3 Courts and Justice
Delegation of judicial function
to legal adviser in magistrates court
29. The Bill provides for the delegation of judicial
functions in the family court to a legal adviser or assistant
legal adviser.[14] According
to the ECHR Memorandum, it is anticipated that the power could
be used quite widely, for example to allow legal advisers to make
prescribed procedural, interlocutory, emergency or uncontested
decisions (including final substantive orders).[15]
30. The ECHR Memorandum considers whether such
delegation raises any concerns about there being fair and impartial
consideration of any dispute under Article 6 ECHR where that Article
is engaged. Although the Memorandum assumes that many of the decisions
taken by a legal adviser will not engage Article 6, because they
will not be determinative of a dispute, the Government points
in any event to provision in the Bill which it says ensures the
legal adviser's impartiality, independence and immunity from suit.
The delegation of judicial functions to a legal adviser to the
court clearly raises issues concerning the appearance of independence
of the decision-maker.
31. We asked the Government what specific types
of decision it is envisaged will be delegated to a legal adviser,
and whether it is possible under the Bill for a legal adviser
or assistant legal adviser to exercise a judicial function in
relation to proceedings in which he or she either has advised
or may in future advise the court in their capacity as legal adviser.
32. The Government's response is that it is yet
to finalise the details of the powers which will be delegated
to legal advisers. In addition to the functions which a justices'
clerk can already perform in place of a single justice of the
peace (such as making orders for directions), the Government envisages
that legal advisers could carry out a number of other functions
in the new family court, such as the making of allocation decisions
in private law applications and case management hearings on public
law family cases. The Government says that it is possible for
a legal adviser to exercise a judicial function in relation to
proceedings in which he or she has advised or may in future advise
the court in their capacity as legal adviser, but that this is
something which happens already in Family Proceedings Courts,
where the clerk makes directions at a first hearing and then advises
the bench at a later stage in the same proceedings. The Government
says that it believes this continuity to be beneficial.
33. We also asked the Government whether the
guarantees of the legal adviser's impartiality, independence and
immunity in the Bill are equivalent to the guarantees of the same
for judicial office holders. The Government accepts that judicial
office holders have more in the way of guarantees of their judicial
independence, for example, in terms of the limited number of ways
in which they may be removed from office, but in terms of limiting
the ability to sue a legal adviser or to interfere with the independence
of his or her particular decisions, when exercising a judicial
function, the Government considers that the provisions in the
Bill are "broadly equivalent to those for judicial office
holders, as are the current provisions in respect of justices'
clerks."
34. Bearing in mind that the guarantees in the
Bill of the legal adviser's impartiality, independence and immunity
from suit are not directly comparable to those of judicial office
holders, we are concerned about the risk that the delegation of
judicial functions to legal advisers in the magistrates court
may give rise to an appearance of lack of independence and impartiality.
We recommend that the power to delegate to legal advisers be confined
to essentially administrative, as opposed to judicial functions,
concerning, for example, case management decisions.
Judicial appointments
35. The Bill makes provision concerning judicial
appointments, including measures aimed at increasing judicial
diversity.[16]
THE ROLE OF THE EXECUTIVE IN SENIOR
JUDICIAL APPOINTMENTS
36. As the Government's ECHR Memorandum correctly
points out, the right to an independent and impartial tribunal
in Article 6 ECHR requires that processes for selection for judicial
office should be transparent with appropriate safeguards to prevent
interference by the executive.[17]
37. The Bill would allow the Lord Chancellor
to sit as a member of the selection commission for the appointment
of the President of the Supreme Court and the Lord Chief Justice,
in place of the current power of veto over the recommendation
of the selection commission. The Lords Constitution Committee
has questioned whether this is constitutionally appropriate[18]
and on Second Reading Baroness Prashar, the former Chair of the
Judicial Appointments Commission, also expressed her concern about
it on the basis that the Lord Chancellor should have a limited
role in the appointment of senior members of the judiciary.[19]
The Government, however, argues that replacing the power of veto
with a seat on the selection commission lessens the risk of arbitrary
interference by the executive.
38. We asked whether the Lord Chancellor's membership
of the selection commission for the President of the Supreme Court
and the Lord Chief Justice give rise to a perception of executive
interference in the judicial appointments process. The Government's
response is that the Lord Chancellor sitting on the selection
panels for these senior judicial appointments does not encroach
on the principle of an independent process for judicial appointments.
