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Session 2003 - 04
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Standing Committee Debates
Asylum and Immigration (Treatment of Claimants, etc.) Bill

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

Column Number: 255

Standing Committee B

Tuesday 20 January 2004

(Afternoon)

[Mrs. Marion Roe in the Chair]

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

Clause 10

Unification of appeal system

Amendment moved [this day]: No. 127, in page 10, line 33, leave out subsection (7).—[Mr. Oaten.]

2.30 pm

The Chairman: I remind the Committee that with this we are considering the following:

Amendment No. 43, in

    clause 10, page 10, line 35, after 'court', insert

    'save the Court of Appeal'.

Amendment No. 44, in

    clause 10, page 10, line 37, after 'court', insert

    'save the Court of Appeal'.

Amendment No. 45, in

    clause 10, page 11, line 10, leave out from 'exercised' to end of line 15.

Amendment No. 142, in

    clause 10, page 11, line 17, at beginning insert 'shall not'.

Amendment No. 143, in

    clause 10, page 11, line 23, leave out from 'justice,' to end of line 31 and insert—

    '(v) bad faith on the part of a member of the Tribunal, or

    (vi) any other matter, and

    (b) shall not prevent a court from reviewing a decision to issue a certificate under section 94 or 96 of this Act or under Schedule 3 to the Asylum and Immigration (Treatment of Claimants, etc) Act 2004 (removal to safe country).'.

Government amendments Nos. 108 and 109.

Amendment No. 121, in

    clause 10, page 11, line 38, after 'section', insert

    '''court'' includes the European Court of Justice and the European Court of Human Rights; and'.

Amendment No. 46, in

    clause 10, page 11, line 40, leave out 'may' and insert 'shall'.

Amendment No. 65, in

    clause 10, page 12, line 9, after 'opinion', insert '(which shall be binding)'.

Amendment No. 66, in

    clause 10, page 12, line 28, at beginning insert

    'Save with the leave of the Court of Appeal,'.

Amendment No. 120, in

    clause 10, page 12, line 29, at end insert—

    '(6A) No appeal shall lie to the European Court of Human Rights or the European Court of Justice from any decision of an appellate court in relation to the giving of an opinion under this section.'.

Government amendment No. 112.

Column Number: 256

Mr. Mark Oaten (Winchester) (LD): I welcome you to the afternoon session, Mrs. Roe. When we broke for lunch, I was completing a quotation from the Law Society. I quoted it to establish in the Committee's mind the concern among the legal profession about what they and I perceive to be a general break with principles. The principle about which the Law Society expressed concern was that in every other area of tribunal law, for example, the system allows for judicial review of the tribunal's work. The Minister helpfully said that he believed that this is the first case in which that principle has been broken. We had an exchange about how I believed that there had been a couple of prior instances of the principle of going to a higher court being taken away, but those had both been in cases that could be described as involving national security. The two cases that I had in mind were—

The Parliamentary Under-Secretary of State for Constitutional Affairs (Mr. David Lammy): The hon. Gentleman will forgive me, but this morning the hon. Member for South Norfolk (Mr. Bacon) also mentioned the Anisminic case. He was right to raise that, because it was an instance of the courts seeking to oust judicial review for foreign compensation claims. They were, in effect, compensation claims following the state's taking land during times of war.

Mr. Oaten: I am grateful to the Minister for adding a third category. The two that I wanted to cite were the Special Immigration Appeals Commission and, in particular, the Proscribed Organisations Appeal Commission. I can see a case for taking away the ability to go to a second appeal where the issues are so sensitive. His responsibility this afternoon is to convince the Committee that the argument for taking away the right of appeal in these cases is similar to issues of national security. I cannot see that there is any case for the Government to make to put this on the same level. If it is not for cases of national security, it must clearly be for pragmatic reasons.

The Government want to change a fundamental principle for the sake of administrative convenience. They want to speed up the process, for practical reasons, and remove a current principle of law.

I do not take any credit for this quotation, as we have all had it in our briefings, but it is worth drawing to the Committee's attention. The Prime Minster, when he was shadow Home Secretary some years ago, said:

    ''It is a novel, bizarre and misguided principle of the legal system that if the exercise of legal rights is causing administrative inconvenience, the solution is to remove that right.''—[Official Report, 2 November 1992; Vol. 213, c. 43.]

I could not agree more. It was absolutely right then to raise concerns about the principle of deciding that the way to solve a problem was to do away with a legal right. We believe that the problem could have been solved in other ways and not, as the Prime Minister said seven or eight years ago, by taking away legal rights.

Column Number: 257

Mr. David Heath (Somerton and Frome) (LD): Does my hon. Friend agree that it is indeed a novel principle of dealing with an abuse of process by removing the process, rather than the abuse?

Mr. Oaten: My hon. Friend makes the point eloquently.

Mr. Humfrey Malins (Woking) (Con): I was very interested in the hon. Gentleman's quotation from the Prime Minister, which I also saw. Did he also see that the Prime Minister appears to have changed his mind about the rule of law, inasmuch as he spoke to his party conference last year about the judges ''interfering'' with his so-called system?

Mr. Oaten: The hon. Gentleman could draw me into areas in which I would be called out of order, but I make the observation that there appears to be a trend, especially with the Home Secretary, who always seems to want to take the law into his own hands, always to second-guess the judicial process.

