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

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Mr. Garnier: I am sure that the picture the Minister paints is, in some rare cases, a true one, but I imagine that, in the great mass of cases, 14 stages of appeal is pretty far-fetched. The Home Office is not backwards in coming forwards with appeals if it thinks it appropriate. I trust that when the Government run through this Bill they will restrict themselves, just as much as they restrict asylum seekers, from making fruitless appeals. The answer is not to worry about the statistics, on which we have had an interesting exchange, nor about the number of stages that the Minister is reciting. The thing to get hold of is the ability of the court system to remove from its appellate system unnecessary and frivolous appeals, to increase the amount of judicial discipline that can be brought into the system, to restrict by requiring—

The Chairman: Order. That is rather a long intervention.

Mr. Garnier: I think the Minister got my point.

Mr. Lammy: Not entirely. I think that where the hon. and learned Gentleman was heading was that we should have the right quality of judges in the new tribunal. I hope to be able to outline why I think that is the case. It is right to concentrate on the stages because the Government must continue to consider whether those stages rightly apply to the asylum and immigration system. If we look back just 10 years, because of global conditions, the state of Britain's economy and other things, the number of newly arrived people claiming asylum has risen substantially. Sadly, the number of people claiming asylum who turn out not to have genuine asylum claims under the convention has risen. Therefore, it is right to look at the process and the systems that we establish to ensure that we have the appropriate system for the circumstances, and that we balance it against the fairness and justice that we all want to uphold.

Mr. Oaten: The Minister said that the number of asylum seekers and claims is on the increase. I thought that the Government had miraculously solved that problem and that there had been a massive reduction. If it is the case that there has been a reduction, does the Minister believe that that reduction will continue over the next couple of years? If that trend continues, are the measures really necessary?

Mr. Lammy: I hope that the hon. Gentleman's hearing improves, because I was talking about the past ten years. It is a fact that the number of applications is decreasing, but it is being reduced from some height because of the shambles that we inherited when we came into Government in 1997.

9.30 am

Mr. David Heath (Somerton and Frome) (LD): On a point of order, Mr. Taylor. The Minister has now been on his feet for 20 minutes, but has yet to mention the amendments. The debate so far has ranged over an extremely wide area, and I hope that that will not reduce the scope for the Committee to have a stand part debate after the debate on the amendments.

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The Chairman: I thank the hon. Gentleman for the point of order, which I shall certainly consider when we reach the stage of the stand part debate. At the beginning of our consideration of this large group of amendments, the Minister indicated his intention to range relatively widely in his introductory speech. However, I hope that he will be able to move fairly quickly to the specific amendments under consideration.

Mr. Lammy rose—

Mr. Malins: Will the Minister give way?

Mr. Lammy: I give way.

Mr. Malins: The Minister has been remarking on the number of asylum applications. Will he tell the Committee about the numbers who, in their claims to the adjudicators, cite sections 3 and 8 of the Human Rights Act 1998? Will he also tell us whether it is true that, over the past three years, some 40,000 people have succeeded in gaining exceptional leave to remain on the basis of human rights claims only?

Mr. Lammy: I have been encouraged to make some progress, so I will not deal with the hon. Gentleman's point about human rights. There will be an opportunity to discuss human rights during the debate on the amendment tabled by the hon. Member for Isle of Wight (Mr. Turner).

I have tried to outline the complex interaction of different layers of appeal. I think that that illustrates how the system can be played. Under the new system, appellants will have the right to appeal to the tribunal against the decision made by the immigration and nationality directorate or the entry clearance officer, but they will not be able to continue to appeal through the many different stages of the appellate system and the higher courts.

The structure of the single tier means that the new tribunal will be flexible. Most hearings will be heard by single immigration judges, but more complex cases will be heard by panels. Its flexibility will ensure that each case receives the most appropriate level of judicial consideration. The senior judiciary in the Immigration Appellate Authority have been consulted on the structure of the new arrangements.

We envisage that the new tribunal will make use of the existing judiciary. The president will be a High Court judge. It was always our intention to ensure that that was the case, which is why we tabled amendment No. 113. The president will be supported by at least one deputy president. The intention is that there should be two deputy presidents, who will take identifiable roles within the new tribunal. They will have judicial experience comparable to that of senior circuit judges.