The Government's intention is that the provision is not principally
designed to secure greater transparency in the selection of these
two roles—rather it is "to make the Lord Chancellor's
involvement more effective and proportionate to the nature of
the working relationship between the Executive and these two senior
judicial roles." Being on the panel, the Government says,
would give the Lord Chancellor the opportunity to express his
views, but would not enable him to determine the decision: his
views would be one of a number of views expressed on a panel of
"heavy hitters" who are not likely simply to fall into
line with the Lord Chancellor.
39. The Government therefore believes that the
proposed changes in the Bill do not amount to a greater influence
over the selection process than currently applies, and that they
"strike the right balance in providing both the legitimate
accountability for the Executive in these important appointments
where there is a significant public interest and an independent
and transparent process."
40. We recognise the importance of both political
accountability for senior judicial appointments and the transparency
and independence of the process for making them. We are uneasy
as to whether the Government's avowed goal of making the Lord
Chancellor's involvement in the selection of these two senior
judicial roles "more effective" is compatible with the
principle of judicial independence. We acknowledge that it is
a finely balanced judgment as to whether the Lord Chancellor's
direct involvement in the selection panel gives rise to a greater
perception of executive interference in the judicial appointments
process than the current arrangements in which the Lord Chancellor
enjoys a veto over the panel's recommendation. On balance, however,
we consider that the important principle of judicial independence
from the executive is better served by retaining the current arrangements,
but making them more transparent by introducing a new requirement
that the Lord Chancellor's exercise of the veto be made public.
41. We recommend that the Bill be amended to
remove the provision allowing the Lord Chancellor to sit as a
member of the selection commission for the appointment of the
President of the Supreme Court and the Lord Chief Justice, and
to make the current process more transparent by requiring the
Lord Chancellor to make public, without identifying candidates,
any exercise of the power to reject, or request the selection
commission to reconsider, its recommendation.
DIVERSITY IN JUDICIAL APPOINTMENTS
42. The measures in the Bill to promote diversity
in judicial appointments also engage other of the UK's international
human rights obligations, including the right of women to participate
in public life in Article 25 International Covenant on Civil and
Political Rights and the equivalent provision in the Convention
on the Elimination of Discrimination Against Women ("CEDAW").[20]
43. However, the Lords Constitution Committee
has criticised the Bill for not going far enough in this respect,
by not extending to the Lord Chancellor and the Lord Chief Justice
the existing statutory duty on the Judicial Appointments Commission
to have regard to the need to encourage diversity in the range
of people available for selection for appointment.[21]
44. We asked the Government why it had decided
not to extend to the Lord Chancellor and the Lord Chief Justice
the statutory duty to encourage diversity in the range of persons
available for judicial appointment. The Government's answer is
that it has given a firm commitment to improving judicial diversity,
and believes that the Lord Chancellor and Lord Chief Justice (both
of whom are already subject to a public sector equality duty when
exercising their functions in relation to the judiciary) can show
strong leadership on this without the imposition of such a duty.
45. We welcome the Bill's provisions concerning
the availability of part-time working, and the introduction of
a tie-break where candidates are of equal merit. In our view these
should have a positive impact on judicial diversity and would
represent welcome progress towards implementing the UK's relevant
international obligations concerning women's right to participate
in public life.
46. In our view, however, the Bill does not go
far enough in this respect. We are not satisfied with the Government's
explanation for not extending to the Lord Chancellor and the Lord
Chief Justice the statutory duty which already applies to the
Judicial Appointments Commission, to have regard to the need to
encourage diversity in the range of people available for selection
for appointment and believe its inclusion in the Bill would be
wholly compatible with the Government's stated commitment to improving
judicial diversity.
THE PROCESS FOR INTERNATIONAL JUDICIAL
APPOINTMENTS
47. We also asked why the Government has not
taken the opportunity in this Bill to lay down in statute the
rules governing the selection exercises for senior judicial appointments
to international courts such as the European Court of Human Rights.
48. The Government says in response that there
are a number of issues which will need to be considered arising
out of the recent selection exercises for the UK judicial office
holders at the European Court of Human Rights and the European
Court of Justice, and that it is intended to discuss the process
for making these international appointments with the Foreign Secretary
(with whom the Ministry of Justice shares responsibility for making
the appointments). Any proposals for codifying the selection and
re-appointment processes for international office holders, the
Government says, will also require careful consideration and engagement
with the Devolved Administrations and their respective judiciary.
