular from people who come from the Commonwealth because they want to be here and think they will be welcome. Given that so many such people have a history of being rejected only to succeed on appeal—we have heard the figures—it would be quite wrong to deprive people in that category of the opportunity to appeal.

Thirdly—this is not a declarable interest, but I have registered it because it matters—I make my observations because I have been privileged to be involved with the Council for Education in the Commonwealth and the Commonwealth Youth Exchange Council. Both seek to foster good relationships, and other Members of the House, across the parties, have been involved. The Commonwealth Youth Exchange Council gets involved when people are teenagers and growing up so that they will think well of our country and might consider this a place to come to, just as we want our young people to experience other countries. There is a reciprocal benefit: we give, but we also receive; we send our people abroad so that we can receive others.

The Council for Education in the Commonwealth is about ensuring that people have shared Commonwealth experiences as young adults. That cannot work if so many people go back to their country reporting difficulties, which undermines the ethos and credibility of this being a good place to come to. That is the point that the hon. Member for North Thanet made.

A friend of mine is a Southwark councillor who fled Sierra Leone and became the first African mayor of Southwark. He did his university studies in Russia. I have no complaint about that, but the reality is that other places—whether in eastern Europe, Russia, China or elsewhere—will bid for and take those who should rightfully come to us and will benefit from it.

I hope that the Minister understands that the Government's new clause and their other amendments will not remedy that problem, as the Bill will create it. We are dealing with limited categories of people and recognised institutions. The amendment tabled by the hon. Member for Chesham and Amersham (Mrs. Gillan) would ensure that we were dealing with recognised institutions, whether it be Oxford and Cambridge or St. Anselm's in Cliftonville, Kent. These would be places that were being seen to do a valid job, whether they be generalist or specialist, or agricultural or theological colleges. They would be places where people came to learn English or computer skills.

I ask the Minister to consider and respond sympathetically to a serious and regular case. If we can get this right, we shall do our reputation a huge amount of good. If we get this wrong, we shall further disadvantage our reputation. We could also harm the prospects of those people of complete integrity and merit—mainly, they are young—who benefit from coming here and who have a right legally and validly to put their case to stay for a further course or a further opportunity, but whom the system is somehow failing.

I hope the Minister will make a hugely sympathetic response. If we do not manage to succeed today, we shall rely on the House of Lords to change this part of the Bill, which is wrong and which will have adverse and serious consequences.

Adam Afriyie (Conservative, Windsor)

I want to thank the Minister for the spirit in which he introduced the debate, which has encouraged some open and honest contributions. I also want to thank my hon. Friend the Member for North Thanet (Mr. Gale) for his contribution, which gave 19 tangible examples in relation to the amendments. I want to speak briefly about amendments Nos. 3, 4, 5 and 6.

Certainly, the holding of British nationality is a privilege that must not be underestimated. British citizenship and educational qualifications are much sought-after commodities across the globe. We have a proud history and heritage, and a successful and prosperous economy that has been built up over hundreds of years, alongside our educational institutions. Our heritage is on display across the nation, not only in historic buildings and infrastructure but in the education institutions that we all know and that many of us have enjoyed. We also have a vibrant democracy.

With the robust and extensive infrastructure that we have built up over generations—sewers, rail networks, power stations, airports and roads—as well as our vast array of substantial historic buildings and institutions of state, and our excellent universities and higher education establishments, it is no wonder that people from across the world, of all nationalities, wish to join us for a short or sometimes longer period to study and learn. We have a great history of welcoming not only those genuinely fleeing terror but those who seek to learn at our educational establishments.

We want to encourage overseas students to pay for studying at our institutions. International students derive many benefits from studying in Britain. It provides not only an excellent education by world standards, but an opportunity to learn about our way of life, culture and customs. That builds a reservoir of good will among those students for their future relationships with the United Kingdom.

Without the amendments, and by removing the right of appeal for certain classes of students, we shall build a reservoir not of good will but of ill will. Someone who comes here to study, of which we have heard many examples, pays fees that help our economy and, in a way, subsidises the education of British citizens. The education that they receive propagates the English language across the globe, and students become more comfortable about dealing with Britain, as they have an understanding of our institutions and democracy.

Dame Cheryl Gillan (Conservative, Chesham and Amersham)

My hon. Friend is making an excellent contribution to the debate. Does he agree that it is also a two-way street? Having foreign nationals as students in our universities is also of great benefit to UK students, who learn about the cultures, practices and procedures in other countries. At a time of world turmoil, that is an important factor.

Adam Afriyie (Conservative, Windsor)

My hon. Friend makes an excellent point. It is true that there is an exchange of understanding between various cultures and political systems, which bodes well for future relations.

