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Lord Mayhew of Twysden: I am grateful to the Minister. Does not her understandable inability to give such an assurance deprive noble Lords of any comfort on the point that she has made about reverting to untrammelled judicial review?
Baroness Scotland of Asthal: We would return to the status quo until such time as Parliament had an opportunity to debate the matter. At this stage I cannot say whether the Government's view would be
to return to judicial review and that no further statutory construct should be created to fill the gap. I just do not know. I can reassure noble Lords that when we have considered this provision, we believe that statutory review will work because it is directed towards leave. Applications for leave will have three judicial eyes because they will be considered by the adjudicator, then by the vice-president or president of the IAT, and then by a High Court judge. If the High Court judge feels that there is something in it—if I can put it colloquially—it would go back to the IAT for a hearing.A number of noble Lords have said that if the judge wanted sight of it again—the noble and learned Lord, Lord Archer, made this point—what would happen if he was not sure? One knows about the exercise of judicial discretion. If the High Court judge felt that there was something in it, it should be explored. It would be open to him to say that the matter should go back to be heard by the IAT and thereby there would be an oral hearing.
There is also a new nuance on statutory review. On occasions when a court considers paper determinations, it is right that the court is aware that there is some other avenue available should that paper determination go against the party; for example, under JR there would be an opportunity for an oral hearing. On this occasion the High Court judges, who will be seized of this matter, will know that if their paper determination is that there should be no further appeal, their decision will be final. I am sure that noble Lords who have had anything to do with the judicial process know that that will weigh heavily indeed upon the judges who will make that determination. If there is a doubt or a concern and if the matter needs to be considered, my expectation is that in those cases the judges would be more likely to say that that is something that the IAT should consider.
Lord Archer of Sandwell: I am grateful to my noble friend. With her great experience, she will know that one of the great contributions that oral argument can make is the opportunity for counsel and solicitors to conduct research and to come forward with the requisite authorities. That would be for the purpose of enabling the High Court judge to reach a decision. Even if the judge says, "I will need that kind of assistance", is the Minister saying that that assistance will not be forthcoming and so the judge has to say either that the case has to go back to the tribunal, or that there shall be no further appeal?
Baroness Scotland of Asthal: In the example given by the noble and learned Lord, the judge will know that it is an application in relation to leave—a refusal to leave—by the IAT. The most appropriate court to hear appeals from the adjudicators is the Immigration Appeal Tribunal; if I may respectfully say, not a judge sitting in the High Court who has various generic experience, but who may not have the knowledge and acuity particularly directed towards immigration cases. So the High Court has the advantage of, first, reading the determination made by the adjudicator;
secondly, looking at the issue on a point of law that was made by the IAT president or vice-president; and thirdly, determining whether the arguments put forward before the adjudicator and by the vice-president are flawed on a point of law, which would include a perverse assessment of facts. The judge would then decide whether on those bases he or she should say, "No, this is unmeritorious and it should stop here", or that the matter should be sent back to the IAT for the appeal to be determined on a full hearing.Furthermore, the application is made to the High Court by the appellant alone. There is no opportunity for the Home Office to respond. The appellant is entitled to make his best case. So the skeleton argument and the basis upon which he says that the first and the second decision were flawed could be put in full before the High Court judge.
Lord Archer of Sandwell: Perhaps I may have just one more try. The High Court judge's function is to decide whether the IAT "got it right". If the High Court judge says, "I cannot decide whether the IAT got it right because I have not been given the facilities for deciding", is his only remedy to send the matter back to the IAT?
6.15 p.m.
Baroness Scotland of Asthal: On the current construction that would be so. But the judge would be saying that the vice-president in making his determination did not satisfy him that there was not an issue to be tried. He would be saying, "I need to hear oral argument". The noble and learned Lord will know that this is not a rehearing before the IAT. In fact, if one looks at how the law has developed and where the authorities point, an appeal now to the IAT is an appeal on a point of law and not on a point of fact. It is on a point of fact only if there is a perverse judgment and on law otherwise.
Therefore, I would respectfully suggest that the right response would be for the judge to say that the IAT could not have got the matter entirely right, "Because I am not persuaded. If I am not persuaded, surely there is something for the IAT to hear. In which case, it should jolly well get on and hear it". It is not—if I may respectfully say so—that difficult. But we need to have a careful approach in relation to this. Of course it is new. That is why we have been very careful indeed about it.
The noble Lord, Lord Kingsland, said that the White Paper put forward the idea of making the Immigration Appeal Tribunal a superior court of record. The intention was that it would mean that there was no scope for judicial review of the tribunal's decision on permission to appeal. However, as is often the case, there followed some helpful discussions with the Lord Chief Justice, the president of the tribunal and other senior members of the judiciary. A statutory review process has been designed which will provide more effective protection than would exist with the superior court of record proposal. As a result of our
discussions with the senior judiciary we are confident that we can manage the Administrative Court and its workload efficiently.Many people make judicial review applications with good reasons. But there is concern that many others apply for judicial review with weak cases as a way of taking advantage of the lengthy delays that can ensue with judicial review. Statutory review will only replace judicial challenges of tribunal decisions to refuse to grant permission to appeal against the adjudicator's determination. It will not stop judicial review applications against other categories of decisions. We have focused on this particular type of challenge as analysis has shown that at least half of all asylum judicial review applications are triggered by the tribunal refusing permission to appeal. Statutory review should lead to a significant reduction in the number of judicial review applications to the Administrative Court.