I am in no doubt—I am about to move on to discussion of the amendments—that we are creating a simpler system, which will provide an independent and effective remedy, far fewer stages of appeal, fewer opportunities for delay and earlier finality within the

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system. That will benefit the genuine asylum seeker. Appeals will receive the most appropriate level of judicial consideration.

Government amendments Nos. 101, 103 to 105, 107, 110, 111, and 114 to 116 bring the Bill closer into line with our policy intentions for tribunal review, as does Government amendment No. 42. Amendment No. 101 inserts new subsections (1A) and (1B) into proposed new section 105A of the Nationality, Immigration and Asylum Act 2002. New subsection (1A) states that a request for a review must contain the assertion that

    ''the Tribunal's decision would have been different but for a clear error of law by the Tribunal identified in the request.''

New subsection (1B) requires the tribunal to consider ''only the assertion made'' in the request. The amendment clarifies the grounds on which the tribunal will consider a request for a review of its decision. It is right that the claimant should articulate at that stage, usually through his lawyer, the basis on which a ''clear error of law'' entitles the tribunal to reconsider the case on review.

Mr. Oaten: Can the Minister help with the phrasing of that particular amendment? It is odd to use the phrase ''clear error of law'', rather than simply ''error of law''. Is it the Government's intention, by inserting the word ''clear'', to narrow down the tribunal's ability to consider a case if it is unsure whether there has been an error of law? Is it their intention to narrow down the option of appealing in such a case?

Mr. Lammy: When the definition of ''error of law'' was discussed in another place, there was debate about whether to use the word ''clear'' or the word ''manifest''. Ostensibly, the Government's position is that an ''error of law'' should be significant enough to lead to the decision being reviewed. Some errors of law do not lead to that stage of the judicial process. We have used the word ''clear'', but we could have used the word ''manifest''. However, we are indicating that an error of law should be significant if it is to amount to the possibility of the decision being overturned.

Mr. Oaten: I am now slightly more confused. I am only a layman, but surely something is either an error of law or it is not. Is the Minister saying that some errors of law are greater than others? That is a vague line to follow. Surely the principle is that an error in law should entitle a claimant to the opportunity for a review.

Mr. Lammy: I do not want to have to refer the hon. Gentleman to the casebooks, but what I am saying is patently obvious. By requiring there to be a ''clear error of law'', the test focuses attention on errors that are obvious rather than opaque, hidden or artificial. Judges make such considerations all the time. Having identified an error, the tribunal would consider whether, but for that error, its decision would have been different.

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Mr. Malins: First, can the Minister tell us, with specific examples, what the difference is between an ''error of law'' and a ''clear error of law''? Secondly, can he confirm that the provisions allow no right of review in cases in which there has been an irregularity, a breach of natural justice, or a finding wholly against the weight of evidence?

Mr. Lammy: We shall consider in greater detail the hon. Gentleman's second point when we discuss proposed new section 108A of the Nationality, Immigration and Asylum Act. The first point is, quite rightly, an area for judicial determination but illustrates that the word ''clear'' means that the outcome would be different. In the amendment, I think that the word ''clear'' means ''ostensible''.

Mr. Tony McWalter (Hemel Hempstead) (Lab/Co-op): I ask my hon. Friend to give further thought to this matter because, clearly, if the law would have resulted in a completely different decision, that would already have made the error significant, to use my hon. Friend's other word. I ask him to give some thought as to whether, in later proceedings, the word ''clear'' might beneficially be dropped.

Mr. Lammy: I am grateful to my hon. Friend. In using the words ''clear error of law'' rather than simply ''error of law'', the Government are mindful of the grounds of appeal that I indicated earlier had to be established. We want those grounds of appeal to include that ''clear error of law'' set out. It is not enough to suggest that some opaque, hidden, minor error of law would reach the standard that would result in the decision being overturned. A ''clear error of law'' relates to the grounds of appeal and is indicative of the substance of the claim. That is why we have used the word ''clear''. As I said earlier, there has been some debate in the courts about the word ''manifest''. That word exists in other Acts within common law jurisdiction. It is indicative of there being a serious outcome and of there being a clear and obvious error of law that would merit the consideration of the review tribunal.

 
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