What is being suggested under clause 10 is another example of the bypassing of some of the principles that we have long had in this country about having a form of judicial review. It seems clear that the Government's overriding principle, above all the principles of natural justice, is to speed up the system, and to put in place ways in which that can be done. We in the Opposition believe that that could be achieved in other ways.

Mr. Tom Harris (Glasgow, Cathcart) (Lab): I ask the hon. Gentleman to consider the case of a family of asylum seekers, who, because of the availability of judicial review, spent more than a year in detention in Scotland, when they should have been removed from the country more than a year before. Will not the streamlined system in the Bill mean less anxiety and despair for certain families, whose best interests would be served by leaving the country sooner rather than later?

Mr. Oaten: I find it a funny argument to say that it will be in the best interests of some people, particularly those who have had successful appeals, to take away the possibility of a form of appeal. However, I agree that it is in everyone's best interests to have a speedy decision. That is why we would like to hear more suggestions from the Government about speeding up the system within the existing structure, rather than taking away the judicial process. They should consider how to improve the quality of home country information, training at immigration offices, translation and the system itself.

The Minister and I had a small exchange earlier about the ''problem''—it is a problem in the Government's mind—of the number of individuals who are claiming asylum. Will the Government consider that that number may reduce in the next few years, possibly because of people acting on their own initiative or because of changing patterns related to the enlargement of Europe, and that their so-called perceived problem may disappear over the next two or three years? Are these measures necessary to meet their perceived concern about those numbers?

Column Number: 258

Mr. Bob Blizzard (Waveney) (Lab): Just for clarity, does the hon. Gentleman say that the Government proposals should play no part in the speeding-up process?

Mr. Oaten: My point is that the proposals are not yet in place, but the Government claim that the number of applicants has reduced. If that trend continues, the measures may not be needed. It would be interesting to know whether the Government think that it will continue. We may be putting in place a package of measures that is a reaction to a situation of one or two years ago and may not be needed if the trend continues.

Mr. Andrew Turner (Isle of Wight) (Con): In respect of the hon. Gentleman's last comments. Is he talking about the measures in the Bill, or merely the measures in the clause?

Mr. Oaten: I am speaking specifically to the clause, but I could put up an equally strong argument that the measures in clause 7 about the removal of benefits are also an overreaction to a situation that appears to be changing. I speak specifically to this clause because I would be called out of order if I did not, but there are other issues to be addressed about the Government's overreaction to an asylum issue, which is largely prompted by tabloid headlines. If they look at their own figures, and the trend that is taking place, they may consider that some of the measures are unnecessary.

I come to the importance of the appeal process. I have two reasons for doing so. The first, which I have already outlined, is the legal principle. The second is a practical reason, and I return to the figures that we spoke of this morning. One of the benchmarks by which I would judge an appeal system is how many individuals use it, and how many benefit from it. I want to be helpful, so I shall give what I believe to be the numbers who have taken advantage of the process. The figures are based on information from the Library and from the Home Affairs Committee's report.

I understand that 34 per cent. of initial asylum applications in 2002 were granted, and that 66 per cent. were refused. Of those refused, 77 per cent. decided to appeal; and of those, 22 per cent. were successful. I am pretty clear in my mind what that means: that a considerable number of individuals whose cases were taken to the next stage of appeal were successful at that point.

The question for the Minister is what will happen to that 22 per cent.; what will happen to those who have been able to make their case? Where in the system will the issue be resolved? He may say that not all of the successful 22 per cent. succeeded in getting a decision reviewed on the merits of the case, and that there may have been technical reasons for overruling some decisions. The point remains, however, that there must be somewhere in the system to deal with that 22 per cent. of cases. If he were to say that he is convinced that measures to be introduced will improve the system so much that the initial decisions will be right, and that he does not perceive many mistakes, errors or changes of decisions being made, I would be prepared to listen.

Column Number: 259

However, we are not being told that by the Government, who as things stand are removing the ability to consider that successful 22 per cent. of cases but are not putting in place matching proposals to improve the initial decision-making process.

The figure is worse than 22 per cent. for some parts of the world. The success rate for appeals in relation to parts of Somalia and Zimbabwe run at 35 per cent. For applicants from some countries, more than one third of cases are successful on appeal. I am troubled by what will happen there when the ability to take cases to a higher level is removed.

I want to make another point about the appeal process. I do not want anyone to labour under the impression that Opposition Members think that the system is in total chaos. For instance, the initial decision-making process could benefit from more training and from officers being better informed. However, the immigration and asylum system is extremely complex. It is a difficult area of law, and some initial decisions require difficult judgments to be taken by appeal officers—perhaps based on anecdotal evidence or an individual's emotional appeal, or on limited and fragile information.

Even the most able individual will occasionally find difficulties in coming to the right decision or in interpreting the law. Irrespective of our view of the quality of the initial decision, another compelling argument for some form of appeal is that we are dealing with extremely complex issues of law and interpretation. My hon. Friend the Member for Somerton and Frome (Mr. Heath) does not suggest that some tribunal officers are second-rate individuals; he was saying that at present those individuals at least know that there is another form of appeal; if they get it wrong, they know that there is at least one more level of appeal. Our concern is that taking away the next level will put increased pressure on tribunal members.

The Government have not made clear what the quality of those individuals is to be, nor their level of legal understanding. At least under the current arrangements the case can be referred to another tier if they get it wrong.

2.45 pm

 
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Prepared 20 January 2004