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In January the London Detainee Support Group published a useful report called Detained Lives. It shows that up to 3,000 people are detained under immigration powers at any one time. It studied 188 cases of individuals who were held for one year or longer in prison-like conditions. The report is particularly good on the human consequences of indefinite detention. A significant number of detainees develop mental health problems or attempt suicide or self-harm. Riots and destruction of property are other bad consequences.
I will now quote two particular cases. The first is that of Mr Ahmed Abu Bakar Hassan, aged 24. He comes from the Massaleit ethnic group in Darfur. In Sudan he was a political activist, opposing the persecution of his people. He was forced to flee the country and arrived in Britain in October 2004. His asylum was refused. When he was told to leave his government-funded accommodation, he slept rough in parks for a while. He eventually claimed asylum again in another name, not knowing that it was a crime to do so, and hoping that he would be given somewhere to live. He served four months in prison and was then detained. He has agreed to return to Sudan, but the Sudanese embassy has refused to admit him. He has been detained for 28 months since finishing his sentence in October 2006.
The second case is that of Mr Ali Saifi. He is aged 27 and lived in Birmingham when he arrived in this country in 2002. He received no benefits or support from the Government, since he was never advised that he may be entitled to asylum support. As an asylum seeker, he did not have the right to work. However, he worked informally on building sites for a while, but lost his job because he did not have any papers. He moved to London and ended up on the street. He stole food from a market to eat and was arrested and convicted of theft. Early in his sentence he applied for early deportation, signing to forgo his right of appeal. However, the Home Office—not, perhaps, for the first time—had lost his passport and the Algerian embassy refused to give him a travel document. He has been detained for 22 months since April 2007.
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The men in the two cases quoted were de facto stateless, but according to the Home Office there were only 25 stateless people held at a recent date. Statelessness is therefore not the main cause of detention. I conclude by asking if the Government are studying the report that I mentioned, and whether they will respond to its recommendations at least by Written Statement. Will they take full account of the criticisms by the Council of Europe’s Commissioner for Human Rights? In April 2008 he urged the Government drastically to limit administrative detention of migrants, and to introduce a maximum time limit. Will the Government also examine methods used in Sweden and Australia to achieve high rates of voluntary return for unsuccessful asylum applicants? The issue of detention has come up regularly over the last 20 years, and its improvement is long overdue. I look forward to the Government’s response.
Lord West of Spithead: I greatly respect the interest of the noble Lord, Lord Hylton, and what he has done in this particular area. I have listened with great interest to what he has said, but the issues that he raises are not within the purposes of the Bill. Rather than detain the Committee, I commit to writing to him about the very important issues that he raises.
Baroness Carnegy of Lour: While we are considering Clause 49, I ask the noble Lord why this clause is in the Bill at all. When the UK Borders Act 2007 went through your Lordships’ House there was great discussion, in which I took part, about why Scotland was not included in the provision that enabled a designated immigration officer to arrest somebody whom they suspected. We were told that it was quite unnecessary because the police would always be present at a port in Scotland. I remember arguing that this was not the case and that the Scottish border would leak like a sieve. Can the Minister tell the Committee why the Government have changed their mind on this matter? I think it is excellent that they have done so, but I wonder what their reason is. I am sorry that I did not give the noble Lord notice of my query, but as the clause is being considered, I wonder if I might ask.
Lord West of Spithead: I understand that it was because we had quite a dialogue with the Scottish legal system about how the police can be used in a port. This was related to the holding of someone for three hours before anyone came. It is quite right that that provision has not been required in Scotland in the past. As a result of that discussion, we had to make some changes because immigration is not a devolved issue. It was related to those relationships. That is exactly as I understand it. I can go into more detail in a Written Answer if the noble Baroness would like.
Baroness Carnegy of Lour: I thank the Minister but I do not need any more detail; I just wondered what had happened. Clearly the Government have decided that they were wrong last time and have changed their mind. That is very good news.
Lord West of Spithead: I am always very wary of U-turns, if I may say so.
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Clause 50: Transfer of immigration or nationality judicial review applications
Amendments 111A and 111B had been withdrawn from the Marshalled List.
