Report (1st Day)

Part of Immigration Bill – in the House of Lords at 6:30 pm on 1st April 2014.

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Photo of Baroness Smith of Basildon Baroness Smith of Basildon Opposition Deputy Chief Whip (Lords), Shadow Spokesperson (Home Affairs) 6:30 pm, 1st April 2014

My Lords, we now return to what many consider one of the most controversial clauses in the Bill. Noble Lords will recall that we had a number of debates on this clause in Committee. We raised our concerns about the principle of removing the right to appeal against an application to refuse a visa. We saw that against the backdrop of what appears to be poor-quality decision-making, when so many appeals succeed.

In the debate last week on the Question for Short Debate introduced by the noble Lord, Lord Steel, the noble Earl, Lord Attlee, referred to the decision-making process as a matter of judgment and said that when a tribunal overturns an original decision by a caseworker that does not mean the original decision is wrong, merely that a different judgment has been made. He was very clear that these are balanced judgments. The noble Lord, Lord Steel, made a helpful point that, on the issue of judgment, the caseworker should be able to go back to the sponsors of an application to double-check its veracity. The noble Earl, Lord Attlee, agreed to write to us on that and I look forward to receiving his reply. The point made by the noble Lord, Lord Steel, contributes to our discussions today. Despite the Minister’s best efforts, both in your Lordships’ House and in writing, and the generosity with their time of the noble Lord, Lord Taylor, and the noble Earl, Lord Attlee, in meeting to discuss this and other issues, he has failed to convince us of the need to remove the right of appeal and replace it with an internal, administrative review. We remain of the view that the efforts and resources would be better employed ensuring accurate, timely initial decisions.

We remain deeply concerned about the clause and have therefore retabled our amendment to delete it from the Bill. We have also tabled Amendment 13 to ensure that appeal rights cannot be abolished until the quality of Home Office decision-making for managed migration is deemed, by the Independent Chief Inspector of Borders and Immigration and the Secretary of State, to be efficient, effective and fair. This reinforces my previous point about our priority being the quality and accuracy of judgment on initial decisions.

As your Lordships will know, only three types of decision will remain appealable under this clause: a decision to refuse a claim of asylum or humanitarian protection; a decision to refuse a human rights claim; or a decision to revoke asylum or humanitarian protection. A decision by the Home Office to refuse an application which does not involve one of these claims but is made, for example, on erroneous grounds or without reference to highly relevant information, could not be challenged before a tribunal. That even includes a simple mistake being made or not including a document that should have been included. As noble Lords who have been through this process with anybody or advised them on it will know, it is sometimes very difficult to know all the documents that should be included. Instead, the Government plan to set up an administrative review system which will provide a proportionate and less costly mechanism for resolving caseworking errors. We obviously support a process that gives timely, accurate decisions with a facility to swiftly address any errors. However, taken in context, this clause does not do that.

In Committee, we heard about the impact that the clause might have on students, undermining our attractiveness to the best students in the world. We heard about the impact that it would have on children, and noble Lords will also be aware of its impact on businesses. Organisations representing students’ best interests and student bodies fully support Amendment 11 as the preferred way of dealing with this. This may offer reassurance to the noble Lords who have spoken specifically about students.

The system that provides for appeals is even more essential, given that we know how flawed the current system is: the balance of judgment referred to by the noble Earl, Lord Attlee. It is well documented that the department is already struggling to deliver a high-quality service and there are huge casework backlogs. In Committee, I provided some shocking statistics to show how serious the situation is. I do not intend to repeat those today but it is clear from the evidence that there are huge pressures on the service and on those whose job it is to clear the backlog and assess new applications. Yet the Government now propose a new administrative review system with no additional staff. We should not be surprised, or allocate blame to individuals working under such pressure, that so many decisions are overturned on appeal. The latest statistics that I have seen show that 32% of deportation decisions, 49% of managed migration appeals—that is, work and student appeals—and 49% of entry clearance applications were successfully appealed last year.

