Clause 55
Borders, Citizenship and Immigration Bill [Lords]
4:45 pm
Phil Woolas (Minister of State (the North West), Home Office; Oldham East and 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.