Most Members' postbags are full of problems associated with the Home Office, not only delays in processing applications but delays and mistakes in appeals and granting people access to appeals. Some students might undertake a particular course, and then expect to move on to take a further course, such as a PhD. Without the amendments, delays in processing their applications would mean that they would be asked to leave the country, and their right of appeal would be removed. That would generate a strong sense of ill will towards a country about which they felt very positive when they arrived.

Elfyn Llwyd (Plaid Cymru, Meirionnydd Nant Conwy)

Earlier in the debate, the Minister said that student numbers had apparently not gone down. We had the same debate on the tuition fees debacle, and the same comment was made then. Does the hon. Gentleman agree that if this Bill is passed unamended, student numbers from abroad will definitely decrease?

Adam Afriyie (Conservative, Windsor)

The hon. Gentleman makes a good point. There is some ambiguity over the numbers, but it seems fairly clear from the percentage of international students coming to Britain that we are beginning to lose our share of the international student market. The Science and Technology Committee has considered that issue over the past few years, and it seems clear that if student numbers are reduced, there is a danger that many of our educational establishments, especially in STEM—science, technology, engineering and mathematics—areas, will suffer.

Evan Harris (Liberal Democrat, Oxford West and Abingdon)

I serve with the hon. Gentleman on that Select Committee. One of the issues that we consider is the problem of the brain drain of researchers from this country, but by stopping students coming here, we are stopping brains arriving in the first place. The two problems are additive.

Adam Afriyie (Conservative, Windsor)

The hon. Gentleman is absolutely right, and I have enjoyed my time serving with him on the Science and Technology Committee. We must not overestimate the impact, but it is undeniable that there will be an impact.

Jeremy Hunt (Conservative, South West Surrey)

Is my hon. Friend aware that one of the most promising and important markets for international students is the Chinese market, and that the number of students coming from China has decreased dramatically? That is partly because the United States has just relaxed visa requirements for Chinese students, at precisely the same time as we have made it more difficult for Chinese students to come to this country to study.

Adam Afriyie (Conservative, Windsor)

My hon. Friend makes an excellent observation, which is certainly factually correct. The Minister is shaking his head—if he disagrees, perhaps he would like to justify himself with some proper statistics.

Without the amendments, the ill will caused by delays and inadequacies at the Home Office is likely to lead to open hostility towards the visa system and the treatment of international students in Britain.

Keith Vaz (Labour, Leicester East)

I apologise for joining the debate during the hon. Gentleman's speech. Does he agree that one way in which the system could be improved is through the three Departments concerned with entry clearance—the Foreign Office, the Home Office and the Department for Constitutional Affairs—using one reference number to deal with such cases? He must have had the same problem as I and other Members have had in trying to find three reference numbers to deal with one particular case.

Adam Afriyie (Conservative, Windsor)

I am happy to give way to the hon. Gentleman, who has just arrived in the Chamber. There is no evidence that that approach would have the effect for which the hon. Gentleman hopes. If he thinks that it would, I suggest that he raises the matter with his party, whose thinking on the subject seems disjointed.

It is clear that one in four Home Office rulings on international students is incorrect. Our postbags bear testament to that. I would like to see international students continue to value and rate highly the education that they get in Britain, particularly in science and technology subjects. I would be very concerned if the Bill were to pass in its current form, without special classes of international students continuing to have the right of appeal, especially in the absence of Home Office efficiency.

Tony McNulty (Labour, Harrow East)

As I said at the start of the debate in introducing new clause 1, it is right and proper that Members should speak to the new clause and their assorted amendments specifically in relation to education, and that I should then respond. I do not seek to detain the House, but clearly many serious points have been made.

In passing, those who observe our debate from afar would think that there was an unrelenting attack on the whole notion or existence of overseas students in this country. I caution Members to be slightly more temperate in their language. We are not about to lose every overseas student application as a result of the Bill, and those who claim that are highly misinformed. My hon. Friend the Member for Leicester, East (Keith Vaz), who has just bothered to join us, talked about the huge changes that would be made in regulations governing overseas student applications. That is not in this Bill. My hon. Friend should either go and find the Bill that it is in, or desist from misinformed and ill-informed comment.

This is a serious subject. No one demurs, in substance, from the notion of what overseas students add to our broader higher education community. No one in Committee, where we engaged in highly informed debate, said anything other than that, and for all the reasons given by the hon. Member for Windsor (Adam Afriyie) we continue to welcome and positively encourage overseas students. No one at a reception that I attended—

Keith Vaz (Labour, Leicester East)

I am sorry to interrupt the Minister when he was about to tell us about the reception that he was attending when he gathered the evidence that he needs to present to us. I understand what he is saying, but the universities themselves are saying that fewer students will come here as a result of the Bill. That is why we need to take the issue seriously. The universities deal with it day in, day out. Unless decision making is better in the posts abroad—I know that the Minister has just been to New Delhi, where we have one of our best posts—we will still have a problem.