49. We welcome the Government's indication that
there are issues to consider arising out of the recent selection
exercises for certain UK judicial office holders, and we look
forward to being included in the discussions to be held by the
MoJ and FCO.
Filming of witnesses, parties,
victims, jurors and defendants in court proceedings
50. The Bill confers on the Lord Chancellor a
broad power to lift, by order, the current restrictions on filming
and broadcasting of court proceedings.[22]
The Government intends to proceed incrementally with the exercise
of this new power. It envisages that the initial order made would
permit filming in the criminal and civil divisions of the Court
of Appeal, with the possibility of this being extended to cover
sentencing remarks in the Crown Court in due course. It also envisages
that the initial order would permit the judgment, advocates' arguments
and (in criminal cases) the judge's sentencing remarks to be filmed
and broadcast, but would not permit the filming or broadcast of
any parties or witnesses. This is because, as the Government's
ECHR Memorandum explains, "the current intention is that
no individual participants, such as witnesses, alleged crime victims,
jurors or defendants will be filmed."[23]
51. The Bill currently provides three safeguards:
- The Lord Chancellor's order
requires the agreement of the Lord Chief Justice
- The order is subject to negative procedure
- The court has the final say over whether the
restrictions are lifted in any particular case, "in order
to ensure the fairness of any particular proceedings [...] or
to ensure that any person involved in the proceedings is not unduly
prejudiced."[24]
52. However, as the Delegated Powers Committee
points out in its Report on the Bill, there is nothing on the
face of the Bill to prevent the order-making power from being
exercised in future to authorise the filming and broadcasting
of witnesses, parties, crime victims, jurors or defendants.[25]
Indeed, granting such a wide authority appears to be the Government's
intention: in its memorandum to the Delegated Powers Committee
it suggested that if clause 23 is enacted, Parliament will have
approved the principle of filming and broadcasting court proceedings.
This led the Delegated Powers Committee to recommend that the
affirmative procedure should apply to orders under clause 23(1),
so that Parliament has an opportunity to apply a higher degree
of scrutiny to an order setting out the extent to which filming
and broadcasting should be permitted.
53. The Government's ECHR Memorandum states that
the provision in clause 23 is compatible with the right to respect
for private life in Article 8 ECHR and the right to a fair trial
in Article 6(1) ECHR. It is compatible with Article 8, in the
Government's view, because the right is not engaged in relation
to court or tribunal proceedings which are public events. And
it is compatible with Article 6 because of the court's power to
direct that, notwithstanding any order, filming or broadcasting
may not be permitted (or permitted only subject to certain conditions)
if necessary to ensure the fairness of particular proceedings
or to prevent undue prejudice of any individual involved in the
proceedings.
54. In our view, the Government's assertion that
the right to respect for private life in Article 8 ECHR is not
engaged because court proceedings are "public" is too
simplistic given the range of very well established restrictions
on reporting court proceedings, ranging from hearings in private
through to anonymity orders, where the justification rests, in
part at least, on the protection of aspects of a person's private
life. Indeed, one of the most important questions for Parliament
about these provisions is whether relaxing the current restrictions
on filming and broadcasting court proceedings which are anyway
public is a justifiable interference with the right to respect
for private life of those individuals involved in the proceedings.
55. As both the Office of the Children's Commissioner
and the Children's Rights Alliance for England pointed out in
their submissions on the Bill, there are also specific international
standards concerning the protection of the privacy of children
who are involved in the criminal justice system.[26]
56. We asked the Government what assessment it
had made of the likely impact of clause 23 of the Bill on the
willingness of witnesses, victims and jurors to take part in court
proceedings; on the right of criminal defendants to a fair trial;
and on the judiciary. The Government says that its assessment
is that the proposals could have both positive and negative potential
impacts on the willingness of witnesses, victims or jurors to
take part in court proceedings. It is aware of American polling
evidence indicating that a majority of the public surveyed would
be less willing to testify if proceedings were televised, but
argues that the filming of trials in the US is very different
from what is proposed in the Bill, under which no victims, witnesses
or jurors will be recorded or broadcast. The Government also points
to some evidence suggesting that an increased understanding of
the criminal justice system can lead to increased public confidence
in the system, which can lead to increased engagement from victims
and witnesses. The Government says that "work is ongoing
to consider how to measure the impact of the introduction of court
broadcasting." The Government considers that the provisions
in the Bill will have no adverse impact on the right to a fair
trial, and will monitor carefully to ensure that any risk of an
adverse impact is picked up.
