New Clause 6 - Expedited appeals: joining of related appeals

Nationality and Borders Bill – in a Public Bill Committee at 11:30 am on 4th November 2021.

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“(1) For the purposes of this section, an ‘expedited section 82 appeal’ is an expedited appeal within the meaning of section 82A of the Nationality, Immigration and Asylum Act 2002 (expedited appeals for claims brought on or after PRN cut-off date).

(2) For the purposes of this section, a ‘related appeal’ is an appeal under any of the following—

(a) section 82(1) of the Nationality, Immigration and Asylum Act 2002 (appeals in respect of protection and human rights claims), other than one which is an expedited section 82 appeal;

(b) section 40A of the British Nationality Act 1981 (appeal against deprivation of citizenship);

(c) the Immigration (Citizens’ Rights Appeals) (EU Exit) Regulations 2020 (S.I. 2020/61) (appeal rights in respect of EU citizens’ rights immigration decisions etc);

(d) regulation 36 of the Immigration (European Economic Area) Regulations 2016 (S.I. 2016/1052) (appeals against EEA decisions) as it continues to have effect following its revocation.

(3) If a person brings an expedited section 82 appeal at a time when a related appeal brought by that person is pending, the related appeal is, from that time, to be continued as an appeal to the Upper Tribunal and accordingly is to be transferred to the Upper Tribunal.

(4) If an expedited section 82 appeal brought by a person is pending, any right that the person would otherwise have to bring a related appeal to the First-tier Tribunal is instead a right to bring it to the Upper Tribunal.

(5) A related appeal within subsection (3) or brought to the Upper Tribunal as mentioned in (4) is referred to in this section as an ‘expedited related appeal’.

(6) Tribunal Procedure Rules must make provision with a view to securing that the Upper Tribunal consolidates an expedited related appeal and the expedited section 82 appeal concerned or hears them together (and see section 82A(4) of the Nationality, Immigration and Asylum Act 2002).

(7) Tribunal Procedure Rules must secure that the Upper Tribunal may, if it is satisfied that it is in the interests of justice in the case of a particular expedited related appeal to do so, order that the appeal is to be continued as an appeal to the First-tier Tribunal and accordingly is to be transferred to that Tribunal.

(8) For the purposes of this section, an appeal is ‘pending’—

(a) in the case of an appeal under section 82 of the Nationality, Immigration and Asylum Act 2002 (including an expedited section 82 appeal), if it is pending within the meaning of section 104 of that Act;

(b) in the case of an appeal under section 40A of the British Nationality Act 1981, during the period—

(i) beginning when it is instituted, and

(ii) ending when it is finally determined or withdrawn;

(c) in the case of an appeal under the Immigration Citizens’ Rights Appeals (EU Exit) Regulations 2020, if it is pending within the meaning of regulation 13 of those Regulations;

(d) in the case of an appeal under the regulation 36 of the Immigration (European Economic Area) Regulations 2016, if it is pending within the meaning of Part 6 of those Regulations (see regulation 35).

(9) In section 13(8) of the Tribunals, Courts and Enforcement Act 2007 (decisions excluded from right to appeal to the Court of Appeal), after paragraph (bza) (inserted by section 21) insert—

‘(bzb) any decision of the Upper Tribunal on an expedited related appeal within the meaning given by section (Expedited appeals: joining of related appeals) of the Nationality and Borders Act 2021 (expedited appeals against refusal of protection claim or human rights claim: joining of related appeals),’.”—

This new clause (to be inserted after clause 21) provides that where a person brings an appeal under section 82 of the Nationality, Immigration and Asylum Act 2002 that is subject to the expedited procedure under the new section 82A of that Act, certain other appeals brought by that person are also to be subject to the expedited procedure.

Brought up, and read the First time.

Photo of Tom Pursglove Tom Pursglove Parliamentary Under Secretary of State (Ministry of Justice and Home Office)

I beg to move, That the clause be read a Second time.

The new clause would be inserted after clause 21. It forms part of a package of measures that will enable the swift removal of those who have no right to be in the UK. It complements clause 21 by ensuring that individuals cannot utilise the appeals system as a tool to delay their removal from the UK.

Frequently, those facing removal or deportation from the UK utilise delay tactics, such as late claims and repeated appeals, to thwart removal action. That leads to unnecessary costs to the taxpayer and an increased burden on the court and tribunals system. Clause 21 addresses that issue by creating a new expedited appeal for late human rights or protection claims brought by recipients of a priority removal notice, as provided by clause 18. Expedited appeals will be determined quickly, and the decisions of the upper tribunal will be final. Therefore, clause 21 removes the incentive for bringing claims late and protects the appeal system from abuse.

However, there may be additional appeal rights generated by other claims that individuals may seek to exercise in parallel with an expedited appeal. Such additional appeals would usually be heard in the first tier tribunal. Consequently, an expedited appeal may conclude while an individual has an outstanding appeal in the first tier tribunal, which would prevent their removal from the UK.