Tony McNulty (Labour, Harrow East)

I do not underestimate some of the difficulties that many universities are experiencing, but I challenge the notion that either a £50 increase in the cost of visas—the first hook on which all the malaise of the HE sector was hung—or what the Bill says about appeals is absolutely and quintessentially, which is how the universities sometimes put it, the reason for the malaise that affects some courses. There are substantive reasons for the fact that the huge success of the HE sector in recent years is now being challenged. The language used by some members of the sector suggests that the entire world is crumbling down. It is not—there is a vibrancy about many courses, although I do not dispute the fact that some universities are experiencing difficulties with overseas recruitment for certain courses. What I do dispute, as I told the Universities UK board at a recent meeting, is the casual, causal empiricism that leads people to say that it is all the Home Office's fault and that nothing else in the entire world is causing the malaise.

Dame Cheryl Gillan (Conservative, Chesham and Amersham)

If there is absolutely no problem—

Tony McNulty (Labour, Harrow East)

No one has said that.

Dame Cheryl Gillan (Conservative, Chesham and Amersham)

Then I shall choose my words carefully. If there is a wonderful, thriving, vibrant market in international students in Europe, why is the President of the European Union proposing that foreign students completing doctorates in Europe should be offered citizenships in an effort to lure them into that market, and why is the Prime Minister backing that idea as part of his liberal reform agenda? Why did he push it during his presidency, which of course will end in December?

Tony McNulty (Labour, Harrow East)

With respect, that is another issue entirely. It is a post-education issue.

Charles Walker (Conservative, Broxbourne)

I want to thank the Minister for helping me with a difficult case that has been on my desk for the past few months. A few weeks ago, I met the chancellor and vice-chancellor of Hertfordshire university, who were having particular problems with Chinese students. I shall not go into those problems now, but would the Minister mind if I wrote to him about them?

Tony McNulty (Labour, Harrow East)

I should be happy for the hon. Gentleman to write to me, and for the hon. Member for North Thanet (Mr. Gale) to do likewise. I listened carefully to his rather lengthy recitation of the difficulties affecting the Institute of St Anselm. I think that many of his complaints relate to clause 4, which deals with entry clearance, rather than to new clause 1 and amendment No. 3, but if there are continuing problems affecting the institute and I can help with them, I shall be more than happy to oblige. Nevertheless, I disagree entirely with the hon. Gentleman's starting point, which is that the 19 cases that he mentioned prove that the Bill is not appropriate.

I should have made a point at the beginning of my speech. Someone kindly alluded to it earlier, and I accept that it is a difficulty. The Bill must be seen not just in the context of the consultation paper on the points system—consultation ended only on 7 November—but, as I said in Committee, in the context of all that we are trying to do in regard to the entry clearance officer decision-making process. I said in Committee, and will say again, that I accept the charge that all ECO decision making throughout the entire world that takes place under the auspices of UKvisas could, broadly, be improved. I have committed myself to ensuring that those improvements are undertaken now, and will continue to do so. The hon. Member for Chesham and Amersham (Mrs. Gillan) kindly read out probably the most turgid remarks that I made in Committee about the link between the commencement of the orders on appeal and the improvements in ECO decision making. I shall say more about that later.

Adam Afriyie (Conservative, Windsor)

I thank the Minister for giving way so gracefully. I hope that his answer will be equally graceful. May I be bold enough to suggest that he sets a target for reducing the number of incorrect decisions to allow an appeal before the Bill is implemented?

Tony McNulty (Labour, Harrow East)

I take that point, which is germane to what I just said about the link between commencement orders and other matters. However, I shall not go down that road. I think most fair-minded people would accept that the position is not as clear-cut as "successful appeal equals bad initial decision"—[Interruption.] That is the import of what the hon. Gentleman was suggesting. He should calm down.

Limited empirical evidence from the National Audit Office and material that we discussed in Committee suggest that up to 50 per cent. of problems—happily only 50 per cent.—were caused by inaccurate or incomplete documentation at the start of the process, or by the absence of some element at the start of the decision making. We need to explore those issues, and I shall be more than happy to do so in a moment. However, the crude notion that appeal success equals bad initial decision is simply not sustainable.

Lynne Jones (Labour, Birmingham, Selly Oak)

My hon. Friend's comments about the vibrancy of universities were welcome, but his account of their complaints was a travesty of the way in which I interpret what I consider to be genuine concerns. Many cases are overturned as a result of initial decisions because academics draw attention to problems, and a manager examines the position again. How will the Bill deal with that? Surely the poor decision making in the Department is due to the complexity of the legislation and the ever-increasing number of changes that the Government are introducing. Would not better and better administration be preferable to more and more legislation?

Tony McNulty (Labour, Harrow East)

With respect, that is entirely wrong in most instances. I was not traducing or undermining anything that the universities had said. I fully recognise that there are difficulties in the sector. What I dispute is the causal link between the Bill and visa fees. I spent some 14 years in the sector, so I know and understand it. I also understand that it is now entirely different from how it was then.

