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7 pm

Damian Green: I thank the Minister for his warm and entirely justified tribute to Lord Kingsland, who died so suddenly and tragically at the weekend. His work on this legislation will serve as an exemplar for much of the very good work that he did in Parliament and elsewhere. It showed his concern that the legal system should provide justice and that the legislation that we pass through both Houses should promote justice. The Minister has taken on many of the arguments that Lord Kingsland employed, and that is a fine mark in his memory. I acknowledge that fact, and that the Government's new clause bears the imprint of his arguments.

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As the Minister is aware, this is a vexed issue, but I sympathise with his attempt to strike a balance. We all agree that something must be done to ease the case load of the asylum and immigration tribunal. It is one of many things that are wrong with the system, and it promotes delay and, therefore, frustration. Indeed, part of the reason for the backlog is that poor initial decision making leads to a large number of appeals and to problems with cases that are being decided only on paper.

The Minister will be aware of those concerns, which he seeks to address in new clause 8, and of the Government's rush to transfer immigration cases to the new upper tribunal. It is barely up and running, but it cuts down access to the higher courts. The widespread feeling is that Home Office failings must not be compensated for by a lessening of appeal rights in those complex cases that involve human rights issues or constitutional principles, and that the inadequate handling of judicial reviews by an untested tribunal risks increasing the work load of the supervising court, the Court of Appeal, and reducing supervision at the Home Office.

Those are the issues that the Minister seeks to address, and he is aware that there is widespread agreement in this House and in another place that many cases from the immigration and asylum courts could be transferred satisfactorily to the new upper tribunal. We all agree that it would be an effective way of reducing the pressure on the administrative courts. He will be aware also that the Home Affairs Committee looked at the issue and did not object in principle to the upper tribunal considering cases that were neither highly significant nor complex. That is the balance that he needs to strike.

I have two specific points to make. First, Liberty made the point that

The Minister has sought to address that, but I hope that he will again reassure the House that there is no intention of moving too quickly to the new system, because, as Liberty argues:

Secondly, the Minister yet again brought up the point that 85 per cent. of judicial review applications fail, and the clear implication was that a large number are in some way frivolous, which is why they fail. He will be aware of his correspondence with the Immigration Law Practitioners Association, which disputes the factual basis of that point. In a letter to the Minister last month, the acting chair of ILPA said:

If ILPA is right, the gloss that the Minister puts on the 85 per cent. figure is not right. It suggests that claimants are overwhelmingly in the wrong and have to give up because they cannot justify their case. ILPA makes the point that the opposite is true: often, the claimant's case is proved and they do not have to go through the whole judicial process. This is the ideal
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opportunity for the Minister to address what seems to be a factual point. Where does the balance lie in that 85 per cent. figure?

While I still have those caveats, I am delighted that the Minister has recognised that strong arguments were advanced not only in another place but in Committee, that he has recognised those concerns, and that he has tried to deal with them in new clause 8. By and large, it represents an attempt to acknowledge the strength of those arguments, and I welcome the Government's change of mind.

Mr. Neil Gerrard (Walthamstow) (Lab): I speak mainly to new clause 6 and to Government amendment 41, which will remove clause 54. Some of the Minister's opening comments were very welcome, as were his reassurances about the safeguards that will be put in place. If he did as he suggested and put into writing something that everyone could see, with examples of how he expected the safeguards to operate, that would be helpful. He has, none the less, certainly provided me with considerable reassurance about how the system might operate.

I still have a few concerns, however. The hon. Member for Ashford (Damian Green) raised the first concern, which is about the timing of the changes. As recently as 2007, the Government accepted that the power to allow for the transfer of applications for judicial review in immigration and nationality cases would be expressly excluded because of their complexity and sensitivity. During the passage of what became the Tribunals, Courts and Enforcement Act 2007, the Minister in the Lords said on Report that before introducing any legislation to allow the transfer of judicial review applications in asylum and immigration cases, the Government wanted to see how the new tribunal regime would work. But we have not seen how the system works, and the introduction of the Bill before us-with clause 54-took place more or less simultaneously with the opening for business of the upper tribunal in the tribunal system. We have not had the chance to see properly how the system works before agreeing to the transfer. I therefore hope that the Minister will indicate his thoughts on the possible timing of a transfer of responsibilities, because we would not want it to happen prematurely-before the new tribunal system had bedded in and was capable of dealing with the undoubtedly considerable work load.

