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Lord Kingsland: The noble Lord, Lord Goodhart, has explained that the Liberal Democrat amendment would prohibit the removal of persons who have applied for judicial review, particular those who are not accorded the normal appeal rights by virtue of Clause 76(2); those whose asylum applications are certified as clearly unfounded; and those whose applications are certified under Clause 84 and Clauses 85 and 86.
It is my understanding that it is already the policy of the Home Office to defer removal in order to allow an applicant's legal representatives to seek permission to apply for judicial review and subsequently, while the case is under consideration by the courts.
The Minister may be aware of the terms of paragraph 7 of Chapter 13 of the Asylum Policy Instructions and Immigration and Nationality Directorate internal guidance document which has been published on the IND's website. Paragraph 7.2 of the published instructions states:
I have one further question regarding the final sentence of the paragraph I have quoted, which states that a "limited time" is given to legal representatives to
seek permission to apply for judicial review. As Members of the Committee will be aware, the general rule for judicial review is that it must be sought,
Lord Bassam of Brighton: We greatly respect the reports produced by the Joint Committee on Human Rights and the matter has been carefully considered by Ministers in reaching the position we have adopted. We ought to put the debate in the context of the White Paper, which sets out exactly what a judicial review is and why sometimes the "abuse" of that process needs to be tackled by this legislation.
Judicial review, as we all know, is not an appeal as such: it is a way by which the decision of any public authority can be challenged in the administrative court. Applications for judicial review in immigration and asylum cases amount to more than 60 per cent of all applications for permission made to the court.
That would be fine if the grounds for application in the majority of cases warranted consideration, but it is the case that more than 80 per cent of all applications for judicial review in immigration cases founder at the permission stage. In this legislation, we are taking steps to deal with the large number of judicial review applications with the introduction of the new statutory review. The statutory review will provide for a challenge against refusal of leave to appeal to the Immigration Appeal Tribunal by way of an application to a High Court judge on a point of law.
We are also introducing tighter funding control on such applications. We hope that these new arrangements will have an important deterrent effect on abusive applications being lodged at the refusal of permission to appeal to the tribunal stage solely to prevent removal.
Last minute and abusive applications for judicial review have a debilitating effect on the process of asylum applications as they prevent the swift removal from this country of those who have no basis to remain here. Under current arrangements between the IND and the High Court, if a judicial review is threatened, removal is delayed for between three to five days to enable the application to be lodged. If an application is lodged, the removal will be deferred. At present, it takes seven to eight weeks for the permission application to be considered.
Members of the Committee discussed the arrangements earlier and know the position. Therefore, when an application for judicial review is made, in most cases the applicant is released from detention. We ask: what kind of signal does that send out? The categories for which the amendment seeks to provide a suspense of judicial review opportunity are those which, if they had the right to appeal to an adjudicator, simply could not succeed. They include those to whom the Dublin convention applies; those who have or who have had the opportunity to appeal;
and those who are unwelcome here on the grounds of public good, including, as we discussed earlier, national security.The amendment also seeks to prevent the removal of those who are within the time limit within which they might make an application for judicial review. The time limit under the civil procedure rules to lodge a judicial review is lengthyup to three monthsbut the application must in any event be made promptly. Therefore, it is unclear whether the intention is that removal should be deferred for three months or until any such application would no longer be prompt. To stay the removal of all failed immigration and asylum applicants for three months while they consider whether to bring an application, all the while on public support or detained at public expense, is in our submission absurd. And I believe that the public would agree with that proposition.
I understand the thinking behind the amendment and why the noble Lord, Lord Goodhart, and his colleagues have been kind enough to table it. However, we do not believe that it advances the cause of asylum seekers. In fact, in some respects it may well set it back because it seems to frustrate the process. I hope that the noble Lord will not seek to press his amendment today or at a later stage.
Lord Goodhart: I was unhappy with the Minister's reply because part of it was well beyond the purposes of the amendment. We were not looking at the procedure for applying for judicial review: we were saying merely that while that procedure is continuingeither at the application stage; when leave has been granted; or when the time for application has not yet expiredthere should be no removal from the United Kingdom.
If the Government chose to speed up the time limit within which an application for judicial review could be made in asylum cases, that would be another matter and we would have to consider that on its merits. However, while the law allows a three-month period, that should not be foreshortened by removing someone so that he cannot consult his advisers and is therefore effectively unable to bring judicial review proceedings or make an application.