My hon. Friend's other point is important in the context of the points system and the five-year plan. There is a separate tier for students. There is a far stronger accreditation system, rather than the simple flick-switch that caused some of the early difficulties that the hon. Member for North Thanet mentioned, where an institute is good or bad with nothing in between—no gradation, no notion of its past experience or anything else. There are also the elements to improve decision making. Those issues go to the heart of how to move on and to improve the welcome for overseas students.

We are seeking to address all the other elements that are difficult for the sector through the joint education task force and close working with Universities UK and others, including, it is often forgotten, the FE sector. Therefore, I do not accept many of the premises that have been put forward. It must be about making decision making better, rather than hanging on to an appeals process that often means that the appeal is heard, if one is lucky, some two and a half years down the line.

Evan Harris (Liberal Democrat, Oxford West and Abingdon)

I think the Minister fairly reflects the disagreement in the Standing Committee about whether the high proportion of appeals that were won by applicants was due to poor decision making or new factors coming in. However, I think the point was made in Committee that when appeals go in, the papers are supposed to be collected by the entry clearance manager, who has the opportunity to reverse a decision that was made on the basis of incomplete information. When the manager does not do that, there has been a second opportunity, with all the information the appeal has, for that to be corrected, so the point still stands about poor decision making overall.

Tony McNulty (Labour, Harrow East)

I do not think that it does. I specifically refer to the 900 or 1,000 decisions that were looked at by the NAO, or whoever it was—if it was not the NAO, I apologise. That was done deliberately before a second sift, as I understand it, by the entry clearance manager. The paperwork that was initially submitted was examined. I absolutely accept that there are difficulties across the HE sector, but I do not accept, as I have said, that they are ultimately connected, simply put, to fee structures or to what we are doing on appeals. I cannot say loudly enough that the Government and the House, on a cross-party basis, will continue to work as closely as possible with the HE sector to ensure that those overseas students continue to get good service.

I accept the point that was made by some hon. Members, who are not in their places any more, that it is about far more than the initial three or four-year experience of the overseas students. I happened to teach a number of people who were overseas students and who are still friends. There is that initial contact at, if one likes, elite level, but then there is contact at a more general level, and affection for the country where one did that initial study. None of that I refute in any way, but we think—in the context of the five-year plan, the points system and all the improvements that we are trying to make in terms of ECO decision making—that the way forward that we are suggesting, with those elements rather than simply what is in the Bill, has merit for students.

Dame Cheryl Gillan (Conservative, Chesham and Amersham)

Will the Minister give way?

Tony McNulty (Labour, Harrow East)

I will do so for the final time on this point because I want to cover other elements without boring the House with this for the rest of the afternoon.

Dame Cheryl Gillan (Conservative, Chesham and Amersham)

The Minister has accused Conservative Members in Committee and on the Floor of the House of being disingenuous, but he should take into account the report from the Select Committee on Constitutional Affairs, which looked at, among other things, the quality of initial decision making in the Home Office. It wrote in its recommendations:

"There are significant flaws in Home Office practice at the stage of initial decision making"—

so methinks he doth protest too much. He is not taking it on the chin and dealing with it, but sweeping it under the carpet.

Tony McNulty (Labour, Harrow East)

Absolutely not, otherwise we would not be introducing the new points system and investing heavy resources in the entire decision-making process. We would not be doing all that if I were being entirely smug and complacent, saying that every decision made by the Home Office or any agent thereof was 100 per cent. correct. I accept that excellent work is being done throughout our posts internationally, but I accept, too, that there can and will be improvements. Part of that improvement will come about with the clarity afforded by the points system. I accept that that is the other half of the policy. I am not defending—I do not think I would—every decision made by the Home Office, but that is where the future lies in improving circumstances and conditions for overseas students and others who apply to work or to study here, not in holding on to the appeals system.

Keith Vaz (Labour, Leicester East)

No one doubts the Minister's personal sincerity on the matter. He is a dedicated and hard-working constituency MP dealing with hundreds of thousands of immigration cases, but it is the system that needs changing, not the Minister and not the appeals system. He should defer these measures until he puts in place a package of measures that will deal with the issue of bad decision making, exactly as the Select Committee recommended. All he has to do is defer and get his package in place, and he will find that he does not need to make the changes that he is making today.

Tony McNulty (Labour, Harrow East)

I am grateful to my hon. Friend for his advice, but we are doing that now. We are doing any number of things in terms of the ECO process. Admittedly, we are just starting the process, but all those things are happening now. We are enhancing the role of the independent monitor. He will be full-time, but it is essentially the same post, to answer the question asked by the hon. Member for Chesham and Amersham. I hope that he or she will be appointed in January. We are enhancing training, there is quality focus in UKvisas and we have objectives on best practice. This is within our international obligations. There are best practice reviews, more management resources for posts, quality of refusal notices—which are often a problem for many individuals and MPs—and we are working more closely with judges. There is any number of other elements: risk assessment, so we are informed far more readily on where risks are involved, communications, and general awareness, where we have suffered in the past. Those and other elements are happening now.

