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Lord Thomas of Gresford: My Lords, I wish to make it clear that I am not trying to go back to the debate of last September and to say that Section 54 should never have been passed. However, I am saying that this is an opportunity to scrap Section 54 and to put in something that is simple and understandable. It is the putting together of Section 54 and new Section 54A—two different mechanisms applying to two not very clearly defined people or bodies—that is the problem. It is very confusing. I do not understand it and I do not think that the people of Wales will understand it either.

Lord Davies of Oldham: My Lords, I can only seek to persuade the noble Lord as best I can. I regret that the noble Lord has reservations. I want to emphasise that we gave an undertaking last year. We seek to fulfil that undertaking. We recognise that this order is not the complete answer. That is why I have indicated that other measures will be laid before Parliament and other strategies will be adopted. However, I hope that the noble Lord will recognise that this is a significant step forward and that we are making progress in fulfilling the commitment. The measure will extend freedom of information. On that basis, I commend the order to the House.

On Question, Motion agreed to.

Community Legal Service (Asylum and Immigration Appeals) Regulations 2005

10.23 p.m.

The Parliamentary Under-Secretary of State, Department for Constitutional Affairs (Baroness Ashton of Upholland) rose to move, That the draft regulations laid before the House on 23 February be approved [11th Report from the Joint Committee].

The noble Baroness said: My Lords, the regulations are made under Section 103D of the Nationality, Immigration and Asylum Act 2002 as inserted by Section 26 of the Asylum and Immigration (Treatment of Claimants, etc.) Act 2004. Section 103D makes provision for the High Court and the Asylum and Immigration Tribunal to order payment of an appellant's costs for a review of an AIT decision and any pursuant reconsideration out of the Community Legal Service Fund.

These regulations establish the statutory framework for these new arrangements and prescribe the precise circumstances in which costs can be paid. The funding code is being modified under Section 9 of the Access to Justice Act 1999. The regulations and the funding code are subject to parliamentary approval under the affirmative resolution procedure.
 
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I should first explain why we are making these regulations. The new arrangements are being introduced to combat abuse of the appeals process and reduce the number of weak applications being pursued through the system. That is imperative to ensure that we increase speed and efficiency in the asylum and immigration system and target public money and resources on those who are genuinely in need. Asylum seekers have no disincentive to withdraw from the system, regardless of how weak their case, because remaining in the country is their primary goal. Onward appeals and further challenges are ways for people to buy time, which means that there is always an advantage to lodging another application. That is evidenced by the figures; between 2003 and 2004 approximately 30,000 decisions were made in asylum cases on permission applications to the Immigration and Appeal Tribunal. Of those decisions, only 33 per cent resulted in permission being granted. The remaining 67 per cent of applications were dismissed.

So instead of focusing on the asylum seeker, what we are doing with the new legal aid arrangements is disincentivising the representative. We are introducing an element of risk, which is that if a representative chooses to pursue a weak case they risk not being paid for their work. This is a proportionate response to the problems of tackling abuse within the appeals system and one which strikes the right balance between discouraging weak cases while securing access to justice for genuine claimants.

We announced our decisions on the scheme on 24 February 2005. We have made a number of changes to our original proposals after carefully considering the responses to the public consultation. I shall now briefly take noble Lords through how the scheme will work and the key provisions in the draft regulations. The new arrangements will apply only to the review and reconsideration of appeals under new Section 103A of the Nationality, Immigration and Asylum Act 2002, inserted by Section 26 of the Asylum and Immigration (Treatment of Claimants, etc.) Act 2004, and only if the application was made by the appellant. The arrangements will not apply to all other stages of the appeals process, including the original appeal to the AIT and any appeal to the Court of Appeal, applications made by the Home Office; and fast track proceedings.

Additionally, the arrangements will not apply to the representative's initial advice to the appellant on whether to apply for a review of the tribunal's decision. That will be funded as part of controlled legal representation for the original appeal. That will ensure that every appellant has the opportunity to make an informed decision about whether to challenge the tribunal's decision. The representative will have devolved powers to grant representation, and that will be based on the test that the tribunal judge will apply when deciding whether to make an order for costs in an unsuccessful case. Successful cases will always be funded.
 
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The test is whether the tribunal is satisfied that at the time that the Section 103A application was made there was a "significant prospect" that the appeal would be allowed on reconsideration, which is set out in regulation 6. If the representative thinks that the appellant's case does have significant prospects of success and agrees to provide representation, the review application will be considered in the first instance by the AIT acting on behalf of the High Court, under what is being described as the "filter" stage. If the application is dismissed, the applicant can opt for the High Court to consider the application, which is the "opt-in" stage. At the review stage, the tribunal and the High Court will share similar powers to award costs. Those powers will extend only to awarding costs for the review application and will be exercisable only in limited circumstances.

If an application is successful, a reconsideration will be ordered. If a case is successful at the reconsideration stage and the appeal decision is overturned, then costs must be awarded. If a case is unsuccessful and the appeal decision is upheld, then costs may be awarded. The tribunal will have to apply the prospects of success test, which is that it must be satisfied that at the time when the appellant made the Section 103A application, there was a significant prospect that the appeal would be allowed on reconsideration.

It will be for the judiciary to interpret the regulations and what "significant prospect" means, and I cannot pre-empt what that interpretation might be. However, I can clarify the Government's intention. The purpose of the scheme is to reduce the number of weak cases moving through the appeals process and to discourage unmeritorious challenges to tribunal decisions. If an application is unsuccessful at the review stage, it will usually be because it lacked merit, and therefore we would not expect costs to be awarded. However, if an application is successful and the representative has acted in good faith, that would mean that the case had merit. In those circumstances, we would expect costs to be awarded. Every case must be dealt with on an individual basis, but representatives who pursue meritorious cases can expect to be paid.

I also assure noble Lords that an unsuccessful outcome at the reconsideration will not automatically lead to costs being refused. That is not how the scheme has been designed. The test that the tribunal must apply will be based on the prospects of success and the information that was available to the representative when the application was made. That is a specific requirement of the test in Regulation 6(3), because we realise that representatives cannot make an assessment of a case's prospects of success based on information that they do not have.

If, following the reconsideration of an appeal, the tribunal refuses to award costs, that decision can be challenged on a written application for review. Both the representative and counsel instructed by the representative will have the right to apply for a review of the decision to refuse costs. That review will be conducted by a different senior immigration judge to the judge or composition of tribunal members that made the decision on funding.
 
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I have briefly outlined the substantive provisions of the regulations. I shall turn briefly to the consequential changes to the funding code that we have laid before Parliament arising from the commencement of the AIT on 4 April 2005. Amendments to sections 2.4 and 13.1 of the funding code criteria replace references to proceedings before the immigration adjudicator and the Immigration Appeal Tribunal with the Asylum and Immigration Tribunal or the High Court in relation to review applications. I commend the draft order and revised funding code to the House. I beg to move.

Moved, That the draft regulations laid before the House on 23 February be approved [11th Report from the Joint Committee].—(Baroness Ashton of Upholland.)

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