Roger Gale (North Thanet, Conservative)

With this it will be convenient to consider the following: Government amendments 33, 35 and 38.

Government new clause 4—Transfer of immigration or nationality judicial review applications.

Phil Woolas (Minister of State (the North West), Home Office; Oldham East & Saddleworth, Labour)

The Government oppose clause 55, which has been inserted into part 4 of the Bill. It relates to the ability to transfer judicial reviews from the High Court to the upper tribunal in the unified tribunal system that has been established under the Tribunals, Courts and Enforcement Act 2007. It would prevent restrictions being placed on which appeals may be heard by the Court of Appeal. There is a pressing need to provide the administrative court, and its equivalents in the devolved areas, with greater flexibility in handling immigration judicial reviews, but our strong case is that clause 55, which is a more restrictive provision than the Government and the judiciary believe is necessary, is not sufficient to relieve the burden on the higher courts.

The clear purpose of clause 55 is to limit the class of cases that can be transferred to the upper tribunal to those cases concerned with “fresh claims” applications. It is unclear whether the intention of the clause is to require a High Court judge to consider every case individually. Neither is it clear whether the omission of Scotland and Northern Ireland is deliberate or an oversight. As my noble Friend Lord West pointed out in another place, the clause refers to applications made under rule 353 of the immigration rules. In reality, applications are refused under that rule, not made, so, in that regard, the clause does not achieve its aim.

The problems with clause 55 run deeper than those drafting difficulties. It would restrict the ability of our most senior judges to manage cases in the best interests of justice. The Government believe that we should not restrict the judiciary in that way, and that we should allow our most senior judges to exercise their constitutional responsibility, which is so clearly reflected in the 2007 Act, for the allocation of cases within courts and tribunals. It is that allocation, rather than the hearing, that is important.

In addition, the clause would prevent the Lord Chancellor from restricting the test for permission to appeal to the Court of Appeal in immigration cases. The Master of the Rolls has pointed out that the majority of those appeals raise no point of general importance, and it is therefore wholly disproportionate for there to be an automatic right for them to be substantively considered by the most senior judges who sit in the Court of Appeal.

Of course, we accept—I would argue that we know better than most—that there may be some cases that raise the real prospect that the decision of the upper tribunal will be in breach of the UK’s human rights obligations. Those are precisely the sort of cases that would meet the test that is set out in section 6 of the Act. Most importantly, it is in the best interests of justice to allow the senior judiciary, with the agreement of the Lord Chancellor, to decide which classes of  judicial review cases are suitable to be heard in the upper tribunal once we reach that stage. That is a procedure that is already in operation in non-immigration jurisdictions. As the Tribunals, Courts and Enforcement Act 2007 has unified the system, other areas outside of immigration are already there. The Lord Chief Justice, the Lord President and the Lord Chief Justice of Northern Ireland are responsible for the allocation of work between courts. That responsibility should be reflected in our Bill, too.

On 8 May, I announced the Government’s intention to transfer the asylum and immigration tribunal to the first tier and upper tribunal of the new unified system. Transferring the AIT provides an opportunity to address the significant burden on the higher courts, and we must ensure that we take full advantage of that. The best way of achieving that is to reintroduce the clause as originally drafted. New clause 4 reintroduces the original clause and I wish to argue that the clause should not stand part of the Bill, but should be replaced later on with the new clause.

Let me briefly explain what we are trying to achieve here. The fact of the matter is that the immigration system is subject to significant applications for judicial review. Last year, there were an incredible 4,454 applications for judicial review. One may say that that reflects some fault in the system—that decisions by tribunals have been wrong. However, when one considers that 85 per cent. of those applications for judicial review were not progressed and that something like 60 to 70 per cent. of the High Court work is in the area of immigration, we can see that there is a problem. In other words, our higher courts are being bunged up—let me use that phrase—with such matters.

What we are trying to achieve is a more efficient system that can speed up decisions, because it is the speed of decision in the immigration system that has caused such difficulty. We want not only to speed up but to achieve better decisions by allowing the expert tribunals to take decisions. At the same time, we do not want to restrict the ability to take principal cases to the High Court. If it is judged by the higher court to be suitable for it, it can take it as well. That is what we want to achieve in rejecting the clause as it stands. We will ask the Committee at a later stage to consider reinserting the clause as it stood.