Although the department had no statistics on why those appeals were granted, since then it has, rightly, undertaken an exercise looking at a sample of 2% of cases, which showed that 60% of appeals allowed are due to casework errors. Extrapolating that figure indicates that almost a third of all appeals allowed are due to casework errors. In Committee, the noble and learned Lord, Lord Wallace, said that these figures had to be looked at,

“from the perspective of the end-to-end immigration system”,

and that the majority of applications are successful. What he meant was that the majority of applications are not appealed against.

However, what matters here is the principle. When so many decisions are found to be flawed and when even the Minister acknowledges, as he puts it,

“historic problems with decision quality”—[ Official Report , 3/3/14; col. 1195]— should we really be trying to remove the current system of appeals and replace it with administrative reviews? I have said before, and I think it still holds, that it cannot be right that the Home Office’s response to its own inefficiency is simply to stop people challenging that inefficiency. I come back to my earlier point, which makes all the more sense to us: the Government should be focusing on improving the efficiency of those initial decisions and making sure that there is little need for appeals in the first place.

As evidence of the appropriateness of the new system of administrative appeals, the Government rely on its use overseas by people who are refused entry clearance. However, as the Government themselves have admitted, not only are these very different decisions with fewer grounds—and so, it is hoped, with fewer mistakes made—but just 21% of original decisions are overturned in that process against the 50% of appeals granted under the current system. Therefore, given the difference in the types of decisions and the fact that less than half the number of overseas administrative reviews are successful compared with appeals, I am not convinced that the Government’s reliance on that as evidence for making the change is sound.

The Government have said time and again that the person reviewing the decision will not be the person making the original decision, but the reviewers will still be a cohort of immigration staff drawn from the initial decision-makers, so it is not an independent process.

In his response to me in Committee, the noble and learned Lord, Lord Wallace, insisted that the administrative review process will be quicker and less costly. He said:

“Immigration judges at the tribunal will no longer need to consider caseworking errors. Applicants will have those errors considered faster and more cheaply, and those types of case will be removed from the tribunal system, which will reduce overall expense”.—[Official Report, 3/3/14;. col. 1191.]

That is all very well: who would not want a system that is simple, fast and cheaper? However, do we not also want one that is accurate? If mistakes are being made one way, with people being denied visas when they should have received them, can we be certain that no mistakes are being made in the other direction—that is, people being granted visas when they should not be? People are certainly not going to appeal against that. Therefore, we need a system that gets it right.

I think that our comments and concerns have been taken on board to some extent, particularly with regard to the lack of oversight. The noble and learned Lord, Lord Wallace, quoted the statement of intent in relation to the Bill, saying:

“‘Within a year of the … review process being established, the Home Secretary will ask the independent chief inspector to include a review of the administrative review process in his inspection plan’”—[Hansard, 3/3/14; col. 1196]— and that the chief inspector could have the power to undertake an inspection off his own bat. A government amendment was tabled to that effect, and another not dissimilar amendment will be coming soon from the noble Baroness, Lady Hamwee. However, that remains after the event. Why not have a review first to see where improvements can be made? Alternatively, we can monitor those improvements before forging ahead and adding another layer of chaos to an already overstretched service.

The Government have also relied on the availability of judicial review as a recourse, despite the change that they are making to judicial review and despite the fact that the impact assessment could not make a proper assessment of the cost. However, this process has the potential to be far more expensive, despite the noble and learned Lord’s comments about it being cheaper and quicker. The Government’s own assessment shows that an extra 5,600 reviews and up to 1,000 judicial reviews could be granted. That would cost more than appeals, and costs can be sought from the other party and damages may be claimed.

The noble and learned Lord, Lord Wallace, said on a number of occasions in our previous debate that he understood the concerns in relation to the clause and he understood the reservations that were expressed about decision-making in immigration cases. Despite that, the Government are still ploughing ahead with a radical reform. We have not seen the evidence for this clause and we do not believe that the evidence is there. It is ill thought-out and unfair, and I hope that, even at this late stage, the Government will be prepared to consider the points that have been made throughout the passage of the Bill. I hope that the Minister can give greater reassurances on this issue than he has been able to provide so far. I beg to move.