I said this clumsily in Committee, as the hon. Lady reminded us, but I think that rather than delay matters to some far-off time, there is merit in looking at the notion that only when elements of the points system are introduced completely should the commencement order on appeal systems happen. The House will forgive me for not saying simply in terms that when the points system in all its entirety is introduced, only then will there be a commencement order on the lifting of appeals. I made it clear to the Standing Committee that there will be some elements of the points system that can be introduced earlier than mid-2007. Save for those elements that may be introduced earlier, including tier one and the highly skilled migrants programme, I will say that I am happy not to go down the route of introducing the provisions of the Bill that refer to appeals until the points system is in place. Those points were made in Committee and they are fair.

I am trying to think of a way where, on the premise we get the independent monitor in place in January, he or she can help in that process, having grown into the role over a year when these resources are going in. There may be a commensurate impact both on allowed decisions and refusals, and more generally on the appeal rate, but it is not going to give us significant evidence to say yea or nay in any mechanistic sense. However, I will say, with the caveats that I have mentioned, that we will not do that with the appeal process until we get there.

I will come back to money because it is in this huge pile here—not the money but the point that the hon. Lady made. There are some specifics to which I want to refer. Some go to the debate and some to other points raised. We have had, apparently, legal advice to the effect that, following the ECJ cases of Panyatova and Dorr and Unal, certain classes of persons claiming under European Community association agreements are entitled to rights of appeal under EC law. The hon. Member for Oxford, West and Abingdon (Dr. Harris) alluded to that point earlier. I will give him this note.

Such persons have rights of appeal under current legislation, but those rights will be removed by the changes to appeal rights in the Bill. We may provide the necessary rights of appeal by using the necessary legislation without amending the Bill. In other words, this is still work in progress. I undertook to let the hon. Gentleman know about that. We may need to provide a right of appeal for non-EEA nationals who are primary carers of EEA children exercising treaty rights in the UK following a subsequent judgment. We think that we can cover that through section 92 of the Nationality, Immigration and Asylum Act 2000. I shall write more fully to the hon. Gentleman about that.

Evan Harris (Liberal Democrat, Oxford West and Abingdon)

I am grateful for the Minister's response and I hope to receive his letter in good time for consideration in the other place, particularly in respect of whether an amendment to the Bill or regulations would be satisfactory.

Tony McNulty (Labour, Harrow East)

On the substantive elements in new clause 1, I shall disappoint the House in that the most compelling point made in Committee was about the issue of the twilight zone and criminality. New clause 1 addresses that matter, although it may be clumsy. The hon. Member for North Southwark and Bermondsey (Simon Hughes) clearly said that the provision affects only a limited number of people. On the appeal right process—non-suspensive appeals versus in-country appeals issue—it is an even more limited group. The points made about criminality in the new clause are limited to those who would exercise on a notice of removal and through the one-tier appeal their right to pursue an asylum or human rights claim. That is the very narrow pool of people who are affected in that regard.

Let me be clear—those people will not get extensions to leave or the rights and benefits that leave accrues because, as a result of the position that they are in, they have no leave. There can be no leave to pursue. I do not want to reach the stage—there has been evidence of it over the past three, four or five years—of putting a perverse incentive in the core of a Bill under which those people, albeit small in number, queue up to make erroneous and capricious human rights and/or asylum claims simply because they know that it will elongate the right to work and the benefits that they may have had prior to the refusal. The debate about that has been interesting and I shall take some of the points into account—I do not accept the substance of points about students—but much of the argument was erroneous because of the small, narrow focus of people who are involved.

Evan Harris (Liberal Democrat, Oxford West and Abingdon)

If it is a small narrow group of people, there is presumably nothing wrong with preserving their right to exist and to carry on working while the appeal is being considered. I may want to say more about that in a few moments. I want to raise a point that I made in Committee, to which I do not believe the Minister has responded. What happens if a valid judicial review application is given against a decision not to extend leave? Do the rights continue under that application? The Minister indicated at column 148 of the Committee proceedings that he might write to me, but I am not clear that he has done so. Will he now take the opportunity to clarify it either by answering now or writing later?

Tony McNulty (Labour, Harrow East)

I shall write. I do not think that the matter is particularly germane to new clause 1, but I will write in more general terms to the hon. Gentleman. His point—I hope that I have it right—is that the grant of leave pre-supposes that the holder should be able to stay while they bring any future appeal, but that is a pre-supposition that simply does not exist under law—in intent or otherwise. A grant of leave signifies that someone may stay in the UK while they meet the conditions on which the leave was granted. If that is a truism, I apologise to the House. There is no pre-supposition there, only the terms of the conditions that were granted. Once they no longer meet the requirement of the rules or any application for further leave, there is no basis on which they are entitled to stay here. That is a fair point.