111BA: Clause 50, page 41, line 1, at end insert—
( ) Nothing in section 31A of the Supreme Court Act 1981 (c. 54) (England and Wales transfer from the High Court to the Upper Tribunal), section 25A of the Judicature (Northern Ireland) Act 1978 (c. 23) (Northern Ireland: transfer from the High Court to the Upper Tribunal) or section 20 of the Tribunal, Courts and Enforcement Act 2007 (c. 15) (transfer from the Court of Session to the Upper Tribunal) shall permit the transfer of any application where the application calls into question a decision under—
(a) the British Nationality Act 1981 (c. 61);
(b) any instrument having effect within paragraph (a); or
(c) any other provision of law for the time being in force which determines British citizenship, British overseas territories citizenship, the status of a British National (Overseas) or British Overseas Citizenship.”
Lord Thomas of Gresford: Clause 50 is concerned with judicial review in Part 4 of the Bill. The Tribunals, Courts and Enforcement Act 2007 set up a new system of tribunals, but the transfer of immigration and nationality judicial reviews was excluded. What was the purpose of, and reason for, that? The noble Baroness, Lady Ashton of Upholland, told us in Grand Committee that judicial reviews in immigration cases were particularly sensitive, as indeed they are. They engage absolute rights against torture and inhuman and degrading treatment, and involve complex issues under the Human Rights Act. The noble Baroness also said that there was no question of removing the statutory bar on the transfer of judicial reviews at that time because it would be necessary to review how the transfer to the Upper Tribunal of all the other tribunals had worked in other less sensitive cases.
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In Grand Committee, the noble and learned Baroness, Lady Butler-Sloss, supported the noble and learned Lord, 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. She said it would be invidious for there not to be a judge of that rank dealing with it. Your Lordships will recall at Second Reading that the noble Baroness, Lady Ashton, was inclined to support this clause, not for any reason other than the pressure on the judiciary in the administrative court by the number of judicial reviews that are brought in immigration cases. However, after arguments in all directions, eventually a compromise was struck in which the Government accepted that, if they sought to remove the exclusion of these types of cases, it would be only by way of primary legislation, which is no doubt why this clause appears in the current Bill.
The noble Baroness, Lady Ashton, also accepted that the removal of the exclusion should not be contemplated prior to there being an opportunity to
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The consultation set out two primary aims, which are interesting. The first was to reduce the immigration workload of the High Court and the Court of Appeal judiciary. The second was to assist the Home Office in its immigration work, particularly in relation to the speed with which asylum claims are dealt. Relieving the load on the one hand was of interest to the judiciary and getting immigration business through was of interest to the Home Office. All the previous assurances that this House received that it would not happen until the Upper Tribunal was up and running and we were able to assess how it worked fell by the board.
As was recognised when we were discussing the Tribunals, Courts and Enforcement Bill, immigration judicial reviews may be especially contentious because of the failure by the Home Office as a litigant—as a party—to show proper respect for the procedure in the court and for the rule of law. Your Lordships will be aware that the Home Office has been taken to task by the courts on many occasions.
The risk now in allowing the transfer of these judicial reviews without any opportunity to assess the capacity and the competency of the Upper Tribunal to deal with them is threefold. First, there is an immediate risk of injustice to the individual litigant in relation to his fundamental rights, including rights to liberty, life and so forth. That was not one of the aims of the Home Office-led consultation I outlined. Secondly, there is a risk that inadequate handling of these judicial reviews by an untested tribunal will result in an increase in the workload of the supervising court—the Court of Appeal. If judicial reviews go to the Upper Tribunal, which has only just started, that will result in a greater workload for the Court of Appeal. Thirdly, there is the risk of reduced supervision of the Home Office resulting in it taking greater liberties, leading to more instances of injustice and increased litigation.
The introduction of Clause 50 to this Bill is completely premature and contrary to the assurances given to this House when we were discussing the Tribunals, Courts and Enforcement Bill only a very short time ago. That is why this clause should not stand part of the Bill. I now move to the particular amendments which raise other important issues in any event. We will press these amendments if your Lordships agree this clause.