At the moment, only around 12 per cent of judicial review applications against tribunal refusal of leave are granted. Therefore, 88 per cent are refused. I suggest that that indicates that in the vast majority of cases the vice-presidents of the Immigration Appeal Tribunal get the permission decision right, with the High Court deciding that there is a case to be heard in only a small number of applications. I am sure that the Committee would agree that where errors of law have been made, they should be corrected as quickly as possible.
We fully appreciate that a prolonged process can cause great anxiety, as I said earlier, to many who have an uncertain status in this country. For those people, speed is of the essence. However, we also know that others whose cases do not have the same merit may wish to prolong the process, possibly indefinitely. We therefore need to strike a balance. Justice demands that a case is dealt with quickly. It is important to bear in mind that this is a review of a judicial decision, not of an administrative decision by the Secretary of State.
A case will already have been looked at by three expert pairs of eyes before it can go to statutory review—the IND, an adjudicator and a vice-president of the Immigration Appeal Tribunal. They have each decided that it is not meritorious. It will then go to another expert, a judge in the Administrative Court, who works in the judicial review jurisdiction and who would usually consider judicial review applications for permission on paper. The judges can check if meritorious or novel points of law have been missed previously. If the judge considers that there has been an error of law, the matter will be sent back.
Statutory review will therefore tackle the problem of delays by ensuring that cases are dealt with quickly, while providing an effective alternative remedy to judicial review for those cases where the tribunal has made an error of law. Those with a valid case will have access to speedy justice. Those who want to make vexatious use of the judicial process will be frustrated in their aim.
Judicial review will still exist for other aspects of the immigration and asylum process; for example, challenges against certificates or removal directions, or the administrative process in IND. We intend that the statutory review will work as I have described.
I add that our intention is that an application must be made within 10 days of receiving the decision. I also add that the time limit will be set out in the Civil Procedure Rule. That will be either in the rule or in a practice direction. So the time limit is subject of course to approval of those responsible for the Civil Procedure Rule or the practice direction; that is the Civil Procedure Rule Committee or a member of the senior judiciary. The only ground for making an application is that the tribunal has made an error of law. It is a narrow test; but not so narrow that those cases that would have once resorted to judicial review are unable to use that route.
The High Court will be expected to deal with these cases within 10 working days. A judge looking at the papers will either affirm or reverse the tribunal's decision. If the judge affirms the tribunal's decision, the decision is final. There is no oral renewal and no further onward right of appeal to the Court of Appeal. That is the end of the road. The case will therefore have been dealt with within four weeks by statutory review, as opposed to five months or more by judicial review.
In addition, where the High Court judge considers that the application has no merit he will have a duty to issue a certificate to that effect. That will go to the applicant, his legal representatives and the Legal Services Commission. If the case has received funding from the Community Legal Service the commission will decide whether the lawyer should be paid for the work done on the meritless application. That will require changes being made to the commission's funding contract and to the funding order.
It is essential that we have a properly functioning system of immigration and asylum appeals and the opportunity for High Court judicial scrutiny of decisions. We are committed to speeding up the asylum process, while maintaining proper standards of fairness and ensuring that it is not undermined by meritless applications made simply to cause delays. The statutory review is one of our key measures to achieve a better system.
I see the noble Baroness, Lady Carnegy, rising to her feet. I shall come to the points that she raised, if she will just give me a little time.
I shall now deal with the amendments in turn. I know that I am taking a good deal of time over this, but it was right that the Committee spent as long as it did exploring the issues, and I should like to give a full response.
Turning to Amendments Nos. 207A and 207B, the Government are unable to accept Amendment No. 207A, as it would maintain the present position under the 1999 Act, where the ground of appeal to the Immigration Appeal Tribunal against the adjudicator's determination is on both points of law and points of fact. Increasingly, it has been the tribunal's practice to grant permission for an appeal to
it only where a point of law is at issue. We therefore intend primary legislation to put beyond doubt that the tribunal should be able to focus wholly on whether the adjudicator's determination gives rise to a point of law. We consider that to be a better use of judicial resources in a two-tier appeal system. Furthermore, as I am sure that many Members of the Committee are aware, Sir Andrew Leggatt recommended in his report on the review of tribunals that appeals to the second appeal tier should be on a point of law only.The Government are also unable to accept Amendment No. 207B, as it would entirely remove the statutory review process from the Bill. For the reasons that I explained, statutory review is an important part of our policy to provide a fair but swift and efficient system. I hope that my explanation of statutory review will enable the noble Lord to withdraw his amendment.
I turn to the amendments tabled by my noble and learned friend Lord Archer of Sandwell and the right reverend Prelate the Bishop of Derby: Amendments Nos. 208A and 208B. They would extend statutory review to include oral submissions. The Government are unable to accept the amendments because they would undermine the objectives of statutory review, as I hope that I have fully explained.
I understand the depth of feeling that the Committee attaches to the giving of oral evidence in courts. If this exposition does nothing else, it demonstrates my commitment to the oral tradition. However, the provision does not detract from the oral tradition. Statutory review provides a quick process to correct errors that may have been made by the tribunal, so that cases can be sent back to the tribunal, where oral evidence can be given.
The amendments do not account for the fact that statutory review is a review of the tribunal's decision to refuse permission to appeal on the grounds that it has made an error of law; it is not a re-hearing.
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