57. We also asked what steps the Government had
taken to consult various key stakeholders in the criminal justice
system, and what views had been expressed by them. The Government
in response lists those it has consulted and points out that the
DPP, the Bar Council and some victims groups, such as Victim Support,
have supported the introduction of court broadcasting. Otherwise,
however, the Government has not provided a detailed account of
the views that have been expressed to it about the proposals in
the Bill, including from media organisations.
58. We also asked the Government what the justification
was for conferring such a wide power on the Lord Chancellor if
the Government's intention was that, apart from judges and advocates,
no individual participants in court proceedings, such as witnesses,
parties, crime victims, jurors or defendants would be filmed or
broadcast. The Government's view is that, once the principle of
broadcasting selected court proceedings has been approved by Parliament,
the detail should be left to secondary legislation. The Bill includes
a "triple lock" safeguard in that the Lord Chancellor,
the Lord Chief Justice and Parliament will all need to agree to
any secondary legislation extending the circumstances in which
recording court proceedings is permitted, and any order doing
so must be made by the affirmative resolution procedure. The particular
court or tribunal also has the ultimate power to direct that filming
or broadcasting may not be permitted, or only on certain conditions,
if necessary to ensure the fairness of any particular proceedings
or to ensure that any person involved in the proceedings is not
unduly prejudiced.
59. We agree with the Government's objective
of making justice as transparent and publicly accessible as possible,
but we are not satisfied that the Government has adequately consulted
interested parties nor properly assessed the likely impact of
clause 23 on the operation of the criminal justice system. We
support the plans to televise appellate hearings, but have serious
concerns about the implications for the right to a fair trial,
and for jury trial itself, if television cameras are allowed into
criminal trials. Notwithstanding safeguards already referred
to, we are concerned about the risk that vulnerable victims, for
example of child abuse or other sexual offences, might be deterred
from coming forward with their complaints, that witnesses also
may be deterred from coming forward because greater publicity
will exacerbate the perceived risk of intimidation, and that certain
defendants such as children may not receive the protection their
vulnerability demands.
60. We do not see the justification for the width
of the order-making power in clause 23(1) of the Bill, which,
as it stands, authorises the filming and broadcasting of witnesses,
parties, crime victims, jurors and defendants in court proceedings.
We urge a much more cautious approach. Before any extension of
this power we recommend that the Government conduct a much more
comprehensive public consultation, carry out a more detailed impact
assessment in the light of that consultation and conduct a review
of the operation of the power after an elapse of years. In the
meantime, we recommend that the Bill be amended to confine the
scope of the power to the filming and broadcasting of judges and
advocates in appellate proceedings, as the Government currently
intends.
61. The following amendment to the Bill would
give effect to this recommendation:
Clause 23, page 22, line 3, after 'provide that'
insert in 'appellate proceedings'.
Transfer of immigration and nationality
judicial reviews to the Upper Tribunal
62. The Bill provides for the transfer of immigration
and nationality judicial reviews from the High Court to the Upper
Tribunal, by removing the current statutory restriction on such
transfers.[27] This provision
was introduced by Government amendment during committee stage,
so is not dealt with in the Explanatory Notes to the Bill or the
Government's original ECHR memorandum. The Government wrote to
the Committee on 22 June, however, providing a supplementary human
rights memorandum in respect of this amendment.[28]
63. This provision in the Bill returns to an
area where the previous Government attempted unsuccessfully to
legislate in the Borders, Citizenship and Immigration Bill in
2008-09. The Tribunals, Courts and Enforcement Act 2007 provided
that transfers of judicial review cases to the Upper Tribunal
could only take place if certain conditions were met, one of which
was that the application for judicial review did not call into
question any immigration or nationality decision. The Borders,
Citizenship and Immigration Bill would have removed that restriction,
but concerns were raised in Parliament, by our predecessor Committee
and others, that immigration and asylum cases often involve important
points of principle and fundamental human rights and are of vital
importance to those involved.
