Schedule 2 - Asylum and Immigration Tribunal: Consequential Amendments and Transitional Provision

Asylum and Immigration (Treatment of Claimants, etc.) Bill – in a Public Bill Committee at 6:45 pm on 20th January 2004.

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Amendments made: No. 114, in

schedule 2, page 30, line 26, leave out from 'completed,' to end of line 29.

No. 115, in

schedule 2, page 30, leave out line 31 and insert—

''(b) in subsection (4) for ''as part of the determination of the appeal for the purposes of section 101'' substitute ''as part of the Tribunal's decision on the appeal for the purposes of section 105A''.''

No. 116, in

schedule 2, page 30, line 37, leave out from 'completed,' to end of line 40.—[Mr. Lammy.]

Photo of Humfrey Malins Humfrey Malins Conservative, Woking

I beg to move amendment No. 139, inschedule 2, page 31, line 23, at end insert— '(ha) In subsection 2(n) after ''service'' insert ''and shall provide for service of any notice of appeal on both the tribunal and on the Secretary of State''.'.

The amendment would provide for service of any notice of appeal on both the tribunal and the Secretary of State. I am grateful to one or two of the adjudicators, who spoke to me about the matter. The amendment would ensure that the appeal process in both immigration and asylum is initiated by serving the appellate authority, rather than the Home Office, with the notices. Since immigration appeals began in 1970, it has been the practice for appellants to serve the Home Office—or the entry clearance officer, in overseas cases. That enables the Home Office to be as slow as it chooses—and it often is—in sending the appeal to the appellate authorities. It also means that, from time to time, the Home Office can reach agreements with the appellate authorities as to how many cases it will forward in particular categories each month. That enables the appellate authority to plan its work and the use of its human and other resources. However, it seems to many people to be wrong in principle that one party to an appeal should be able to determine the way in which the appellate authority deals with cases. I understand that a recent case called Vowsden suggests that the authority should be seized of a case once notice of appeal has been served, even if it then languishes for months in the Home Office. Procedure rules would determine whether the notice of appeal should be copied to the Home Office as well as being served on the appellate authority. There may be reasons for serving notices of appeal on the state, in cases in which a review of the decision is a real possibility, because that would lead to savings of time and money. However, that would be rare in immigration and asylum cases. I should be glad if the Minister could address the issues raised by the amendment. Mr. Lammy: We already have the enabling power to prescribe procedures for appeals in rules, but the amendment would place the method of lodging the appeal in primary legislation, which would be slightly unusual. I am aware that there are concerns that appeals should not be lodged with one party to the appeal. The current system, which allows appeals to be lodged with the immigration and nationality directorate, has proved to be efficient and has helped the immigration and nationality directorate and the Immigration Appellate Authority to manage their work loads. However, in moving to a single tier of appeal, it is time to reconsider the procedures for the new tribunals. For that reason, I would like to reflect further on the principle underlying the amendment and to take it away with me if I may.

Photo of Humfrey Malins Humfrey Malins Conservative, Woking

I am extremely grateful that the Minister will take the amendment away and consider it. On that basis, I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Photo of Humfrey Malins Humfrey Malins Conservative, Woking

I beg to move amendment No. 83, in

schedule 2, page 31, line 36, leave out 'other members and'.

The schedule refers to the supervision of other members and staff of the tribunal, and the amendment would omit the reference to ''other members''. It is an important matter, as according to the Bill, some members of the tribunal will be responsible for supervising others. That is an insidious provision; that is certainly the view of a number of those who practise in the field.

Can the Minister tell us whether any other jurisdictions give one judge the authority to supervise another at the same level? What does supervision actually mean? Let us suppose that one tribunal member were to grant an adjournment. Could his supervisor, a member of the same tribunal at, I assume, the same level, instruct him to change his decision? I gather that statistics on adjournment rates are already held centrally, which my correspondent says is bad enough. Under the new regime, will the supervisor be able to give instructions about the circumstances in which an adjournment should or should not be granted? What control or influence is envisaged?

An objection can be made in principle to this part of the schedule. I am not sure that judicial independence can be properly achieved if one judge is accountable to another for the manner, form and result of any appeal. This is an unpleasant little bit of the schedule. The Minister should give serious consideration to the supervisory role of one judge over another, which never operates in the courts of which we are all aware such as the Crown court.

Photo of David Lammy David Lammy Parliamentary Under-Secretary (Department for Constitutional Affairs)

I seek to reassure the hon. Gentleman that nothing untoward was meant by the provision. It is certainly no attempt to undermine the independence of the judiciary. No tribunal member will have a draft determination altered by the supervisor. No tribunal member will expect to have a decision to adjourn challenged. No tribunal member will be pressurised by his supervisor when deciding an appeal. That would be quite inappropriate, and outside the context and the arrangements in this country for the independence of our judiciary.

