Examination of Witnesses (Questions 280-299)
10 FEBRUARY 2004
MR DAVID
LAMMY MP AND
MR JOHN
SCAMPION CBE
Q280 Keith Vaz: Thank you.
Mr Lammy: What I have said is
that the number of Presenting Officers has increased. In a sense
it is misleading to suggest that the Home Office is not turning
up itself to present its case because within the system that is
not essential.
Q281 Chairman: I think you may have got
slightly ahead of yourself in suggesting that Presenting Officers
would normally be solicitors or barristers. As I recall, they
are normally not solicitors or barristers.
Mr Lammy: No, forgive me. What
I am saying is that having been down there and having spent some
time with Presenting Officers, the sorts of young people who want
to be Presenting Officers also have options available to them
to become solicitors or barristers or other things. That was what
I meant.
Q282 Keith Vaz: About a third of all
applications to the IAT receive permission to appeal, as you know,
indicating that there is some prospect of success. If you have
only one tier for the system is this not likely to lead a lot
of injustice to a number of applicants, or are they just given
permission for fun?
Mr Lammy: I think the important
figure is the 3.6. Effectively 96% of adjudicator decisions are
upheld. Of the 6,000 cases a month, about 250 of those are successful,
so that is what we are dealing with. That is still a large number
but what I am saying is that can be dealt with by review. We are
satisfied that in terms of increasing quality, senior judges sitting
by less senior judges in the tribunal, being able to have a panel
from the outset, being able to ensure that the President is able
to refer up to the Court of Appeal or the House of Lords and that
we keep the star decisions, we will retain quality and that is
what you are concerned about.
Q283 Keith Vaz: Finally, Minister, you
are the only barrister in that Department, apart from the Lord
Chancellor. Do you not feel a special responsibility to point
out to colleagues in Government the concerns of the legal profession
that the removal of a whole tier in our system that has been around
for a very long time is just going to disappear without the package
that Mr Dawson correctly said the Home Affairs Select Committee
suggestion put forward? Is there no concern about this?
Mr Lammy: I said that we sat down
and thought long and hard about this. We felt that there were
other legal notions that we needed to bring to bear. One is finality,
and that is massively important. The other is that our response
is proportionate. Let us be clear, we are dealing with an abuse
of process here. Lots of MPs on both sides of the House will know
that when a constituent turns up having failed and says, "My
solicitor is going to judicially review this", there is no
merit in the case at all but it is judicially reviewed, what is
effectively happening is the process is being strung out in order
to remain in this country. That undermines the whole system and
it is not good either for the genuine asylum seeker. It is not
just about judicial review for judicial review's sake, it is about
having a system that works. We are leaving judicial review in,
of course, for anyone who alleges bad faith, corruption or bias
on behalf of the judge, but we are also saying where is the best
place to have these considerations. The best place is in the tribunal
itself, it is not in the High Court. There are other jurisdictions
where there is no proximity of the High Court. There is no proximity
of the High Court in the criminal domain from a Crown Court decision.
There are other areas within our system where that is not the
case.
Q284 Mr Cunningham: Is the real reason,
Minister, you want to abolish the second tier because it has been
very successful? Is that the real reason?
Mr Lammy: We have got some fantastic
senior judges in our immigration tribunal, or in the old Immigration
Appeal Tribunal, and that is why I wanted to emphasise that what
we are doing is collapsing the two tiers because they will remain
in the new system. What we do not want is a system that can effectively
take 65 weeks, and that is without statutory or judicial review.
We want a system that is much quicker than that. The new system
that we are proposing will be about 18 weeks because, as I said,
there are cases that are groundless moving quietly through our
system, clogging it up and making it harder for the genuine asylum
seeker. Of course the IAT has its strengths and I think it will
bring those strengths to bear within the new AIT.
Q285 Mr Cunningham: In the timescale
saved, how many people would you deport?
Mr Lammy: That is not a determination
for me. That is a determination that is quite rightly a judicial
determination. When someone has got to the end of the road they
are subject to deportation. That is our system. I have said we
are removing more people than we have ever removed before. The
question is should someone fearing deportation, fearing removal,
aware that they are not a genuine asylum seeker within the Convention,
be able to stretch out the adjudicator stage, to stretch out the
tribunal stage, to then make an application for statutory review,
potentially judicial review beyond, to judicially review the Home
Office decision to remove them? Is that a system that we are satisfied
by and our constituents are satisfied by? Is that a system that
is beneficial to the taxpayer who is funding that person during
the process? Are we satisfied that of the 70,000 appeals received
from the IND, just under 59,000 of them are dismissed and we end
up with a situation where only 3.6% of those adjudicator challenges
are successful? Do we feel that we need those two, three, four
layers in terms of process to satisfy that? I do not think the
determination that we have come to is that we do.
