Appendix 2
Correspondence between Rt Hon Lord Falconer of
Thoroton, Lord Chancellor and Secretary of State for Constitutional
Affairs and Rt Hon Alan Beith MP, Chairman of the Constitutional
Affairs Committee
Thank you for your letter of 10 June.
Pages 1 and 2 of the Government's response contain
a summary of the new policy that has superseded the judicial review
ouster in the Asylum and Immigration (Treatment of Claimants,
etc.) Bill. We did not think it necessary to go through all of
your recommendations 3 to 12 in detail, as the changes to policy
as outlined in the response are so fundamental that the points
you raise, while valid, have now been overtaken by the new changes
to the Bill.
In relation to recommendation 3, cases can at present
take over a year to clear the appeals process. Under the new system,
we expect that appeals in future will take 15 weeks, or 17 weeks
when the filter is in place (although following the Lords' amendment
of the Bill, these may be extended to 16 weeks and 19 weeks respectively).
Meanwhile, a new collegiate structure for the judiciary merged
into the Asylum and Immigration Tribunal will ensure that best
practice is disseminated, and that suitable advice and guidance
is given to ensure consistently high-quality decision-making.
Recommendation 4 has been answered by the establishment
of a system of higher court oversight. This will ensure that if
the Tribunal makes an error of law it will be subject to review
in the High Court. If a party to the appeal is dissatisfied with
the outcome of the reconsideration, he may appeal on a point of
law to the appropriate appellate court (i.e. Court of Appeal).
While we understand the Committee's concerns in relation
to recommendation 5, the new system is not going to impede in
any way the ability of a genuine applicant to challenge a decision
made by IND with which they disagree. The reforms to the system
are concentrated on preventing those who seek to abuse the system
to delay removal when they lack a meritorious case. There will
be a right of appeal to the AlT which is then subject to review
in the higher courts. In addition, there have been significant
improvements in recent years in initial decision-making, which
we considered further in our response to recommendation 1.
Recommendation 6 refers to a procedure that is no
longer part of the Bill, while recommendation 7 has been answered
by the new system of higher court oversight introduced by the
Government amendments. Similarly, recommendation 8 refers to a
procedure that is longer part of the Bill, and recommendation
9 has been answered by the ability of cases to proceed to the
Court of Appeal and then to the House of Lords.
Recommendations 10 to 12 have been answered by the
new system of higher court oversight. The possibility of judicial
review is not excluded, but the new system has been designed so
that it covers all the grounds covered by judicial review. In
particular, while we note the point in recommendation 12 that
we should wait before introducing further change to the system,
asylum and immigration is a fast-moving area of law and one in
which we must respond rapidly to change. The abuse of the system
has been clearly identified, and we are now reacting to prevent
that abuse in future.
In relation to the second point in your letter, I
would reiterate that new sections 103B and 103C confer jurisdiction
upon the higher appellate courts, meaning the Court of Appeal,
the Inner House of the Court of Session and the Court of Appeal
in Northern Ireland. We have made no change to section 3 of the
Appellate Jurisdiction Act 1876 which govern the right of appeal
to the House of Lords from the Court of Appeal and Court of Session,
so subject to the legal requirements for leave cases could go
to the House of Lords.
I apologise for the delay to the publication of the
Government response. As we noted in the introduction to the response,
this delay was necessary to allow the response to make sense of
the new Government policy as contained in the amended Bill. As
you observe, our officials have a close working relationship,
which is obviously welcome, and this delay was explained by my
officials to yours, but we will try to ensure that you receive
a letter if we anticipate any delays in future.
21 June 2004
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