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Asylum and Immigration (Treatment of Claimants, etc.) Bill

Asylum and Immigration (Treatment of Claimants, etc.) Bill

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Standing Committee B

Tuesday 20 January 2004

(Morning)

[David Taylor in the Chair]

Asylum and Immigration (Treatment of Claimants, etc.) Bill

Clause 10

Unification of appeal system

9.10 am

The Parliamentary Under-Secretary of State for Constitutional Affairs (Mr. David Lammy): I beg to move amendment No. 101, inclause 10, page 10, line 11, at end insert— '(1A) A request under subsection (1) must assert that the Tribunal's decision would have been different but for a clear error of law by the Tribunal identified in the request. (1B) A review shall consider only the assertion made in accordance with subsection (1A).'. The Chairman: With this we may discuss the following:

Government amendments Nos. 103 and 104.

Amendment No. 41, in

    clause 10, page 10, leave out lines 18 to 21.

Government amendments Nos. 105, 42, 107, 110, 111 and 114 to 116.

Mr. Lammy: This is the first opportunity that I have had to welcome you to the Chair, Mr. Taylor.

Clause 10 has been the subject of much debate in the House, the press and the country. It is therefore appropriate that, before moving on to the Government amendments, I outline why we believe that it is important to configure our appeal system in this way, balancing fairness and justice against the abuse of process that is perceived in the system. I shall take some time to explain the amendments in the context of the changes that we are making to the appeal system. To do that, it is right for me to return to the fundamentals of our constitutional arrangements, which I suspect will be raised today.

The fundamental question for us when considering the structure of the Immigration Appellate Authority and the Immigration Appeal Tribunal is why we have tribunals in the first place. The reason is set out in Wade and Forsyth's ''Administrative Law'', a book that lawyers or law students will understand. We have tribunals to ensure that people get a speedier, cheaper and more accessible form of justice than they might get in the higher courts. Over time, tribunals establish a deep specialism in their field, enabling them to deal with more cases more expertly and rapidly.

The new system is consistent with those fundamental principles of our tribunal system, which we have had since the war. The great Attlee Government began the process of our tribunal system.

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Mr. Humfrey Malins (Woking) (Con): I welcome the Minister. He mentioned the need for a speedy system. Does he accept that the current delays are principally administrative delays? It takes two months or more to get an initial decision, three months or more to get to the existing adjudicator and three months or more to get from there to the tribunal. Is not the problem that the Minister needs to deal with an administrative one, and in any case why does it need to be dealt with so quickly after the introduction of the Nationality, Immigration and Asylum Act 2002?

Mr. Tom Harris (Glasgow, Cathcart) (Lab): On a point of order, Mr. Taylor. The heating in this Room seems to have been switched on for the first time since our consideration of the Bill began. May we have your permission to remove our jackets?

The Chairman: That is appropriate on this occasion.

Mr. Lammy: I shall make some progress and deal with the issues that the hon. Member for Woking (Mr. Malins) raised. Clearly, the Government believe—I think that it is also the perception in our constituencies—that the many layers of justice and tribunals in this field mean that those who are disingenuous in their applications can play the system, which slows it down.

We believe in and support the fundamentals of our system, and it is right that we should continually revisit the system to ensure that it is working to best effect and in the way in which taxpayers in our constituencies would expect. It is a balancing act. We must have a fair system but we simply cannot provide disingenuous claimants with the opportunity to abuse the appellate system.

I should point out that only the immigration and asylum system contains an incentive to delay. As hon. Members will know, in every other area of law, the claimant wants to reach the judgment, and with it finality, as soon as possible. Immigration and asylum is the great exception. Hon. Members will know from constituency cases that many who are able to stay in this country do so ultimately on the humanitarian or compassionate grounds that they have been here for some time. We need a system that is speedier but which balances that with fairness and justice. It must deal with the incentive to delay, which exists only in this area of law.

Mr. Neil Gerrard (Walthamstow) (Lab): I think that we all understand the Minister's point that asylum and immigration law is different in that people may want to delay their case. However, when applications are made, the Immigration Appeal Tribunal does not have problems in deciding which cases to examine. For example, although almost 23,000 people asked for permission to go to the IAT last year, it whittled that down to fewer than 7,000. It does not take a long time to do that, as weak cases are dismissed without even getting over the first hurdle.