Amendment 111BA deals with nationality decisions. Immigration issues are concerned with administrative decisions. The granting of certain rights to people who come to this country is an administrative decision taken by government officials. Nationality issues, on the other hand, are concerned with status. They are concerned with the declaration of whether an individual
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Unlike immigration claims, some nationality law claims can also be brought in private law proceedings as well as by public law claims for judicial review. Nationality law claims concern challenges to the refusal to register or naturalise a person as a British national of a particular description. Those are public law claims. Nationality law claims can also be an issue for declarations about whether a person has automatically acquired a form of British nationality at birth, for example. It is a completely different sort of animal from the immigration judicial reviews that are part of the subject of Clause 50. We would like to probe why the two types of issues are lumped together in Clause 50. I look forward to hearing the noble Lord on that topic.
The other issue raised is that of Scottish claims. The Scottish Court of Session would be allowed to retain the jurisdiction to hear asylum and immigration appeals under the terms of the Tribunals, Courts and Enforcement Act 2007, at least until full and proper consideration is given to removing that jurisdiction. The clause transfers asylum and immigration appeals from the Court of Session to the Upper Tribunal. The clause proceeds on the basis of the publication Consultation: Immigration Appeals. Fair Decisions, Faster Justice. However, there has been no separate consideration of the Scottish issues in the consultation, when the issues are very different. The proposal in Clause 50 relating to Scotland pre-empts the civil justice review currently being conducted by Lord Gill, although the Minister, Vera Baird MP, told the Public Bill Committee when the 2007 Act was being debated, that,
- “we concluded that the judicially led review of the Scottish civil courts announced by the Minister for Justice in the Scottish Executive in March 2006 would be best placed to consider the detail of possible application for second appeals in Scotland”.—[Official Report, Commons, Tribunals, Courts and Enforcement Bill Committee, 20/6/07; col. 36.]
It also pre-empts the Scottish Administrative Justice Steering Group’s final report. The group’s first report left open the question of whether proposals made in the consultation paper are a preferable option.
There is no obvious demand in Scotland for transfer from the Court of Session to the Upper Tribunal. In June 2008, in its submission to the civil justice review, the border agency suggested this proposal as one of a range of possibilities. However, it did not receive a great deal of favour. Thus, for separate reasons, the Law Society of Scotland, which put forward this amendment, says that the clause is premature. I beg to move.
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Lord Kingsland: I also gave notice of my intention to oppose the Question that Clause 50 stand part of the Bill. I am puzzled by the fact that the clause is being promoted by the Home Office. The Tribunals, Courts and Enforcement Act 2007, to which it relates, was promoted by a department that is now part of the Department of Justice. The Home Office is a party to all immigration and asylum proceedings and therefore, for reasons that do not need elucidating, should not be, or even be perceived to be, an advocate for one form of procedure over another.
The Tribunals, Courts and Enforcement Act allows for the transfer of certain judicial review applications from the High Court to the Upper Tribunal. However, as we have heard from the noble Lord, Lord Thomas of Gresford, primary legislation is necessary before immigration and asylum matters can be so transferred. Noble Lords may recall that this was a concession made to your Lordships by the noble Baroness, Lady Ashton, in the course of the proceedings on the Bill. The reason is clear; it is principally because disputes in that area raise issues such as the right to liberty, and the right not to be put in danger of torture, cruel and unusual punishment or capital punishment, which are distinct from those rights that are dealt with under the new integrated tribunal regime.
When the 2007 Act became law, the Government were not confident that the transfer of applications for judicial review in this area to the Upper Tribunal was appropriate. The noble Baroness, Lady Ashton, stated in your Lordships’ House that she wanted to see how the new regime worked before making changes. The new Upper Tribunal, as we have also heard from the noble Lord, Lord Thomas of Gresford, began its work as recently as November 2008, leaving hardly enough time to come to a mature conclusion about its appropriateness as a vehicle for judicial review cases in immigration and asylum matters. Moreover, as the noble Lord, Lord Thomas of Gresford, has also pointed out, in August 2008 the Home Office launched a consultation on the merits of moving immigration and asylum matters to the new integrated institutions. The response to this consultation may be complete, but it has not yet been published. I find astonishing the timing of the consultation. What was the point of initiating it at a time when no one could possibly have had any experience of how the Upper Tribunal would fare? There was no evidence to submit to it, and upon which to opine. I regard Clause 50 as a straightforward breach of faith with your Lordships’ House.