As I said earlier to the hon. Member for Meirionnydd Nant Conwy (Mr. Llwyd), if he would only read the Bill he would understand that his points about human rights are nonsense. How can the Bill be non-compliant with the European convention on human rights terms if all the terms of the Bill do not apply to those who make human rights applications and they are dealt with in a specifically different way under ECHR? When it comes to the interpretation of the ECHR in all its glory, on balance I trust the hon. Member for Woking (Mr. Malins) rather than the hon. Member for Oxford, West and Abingdon, and I certainly do not trust the high street solicitor from Meirionnydd Nant Conwy. I do not accept those points at all.

Evan Harris (Liberal Democrat, Oxford West and Abingdon)

Surely the Human Rights Act extends beyond those people who are making a claim under it. I urge the Minister—and, indeed, all of us—to await the view of the Joint Committee on Human Rights, on which I serve. It was set up specifically to advise the House on these issues. The Minister would not then have to pick and choose between hon. Members on the advice that he wishes to follow.

Tony McNulty (Labour, Harrow East)

Not in the context of this Bill, I say very strongly. Let me say in gentler terms that the hon. Gentleman's membership of the Joint Committee makes him no more an expert in human rights than membership of the House makes anyone a parliamentarian. That takes work—[Interruption.] I cheerfully strike for that position myself; it is not something that happens automatically when one walks through the Door.

On the matter of family visits, much of it is not covered, but the hon. Member for Oxford, West and Abingdon made a point about spouses. He will know, as he takes an interest in these matters, that I have just issued immigration rules that speak to the Civil Partnership Act 2004. There is a new category of civil partner now reflected in those immigration rules. We are looking into how best to fit it in on a family basis.

I am sorry, Mr. Deputy Speaker, that it has been rather a rush through a very difficult area—

Simon Hughes (Liberal Democrat, North Southwark and Bermondsey)

It would be helpful if the Minister could respond—either now or later—to the point made by myself, the hon. Member for Walthamstow (Mr. Gerrard) and others about people entering the country as unaccompanied minors and then reaching 18. At the moment, they appear to be completely caught if the proposals go ahead.

Tony McNulty (Labour, Harrow East)

That point was made in the context of amendment No. 33. I said clearly in Committee that unaccompanied minors reaching the age of 18 while still here are precisely one of the categories that we shall exempt—and the Bill makes clear provision to do that. I was also very clear in Committee that unaccompanied asylum-seeker children would fall into that category, but reserved the right to look at the issue in greater detail. Almost certainly, that element will be made exempt.

I was saying, Mr. Deputy Speaker, that I am sorry if I have neglected to cover any points. We have had wide-ranging deliberations on the group of amending provisions, which are themselves very wide. New clause 1 is, as I said, a response to concerns raised by the Opposition in Committee. I invite my hon. Friends to resist all other amendments in their entirety, while commending hon. Members for their good spirit, good humour and mainly—if not completely—well-informed contributions.

Question put and agreed to.

Clause read a Second time, and added to the Bill.

Alan Haselhurst (Deputy Speaker, Saffron Walden)

We now move on to new clause 2, with which it will be convenient to consider—[Interruption.]

Evan Harris (Liberal Democrat, Oxford West and Abingdon)

On a point of order, Mr. Deputy Speaker. I am sure that you are correct, but I was advised that the vote on amendment No. 47 would come before we debated new clause 2. I accept that I may have misheard the advice.

Alan Haselhurst (Deputy Speaker, Saffron Walden)

If the hon. Gentleman follows his list of selected amendments, it will be very straightforward to understand where any votes that I or other occupants of the Chair may allow will come. I hope that I have assured the hon. Gentleman that we are proceeding in a satisfactory and orderly manner.

New Clause 2 — Detained Persons: National Minimum Wage

Tony McNulty (Labour, Harrow East)

I beg to move, That the clause be read a Second time.

Alan Haselhurst (Deputy Speaker, Saffron Walden)

With this it will be convenient to discuss Government amendments Nos. 30 to 32.

Tony McNulty (Labour, Harrow East)

I, of course, never ever doubt your guidance in respect of our proceedings, Mr. Deputy Speaker. [Interruption.] Someone just called me a creep, but I am sure that you will admonish them.

This is an interesting new clause. I hope that we will not get sidelined by issues that are not relevant, so that we can focus on those that are. There is a strong body of opinion that holds that paid activity should be available, on a voluntary basis, for people in immigration removal centres. This new clause works to that effect.