Damian Green (Shadow Minister, Home Affairs; Ashford, Conservative)

I wish to speak in favour of clause 55 standing part of the Bill because I believe that their lordships struck the appropriate balance. I have a scintilla of sympathy for the Minister who is trying to introduce legislation that balances the needs of justice for individual claimants and the needs of the court system. He argued the case for—as he eloquently put it—finding a way to resolve the stuffing up of the court system.

Phil Woolas (Minister of State (the North West), Home Office; Oldham East & Saddleworth, Labour)

Bunging up.

Damian Green (Shadow Minister, Home Affairs; Ashford, Conservative)

Sorry, bunging up, which is a legal term that I have not come across before. If one reads the long, serious and high-powered debate that took place on the matter in the Lords, greater legal brains—not mine or the Minister’s; we both have similar backgrounds and they are not legal backgrounds—have come to the conclusion that the Government have got this wrong. For that reason, this is one of the parts of the Bill which was radically changed and what is now clause 55 was introduced.

There was widespread agreement in the other place that many of the cases from the immigration and asylum courts could be transferred satisfactorily to the new upper tribunal. That would be an effective way of reducing the pressure on the administrative courts. However, there were a significant number of issues that came up during that debate, which are quite convincing and damaging to the case that the Minister has made. What clause 55 does is limit the transfer of those cases to one category that was held to be appropriate, and provides that the power in the 2007 Act to limit appeals from the upper tribunal to the Court of Appeal would not apply to asylum and immigration cases. Unlike the original clause, which the Minister is seeking to reintroduce as new clause 4, clause 55 specifies that it would not come into force until the asylum and immigration tribunal had been transferred to a unified tribunals system.

Early on in his remarks, the Minister argued that clause 55 stands in the way of the allocation of cases in the interests of justice. That is where his argument falls down because he is striking the wrong balance. The strongest objection made in the debate in the Lords to the Government’s proposals was the concern that they were trying to achieve the objective of cutting down access to the higher courts by the back door. When the Government made an attempt to do that in 2004, it was fiercely opposed, including by the Select Committee on Home Affairs. It has been mentioned by the hon. Member for Carshalton and Wallington that we have members of that committee on this one.

No one would deny that there is a real problem of overburdening the courts, or that immigration cases significantly contribute to that overburdening. Indeed, the Home Affairs Committee does not object in principle to cases which are not highly significant or complex being considered in the upper tribunal. However, it came to the right conclusion when it said that failings on the part of the Home Office must not be compensated for by a lessening of appeal rights in those complex cases which engage human rights issues or constitutional principles.

That is the nub of the argument, where the balance needs to be struck. The Minister will be aware of other groups, for example, the Immigration Law Practitioners Association. It said that it

“plainly cannot be argued that the proposal will effect some fundamental change in the nature of the tribunal hearing these appeals which will justify shutting off the constitutional right of access to the High Court and severely restricting access to the Court of Appeal.”

In summary, most of those who took part in the debate in the other place agreed that some—or even most—asylum and immigration could be transferred to the upper tribunal. There was a general view that the jurisdiction of the High Court should not be ousted altogether. A key point in that regard was made by Lady Butler-Sloss, who is a very distinguished judge. She saw the issue as

“not which court, but which judge, should deal with the case.”—[Official Report, House of Lords, 11 February 2009; Vol. 707, c. 1174.]

She also said that the judges should be carefully selected and trained. That is the point; we want the most difficult cases in front of the right judges. This is where the Government are in danger of finding themselves in an unbalanced position by creating other problems in an attempt to clear up the problem of delay. Most notably, they could find that they do not have the right cases in  front of the right judges by removing the jurisdiction from the appropriate level of court. That is why their lordships had an array of amendments in front of them, including one that took a “middle way”. However, they chose the more radical amendment. My noble Friend Lord Kingsland said that he was extremely unhappy to permit any transfers of immigration or asylum judicial review cases until they had seen the effect of the transfer of the AIT to the new unified tribunal service.

