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Immigration, Asylum and Nationality Bill

moved Amendment No. 7:"Page 3, line 9, at end insert ““, or" (   )   entering for settlement as a returning resident in accordance with the provisions of the immigration rules, including cases where the person may be admitted as a returning resident under those rules despite the length of their absence from the United Kingdom”” The noble Lord said: My Lords, Amendment No. 7 deals with returning residents. The matter was raised in Grand Committee on 9 January. In the example I gave then, an elderly couple who were out of the country for more than two years, for perfectly understandable reasons, would have had no right of appeal on grounds of human rights or racial discrimination—the only ones that will remain under these proposals. The Minister did not say at the time whether she thought it would have been satisfactory or fair for that particular couple, who became involved in legal proceedings when they went back to their country of origin to find out how their son had been killed, to have been exiled permanently from their home on top of everything else that they had suffered. Amendment No. 8 deals with the position of non-EEA nationals who apply to come here under European Community association agreements. In Grand Committee the Minister recognised that they should have a right of appeal under a recent European Court of Justice judgment, but said that the reinstatement of those rights, which were removed under the Bill, would be accomplished through secondary legislation. I wonder if the Minister could point to the order-making powers that allow this to be done. Clause 4 is concerned only with visitors and students and I see nothing that would allow the Minister to do this under the parent Section 82 of the NIA Act 2002. The Minister said that she did not accept that the settled community law, which applies to the other categories I mentioned—that is, nationals of Switzerland and primary carers of children who themselves have a right of residence—meant that they would forfeit their right of appeal against refusal of entry clearance. Nor did the Minister consider that there should be any general power in the Bill to restore rights of appeal to any other classes of person to whom Community law extends the right of appeal in the future. That also, the Minister said, could be dealt with in secondary legislation. Again, I would be obliged if the Minister could tell us where the order-making power to do that might be found. Assuming the power exists, if exercised it gives rights of appeal to specific EEA nationals in specific circumstances, so an EEA national alleging a breach of some other EEA treaty right, which had not been tested or litigated before, would be unable to appeal. Our approach solves that problem and ensures compliance with Community law. I am sure the House would agree that where it is possible to leave rights that already exist in primary legislation, it would be quite improper and unwise for the House to remove those rights in primary legislation and then restore them in secondary legislation. What is the point of doing that? I beg to move.