We propose that senior members of the judiciary will be responsible for supporting a group of approximately 10 immigration judges. The senior judiciary will play a role in communicating information and case law and will be available if the immigration judge wishes to discuss any issue. They will play a role in ensuring that the judges receive appropriate training and mentoring, should they need it. That is consistent with judicial independence and is essential to allow asylum and immigration tribunals to function effectively. It is the management structure that was thought appropriate when collapsing the two tiers into the single-tier system. The provision for the supervision of members will have to be conducted in accordance with the rules. I can assure the Committee that those rules will be transparent, as they will be made in statutory instruments subject to annulment by Parliament.

Photo of Humfrey Malins Humfrey Malins Conservative, Woking

The Minister has done his best to reassure me. He has not entirely done so, and I still make the point that one judge supervising another is an unnatural situation. However, I have made my points and I know that the Minister will take them away with him. On that basis, I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Photo of Humfrey Malins Humfrey Malins Conservative, Woking 7:00 pm, 20th January 2004

I beg to move amendment No. 140, in

schedule 2, page 32, line 2, at end insert

'and must make provision for the tribunal to follow an active approach to the hearing of appeals notwithstanding any rule of law or practice establishing that the procedure at or before hearings shall be adversarial in character.'.

Photo of Mrs Marion Roe Mrs Marion Roe Conservative, Broxbourne

With this it will be convenient to discuss the following:

Amendment No. 141, in

schedule 2, page 32, line 2, at end insert

'and shall make provision for the Secretary of State to be under a duty to ensure that he is represented at every appeal before the tribunal.'.

Photo of Humfrey Malins Humfrey Malins Conservative, Woking

I regard amendment No. 141 as very important. Amendment No. 140 concerns the approach of the tribunal to cases. Adjudicators are currently limited in taking a proactive approach to cases, even though common law asylum appeals must be given ''the most anxious scrutiny''. The amendment would allow the tribunal to develop new means of listing and hearing cases and as long as it was fair to both parties, talk of adversarial and inquisitorial procedures would be unhelpful. The new methods cannot be exhaustively listed now, but there is surely scope to develop procedure in the light of the single-tier appeal system. That is the purpose of probing amendment No. 140.

Amendment No. 141 is most important in that it would ensure that regulations made

''provision for the Secretary of State to be under a duty to ensure that he is represented at every appeal before the tribunal.''

Several hon. Gentlemen have, quite rightly, made much play of the absence of the Home Office presenting officers before the adjudicators. Under the previous Home Secretary, the Home Office was always represented by counsel or by a presenting officer. That has changed dramatically over the past year, which is one of the factors that have caused problems in the handling of such matters.

Photo of David Heath David Heath Shadow Spokesperson (Home Affairs)

I have great sympathy for what the hon. Gentleman is saying. He is internally consistent in that he has argued for oral submissions to the review tribunal. Does he agree that the Home Secretary should be represented in person at a tribunal under normal circumstances, when a written rather than an oral submission has been made?

Photo of Humfrey Malins Humfrey Malins Conservative, Woking

I see the hon. Gentleman's point. If I had my way, I would have oral hearings—

Photo of Humfrey Malins Humfrey Malins Conservative, Woking

The hon. Gentleman, likewise. It is vital that, where appropriate, the Home Secretary is represented at every level.

I tabled a parliamentary question to the Secretary of State the other day, asking

''in what percentage of immigration and asylum appeals before adjudicators his Department was (a) represented by Home Office Presenting Officers (b) represented by Counsel and (c) not represented in the last 12 months for which figures are available.''

I thought that that was a very good question, and I congratulated myself on asking it. However, I was disappointed by the reply, which said that for

''the 12 month period to August 2003 the level of representation for Presenting Officers and Counsel when taken together was 72 per cent.''

I suppose that that means that there was 28 per cent. non-representation. The reply:

''This relatively low level of representation''— well, that is an admission from the Government—

''was caused, in large part''—

I should like to know what the other reasons were—

''by difficulties in recruiting Presenting Officers, particularly in the London area.''

In that case, I do not know why the Home Office does not instruct counsel more often. None the less, I was reassured to read:

''The level of representation will increase early in 2004 as up to 65 newly trained Presenting Officers complete their training and take up their posts.''—[Official Report, 19 January 2004; Vol. 416, c. 981.]

I hope that the adjudicators who sit in London and the south-east will be heartily reassured by that. As the Minister knows, counsel and solicitors were always instructed, but that practice seemed to stop in 2002. Having only one party represented put adjudicators in great difficulty. A litany of excuses is normally made for the failure to provide representation. Is it the lack of money—it is quite often—or the lack of the will to recruit and retain sufficient presenting officers? The Government have some work to do on that.

Photo of Edward Garnier Edward Garnier Conservative, Harborough

The importance of my hon. Friend's point is surely underlined when one considers that the facts or, more importantly, the law may not be correctly presented to the judge or the adjudicator. He or she may make a decision based on an error or on ignorance of the law, which might not have happened had there been full representation. My hon. Friend is by no means making a discrete point when he argues the importance of representing individual parties; full representation is also of great assistance to the court.