Their lordships discussed this key issue of timing, but the Minister did not address this point. Many of their lordships said that Government proposals to change the system were simply premature, coming only 18 months after Parliament had decided to exclude such cases from the upper tribunal, and only three months after the tribunal had started work. That is a very valid argument; we do not yet know how this unified tribunal system is working, so it is not sensible to decide now to take such an important class of cases away from the High Court and allow them to go only as far as the upper tribunal. We should see how the system works in practice before we take that action.

Lord Thomas of Gresford, the Liberal Democrat spokesman, pointed out three big problems with the provision: an immediate risk of injustice to the litigant, a risk that inadequate handling of judicial reviews by an untested tribunal will result in an increased work load for the supervising court—the Court of Appeal—and the risk of reduced supervision at the Home Office. The latter could result in more liberties being taken, leading to more instances of injustice and, therefore, increased litigation. The root of that objection is the thought that, in attempting to clear up the court system, this will not work, and might even result in more, rather than less, litigation.

The next argument advanced, which was quite convincing, was that the horrendous delays in the immigration and asylum courts, which contribute to many of the wider problems in the immigration system, are caused not by the simple volume of cases, but by other factors, many of which are under the control of Ministers and the Home Office itself. Those factors include the poor quality of the initial decisions, the fault of the appeals structure, the fact that withdrawing appeal rights has led to more judicial review applications, the emphasis on speed rather than quality, the failure of the Home Office to comply with case management directions, and the lack of adequate provision for early legal representation.

There is some validity in each of those objections, especially the one about the poor quality of initial decisions. I am sure that those of us who deal with such matters on a daily basis hear constantly about the many cases that appear before the AIT in which no presenting officer is present, which means that the judge will inevitably hear only one side of the story. That, in itself, contributes to the less-than-optimal operation of the AIT. In seeking to solve the AIT’s problems, the Government might actually be looking in the wrong direction.

The Minister’s objective is not a bad one. He is trying to speed up the asylum and immigration courts. I do not think that anyone would object to that. [Hon. Members: “Some might.”] Yes, some might, but I can assure the Minister that neither I, nor anyone else in my party, would. However, the problem is that if he simply  goes for speed, rather than speed accompanied by fairness, not only will he make the system less fair, but, in the long run, he might not even solve the problem of speed, because there will be more and more appeals. That point was made very powerfully by some very powerful legal brains in another place. For the Government simply to ignore them would be foolish and would lead the House down the wrong track.

As I say, I speak in favour of the existing clause 55, and I hope that the Minister will not press his amendments and new clause 4.

Tom Brake (Carshalton & Wallington, Liberal Democrat)

I do not propose to cover the same ground as the hon. Member for Ashford. He quoted my party’s spokesman in the other place and highlighted concerns raised there. Those concerns still apply here, at least with regard to the proposal that the Minister has put before us today. Therefore, we believe that the clause should be retained.

My hon. Friend the Member for Rochdale asked me point out that in the summary table to which the Minister referred there are no figures quoted in the section on appeals—reduced asylum and immigration cases before higher courts. That reduction is a stated benefit, but again it is unfortunately not a quantified stated benefit. In fact, in the whole of that summary table not a single benefit has been quantified. I understand that the Minister may not want to give incorrect figures, but he now seems to have lurched in completely the opposite direction and is providing us with no figures at all, which is just as unhelpful as providing incorrect figures used to be.

So I hope that the Minister will backtrack from his proposal to remove the clause. All the concerns that were expressed in the other place still exist; they have not been addressed. I hope that the clause is retained in the Bill.

Phil Woolas (Minister of State (the North West), Home Office; Oldham East & Saddleworth, Labour)

In his absence, I congratulate the hon. Member for Rochdale on spotting that. If he can tell me how many appeals there will be in three years’ time, I will tell him what our estimate of the costs is. The situation is not as scientific as that. None the less, I take his point.

Let me try to provide some reassurances to the Committee. This is a serious debate about the structure of our legal decision-making system in the asylum and immigration processes. We have a situation that, if it is not unique, is unusual. The other place has made its view clear and the judiciary made their views clear in their response—as far as it is possible to say that there is a consensus among the judiciary and while recognising their independence—in broad support of the Government’s policies. That situation has been brought about by a very practical set of facts.