Certainly once an application has been made and is pending or once leave has been granted, it is appropriate beyond doubt that applicants for judicial review should be entitled to remain in the United Kingdom so that they can be consulted by their legal representatives and give instructions that may well be needed. I understand that that is the position of the Government, but there is no obligation to observe the rule. It would be appropriate to put it on to the face of the Bill.
The Government should accept the amendment so that where either an application for leave is pending or leave has been granted and a hearing is pending
Lord Bassam of Brighton: I think that the noble Lord may be operating under a misapprehension; perhaps I did not make the position clear. It is our practice not
to remove anyone while judicial review is pending. If that helps the noble Lord, then perhaps he will feel more comfortable with the present position.
Lord Goodhart: I do not think that the noble Lord could have heard what I said. I accept that that is de facto the position, but it would be desirablesince it is so obviously correctto put it on to the face of the Bill.
If the Government feel that it would be appropriate to shorten the time within which judicial review could be applied for in cases of this kind, then they should bring forward proposals to do just that. Such proposals would have to be considered on their merits as regards the time-scale. At the moment, however, where a longer period is allowed, it is difficult to justify removing someone while the period has not yet elapsed.
I remain unhappy with the Government's response. We may wish to revisit the matter, but for today I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 89 [Appeal to Tribunal]:
Lord Joffe moved Amendment No. 207A:
The noble Lord said: In moving Amendment No. 207A I wish to speak also to Amendment No. 207B. I am grateful to those noble Lords who have added their names to the amendments. I should also like to thank ILPA and the various immigration NGOs and associations which have provided such detailed and incisive briefings.
The amendments are based on my experience as a human rights lawyer in South Africa, which will set the context for my approach. I have listened carefully to many of the debates in Committee and to the approach taken and responses of Ministers, in particular the silken eloquence and reassuring manner of the noble Lord, Lord Filkin, as he defends what I believe to be the indefensible.
I could not help but be struck by certain parallels between this Bill and legislation in apartheid South Africa. That legislation initially deprived selected groups of some of their human rights and, subsequently, of most of those rights. In the Bill before the Committee, a group of peopleasylum seekershave been singled out and are to have many of the rights enjoyed by everyone else stripped out or diminished. There is a thread running throughout the Bill that seeks to remove the rights of asylum seekers.
The right to judicial review is to be removed. Unrealistic time-scales are to be imposed for lodging statutory appeals. There are to be new powers of search and entry without a warrant. Some appellants are to be shipped out of the country to prosecute their appeals. Children are to be banished from mainstream
schools and provisions on bail applications are to be withdrawn. These are just a part of the slippery slope on which the Government have embarked.When within government the mindset develops that every threat, whether real or perceived, can be met only by removing the legal rights and protections of the courts from selected groups, then the very fabric of the rule of law is in danger. There is a grave risk that the fine reputation enjoyed by this land of being a bastion of liberty and justice for all will be irreparably damaged.
I turn specifically to Amendment No. 207A, the purpose of which is to preserve the jurisdiction of the Immigration Appeal Tribunal over matters of fact. The current position is that most of those whose appeal is refused by an adjudicator can apply for leave to appeal to the Immigration Appeal Tribunal. An application can be made to appeal on the ground that the adjudicator has made an error of law or of fact. By means of Clause 89(1), the Government intend to remove the right to appeal on an error of fact. That is to be done despite the fact that the tribunal's current power to grant leave to appeal, whether on a question of fact or of law, is not wide. It is limited to cases which have a real prospect of success or where some other compelling reason is put forward to justify why the appeal should be heard.
The Government have offered no persuasive reasons for removing the specialist tribunal's ability to consider issues of fact as well as of law on appeal. It would be helpful if, in his response, the Minister could outline the reasons for the limitation and give details of any statistics which support those reasons.
Under the current practice of the tribunal, only a very limited number of cases engage its jurisdiction on matters of fact, but such cases raise serious issues. That can be illustrated by a recent example. A Turkish Kurd claimed asylum on account of his political activities in the Kurdish area of Turkey. The Home Office rejected the claim, the adjudicator finding that he had a well-founded fear of persecution in the Kurdish area, but that he could live safely in Istanbul. The tribunal granted leave to appeal on the basis that documentary evidence showed that the political Kurds cannot live safely in Istanbul. At the hearing before the tribunal, the members considered evidence about Istanbul. There was no point of law, only discussion about factual evidence. The tribunal disagreed with the adjudicator and allowed the appeal. The appellant was subsequently granted asylum.
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