At the moment, detainees in immigration removal centres do not have the opportunity to undertake paid work of any description. Despite the presence of educational and other activities in removal centres, many non-governmental organisations have established that the absence of paid activity can lead to boredom and frustration among detainees. That is harmful to their well-being, and that of the entire institution, and contributes directly to control and order problems.

Paid activity is generally accepted as a necessary component of the activities provided to individuals in custody. It benefits the individuals concerned by giving them additional constructive and purposeful activity with which to occupy their time. As a direct result, it plays a key role in helping to maintain order.

The absence of paid activity for immigration detainees, with the potentially adverse consequences for their well-being and for removal centre security, has been highlighted by Her Majesty's chief inspector of prisons and by the prisons and probation ombudsman. Both have recommended that the current position should be remedied.

In order to provide opportunities for detainees in removal centres to participate in paid activity, we need to exempt them from the national minimum wage. Detainees may be regarded as "workers" for the purposes of the National Minimum Wage Act 1998 if they perform paid activity of any sort, and would therefore be entitled to receive the national minimum wage. That would not be viable financially, nor reflect the true economic value of the work likely to be carried out, which is likely to be remedial and assistive. "Assistive" is the correct word in this context, but nevertheless I apologise for using it. The current position has prevented detainees from being given opportunities to undertake paid activity. We need to change that.

Neil Gerrard (Labour, Walthamstow)

I understand the reasons that my hon. Friend the Minister has given for allowing detainees to undertake paid work, and that requests have been made to that effect. However, detention centres are often run by private contractors who have not always earned the most sparkling reports from the prisons inspectorate. I am worried that detainees will end up being used as cheap labour. Will my hon. Friend say how that will be prevented?

Tony McNulty (Labour, Harrow East)

That is an entirely fair point, and I hope that my hon. Friend will allow me to get to it later, as I develop my remarks.

Prisoners who undertake paid work would do so on the basis of an exemption from the national minimum wage in section 45 of the National Minimum Wage Act 1998. There is no similar exemption for immigration detainees in removal centres, and that is what we want to remedy. Paradoxically, individual detainees held in prisons are, by default, covered by the exemption for prisoners. That means that an immigration detainee incarcerated temporarily or otherwise in the prison estate is covered by the exemption for prisoners and could do paid work. In contrast, that person could not do paid work on transfer to the removals estate. The exemption created by this new clause would therefore remove that anomaly and bring detainees in removal centres in line with people held in prisons.

It is important to note that all paid activity would be entirely voluntary and provided in addition to the various educational, sporting and recreational activities offered to detainees at present. Detainees would be encouraged to participate, just as they are in relation to other activities, but in no way would they be compelled to carry out the work. Detainees who chose not to participate in paid activity would continue to receive any allowances due to them under the removal centre incentive schemes.

Work opportunities provided to detainees are likely to be of two main types. The first type would be the "traditional" custodial activities such as light cleaning, kitchen assistance, laundry work and gardening. However, I accept the point made by my hon. Friend the Member for Walthamstow, and assure the House that contractors would not be allowed to bid for such work on the basis that detention centre internees would be used. That will not be allowed to happen.

The second type of paid work would include activities organised by charitable or voluntary groups, for which detainees would receive direct financial reward for participation. Detainees would not engage in commercial work of any description, and I hope that that answers the point raised by my hon. Friend the Member for Walthamstow directly.

This measure is principally intended to enhance detainee welfare, with the consequential benefits for removal centre security. It will ensure that the existing range of activities available in removal centres can be complemented by paid activity, which has well-established benefits for those in custody.

As I said in connection with the previous group of amendments, I shall end my introductory remarks there, and respond later to points raised in the debate.

Dame Cheryl Gillan (Conservative, Chesham and Amersham)

I do not think that we need detain the House for too long on Government new clause 2, but I am surprised that it should be introduced at this late stage. No explanation, other than the one that the Minister has just delivered at the Dispatch Box, has previously been given for the change, although it is true that an anomaly does exist in respect of people detained in the prison estate and those detained in other establishments. That is the anomaly that the new clause addresses.

The report into the Yarl's Wood detention centre made it clear that we need to look at what happens to people who are detained. That is all the more important, given that the Government's five-year strategy for asylum and immigration states that increasing use of detention is planned, especially in the context of the removal of failed asylum seekers. However, the Minister must answer a few questions relating to the new clause.

The hon. Member for Walthamstow (Mr. Gerrard) asked a valid question in his intervention. At present, the UK has nine immigration removal centres. Most are run by private companies, but three are run by the prison service. It is important to understand how the private companies will be instructed to manage a work regime in the centres, as the Minister has made it clear that that regime will be intrinsically different from the practice in prisons and on the prison estate as a whole. What instructions will the private companies be given about running the work regime in their centres?