It is simply not fair to say that the fairness of the decisions is in question. I agree with the hon. Member for Ashford on his last criterion. I have some sympathy with the idea of early legal advice. Indeed, I have some sympathy with the idea of early legal representation to improve the quality of decision making. However, I cannot accept his other four or five criteria.

I do not accept that there is unfairness in a judicial review being heard in the expert upper tribunal, because the upper tribunals will consist of the expert judges. So  I do not accept that that is the case. That principle was accepted for non-immigration cases in the Tribunals, Courts and Enforcement Act 2007, and there is no reason for a different point of view in immigration cases.

On the point about the decisions, as I have already said, last year we had about 4,454 applications for judicial review. A total of 85 per cent. of those applications were rejected just on the papers. That suggests that the applications for judicial review are abusive, if that is the right word, rather than that there are poor decisions. All Members of Parliament who deal with these issues will recognise the truth of what I have just said.

I am not in any sense taking away the right to apply for a judicial review. I am trying to put in place a system that deals with judicial review more effectively. Indeed, the members of the judiciary who are the most senior lawyers in this regard believe that we have got this matter right. Let me just refer to the UKBA website. We have support from the Master of the Rolls, the president of the asylum and immigration tribunal and the president of the Queen’s bench division, among other members of the judiciary, for the changes proposed in the Bill to the way in which judicial review should be considered. That follows the consultation on reform of the immigration and asylum appeals system. We have not plucked it out of thin air; we have been working on the proposals with colleagues and the judiciary for a year, and, on the whole, they have come round—I am being very careful with my words—to our point of view.

The president of the Queen’s bench division said:

“The proposals in the Consultation Paper are strongly supported. The judges of the Administrative Court, the court most directly affected, were invited to provide an input into this response. The only reaction received from them has been one of warm endorsement of the proposals. There has been no opposition to the proposals.”

The senior president of tribunals said:

“I also welcome the proposal to remove the statutory bar on the transfer of immigration judicial review cases to the Upper Tribunal.”

The upper tribunal will be well established at the point at which the proposals are implemented. He went on:

“The Lord Chief Justice and Lord President have already directed the transfer of some non-immigration related judicial review to the Upper Tribunal from its inception. The necessary legislative change should be made as soon as possible to allow transfer of immigration related cases.”

That is strong support. I recognise that the other place took a different view. There was a well-informed debate there; that is what it is for and I respect that. However, the judiciary and the UK Border Agency have to run a system, and we think that this is the best way forward.

On the accusation that the measure is an attempt to oust judicial reviews, the right of judicial review will still exist but some cases will be heard in the upper tribunal rather than in the High Court. It will be for the High Court judges, or the Lord Chief Justice with the agreement of the Lord Chancellor, to decide which cases will be heard in the upper tribunal. The measure does not take away that right. It makes the system more effective. How many cases will be transferred into the upper tribunal will be a decision for the High Court and the Lord Chief Justice. The Lord Chief Justice will be able to take into account the capacity of the upper tribunal, as well as the burden on the High Court,  which at the moment we simply cannot do. It is surely not in the interests of justice that 60 to 70 per cent. of High Court decisions are on immigration.

The issue of timing is important, and I respect the hon. Gentleman’s point of view on that. He said that it was a question of balance and that we had the balance wrong. He agreed with the other place. My argument is that we have the balance right and I shall explain why. The Tribunals, Courts and Enforcement Act 2007, on which I have in part based my argument, allows most judicial review cases to be transferred to the upper tribunal, but excludes immigration cases. When that Act was passed we did not intend to transfer the AIT into the unified system, and it does not make sense for immigration judicial review cases to be heard in the upper tribunal unless immigration judges are available. In light of the burden on the higher courts and our decision to transfer the AIT, the time is right to legislate to remove that barrier. I believe that I have shown that, on the whole, the judiciary support that.