New clause 6 enables other appeals in the first tier tribunal brought by a person with an expedited appeal to be heard and determined by the upper tribunal alongside the expedited appeal. That will ensure that, following the conclusion of the expedited process, final determination will have been made on the appellant’s right to remain in the UK and, where the upper tribunal decides that they have no right to remain, removal action can take place.

Photo of Stuart McDonald Stuart McDonald Shadow SNP Spokesperson (Home Affairs)

I welcome the Minister back to his place. I do not follow the logic of the new clause at all. If somebody is trying to play the system—and I do not like talking in those terms—surely all they need to do is not make a late claim in terms of the PRN notice; then, their existing appeal would proceed normally, with onward rights of appeal and so on. This proposal just does not make sense, even if we accept the Government’s logic, which I do not.

Photo of Tom Pursglove Tom Pursglove Parliamentary Under Secretary of State (Ministry of Justice and Home Office)

The point is exactly as I have set out: in the immigration system, we see repeated appeals deliberately designed to frustrate the system, and the new clause is an appropriate way, with appropriate safeguards, to ensure that the tribunal process can handle those appeals appropriately. It makes sense for appeals to be considered together so that attempts to frustrate the removal process cannot happen and cases are determined as quickly as possible. As I say, there are appropriate judicial safeguards in place in the tribunal process to ensure that appeals are heard appropriately and are directed through the appropriate tribunal. I commend the new clause to the Committee.

Photo of Stuart McDonald Stuart McDonald Shadow SNP Spokesperson (Home Affairs)

Briefly, there are two reasons why I do not think this new clause makes any sense at all. First, there is the point that I just alluded to. The danger is that if someone who has a PRN served on them is contemplating disclosing further information or making a claim and the deadline passes, and they are acting in the way that the Minister wants to get at here and trying to “play the system”, they will simply not make that disclosure. Their existing claims will proceed to appeal through the normal channels, to a first tier tribunal with onward appeal rights. So the proposals do not make sense, even by the Government’s own logic. Can the Minister address that?

Secondly, we object to the new clause from a point of principle. The rare occasions when I would accept that an expedited appeals process can be justified are where the justifications relate solely to manifestly unfounded or repeat claims, but that is not what this is about; this is about expediting appeals and rights to appeal, but not because of the substance of the appeal—it has absolutely nothing to do with the merits of the claim or the related appeal at all. So the proposals make no sense from the point of view of principle, as well as being rather illogical.

Photo of Bambos Charalambous Bambos Charalambous Shadow Minister (Home Office)

Again, briefly, I agree with everything the Scottish National party spokesperson, the hon. Member for Cumbernauld, Kilsyth and Kirkintilloch East, has just said. We do not know at what stage the other appeal will be; it may not be ready to be heard. One problem we have in this country is the delay in the appeals processes because of severe underfunding in our court and tribunal systems, so it seems that the new clause will not work.

The new clause will also cause more problems than it solves. I am not sure that there is a huge problem with multiple outstanding appeals in any event, but the new clause could actually make things worse. If the intention in the Bill is to provide fairness, the new clause will not achieve that, because speeding up an appeal could cause unfairness. So for the reasons outlined by the SNP spokesperson we will not support the new clause.

Photo of Tom Pursglove Tom Pursglove Parliamentary Under Secretary of State (Ministry of Justice and Home Office)

The bottom line is that we simply disagree on this matter. Clause 21 ensures that appeals relating to late human rights or protection claims are dealt with expeditiously, with decisions by the upper tribunal being final. This provides appellants with a swift determination of their claim. It also disincentives late claims and seeks to prevent sequential or multiple appeals from being utilised as a tactic to thwart removal.

However, the Government recognise that in certain circumstances an individual may exercise other appeal rights, in parallel with their expedited appeal. This could give rise to a situation whereby a person has an appeal in a first tier tribunal and an expedited appeal in the upper tribunal. Consequently, the expedited appeal may conclude while an individual has an outstanding appeal in a first tier tribunal. If the appellant was unsuccessful in their expedited appeal, the ongoing appeal in the first tier tribunal would prevent their removal from the UK. This outcome is undesirable and undermines the Government’s intention to disincentivise late claims by ensuring that appeals relating to such claims are determined quickly and conclusively.

The new clause ensures that where a person has an expedited appeal, any related appeal will also be subject to the same expedited process. Therefore, following the conclusion of the expedited process, the appellant’s right to remain in the UK will be determined with finality and, where an individual has no right to remain in the UK, removal action can take place. That is the logical and sensible approach that we propose to take.

Question put and agreed to.

New clause 6 accordingly read a Second time, and added to the Bill.

Photo of Roger Gale Roger Gale Conservative, North Thanet

Let me explain the process from now on for about the next 10 minutes. We now come to a sequence of Government new clauses, all of which have been debated already with other clauses or amendments. I shall say to the Minister, “Will the Minister move formally?” The Minister, being obedient, will say, “Moved formally.” The Clerk will then read the title of the clause and I will put the questions that it be read a second time and that it be added to the Bill. I gently suggest to the Opposition that there is not much point in calling a Division on both those questions—you can, but it will take a lot longer. Let us see how we get on.