64. Our predecessor Committee was concerned about
how the Government could ensure that cases involving the risk
of serious human rights violations such as deportation to torture
or death would be decided by judges of sufficient seniority.[29]
It was concerned to ensure that immigration and asylum cases which
raise complex issues of fact and law, or in which human rights
such as life, liberty or freedom from torture are at stake, should
continue to be decided by judges of the standing of a High Court
Judge. As a result of these concerns, the restriction on the transfer
of cases from the High Court to the Upper Tribunal was only removed
in respect of so-called "fresh claim" judicial reviews,
that is, those which relate to a refusal of the Home Secretary
to treat further submissions as a fresh asylum or human rights
claim.
65. The Government's justification for the amendment
to the current Bill is that immigration and asylum judicial reviews
are putting the Administrative Court under severe pressure, with
nearly 9,000 immigration cases in 2011, accounting for some 70%
of the total, and causing long delays for all categories of case.
The Government says that "many of these immigration judicial
reviews lack substance and may be simply attempts to delay removal
from the UK." Allowing immigration, asylum and nationality
judicial reviews to be transferred to the Upper Tribunal, the
Government says, "will allow High Court judges to focus on
the complex public law cases for which the Court was established
and allow immigration cases to be heard in what is now a tried
and tested specialist tribunal."
66. The amendment is compatible with the Convention,
the Government says, because it does not remove or diminish access
to the courts, it merely puts immigration and nationality judicial
reviews on the same basis as virtually all other types of judicial
review. The Upper Tribunal is a superior court of record, its
President is a Lord Justice of Appeal, and it has a similar judicial
review jurisdiction to the High Court and can grant the same kinds
of relief. The Government notes that the judges who sit in the
Immigration and Asylum chamber of the Upper Tribunal are specialists
in immigration and nationality measures and hear appeals from
the First-Tier Tribunal on these subjects on a day-to-day basis,
and, as such, are well used to dealing with cases which may involve
allegations of serious human rights violations, including torture.
Furthermore, the Government highlights the fact that since October
2011 the judges have had responsibility for dealing with "fresh
claim" judicial reviews. The Government also notes that judges
of the High Court are judges of the Upper Tribunal and may be
requested to sit in the Upper Tribunal.
67. The Immigration Law Practitioners Association
("ILPA"), in its original submission in response to
our call for evidence, opposes the transfer of immigration and
nationality judicial reviews to the Upper Tribunal. It argues
that the reasons why Parliament was opposed to such a transfer
in 2009 still apply: there has been no review by the Government
of the exercise by the Upper Tribunal of its judicial review jurisdiction
and there is therefore no evidence of how that Tribunal has coped
with them. It challenges the Government's assertion that the Upper
Tribunal now has extensive experience of the sorts of issues raised
in immigration and asylum and nationality judicial reviews. It
is aware of only one reported determination by the Upper Tribunal
of a "fresh claim" judicial review application and it
has little experience of nationality law, where the expertise
resides in the High Court. It also challenges the Government's
assertion that many of the immigration judicial reviews in the
High Court "lack substance", pointing out that in its
experience the high number of cases going to the High Court is
due to the poor quality of decision-making by the UK Border Agency,
which frequently concedes cases brought against it or agrees to
make a fresh decision. ILPA also points out that while High Court
judges may sit in the Upper Tribunal, there is no assurance
that they will do so.
68. We called on the Government to provide an
evidential basis for its justification in seeking to transfer
immigration and nationality judicial reviews to the Upper Tribunal.
The Government says that there is no data available on the number
of nationality appeals heard in the Upper Tribunal, and the number
of nationality cases is understood to be very small; but it points
out that judicial reviews of nationality decisions will not be
transferred unless and until the Senior President of Tribunals,
the Lord Chief Justice and the Lord Chancellor are satisfied there
is sufficient expertise in the Upper Tribunal to deal with them.
69. As for the number of determinations by the
Upper Tribunal of "fresh claim" judicial reviews since
they were transferred in October 2011, the Government says that
184 such applications were disposed of by the Upper Tribunal between
then and the end of June 2012 (including cases withdrawn and discontinued),
and there were 254 live cases at the end of June 2012.
70. On the question of whether many of the immigration
judicial reviews in the High Court "lack substance",
as the Government asserts, the Government's response is that it
is unhelpful to draw detailed conclusions from bare statistics
about the number of judicial reviews that are withdrawn or conceded.