Photo of Humfrey Malins Humfrey Malins Conservative, Woking

I agree with my hon. and learned Friend that full representation is of great assistance to the court. Moreover, in the absence of a Home Office presenting officer, adjudicators hear only one side of the story. Without opposition from the Government, adjudicators are more likely to allow an appeal. I am told that many appeals to the existing tribunal are lodged by the Home Office without representation. I am also told that constant complaints from adjudicators and the existing tribunal have been largely ignored by the Government. I hope that the

Minister will focus on the good reasons why representation should always take place in the interests of all parties present before a tribunal.

Photo of David Heath David Heath Shadow Spokesperson (Home Affairs)

I do not want my earlier intervention on the hon. Member for Woking to be taken as reducing the effectiveness of his argument. I entirely share his view that the Home Office should provide representation at tribunal, either during the initial adjudication or during a review taking oral submissions. He is entirely right that representation is in the tribunal's interests for reaching an adequate decision, and in the interests of justice. I have the glimmering of a suspicion that the Government were so adamantly opposed to oral submissions at a tribunal appeal hearing, other than in exceptional circumstances, because they cannot be bothered to send people to do the job properly. It would be easier for them to write a letter and for that to be considered as a written submission. That is unacceptable. We are increasingly crafting our legal processes to be administratively convenient rather than to administer justice. That is a great concern and must be addressed.

Photo of Andrew Turner Andrew Turner Vice-Chair, Conservative Party

I support amendment No. 141 for an additional reason to those mentioned by my hon. Friend the Member for Woking; public interest. My constituents, and people across the country, trust the Home Office to protect the country from unwarranted asylum applications on their behalf. My hon. Friend has provided evidence that the Home Office is falling down on that responsibility and no longer justifies that trust.

If legitimate authorities cannot be trusted to do their job, people will turn to other methods. A loss of faith in the Government and other political parties is one reason for people turning to extremist political parties. I am sure that the Minister is aware of that, and it is not necessary for me to lecture the Committee. However, I must underline that people have to trust the Government, and when the Government fail, people lose faith in all of us.

Photo of David Lammy David Lammy Parliamentary Under-Secretary (Department for Constitutional Affairs)

Amendment No. 140 would require the procedure rules to make provision for the tribunal to follow an active approach to the hearing of appeals. In principle, there is no reason for tribunals not to follow a more active approach, as long as we continue to guarantee a fair, impartial hearing. The use of the word ''active'' may mean a more inquisitorial and less adversarial approach.

We are in favour of reconsidering the nature of hearings for the new tribunal. We have had initial discussions with the judiciary at the immigration appellate authority. No decisions have yet been taken, but we want to ascertain whether there is scope for a more interventionist approach. In moving to a new single tier, it is right that we consider new arrangements, and I am happy to go away and examine that point.

I have taken on board what hon. Members have said about amendment No. 141. I understand the importance of a presenting officer being at a hearing, and have met presenting officers and seen them at work in tribunals. We have made some progress in getting

more presenting officers. Between October and December last year, two thirds of cases had presenting officers, which is progress, and we have recruited and trained 65 extra officers, which will go some way to remedying the situation. I am personally sympathetic to having presenting officers, but adjudicators formerly could and judges now can legally reach their determinations without them. We are attempting to make presenting officers available.

Photo of Humfrey Malins Humfrey Malins Conservative, Woking

Will the Minister undertake to instruct counsel where a presenting officer is not available, so that the Home Office is always represented?

Photo of David Lammy David Lammy Parliamentary Under-Secretary (Department for Constitutional Affairs)

I cannot make that undertaking, because we have a system in which the judge can reach a determination without the presence of a presenting officer. That happens every day of the week. The Government's view is that it is preferable to have presenting officers where necessary, which is why we have actively sought to recruit 65. We have rightly examined such issues as the recruitment of presenting

officers, the sorts of people who want to be presenting officers—such as those not getting pupillage—the salary and so on.

We have made active attempts to recruit people. We have the extra 65 presenting officers and as of December there was representation on two thirds of cases, so we have gone some way to meeting the hon. Member for Woking's point. He makes a good point, to which the Government are sympathetic, but we do not see the need to put that obligation in statute, because it would not deal with recruitment. For that reason I am unable to accept the amendment.

Photo of Humfrey Malins Humfrey Malins Conservative, Woking

The Minister, perhaps not unnaturally, cannot accept the amendment, but he understands the force behind the arguments, which is just enough for me on this occasion. I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Schedule 2, as amended, agreed to.

Further consideration adjourned.—[Mr. Heppell.]

Adjourned accordingly at thirteen minutes past Seven o'clock till Thursday 22 January at ten minutes past Nine o'clock.