Of course, we will not commence the legislation until the specialist immigration judges are in the upper tribunal. Contrary to the argument of the hon. Member for Ashford, I believe that we have the balance right in the interests of fairness, justice and an effective immigration system. The fundamental problem with immigration decision making, which distinguishes it from most other areas of tribunal decisions, is that circumstances change for individuals as time passes. That means that a more effective system is more desirable, not just for the system as a whole but for the individual. Those are my three main arguments for rejecting the clause as it stands and proposing a new clause for a later stage.

Damian Green (Shadow Minister, Home Affairs; Ashford, Conservative)

I want to respond briefly to the Minister’s remarks. Almost as a side issue, he is quoting from the UKBA website the remarks of senior and distinguished figures of the judiciary, but presumably they made those remarks somewhere else, so that seems slightly odd. Presumably some of them would have had the opportunity to contribute to the debate in the other place, so that is the root of where I think he has got it wrong.

The Minister rightly said that the purpose of the other place, as it currently functions, is to provide a level of dispassionate expertise that may not be available at the rough end of this place, which we occupy. He agreed with me, and indeed anyone who has read the debate in the other place would testify, that it was an extremely serious debate, conducted on both sides by people who have thought about the issues for a long time and come to some deep conclusions. He accepted all that but is inviting us to reject entirely the conclusion reached in the other place. We can all cite authorities, but ultimately, if their lordships are addressing an issue with particular expertise and come to such a convincing conclusion in a vote, we should heed them. It is not a particularly partisan issue, as we all agree that there are significant problems with the immigration courts and with delays, and I would welcome practical moves from the Government to resolve them. At the moment, however, they are looking at the wrong end of the pipe.

I am glad that the Minister agreed that one of the problems, and one which would actually make a very significant difference to the delays, is that when the legal advice is provided—[Interruption.] He says from a  sedentary position that he had sympathy with the argument—I can see the subtle difference between that and actually agreeing with me. He will be aware of experiments in this country and other parts of the world showing that the early application of significant legal advice, particularly in an asylum application, can mean that in the long run it is decided more quickly and accurately. It might never get to court and certainly would not get to appeal, so the advice serves many purposes.

Simon Burns (Whip, Whips; West Chelmsford, Conservative)

Does my hon. Friend share my surprise that 85 per cent. of applications for judicial review are rejected, and does such a high proportion not make one question the quality or motivation of the legal advice being given to people seeking judicial review?

Damian Green (Shadow Minister, Home Affairs; Ashford, Conservative)

There is some validity in my hon. Friend’s point. Indeed, I have heard that view expressed with a degree of enthusiasm by the Minister, who is not known as the biggest fan of the legal profession, particularly the part of it that deals with immigration and asylum cases. I am, as a habit, gentler on the legal profession than he is, not least because I am married to a lawyer, so perhaps for no other reason than self-preservation, that seems an appropriate course of action. Nevertheless, there is a point; we all know from our constituency cases that there might be a degree of abuse of the legal privileges afforded to those going through the immigration system, particularly the asylum system, and it would be better to stamp it out. The question is whether the clause is the best way to do that. I suspect that it is not, as it would not solve the problem that my hon. Friend and the Minister have noticed, and would give rise to the other problems that I have mentioned.

I return to the point, which is germane to my hon. Friend’s intervention too, about the stage in the process at which we should concentrate our legal advice. I seek to minimise the effect on the public purse, as would the Minister, and to maximise the speed at which people go through the system, because delay promotes both injustice and expense. As I was saying, experiments in this country, and many experiments overseas, have revealed that if someone receives decent legal advice at the start of the process, their case will not only be concluded more quickly but will be much less likely to go to appeal. If they then end up being removed from the country, they are more likely to accept the situation. The problems with delays and with many people refusing to go and causing violence on planes are driven out of the system. Sweden has a successful return rate of more than 90 per cent. We could learn from that, and in doing so we would also save public money.

The Minister disagreed with me about the timing, but he did not particularly convince me. It seems very early in the life of the new unified tribunal system to be proceeding down such a path. I note that one of the authorities he quoted is in charge of the tribunal system, but I would expect the person in charge of the tribunal system to say that it is all working marvellously. Indeed, I would be worried if they did not. Nevertheless, we should give it more time to bed down. In the end, much wise advice was given in another place about this matter, and I think that this House should listen, so the clause should stand part of the Bill.