Withdrawn judicial reviews are not routinely analysed, and it
is therefore not possible to say what proportion of immigration
judicial reviews are withdrawn because the UK Border Agency concedes
that its original decision was wrong. Judicial reviews may be
conceded by the UK Border Agency for a variety of reasons, and
not always because it accepts that it is at fault. Sometimes,
for example, judicial reviews may be withdrawn or conceded because
additional evidence is put forward after the claim has been started.
The Government also points out that a conceded judicial review
does not always result in a grant of leave to remain: often the
further consideration or re-consideration leads to a further adverse
decision.
71. As for what analysis the Government has carried
out of decisions of the Court of Appeal on appeals from the Upper
Tribunal (Immigration and Asylum Chamber), there is no published
data but internal management data shows that in 2011 there were
approximately 1800 decisions on such permission applications to
the Court of Appeal, of which 39 were granted permission to appeal
and 17 were remitted to the Upper Tribunal.
72. In its further written evidence to us ILPA
explained why it remains concerned about the transfer of judicial
reviews to the Upper Tribunal without a review of how the existing
jurisdiction is working:
One of ILPA's main concerns about the transfer of
judicial reviews to the Upper Tribunal has been about the Home
Office's conduct as a litigant and how the Tribunal as compared
to the High Court has managed this. It remains the case in the
experience of ILPA members that the Tribunal has not demonstrated
the same ability to deal with the UK Border Agency's conduct as
a litigant as has the high court. The Agency's failures to respond
in a timely manner to directions of the tribunal, to disclose
relevant matters or adequately to plead its case are problems
that continue to beset all too many cases. We continue to see
instances where the Upper Tribunal (Immigration and Asylum Chamber)
deals with cases in ways which we anticipate that a higher court
would not.
73. ILPA argues that any Order transferring judicial
reviews to the Upper Tribunal should be extremely restrictive,
pointing out that the President of the Queen's Bench Division,
in his response to the Government consultation on immigration
appeals, argued that "Some of them [judicial reviews] are
plainly suited to the Administrative Court and should remain there
[...]".[30]
74. ILPA's contention is that
Nationality judicial reviews should not be transferred.
Applications requiring urgent consideration should not be transferred.
Applications raising points of general importance should not be
transferred. A high court judge should certify that the case is
suitable for transfer before it is transferred. In the tribunal,
the appeals should be heard by persons who also sit as high court
judges. We recall that this was a suggestion made by the Baroness
Butler Sloss in Grand Committee in 2006:
I support my noble and learned friend Lord Lloyd
of Berwick in relation to the requirement to have someone of the
level of a High Court judge to hear a judicial review in the tribunal.
It would be invidious for there not to be a judge of that rank
dealing with it.[31]
75. We are very much aware that one of the main
reasons for Parliament's opposition to such a transfer in 2009
has not been addressed: there has still been no systematic review
by the Government of the exercise by the Upper Tribunal of its
judicial review jurisdiction generally, and there is therefore
no evidence before Parliament of how the Upper Tribunal is performing
that significant judicial role. We urge the Government to consider
amending the Bill to insert additional safeguards ensuring that
immigration and nationality cases in which human rights such as
life, liberty or freedom from torture are at stake continue to
be decided by high court judges.
Removal of rights of appeal in
relation to family visit visas
76. The Bill removes the full right of appeal
against the refusal of a family visit visa.[32]
Applicants will still have a right of appeal on human rights
grounds, if they wish to challenge the refusal on the basis that
it is in breach of Article 8 ECHR.
77. Restrictions on existing rights of access
to court require justification. The Government's main justification
for the removal of the right of appeal is the number and cost
of such appeals: in 2010-11, there were 49,400 family visit visa
appeals, accounting for approximately 36% of all immigration appeals,
at a cost of £29 million. The Government accepts that it
loses many of these appeals, but says that 63% of them are lost
entirely because of new evidence introduced at the appeal stage.
The Government says it is better for applicants to apply again
for a visa, if they have made a genuine mistake on their application,
than to lodge an appeal. Implicit in the Government's explanation
is that the reason a significant proportion of these types of
appeal succeed is that new evidence is produced on appeal as a
result of a mistake made by the applicant in their original application.