We have heard that we currently deal with a few thousand judicial review applications. If the bulk of that work load is to go to the upper tribunal, we need to be satisfied that it is functioning properly and capable of taking it on. Otherwise, we will just be shifting a blockage from one part of the system to another-from the courts to the upper tribunal-which would not achieve a great deal.

New clause 6 was intended to prevent the Lord Chancellor from introducing a restriction on the right of appeal to the Court of Appeal on the immigration and nationality law decisions of the upper tribunal. At the moment, the Court of Appeal will hear appeals from the asylum and immigration tribunal where the court considers that the tribunal's decision is arguably wrong in law or where the appeal appears to have a reasonable prospect of success. Those are the hurdles that have to be jumped in order to get a case into the Court of Appeal. I am sure that all of us who deal with immigration and asylum casework will have seen
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applications for judicial review put in that look as though they have remarkably little prospect of success and do not even try to argue a point of law. I am afraid that that is about lawyers making money from clients in a completely unjustifiable way by putting forward a case that they must know has very little chance of success.

If section 13 of the 2007 Act is brought into play, allowing the Lord Chancellor to add restrictions, what is then suggested is that there will be an extra condition-that an appeal would have to raise some further compelling reason or point of principle or practice. If immigration and nationality judicial reviews are to be transferred from the High Court to the upper tribunal, I assume that those restrictions could also apply there in terms of judicial reviews that were decided on by the upper tribunal. If this change goes ahead, I would like to be clear about whether it will mean not only that there is a transfer of judicial reviews to the upper tribunal, but that the extra hurdle will be in place, so that we do not simply say that a case is arguably wrong in law or has a reasonable prospect of success, but also that it must involve some further compelling reason or point of principle. It would concern me if we were to end up with that extra condition.

My final point concerns what the Minister said about fresh claims. I know from the debates in the House of Lords that the judiciary believe that there is no problem with transferring across fresh claims. They pointed out that only a very small proportion of applications for judicial review that are made as fresh claims get anywhere. Of the 900 or 1,000 cases in 2008 that the Minister mentioned, only a very small number were found to merit a substantive hearing. In the vast majority of applications that were argued as a fresh claim, the Court of Appeal decided that they did not deserve a substantive hearing. The judiciary obviously believe that they could be transferred, as a class, to the upper tribunal, and that would not raise any injustice. That still worries me a little bit. Although only a small number of the applications that are regarded as fresh claims lead to substantive hearings, I suspect that they are cases that raise important points, and it is those cases that one wants to be sure will be heard by High Court judges. At the moment, there is no guarantee that a High Court judge will be involved in hearing a case in the upper tribunal. Some High Court judges would be involved with the tribunal, but would they necessarily be involved in these cases?

In view of what the Minister said, I am not inclined to pursue new clause 6 to a Division, but I hope that he will follow through on the reassurances that he gave us. I also hope that in winding up he can say a little more about when he intends to bring in the changes. We need to be satisfied that the small number of fresh claims that will now not end up in the Court of Appeal will be dealt with by senior judges-High Court judges, if at all possible.

7.15 pm

Paul Rowen: I, too, pay tribute to Lord Kingsland for his work in the other place. We are seeing in tonight's debates the results of much of that work.

