Immigration Bill

Written evidence submitted by Sarah Craig (IB 33)

Introduction and Summary

1. This submission is presented by Sarah Craig, Lecturer in Public Law, School of Law, University of Glasgow and Co-Convenor, Glasgow Refugee Asylum and Migration Network (GRAMNet) http://www.gla.ac.uk/research/az/gramnet/ . [1] Although it draws on the experience of academic colleagues and of partners represented in GRAMnet, this submission represents the writer’s views and not the views of colleagues or of GRAMnet’s partner organisations. Rather it brings to the attention of the Committee evidence which is relevant to the Government’s Immigration Bill.

2. In summary, this submission draws the Committee’s attention to aspects of the Bill which would have an impact on administrative justice and the rule of law throughout the UK, with particular focus on those which run counter to recent and proposed reforms to the Scottish legal system.

3. Apart from asylum and human rights cases, immigration tribunal appeals would be replaced by an internal review, and where people are detained under immigration powers, the opportunities to apply for bail would be severely restricted. These changes would not provide the independent oversight which is needed to ensure that those who wield immigration powers comply with their own rules, and with the rule of law. The Government believes that too many appeals are being brought, but it could use existing powers to restrict or exclude late or vexatious challenges more effectively. [2] The judiciary has expressed concerns about the volume of judicial reviews, [3] and increased resort to that remedy would be a likely outcome of the more restricted access to tribunals proposed in this Bill. The judiciary has also expressed concern about the Home Office failing to comply with its own rules, and sometimes with court rulings as well. [4] The Committee should consider the risk that the proposed changes present to accountability and to the rule of law.

Restricting access to immigration tribunals: Part 2 and Schedule 8 to the Bill

4. Clause 11 of the Bill would remove any rights of appeal on any grounds other than asylum and human rights. Existing appeal rights relating to EU treaties would also remain. In other cases – where the Home Office has got the decision wrong or it is otherwise unlawful- Immigration Rules would provide for administrative reviews of unappealable decisions. Because these provisions will be in the Immigration Rules, it is not yet clear which decisions will attract administrative review. It is also not clear how administrative review would work. It would mean that the Home Office would review itself.

5. As discussed elsewhere, the motivation for introducing administrative review appears to be to reduce the opportunity for individuals to scrutinise decisions, and this is concerning, on accountability grounds, in an area of decision-making where the rate of successful appeals reaches and sometimes exceeds fifty per cent. [5]

6. In its Briefing for the Immigration Bill, House of Commons Second Reading 22 October 2013, the Immigration Law Practitioners Association (ILPA) drew attention to the reports of the Chief Inspector of Borders and Immigration, which had repeatedly noted delays in entry clearance administrative reviews. In that Briefing, ILPA also provided evidence to show that tribunal appeals provide a relatively inexpensive and accessible remedy, and they expressed the view that the proposals to exclude "ordinary" immigration appeals should be resisted. Some immigration appeals would be clumsily reconfigured as human rights appeals, but ILPA’s view was that while most applicants would be left without proper redress, another likely outcome of the removal of appeal rights for "ordinary" immigration cases would be greater recourse to judicial review. The writer endorses those views. For most of those detained under immigration powers, the proposed reductions in bail applications would render it impossible for them to challenge their detention. But for a few the removal of the opportunity to apply to a First Tier tribunal judge for bail could lead to a judicial review application, since this would be the only way to challenge their detention. The same could be said about the proposed power to remove "foreign criminals" while their appeals are in train.

Effect on the Scottish Legal System

7. The main effect of the Bill’s proposals to reduce access to immigration tribunals would be to leave applicants without access to independent oversight, but it is also likely that there would be consequential increases in judicial review applications, and this runs counter to recent and proposed reforms to the Scottish legal system, which promote the shift of business from the higher courts to lower courts and tribunals. [6]

8. Although a range of immigration and asylum judicial reviews have been transferred from the Administrative Court to the Upper Tribunal, the provisions for transfer of such cases from the Court of Session to the Upper Tribunal are different. [7] These proposals are therefore likely to have a greater impact on the Court of Session than on the higher courts elsewhere. [8]

9. The Upper Tribunal’s jurisdiction having been extended to include immigration and asylum judicial reviews, the Committee should consider whether the proposals to reduce the jurisdiction of the First Tier Tribunal would result in more senior Upper Tribunal judges dealing with cases – as judicial reviews - which had previously been heard by First Tier judges. The Committee should therefore consider whether these proposals would result in an increase in cases requiring to be dealt with by more senior judges (at the higher courts, and also at the Upper Tribunal).