Q286 Mr Cunningham: I do not know about
that but it seems to me that you have made great play of statistics
on the time factor. It seems to me that if you reduce the amount
of time it takes to go through the system, for want of a better
term, and given your relationship and collaboration with Beverley
Hughes, have the two of you sat down and looked at the system
and said "We have saved time in the appeals system but what
are we doing about removals" because to me both run in tandem?
At the end of the day that is the end product of it.
Mr Lammy: We have taken those
removal figures from around the 2,000 figure they were in 1997
to 1,500 a month. We are seeking to go further. There are issues
that Beverley, as the Home Office Minister, would be able to explain
in greater detail than me. There are issues around how quickly
we can get particular countries to react to provide their citizens
with passport so they can remove back to that country. There are
challenges in that area but we have made tremendous strides. The
figure is higher than it has ever been before and we want to see
it go up. That is what Beverley would say. At the same time, I
do not want a system that is just about speed, I want a system
that is fair. As I have said, both the 1951 Convention and Article
XIII of the Human Rights Legislation mean that fair is an effective
remedy. Fair is independent scrutiny. In this country, with the
proposals that we are putting before Parliament, we go beyond
that because, indeed, we are putting a review stage into the single
tier.
Q287 Mr Cunningham: Let us be perfectly
clear about this. We all want to ensure that we have got a fair
system, there is no question about that. We all experience, as
everybody in the House of Commons experiences, the difficulties
with the asylum system but at the end of the day we want to know
that the system is working properly and it is not going to be
changed every five minutes because you have hit a hiccough. We
want to be assured that you are having joined-up government and
looking at the possible problems that could be thrown up. That
is one of the reasons why we are raising these issues this morning.
We all want justice at the end of the day for everybody. Justice
should be driving it, not other factors like mathematical equations
about how many numbers you are reducing it by and that sort of
thing.
Mr Lammy: What I feel very strongly
about, and what I think some backbenchers have raised with me,
is the injustice, frankly, of applicants who are genuinely playing
the system. That is an abuse of process. That is not just happening
around the margins, that is happening all too often. You have
to seek to deal with that. How does that help the genuine asylum
seeker? It does not. How is that a responsible way to spend taxpayers'
money that could actually go to bring benefits in other parts
of the system? That is why we are taking this issue so seriously
and that is why I use the figures that I do to demonstrate that
there is a problem. If we were to leave the tiers as they are
the system would still stretch for beyond six months, I think
that is what Henry Hodge was suggesting, if we were to tweak further
with the system that we have. That is why I think the balance
should be in terms of fairness and justice, and justice is also,
as I have said, about having finality in the system, proportionality
in terms of our response and dealing with the abuse of process.
I want to reassure Members that means that the proposals we have
come forward with are about the right ones.
Q288 Andrew Rosindell: Minister, if I
could move on to one or two other items regarding the Bill. In
line with what other Members have been talking about regarding
fairness and justice, I think we all feel that fairness and justice
needs to be extended not only to those who are seeking asylum
but those also who are paying the cost of this and, therefore,
of course changes need to be made to ensure that the rules are
tightened up. However, we must ensure of course, I am sure you
would agree, that the objective is to ensure justice for those
who are genuinely seeking asylum to this country. How would you
address the criticism, which has been supported by several senior
members of counsel, that clause 10 of the Bill contains what has
been described as the "most draconian ouster clause ever
seen in parliamentary legislative practice"?
Mr Lammy: I do not think I can
respond to that much further than I have already indicated. There
are other parts of our system that do not rely on judicial review
and on access to the higher courts in that way. I believe in this
area that what we need and want is a specialist tribunal that
has an effective review mechanism. This tribunal will be led by
a High Court judge in terms of the President, the review judge
or, indeed, the review panel will be able to look at novel and
complex cases. We are also saying, and it came up in the Bill
Committee, that there should be access to the higher courts in
terms of the President being able to refer up to the Court of
Appeal or to the House of Lords. There has been some discussion
about whether those decisions should be binding and I have undertaken
to look at that.