I welcome the Government's change of heart on many aspects of this part of the Bill. I agree with much of what the hon. Member for Walthamstow (Mr. Gerrard)
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said about the changes that have been announced. We are concerned about a new tribunal that is only just operational and with no track record taking on the bulk of all judicial review cases to do with immigration and asylum. Can the Minister ensure that we get a report on the upper tribunal's first year of operation, say, before any new cases are transferred to it? There are still concerns about how it is going to operate, and there will need to be a learning curve. I accept, with the caveats that have been given, that the only immigration and asylum cases that will be dealt with are fresh claims. I hope that the Minister can assure us that we will not, at some later stage, without necessarily having recourse to this House, see the scope of that decision widened. We all want to ensure that where there is a case that can be answered, people have recourse to the courts to seek justice. The hon. Member for Ashford (Damian Green) referred to Liberty's point-many of these cases involve human rights issues-and it is a fundamental principle of British law that people have access to the courts when their human rights are threatened.

As the hon. Member for Walthamstow said, a very small minority of the 900-odd fresh claims that go to judicial review will then proceed further. How does the Minister envisage that in the minority of fresh claims cases that may be dealt with by the upper tribunal, where the person feels that they have not had their case dealt with by a senior judge, there will be proper recourse to the Court of Appeal so that the decision can be appealed? I am grateful to him for his assurance that he will explain how the safeguards in the new provisions will operate. There will not be a problem in the bulk of cases. We already know-this is why the judiciary want to see a change-that most applications for judicial review in fresh claim cases are dismissed. However, we need an assurance that the 3 or 4 per cent. of cases each year in which there is a genuine issue at stake will be dealt with properly.

The hon. Member for Ashford mentioned the point that the chairman of the Immigration Law Practitioners Association had made about the 85 per cent. figure. Certainly my experience is that when there is a solid case against a decision-usually when the UK Border Agency has not examined the information in front of it properly-UKBA's case collapses when judicial review is applied for. I do not want there to be a lack of proper recourse for someone affected to raise their points when UKBA has not dealt with information properly.

Given the assurances that we have received from the Minister and the promise of further information, we shall not press our amendments. We believe that the Government have listened to the debates both here and in the upper place. Given the safeguards that we have asked for, we feel that we can live with the Government amendments and new clause 8.

Mr. Walker: In bringing forward new clause 8, the Minister poses serious questions. Whose interests does the immigration appeal system serve? We have identified that it certainly serves the interests of lawyers, some of whom are not too reputable. We have identified that it sometimes serves the interests of those who bring appeals through lawyers, the immigrants who face removal from this country.

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If one were to go out in my constituency and talk about new clause 8, there would be a view that the appeal system does not serve the interests of my constituents. I imagine that the case may well be the same in the Minister's constituency. There is a view out there that we are in a world of endless appeals. We in this place know that that is not the case, but it is the perception, and we are here to reflect the concerns of our constituents.

I am pleased that we are moving towards a system that accelerates the whole process of identifying whether someone has the right to remain here and, if we decide that they do not, then accelerates the process of their removal. If our immigration system is to secure the support of the majority, it has to be seen to reflect their concerns and aspirations. Our constituents are fair-minded people, and they want the law to contain certain safeguards so that if a wrong decision is made in the early part of the process, it can be overturned. What they do not want is a system that frustrates and thwarts their desire to ensure that those who have a right to remain in this country are allowed to remain, but that those who have no right to remain are removed quickly and humanely to the place from which they came here.

Mr. Woolas: I agree with the hon. Member for Broxbourne (Mr. Walker) on his last point. The issue is more difficult in the area of immigration and asylum, because while appeals are being awaited and the process is going on, in the real world people's circumstances change. They get married, have babies, change their location and so on. That means that the judicial system is asked to cope with a moving scenario. From the taxpayer's point of view, it is important that we have as efficient a system as possible, commensurate with access to fair justice.

Three issues have been raised in response to the amendments, and I wish to give the assurances that the House is looking for. I turn first to the question of timing, raised by the hon. Member for Ashford (Damian Green) and my hon. Friend the Member for Walthamstow (Mr. Gerrard), which is addressed by the amendments. We are now proposing that only fresh claim judicial reviews can be transferred as a class, and that will not happen until the asylum and immigration tribunal has transferred to the first tier and upper tier. Our expectation, although it is not down to us, is that that will take place about February next year, but the transfer of the AIT will require an affirmative resolution approved by both Houses. Before making an order to allow transfer, the Lord Chief Justice will need to take account of the capacity in the upper tribunal. The decision to ask for the order will be a matter for him, and it will also require the approval of the Lord Chancellor. That is our expectation of the timing, but it depends on the capacity being available.