78. The Immigration Law Practitioners' Association
("ILPA"), however, questions the evidential basis for
the Government's justification: it says that the reason so many
appeals are allowed (45% in 2010) and such a large proportion
are on the basis of new evidence introduced at the appeal stage,
is that applicants frequently have to put forward new evidence
on appeal because the real basis on which their application was
refused by the entry clearance officer does not become apparent
until the appeal hearing.
79. We sought to ascertain from the Government
the proportion of family visit visa appeals that are successful.
Although both the overall number of appeals and the proportion
of successful appeals declined last year, the rate of success
on appeal remained significantly high (almost one in three), the
Government responded that:
- In 2010-11, 38% of such appeals
determined were successful (22,400 out of 58,600 appeals determined).
- In 2011-12, 32% of such appeals determined were
successful (15,100 out of 47,200 appeals determined).
80. We also sought to obtain the evidential basis
for the Government's implicit assertion that a significant proportion
of the appeals which succeed do so because new evidence is produced
on appeal as a result of some error by the applicant in the original
application, as opposed to as a result of the reasons for the
original refusal not being made clear by UKBA until the appeal
hearing. The Government says that its analysis of a sample of
363 allowed family visit visa appeal determinations in April 2011
showed that new evidence produced at appeal was the only factor
in the Tribunal's decision in 63% of allowed appeals, and was
one of a combination of factors in 92% of allowed appeals. It
is unable, however, to provide us with any evidence as to whether
the reason for new evidence being produced at appeal was the fault
of the applicant or the UKBA, as it does not hold the information.
81. The lack of information held by the Government
on this question was also confirmed by ILPA, in its further written
submission commenting on the Government's response to our questions.
ILPA said that, at the time of the Government's consultation on
Family Migration, a consultation it asked the UK Border
Agency the following question:
At paragraph 7.7, the consultation paper states that
in a sample of allowed family visit visa appeal determinations,
new evidence produced at appeal was the only factor in the Tribunal's
decision in 63% of allowed appeals.' Please provide the following
information:
(1) Of those allowed appeals, was the new evidence
produced evidence that is clearly required on the application
form or website?
(2) Of those allowed appeals, was any contact made
by the ECO making the decision with the applicant to request that
the evidence be supplied?
82. The UK Border Agency responded to ILPA's
question by saying that "The information requested was not
collated when this sampling was carried out."
- The removal of an existing right of appeal in
relation to family visit visas, an area of such obvious importance
to family life, is a measure which requires careful justification.
We cannot currently support removal of this right while there
are still so many successful appeals. Notwithstanding our efforts
to obtain such information, there is still no evidence before
Parliament as to the proportion of appeals which succeed because
new evidence is submitted on appeal as a result of an error by
the applicant rather than the fault of the UK Border Agency. We
ask the Government to make this information available to Parliament
as a matter of urgency.
14 Sched. 10. Back
15
ECHR Memorandum para. 72. Back
16
Cl. 18 and Sched. 12. Back
17
ECHR memorandum, para. 98. Back
18
House of Lords Constitution Committee, Second Report of 2012-13,
Crime and Courts Bill, para. 16. Back
19
HL Deb 28 May 2012 col 1024-5. Back
20
See our predecessor Committee's report on the Constitutional Reform
Act 2005 for a full account of the relevant international human
rights obligations, Twenty-third Report of 2003-04, HL Paper 210/HC
1282 at paras 1.9-1.35. Back
21
House of Lords Constitution Committee, Second Report of 2012-13,
Crime and Courts Bill, para 18. Back
22
Cl. 23(1). Back
23
ECHR Memorandum, para. 125. Back
24
Cl. 23(3). Back
25
Delegated Powers and Regulatory Reform Committee, Second Report
of Session 2012-13, Crime and Courts Bill, HL Paper 62,
paras 26-29 Back
26
See e.g. Article 40(2)(vii) of the UN Convention on the Rights
of the Child, which provides the privacy of child defendants shall
be guaranteed at all stages of the proceedings. Back
27
Clause 20. Back
28
Ev 2. Back
29
Ninth Report of Session 2008-09, Legislative Scrutiny: Borders,
Citizenship and Immigration Bill, paras 1.22-1.29. Back
30
Response of the President of the Queen's Bench division to the
UK Border Agency consultation on immigration appeals [Immigration
Appeals: fair decisions, faster justice] 2008. Back
31
Hansard Lords, Grand Committee 13 December 2006 : Column
GC68. Back
32
Cl. 26. Back
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