7.15 pm
I suspect that pressure for premature change is being generated mainly by members of the administrative court. It is no exaggeration to say that High Court judges, there, are inundated by applications to judicially review immigration and asylum decisions. Statistics suggest that 70 per cent of that court’s resources are absorbed by such matters. However, the only consequence of passing these matters to the Upper Tribunal would be to create a similar problem there.
The colossal growth in such applications is the symptom of a deeper malaise: the failure of the existing Asylum and Immigration Tribunal to make fair and
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The second feature is that the procedure of the tribunals is determined not, as one might expect, by a tribunal service responsible to the Department of Justice, but by the Home Office. As I have stated, the Home Office is invariably a party to a dispute. So unsatisfactory are these procedures that it is often impossible for an appellant to know what the case against him is. The procedures also often lead to lengthy delays, so that many applications for judicial review are made, for example, in the field of deportation orders, on the grounds that circumstances have changed since the initial decision to deport was handed down.
The Home Office has indicated that the Government intend to publish a draft immigration simplification Bill in the autumn. If that is so, it would provide us with an opportunity to address the issues that underlie the explosion of judicial review applications. Until those questions are addressed and answered, there is little point in proceeding to the measure outlined by Clause 50.
Lord Lloyd of Berwick: I, too, was surprised to find Clause 50 tucked away in the Bill so soon after the Tribunals, Courts and Enforcement Bill received Royal Assent in 2007. A key feature of the Act was that asylum and immigration cases were excluded from the operation of Section 19, so that High Court judges sitting in the administrative court are not obliged to transfer such cases to the Upper Tribunal, and indeed are prohibited from doing so. The purpose of Clause 50, as has been pointed out by both noble Lords who have spoken, is to remove that prohibition. So there are two related questions for the Minister. First, why were asylum cases excluded from the operation of Section 19 as recently as 2007? Secondly, why is he seeking now to reverse that exclusion?
The answer to the first question is relatively easy and has already been given by both noble Lords who have spoken. Asylum cases have always given rise to sensitive issues, and they often give rise to difficult questions of fact and law, some of which end up in the House of Lords, as I know from my personal experience. As the late Lord Bridge said of one such case, R v the Secretary of State for the Home Department Ex parte Bugdaycay, decisions in asylum cases may, and sometimes do, put the applicant’s very life at risk. They therefore call, as Lord Bridge pointed out, for the most anxious scrutiny. That must be right, and is one good reason why such cases should be dealt with by judges of the standing of High Court judges in the administrative court.
However, there is a second reason. The current workload of the AIT is very heavy. It may have been thought that the judges of the new Upper Tribunal should gain experience in other, less sensitive and less pressurised, areas before being swamped with asylum and immigration cases. It is not only the difficulty of such cases, but their number, which is of concern.
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A third possible reason for excluding immigration cases in 2007 is that immigration law and practice seem to be in a constant state of flux. We are at this moment anxiously awaiting the so-called simplification Bill that the Minister has promised for this Session. It may have been thought that it would be more sensible to keep immigration cases where they are, at least until the law has settled down a bit. Indeed, I think that I am right in saying that there is an important immigration case currently being heard in the House of Lords at this moment, but I may be wrong about that.
Each of those three reasons is a good reason—there may be others—why immigration cases were left out of Section 19 when the 2007 Act was given Royal Assent. I suggest that they are still good reasons why we should not act too quickly now.
That brings me to the second question that I hope the Minister will answer: why are we changing direction now, so soon after the 2007 Act was passed? Why are we having second thoughts when we have as yet, as has been pointed out, so little experience of how the Upper Tribunal is working? It has only been in operation for three or four months.
The answer can only be the enormous pressure under which the administrative court is currently operating. There can be no other explanation. It is important to draw a distinction between the ordinary work of the AIT and applications for judicial review. I see no reason why the ordinary work of the AIT should not be transferred to the First-tier and Upper Tribunals as soon as the judges have sufficient experience. That would be the logic behind the 2007 Act, and I hope that we will follow it through. I also hope that such cases will, when transferred, be dealt with in a separate chamber, of which the president should be a High Court judge.
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