Mr. Gerrard: That is very helpful, but may we also have an assurance about what information would come to the House before we were asked to make that order?

Mr. Woolas: I assume that my hon. Friend means information about the capacity of the tribunal service. I would make it my business to ensure that the explanatory memorandum, which I understand would be required, provided information on that capacity and on the points that had been made about the process.

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Secondly, my hon. Friend made a specific point about section 13(6) of the Tribunals, Courts and Enforcement Act 2007. That section will not apply to judicial reviews. It will apply only if an appeal before the upper tribunal comes from a decision of the first-tier tribunal-if the case is on its way up, as it were. A judicial review decision is not a first-tier decision, so the section 13(6) test would not apply. My hon. Friend sought that important point of clarification.

Thirdly, my hon. Friend asked whether High Court judges should hear important cases in the upper tribunal. That will be a matter for judicial allocation, but the intention of having High Court judges in the upper tribunal is that they should deal with important cases. The right to make a challenge, about which the hon. Member for Ashford asked an important question, will still exist. One does not need the High Court process for that, because there will be the opportunity for a challenge in the upper tribunal or, critically, in the Court of Appeal. The proposals will cut out an unnecessary stage. As my hon. Friend the Member for Wirral, West (Stephen Hesford), whose expertise in this matter is well known, has pointed out, they will help the good guys, if I can put it that way.

The hon. Member for Ashford made an important point about that 85 per cent. figure and the letter from ILPA. As I have said, 85 per cent. of applications for judicial review are unsuccessful. It is true that some cases are withdrawn because UKBA has reconsidered its decision, sometimes after representations made by hon. Members and sometimes as a result of the re-examination of a decision. However, the number of cases withdrawn because the UK Border Agency has reversed its decision is small. Unfortunately, I do not have the figures available this evening, but I will write to the hon. Gentleman with them. Even if I conceded that the numbers were significant-I do not-that is an argument for the experts' tribunal, or upper tier, dealing with the requests under the new system, rather than the existing position, whereby delay, as my hon. Friend the Member for Wirral, West has said, is almost built into the system, as we clog up the higher courts.

7.30 pm

The hon. Member for Ashford asked whether judicial reviews by inexperienced upper tribunals would increase the work load in the Court of Appeal, because that access route will still exist. My previous point partly answers that, but it is also relevant to point out that the Tribunals, Courts and Enforcement Act 2007 limits the judiciary in upper tribunals who can deal with judicial reviews to High Court judges, Court of Appeal judges or other judges agreed between the Lord Chief Justice and the senior president. We are therefore confident that the quality of judges in the upper tier will be the best available. Again, part of our purpose is to get a more efficient system, to answer the point that the hon. Member for Broxbourne made.

I thank the hon. Member for Rochdale (Paul Rowen) for his comments. Let me be clear that the effect of new clause 8 is that the Lord Chief Justice, with the agreement of the Lord Chancellor, will be able to order the transfer of judicial review cases that deal with fresh claims to the upper tribunal. Transfer of other cases, either on a case-by-case basis or on a class of case basis, will not be possible. It will go some way towards alleviating the
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burden on the higher courts. Once the upper tribunal has established its ability to deal efficiently and effectively with the judicial reviews of fresh claims, and the process that I described in response to my hon. Friend the Member for Walthamstow has been fulfilled, the House may be persuaded that we should be able to deal with other cases, too. However, that is a discussion for another day and would require another Bill. It is the Government's view that that is desirable, but we must pass the tests first. I hope that that gives the hon. Member for Rochdale the reassurance that he seeks.

I think that we have a sensible understanding, so I am happy to recommend new clause 8.

Question put and agreed to.

New clause 8 accordingly read a Second time, and added to the Bill.

New Clause 1

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