Mr. Lammy: My hon. Friend—who is genuinely my friend as my constituency neighbours his—makes an important case about the expertise in the IAT, and we

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should be proud of and pleased with the men and women who serve in it. That is why, in the new system, those men and women will continue to serve us in a single tier. However, we must look beyond the IAT to the High Court, the Court of Appeal and the many challenges and loop-backs in the system. We must also consider the fundamentals that I talked about earlier and the incentive to delay and to use that system. Ultimately, only 3 to 4 per cent. of the decisions that reach the IAT are overturned. I shall discuss that point further when we reach new section 108A, which deals with judicial review.

Mr. Gerrard: That figure has been quoted before by Ministers, but it is untrue that only 3 per cent. of the cases that reach the IAT are overturned. Last year, 6,920 appeals were heard by the tribunal, of which 5,565 were determined. Some 620 were allowed, while another 2,700 were remitted back to adjudicators for further determination, some of which will be allowed in due course. The figure of 3 per cent. is obtained by comparing the number of people who win at IAT with the original number of applications.

Mr. Lammy: One has to take out cases that are remitted back and to look at decisions that are overturned by the IAT. That is how we reach the 3 to 4 per cent. figure. The fact that the IAT has heard the matter does not necessarily mean that the applicant received a favourable decision. That is the distinction that we have sought to make. The briefing from the Immigration Law Practitioners Association has not drilled down to the basis of those few decisions that are overturned, which come to hundreds rather than many thousands.

Mr. Mark Oaten (Winchester) (LD): Can we perhaps put it another way and see whether the Minister will agree to this figure? Does he agree that the percentage of cases that are allowed to go to appeal is much higher than 3 per cent. and is around 23 per cent. or higher?

Mr. Lammy: I agree absolutely. I have no problem with that figure, but we have to go back to the fundamentals and ask why the appeal is made. There can be many reasons. It can be because the initial adjudicator made a serious error of fact in his decision. He may have found that someone was from Ethiopia rather than Somalia. It can be because of an error of law that does not lead to the eventual overturning of the case. The hon. Gentleman is right in essence, but the fact that an applicant made an appeal does not mean that he was ultimately successful. We have to look at the totality, if I may use that word, of the whole system. We have to look beyond the IAT upwards and recognise that people are frequently looping back and playing the system.

Mr. Malins: We must clear up the issue of the success rate of appeals once and for all. Those figures are misleading. The Home Secretary said that only 3

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per cent. of appeals to the IAT are successful but a briefing based on figures produced by the House of Commons Library states:

    ''Appeals to the IAT can only be made with permission. Of cases where permission to appeal is granted, 11 per cent. are successful and a further 48 per cent. are remitted for a hearing . . . The overall success rate is thus 23 per cent., rather than the 3 per cent. cited by the Home Secretary.''

Those are official figures. Does the Minister accept them?

Mr. Lammy: I am afraid that I do not accept them. I am not sure where the hon. Gentleman got his information. I suspect that success is being interpreted differently. Success does not mean being remitted back. Success does not mean being looped back upwards—cases can go to the High Court, too. Success is appeals where the original decision is overturned. That is where we get the figure of between 3 and 4 per cent.

Mr. Edward Garnier (Harborough) (Con): Will the Minister give way?

Mr. Lammy: I want to make some progress. We have debated that matter and we have not moved forward. I will take interventions later.

I was outlining that there can be between five and 13 stages before finality in a case. It is right for me to go through some of those stages. At stage one, the applicant makes an appeal before an adjudicator. At stage two, on receipt of the adjudicator's determination, a party to the appeal may, with permission, appeal to the Immigration Appeal Tribunal against the adjudicator's determination on a point of law.

At stage three, if permission to appeal is granted, there is an appeal before the Immigration Appeal Tribunal, which will decide to allow the appeal, dismiss it or if necessary remit it back to an adjudicator. Alternatively, stage three may be reached when the party is refused permission to appeal and therefore challenges that decision through the High Court or the Court of Session.

At stage four, the Immigration Appeal Tribunal decides that it cannot determine the appeal and remits the case. About 50 per cent. of appeals before the Immigration Appeal Tribunal are remitted. Stage four can also be reached if the case has been successful at overturning the permission decision by statutory review, which has gone to the High Court, and the case can then go back to the Immigration Appeal Tribunal.

At stage five, depending on the route the case has taken, if the case is successful at statutory review and subsequently permission has been granted, there may be an appeal before the Immigration Appeal Tribunal or, if the case is remitted and heard and determined by an adjudicator, there may be an application for permission to appeal to the Immigration Appeal Tribunal on a point of law.

I am outlining the numerous ways in which an applicant can go round and round and round in the system at every stage, frequently using statutory review to go to the High Court and to challenge every decision throughout the process.

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