Report (1st Day)

Part of Immigration Bill – in the House of Lords at 6:45 pm on 1st April 2014.

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Photo of Lord Wallace of Tankerness Lord Wallace of Tankerness Lords Spokesperson (Attorney General's Office), The Advocate-General for Scotland, Deputy Leader of the House of Lords, Lords Spokesperson (Scotland Office), Liberal Democrat Leader in the House of Lords 6:45 pm, 1st April 2014

My Lords, as the noble Baroness, Lady Smith, indicated, we debated this matter at some length in Committee. We will necessarily go over some of that ground again but I appreciate the opportunity to do so and to inform the House why we believe that it is helpful and a positive development that we should move to this system of administrative review.

Obviously, the noble Baroness’s Amendment 11 would remove Clause 15 from the Bill. In doing so, it would retain the current appeals system, which we believe is too complex and does not provide the most appropriate and effective remedy in each case against refusal decisions. I understand the reservations that have been expressed here—we rehearsed a number of the issues in Committee—about decision quality in immigration cases. First, it is again important that those concerns are seen in context. As I said—and as was once said back to me—the great majority of decisions are not refused in error. The majority of applications are successful. The noble Baroness quoted me on that. Of decisions taken in the United Kingdom, only 10% were refused in 2012. Therefore, when the majority are successful, it is not about an absence of appeals. The noble Baroness asked if some of these decisions had been wrong, too. I suspect we will never know because people tend not to appeal against decisions when they have been successful. Some 51% of that 10% that were refused in 2012 succeeded on appeal. Therefore, 5% of the total decisions taken succeeded on appeal. Of that 5% of decisions, 60% succeeded because an error was made. By my calculation, we are down to 3% of all decisions in managed immigration cases being attributable to an error.

We believe that retaining the current system, as would be the consequence of the noble Baroness’s amendment, would not improve decision quality. It would mean that people continued to wait longer and incur more expense for errors to be corrected than under the system established by Clause 15. Under Clause 15, where a claim based on a fundamental right is refused—I think we heard about some of those under the previous amendment—it can be appealed and the fundamental rights are set out in the Bill. It is right that a full-merits appeal should be available for these cases. Where the claim is not based on fundamental rights, we can indeed show that 60% of cases that succeed on appeal do so because of a working error. It is also worth reflecting that the kinds of cases we tend to deal with are those that are a matter not of judgment but of the application of objective rules. If the rules are met, leave is granted. If they are not met, leave is refused. That type of decision is well amenable to administrative review. As the noble Baroness said, the process will be quicker and cheaper than an appeal.

In the statement of intent, the Home Office sets out that it would have an expectation of decisions being taken within 28 days of an administrative review being sought. Paragraph 8 of the statement of intent refers to,

“28 days to complete an administrative review. This is faster than the current average 12 weeks (published statistics for first quarter 2013) it takes for a managed migration appeal to be heard”.

Before coming into the Chamber today, I was advised that management migration appeals to the tribunal took an average of 19 weeks to be resolved in the period from July to September 2013. I have no doubt that I have heard on numerous occasions in your Lordships’ House that justice delayed is justice denied. If some of these 60% are dealt with in 28 days rather than 19 weeks, that is very much in the interests of the applicants.

The noble Baroness anticipated what I would say with regard to the fact that administrative review already operates overseas and we believe that it works. From April to December 2013, 93% of these administrative reviews were completed within 28 days and 21% of administrative reviews requested resulted in the original decision being overturned. It has not been said today but I think it has been said in previous debates: there are those who think that there will be apprehension over people within the Home Office overturning a decision made by someone else within the Home Office. That simply has not been the case. Just over one in five resulted in the original decision being overturned. I believe I have said before that I am never quite sure whether it is better if the number is higher or lower. If it is higher, it might be said that people are less afraid to overturn their colleagues’ decisions or perhaps that it is inefficient, whereas if the number is lower it might be said that they are afraid to challenge their colleagues. However, it may just be that more often they are getting it right.

Administrative review will be central to improvement in decision-making quality.