10. The Committee should also consider the lack of fit between these proposals and recent and proposed reforms to the Scottish legal system which, as set out further in paragraph 12 below, promote the use of tribunals as an administrative justice remedy.

Accountability and the rule of law

11. The justification for removing appeal rights is that there is too much scope for them to be used sequentially but, as noted at paragraph 3 above, the Home Office already has the power to exclude appeal rights in such situations. As noted by the Home Secretary herself, the Home Office already struggles to cope with the volume of its casework and the complex law which applies. [9] The proposals in this Bill would add to that task, not make it easier.

12. Were the appeal rights removed by Clause 11 and Schedule 8 of the Bill to be replaced by internal administrative review, this would involve the Home Office reviewing itself. As noted at paragraph 6 above, such reviews have a troubled history. In September 2012, the Administrative Justice and Tribunals Council (Scottish Committee) considered a number of contexts where internal administrative review or an internal complaint mechanism was available (including legal aid, housing and community care) and that Committee recommended that unappealable decisions should be replaced with tribunal appeals. [10]

13. Most applicants do not have recourse to judicial review, so the proposals in this Bill would leave them without the opportunity for independent redress. The Government has stated that it wants to reduce the volume of appeals, but in so doing it risks ignoring the necessity of effective oversight for accountability, and it also yields to the temptation to exclude the challenges which are necessary to ensure that those who wield power do so in accordance with the rule of law.

November 2013


[1] The writer has conducted research on immigration and refugee status decision making for UNHCR and others, and her publications on this subject have appeared in the Edinburgh Law Review, the International Journal of Refugee Law and elsewhere. http://www.gla.ac.uk/schools/law/staff/sarahcraig/#

[2] See Impact Assessment of Reforming Immigration Appeal Rights, Home Office, 15 July 2013, page 7.

[3] Robert Thomas Immigration Judicial Reviews UK Const. L.Blog (12th September 2013) (available at http://ukconstitutionallaw.org ).

[4] Robert Thomas Immigration Judicial Reviews note 3 above.

[4]

[5] "Administrative Review Success Rates", 4 November 2013, Colin Yeo, Free Movement http://www.freemovement.org.uk/2013/10/31/immigration-appeals-judicial-review-immigration-bill/

[6] See Report of the Scottish Civil Court Review 2009. That review, together with the resulting programme, promotes the shift of business from the Court of Session to lower courts and tribunals. http://www.scotcourts.gov.uk/about-the-scottish-court-service/the-scottish-civil-courts-reform: The Scottish Government’s Tribunals (Scotland) Bill is part of that programme: http://www.scottish.parliament.uk/parliamentarybusiness/Bills/62938.aspx

[7] Tribunals Courts and Enforcement Act 2007 s 20, as amended by Borders Citizenship and Immigration Act 2009 s 53, and Crime and Courts Act 2013 Section 22. The provisions for transfer of Scottish judicial reviews are also governed by Act of Sederunt of the Court of Session.

[8] Concerns about the volume of immigration judicial reviews are also felt in Scotland where the Scottish Civil Court Review’s recommendation that a leave requirement be introduced for judicial reviews in Scotland was made partly in response to the increase in immigration judicial review applications which the Court of Session was experiencing. See Report of the Scottish Civil Court Review 2009, note 6 above, Volume 2 Chapter 12.

[9] Hansard HC Deb 6 Mar 2013: Column 1500, as noted in Briefing by ILPA n1 ( see paragraph 6 above).

[10] http://ajtc.justice.gov.uk/docs/decisons_with_no_apeal__web_final.pdf

[10]

Prepared 18th November 2013