Q289 Andrew Rosindell: If I could follow
that up with a further question. If the new tribunal were to fail
to hear from a party due to some error, or if it were to make
a fundamental and substantive error of law or fact, do you not
feel that a claimant should have the opportunity to seek judicial
review under those circumstances?
Mr Lammy: I think that once the
claimant has been subject to the IND process, and I have talked
about the things they are doing to increase the quality there,
and has been subject to the first judge in the IAT and the things
that we are doing to improve quality there, as against the fact
that presently the adjudicators are getting 96% of their judgments
upheld, that applicant, if they believe there is a clear error
of law that has been made that would substantially alter the decision,
should be entitled to review. That review is being led by our
more senior judges within our system, within asylum and immigration.
The whole point of having a tribunal system in the first place,
whether it is social security appeals or employment appeals, is
about having that specialism. I say balanced in terms of fairness
and justice and against speed of process to ensure finality. I
think we have got the balance about right and we should be able
to get that decision about right. Of course, we are not ousting
judicial review from decisions made by the Home Secretary, from
executive decisions. It would be quite wrong for us to say that
you could not challenge a circumstance or a decision made by the
Home Secretary. We are not ousting judicial review from someone
who alleges that the judge has demonstrated dishonesty, bias or
corruption. It would be quite wrong for us to oust judicial review
in those circumstances. We are saying that we believe the AIT
will be a quality tribunal. We know that the senior judges and
the judges in that process, because they understand that they
have not got access to higher courts, want to get that decision
right and we believe also that in terms of country information,
in terms of judges sitting side by side, in terms of the President
being primus inter pares amongst his colleagues, we can
be confident that the system we are putting in place is the right
one.
Q290 Andrew Rosindell: If I could ask
one final question along the same lines. Have you considered allowing
a potential direct appeal to the Court of Appeal from the adjudicator,
restricted to points of law only? This has already been suggested
by Harry Mitchell QC of Migration Watch. Is that something that
you have considered so far?
Mr Lammy: We have considered it
and we have rejected it because I think it is right that the review
mechanism within the tribunal should deal with clear errors of
law and should the President of the tribunal determine that he
needs further guidance from the Court of Appeal or the House of
Lords, he is able to make that determination and to enable the
precedent system, if you like, of the court to function correctly
and appropriately.
Q291 Ross Cranston: Is that not putting
great power in the hands of the President to decide whether or
not cases are going to go to the Court of Appeal? You are depending
on one person.
Mr Lammy: The President cannot
sit in every case but I have no doubt that he will want to be
in dialogue and discussion with his Deputy Presidents and he will
want to be in dialogue and discussion with his senior judges.
It is right and proper that in a sense we should allow the judges
to put those mechanisms in place to ensure that they are getting
access to the higher courts, let alone the star decisions that
they will be leading themselves within the tribunal.
Q292 Ross Cranston: In other words, from
what you are saying it would be not just the decision of one person
in practice but the decision of the collective wisdom of the tribunal?
Mr Lammy: What I need to emphasise,
which perhaps I have not emphasised enough, is that moving to
a single tier is going to give us greater flexibility. It means
that a case coming initially in terms of a challenge to the IND
decision if it is novel and complex, and did not appear to be
novel and complex initially but as the hearing took place the
individual judge determined it can go to a panel, also means that
at the review stage a panel can look at it and the panel may have
the President in it but it may not. That flexibility is there
and I have no doubt that a President cannot sit in every court
at the same time and, therefore, will have to put in place mechanisms
by which to decide how to refer that case up and will rely on
the professionalism and the ability of his colleagues to make
that determination.
Q293 Ross Cranston: Then to make a recommendation
that this case ought to go further.
Mr Lammy: Yes.
Q294 Ross Cranston: Why abolish the possibility
of appeal to the House of Lords? They are going to be exceptional
cases and in the few exceptional cases that we have had in this
area the House of Lords has laid down important principles. It
seems such an exceptional course to take when it is not going
to be—
Mr Lammy: I think the balance
is if you move it to a single tier you have to examine quite closely
the areas in which it has potential for disingenuous applicants
to seek to go. Just looking at our experience of statutory review,
coming back to that, which I was talking about earlier, it has
been successful but we are still in this situation where 379 people
have had it in the last six months and only 59 of those have been
allowed. It indicates that you have got to look beyond the single
tier and, in a sense, the balance that we have struck in looking
beyond the single tier is let us have the President refer a case
up, let us put the onus, as it were, on the President to refer
a case up to the Court of Appeal or the House of Lords.