Detainees are not prisoners. The Minister knows that people may be detained for a variety of reasons. Most are detained because they are about to be removed from the UK, or because their asylum claims are being dealt with through the fast-track process, so I am not entirely sure how useful the provision will be, especially given that the average stay in a detention centre is between seven and 10 days. That said, earlier this year, persons were recorded as being in detention in the UK for a year or more, solely under Immigration Act powers: 70 had been detained for a year or more, 45 of whom were asylum seekers. That statistic is staggering enough, but 125 people had been detained for more than six months but less than a year, of whom 95 were asylum seekers, and 150 people were detained from four to six months and 150 from three to four months. Purposeful activity or a work regime may be envisaged for those individuals, but the idea needs to be fleshed out and cannot simply be presented to the House in the form of the new clause.

The proposals smack to me of the Minister envisaging that those individuals could be held in detention centres for a long time. When we were considering other aspects of the proposals, I noticed that a detention centre manager considered—especially in relation to reports about the Yarl's Wood centre—that the sort of work that could be done should be connected to the resettlement of the individual, particularly if resettlement could reasonably be supposed to be in the UK. But the Minister conveniently missed out that point by referring to light cleaning and a little cooking and domestic work at the prison.

My last point relates to the structuring of the regime as regards payment. The average rate of pay for employed prisoners is £8 a week, but the Prison Service sets its own minimum rate, which is currently £4 a week. Each prison is allowed to set its own pay rate. Does the Minister envisage that each detention centre will be allowed to set its own rates and, if so, at what level does he expect them to be?

That is all I want to ask at this stage, but I reiterate to the Minister that, given the spirit of our conduct of the proceedings, I would have expected a new clause of this nature to be accompanied by an explanatory document, at least for members of the Committee, rather than relying on the Minister's slightly cursory introduction—[Interruption.] The Minister is holding up a letter, but I am afraid that it has not reached me. I do not know what the date of the letter is, but we had similar arguments in Committee when letters were sent out the day before a sitting. I explained then that, like many Members, I have an arrangement whereby my post is sent to my constituency to be dealt with initially, so although the Minister may hide behind the letter that he has the privilege of holding up, it has not reached my desk and it has obviously not reached the desk of my hon. Friend the Member for Woking (Mr. Malins).

Tony McNulty (Labour, Harrow East)

I am not hiding behind the letter, and I apologise profusely to members of the Committee if they have not received it. I ensured that on 10 November anything remotely new in terms of amendments tabled was circulated as a courtesy to the Committee, with explanations—albeit brief ones. I apologise if the letter was not received in Amersham or in central London, but that was certainly my intention.

Notwithstanding, with respect, the rather picky points made by the hon. Member for Chesham and Amersham (Mrs. Gillan) about the detail for each detention centre, I hope that the substance of the new clause is supported. There is substantive evidence— in the broad academic sense and from the ombudsman and the prisons inspector, who has investigated detention and removal centres—that people occupied on a voluntary basis are far better served individually. That deals in part with the hon. Lady's point about resettlement either in the UK, if that is how things pan out, or in the person's country of origin. That option must be good.

I am happy to share with the House and members of the Committee how that will unfold in substance, removal centre by removal centre—

Dame Cheryl Gillan (Conservative, Chesham and Amersham)

Will the Minister write to me?

Tony McNulty (Labour, Harrow East)

Yes, and I shall deliver the letter by hand.

Earlier, I deliberately concentrated on new clause 2, but I shall now turn to the Government amendments in the group. Amendments Nos. 30 and 31 deal with local authority provision of section 4 accommodation, and I think they are straightforward.

A point was raised about whether changes in non-compliance consequences were administrative or legislative. The hon. Member for Oxford, West and Abingdon (Dr. Harris) spent some time on that point in Committee, and I think that amendment No. 32 makes it clear that the Government are willing to concede that the consequences of non-compliance should be set out clearly in immigration rules and not be provided for administratively. I think that is what the hon. Gentleman was after and we have duly responded.

Evan Harris (Liberal Democrat, Oxford West and Abingdon)

The Minister is correct to say that amendment No. 32 covers what we were seeking. I am grateful to him for that amendment. I also recognise he has dealt with a problem by introducing amendment No. 30, which relates to section 4 of the Immigration and Asylum Act 1999. The question that has not been answered is whether section 4 support—non-accommodation support—must be given in vouchers or whether it can be given in cash. He did not answer that in Committee or in a parliamentary question to him. If he would undertake to write to give a definitive answer about whether there is a statutory bar on paying cash or whether it is just his wish, the Liberal Democrats would certainly be very grateful.

Tony McNulty (Labour, Harrow East)

I shall happily write to the hon. Gentleman, and I am grateful to him for his comments on the amendments in this group. I hesitate to say that I will hand deliver any response to him because I have enough to do without doing a poor impersonation of Postman Pat or a member of the Communication Workers Union. With all those frivolous comments put to one side, I commend Government new clause 2 and the Government amendments to the House.

Question put and agreed to.

Clause read a Second time, and added to the Bill.