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'( ) On an appeal under section 103 of the Immigration and Asylum Act 1999 (c. 33) against a decision made by virtue of paragraph 7A of Schedule 3 to the Nationality, Immigration and Asylum Act 2002 (c. 41) the adjudicator may, in particular—
(a) annul a certificate of the Secretary of State issued for the purposes of that paragraph;
(b) require the Secretary of State to reconsider the matters certified.'.—[Mr. Heppell.]

Clause 11

Unification of appeal system

Mr. Mark Oaten (Winchester) (LD): I beg to move amendment No. 30, in page 11, line 6, leave out Clause 11.

Mr. Deputy Speaker: With this it will be convenient to discuss the following:

Amendment No. 93, in page 11, line 25, at end insert—


'(5A) A party to the Tribunal's decision may apply within 7 days to the High Court or, in Scotland, to the Court of Session for review of the Tribunal's decision on the ground that the Tribunal made an error of law.
(5B) Where an application is made under this subsection—
(a) it shall be determined by a single judge by reference only to written submissions, unless the court on receiving such submissions is of the opinion that there are exceptional reasons for an oral hearing;
(b) the judge may affirm or reverse the Tribunal's decision, or remit for rehearing to the Tribunal;
(c) if, in any application to the High Court, the judge thinks that the application had no merit he shall issue a certificate under this paragraph.
(5C) Where the High Court or in Scotland the Court of Session affirms or reverses a review under this section a party to the review may bring an appeal as a point of law within 7 days—
(a) where the original decision was that of a judge of the Court of Session in Scotland to the Inner House of that Court; or
(b) in any other case, to the Court of Appeal.
(5D) An appeal under subsection (5C) may be brought only with the permission of—
(a) the court that made it, or
(b) the court referred to in subsection (5C)(a) or (b) if the High Court or Court of Session in Scotland refuses permission.

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(5E) An application made under subsection (5D)(b) must be made within 7 days of the refusal of permission to appeal by the High Court or Court of Appeal.'

Amendment No. 92, in page 11, line 26, leave out subsection (6).

Amendment No. 31, in page 12, line 10, leave out subsection (7).

Amendment No. 32, in page 12, line 11, leave out from beginning to end of line 17 on page 13.

Amendment No. 94, in page 12, line 11, leave out 'Tribunal's' and insert 'statutory'.

Amendment No. 95, in page 12, line 12, leave out '(whether statutory or inherent)'.

Amendment No. 96, in page 12, line 13, at end insert


'additional to the statutory jurisdiction exercised by the court'.

Government amendments Nos. 78 to 80.

Amendment No. 97, in page 12, line 35, at end insert


'provided that the immigration decision makes it clear at the time that deportation is capable of being a consequence of the decision'.

Government amendment No. 81.

Amendment No. 98, in page 26, line 19 [Schedule 1], at end insert—


'(e) is a lay member'.

Amendment No. 22, in page 33, line 28 [Schedule 2], leave out 'supervising' and insert 'organising training for'.

New clause 8—Initial decisions—


'(1) Initial decisions by the Secretary of State on asylum applications shall be made and notified to the applicant within six weeks of the application being made.
(2) Notice of appeal from the decision of the Secretary of State to the Asylum and Immigration Tribunal ("the Tribunal")—
(a) must be made in writing;
(b) must be lodged with the Tribunal within 14 days of the decision appealed against, and
(c) must list all the grounds on which the appeal is made.
(3) Within 14 days of receipt of the notice of appeal the Tribunal shall hold a direction hearing at which all parties to the appeal shall be present.'.

Mr. Oaten: It is important to remove clause 11, because in it the Government propose to take away the ability to refer a tribunal's decision to a higher court. We argued about the principle for a long time in Committee. Whatever people's views may be on the Government's intentions about streamlining the tribunal system—there may be some merit in considering how the different elements could be brought together—there is widespread concern about removing the right of appeal to a higher court. We also have concerns about the proposal to give unprecedented powers to the president of the tribunal.

We will strongly defend the principle of having a tolerant society in relation to asylum and immigration, but the Bill goes even beyond that, attacking some important principles for justice as a whole. It upsets the constitutional checks and balances that we have had in this country for many years. By removing the right to go to a higher court, we could create numerous miscarriages of justice.

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There is a miscomprehension about why the Government are seeking to do this. There is an assumption that any individual who wants to take a case to a higher court must be trying to abuse the system. There is very little acknowledgement from the Government that there may be genuine cases and genuine reasons why individuals would want and need to have their cases taken further. It is not all about allowing abuse or delaying tactics.

Since the Bill left Committee, we have had the report from the Constitutional Affairs Committee, which contains some powerful arguments for retaining the ability to refer to a higher court. The most compelling was in the conclusions, where it says:


That is an extremely powerful quotation from a respected Committee, not only tackling the principle but pointing out that the Government are choosing to break it on such a critical issue as an individual's ability to stay here and not be returned to a life-threatening situation.

Ms Abbott: Could not the clause provide a precedent for exempting all sorts of Executive and administrative tribunals from understanding, applying or being governed by the law?

Mr. Oaten: The hon. Lady is absolutely right: this could be the thin end of the wedge. There are a couple of circumstances in which we do not have the ability to refer to a higher court, but those are very limited and are concerned with security and terrorism. This would be the first incidence of such arrangements applying outside such circumstances, and it would be a serious erosion of the principle. I hope that the House, when it divides later, will stake out its principles on the issue.

Peter Bottomley (Worthing, West) (Con): Is the hon. Gentleman aware of any respected lawyer or lawyers' group supporting the Government's position on this ouster clause?

Mr. Oaten: They have certainly not been in contact with me, but it will be interesting to hear from the Constitutional Affairs Minister whether he has been able to find someone to defend the Government's position. Very few organisations, within Parliament or without, are in support. I have already quoted the Constitutional Affairs Committee, and we have similar evidence from other cross-party groups that have come together to condemn the proposal.

If the principle were not enough—and I argue that it should be—there are more practical reasons why we need to retain the current system. The Minister will be aware that we had endless debates in Committee, with pie charts and graphs, about the number of mistakes currently being made. There is no point in rehearsing those again, because we come from a different perspective, but it is my judgment that there are still a considerable number of mistakes, and a considerable number of cases being overturned in the higher court. While that continues, there is a practical as well as a principled argument for maintaining a form of appeal to a higher court.

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Until the Government can demonstrate that they have such a secure system that no cases are overturned at a later stage, it will be a very grave move to remove the ability to have that further appeal. For cases involving certain countries, the number that are overturned is considerably higher than the norm: 35 per cent. of cases involving Somalia or Zimbabwe are changed or reviewed at a later stage. If the Government are to remove such judicial review, they will need to demonstrate that they have introduced a better system whereby such mistakes are not made. I am not convinced by what we have seen of their proposals that they have achieved that, but even if I were to be convinced, surely the logic would be to let the changes bed down and review them in a couple of years' time before removing the ultimate ability to challenge decisions in a higher court.


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