Q295 Chairman: Let me get this clear.
Several times you have referred to the President referring the
case up to the Court of Appeal or to the House of Lords. Does
the Bill provide that the President can refer a case as far as
the House of Lords or does it exclude appeal to the House of Lords?
Mr Lammy: We are in discussions
currently. I should indicate to you that I am minded to allow
that case to go to the House of Lords.
Chairman: Thank you very much for that.
Mr Soley: That is important. That is
very important.
Q296 Ross Cranston: You have made the
point that there are ouster clauses, and of course there are ouster
clauses, but this is the mother of all ouster clauses. There is
nothing comparable to this, is that not right?
Mr Lammy: Yes, and you will be
aware of the Anisminic case where it was attempted before.
We have had to be explicit in the drafting in this area and, as
I have said, we have had to balance the arguments around the abuse
of process in this area, the arguments about not reaching finality
quickly enough against in the majority of cases. We have had to
think very carefully about issues around social cohesion because
obviously a smooth process that gets fairness and justice earlier
assists in social cohesion. It is that balance that we are making
in coming to the determinations we have come to and saying that
we believe that that can be done within the single tier, but then
acknowledging those that would say that this is not a genuine
single tier because you have a review mechanism, but we believe
that that is right in order to ensure that we have fairness and
justice in the system.
Q297 Chairman: If we could turn to non-suspensive
appeals, a term which most of us find confusing, the Government
used to think that they were not a very good idea, that they were
not an "effective remedy" because obviously the person
has to go back to the country where he thinks he will be in danger.
Why was that view changed?
Mr Lammy: What we were saying
with the non-suspensive appeals was that there was a presumption
that the country was safe. If you look at the first wave of countries
that began in November 2002, we have the Czech Republic, Cyprus,
Estonia, Hungary, Latvia, Lithuania, Malta, Poland, Slovakia and
Slovenia. These will become in May accession states but what we
effectively have said is that there is a presumption that those
countries are safe and the person ought to be removed back to
that country if their claim is refused and they can make an appeal
from there. The first wave of countries was very successful. As
we move on to the second and third waves we still say that there
is a presumption that, for example, in the second wave Jamaica
is safe, but it gets more complicated and we have seen cases,
for example, involving, in the context of Jamaica, homosexual
men saying that it is unsafe for them and the courts have made
determinations in their favour. Why non-suspensive appeals have
worked is that effectively they have put more obligation on the
applicants. We certainly know that they have reduced claims from
countries on the list by almost three-quarters and that is because
people have had to think hard about whether they really have a
genuine claim.
Q298 Chairman: The Home Office suggested
to the Home Affairs Committee that there may be other grounds
for certifying a case as "clearly unfounded" than the
source country of the asylum seeker. What other grounds might
there be?
Mr Lammy: I am sorry: I am not
familiar with the grounds beyond the fact that the country is
palpably safe. I would need to take more advice on that[4]
Chairman: Obviously, it is for the Home
Office to explain its own view but it may well be something that
gets discussed further as we come to consider the later stages
of the Bill.
Q299 Mr Soley: On the basis of the policies
that are being pursued at the moment, is it your assumption that
more appellants will go through the system without being legally
represented?
Mr Lammy: No. When I was with
the committee last time I discussed at that stage the consultation
we were having on legal aid and effectively what we concluded
as a result of that consultation was the LSC should be the organisation
that called a case in, as it were, after a period of time, and
that made a determination about whether a case had sufficient
benefit or merit to command legal aid funds. That is obviously
a very different standard from a traditional determination but
nevertheless I think that still means that those who need it will
get legal aid. Yes, it will perhaps be more obvious where cases
have not got legal aid that there has been a determination that
that case lacks merit.
4 Note from Witness: The Home Office have confirmed
that: "Using the wider powers of certification under section
94 of the Nationality, Immigration and Asylum Act 2002, from 8
June, the Home Office began to certify suitable cases as clearly
unfounded, based on the merits of the case without the country
being included on a list of safe countries. Back
| 
