---

Having dealt with the background, I come to paragraph 1.28 of our report. The committee, which was unanimous, accepted that,

“there may be good reason why many immigration judicial reviews that are currently heard by the High Court, and which do not raise issues of any great difficulty or complexity, should be transferred to the Upper Tribunal. We remain concerned, however, 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. The Bill’s transfer of immigration and nationality cases to the Upper Tribunal does not guarantee this: a High Court judge may sit on the Upper Tribunal, but this is not guaranteed”.

I emphasise that we are dealing with those particularly important kinds of human rights cases. We recommend that,

“a means be devised for ensuring that judicial reviews which are of sufficient significance and complexity, including those in which important human rights are at stake, are heard by a High Court judge, by, for example, developing a sifting mechanism and ensuring that the more significant and complex cases either remain in the High Court or are heard by a High Court judge in the Upper Tribunal”.

Then we come to the passage that is really the basis for this amendment, which says:

“The Joint Council for the Welfare of Immigrants ... has also drawn our attention to a further restriction on the right of access to court as a consequence of the Bill’s provisions transferring judicial reviews relating to immigration or nationality from the High Court to the Upper Tribunal. Sir Richard Buxton, until recently a Lord Justice of Appeal in the Court of Appeal, has provided JCWI with a legal opinion in which he points out that if immigration and nationality judicial reviews are transferred to the Upper Tribunal, the Lord Chancellor will have the power, under a provision in the Tribunals, Courts and Enforcement Act 2007, to limit appeals from the Upper Tribunal to the Court of Appeal to cases where the Court of Appeal considers (a) that the proposed appeal would raise some important point of principle or practice, or (b) that there is some other compelling reason for the relevant appellate court to hear the appeal. This is a very restrictive test for leave to appeal, originally designed to limit ‘second appeals’, that is, appeals against decisions which are themselves made on appeal from the original decision”.

1 Apr 2009 : Column 1122

We continue:

“As Sir Richard Buxton points out, immigration cases in the domestic courts almost always engage the UK’s obligations under international conventions, including the Refugee Convention and the ECHR. If the ‘second appeal’ restriction is imposed on appeals from the Upper Tribunal to the Court of Appeal that the Upper Tribunal has misinterpreted or misapplied the UK’s human rights obligations”.

We say this:

“We agree with the opinion of Sir Richard Buxton that in a case where there is a real prospect that the decision of the Upper Tribunal is in breach of the UK’s international human rights obligations, that issue demands the attention of a court of the stature of the Court of Appeal. We recommend a simple amendment to the Bill to ensure that the Lord Chancellor’s power to impose the restrictive ‘second appeal’ test on appeals to the Court of Appeal is not available in immigration and nationality cases”.

That is what this amendment is designed to achieve. I bet there are not more than four Members of this House who understand what I have just said, but I hope that at least the Minister and those who have the good or bad fortune to be lawyers or former lawyers will understand why this is a very important issue. I beg to move.

Lord Lloyd of Berwick: My Lords, I have put my name to this amendment, which I strongly support. The noble Lord, Lord Lester, has made a strong case, by reference among other things to the report of his committee, for saying that the power under Section 13(6) of the Tribunals, Courts and Enforcement Act for the Lord Chancellor to restrict the grounds on which the Court of Appeal may grant leave to appeal should not apply to asylum and immigration appeals. The Court of Appeal should continue to be able to grant leave to appeal in these very sensitive and difficult cases on the traditional grounds that there is a real prospect of the appeal succeeding. I support the amendment and, if the noble Lord were to divide the House on it, I should certainly support it.

My amendment falls in the same group. It is perhaps better that I should deal with it now. I apologise for not moving the amendment in Committee. That was not because Clause 52 has not been controversial from the start—because it has been. The reason I did not move an amendment in Committee was quite simply that discussions were still going on, including discussions with very senior members of the judiciary, to find the best way ahead. As a result of those discussions, the noble Lord, Lord West, has tabled Amendment 62A, which we will come to, which provides that Clause 52—the controversial clause—will not come into operation until a further order on an affirmative basis in both Houses.

I shall support the noble Lord's amendment when the time comes, but I will explain very briefly now why I support it, because it is relevant to my amendment. The Asylum and Immigration Tribunal has not yet been transferred to the new tribunal system. There may be changes, when it is transferred, to the way that such appeals are dealt with. It simply does not make sense to transfer judicial review of asylum and immigration cases to the new Upper Tribunal before the AIT itself has been transferred. That does not make sense. Moreover, the upper tier has been in operation for only six months or less. It needs to gain experience, especially

1 Apr 2009 : Column 1123

once the AIT has been transferred into the new system. So I shall, as I say, support the noble Lord’s amendment, which resolves at least one of the major concerns that some of us have had.

I now come to my other cause for concern. The background is this. The High Court judges who deal with judicial review in immigration cases in the administrative court are under huge pressure. There are currently 3,000 applications for judicial review annually in such cases alone. Some of these cases are complex and sensitive, as I am sure we all know. Everyone agrees that those cases should continue to be dealt with by High Court judges, as they are now. However, many of those 3,000 cases are comparatively straightforward. They do not raise any real points of difficulty and are not unusually sensitive. Of course they need to be dealt with judicially—there is no question about that—but they need not take up the time of the limited number of High Court judges available to deal with these cases.

What was needed from the start, from the moment that Clause 52 appeared, was a filter—a means of distinguishing those cases that should be retained in the administrative court from those that could be transferred. That was one of the main recommendations in paragraph 1.29 of the report of the Joint Committee on Human Rights, which the noble Lord, Lord Lester, has already read.

The purpose of my amendment is to provide just such a filter in the most convenient way. Of the 3,000 applications for judicial review, about 1,000 are so-called fresh claim applications—that is to say, cases where the appellant seeks to challenge a decision of the Secretary of State on the basis of further grounds put forward by him. The question then arises of whether those fresh grounds constitute a fresh claim or not. Those applications amount to some 1,000 applications a year. Of those 1,000 cases in 2008, only 12—a tiny proportion—were found to merit a substantive hearing. It is the view of the senior judiciary that those applications should be transferred as a class to the Upper Tribunal and could be done without injustice. I suggest that we would all accept their view on that.

If so, the effect of my amendment, coupled with the amendment to be moved by the noble Lord, Lord West, would be as follows. Once the AIT has been transferred and the system is working smoothly, the Secretary of State would then lay an order bringing Clause 52 into operation. At the same time, he would lay another order transferring the class of fresh claims to the upper tier of the tribunal. In that way, we would relieve the administrative court of a main part of its burden in the shortest possible time. There is no way that we could do it more quickly than that. The starting point will be the transfer of the AIT to the new system, which I strongly support. I hope that the noble Lord, Lord West, will confirm that it is the Government's intention to transfer the AIT to the new system sooner rather than later, and everything thereafter will follow.

I now deal with the amendment of the noble Lord, Lord Kingsland. The noble Lord and I have almost always, as I am sure he will confirm, seen eye to eye on questions of law and legal procedure. But for once,

1 Apr 2009 : Column 1124

and with the utmost respect, as lawyers say, I beg to differ. I hope that he will understand. The noble Lord’s amendment does indeed transfer fresh claim applications, as will mine, but no sooner than mine. So far, his amendment is good. The trouble with his amendment is that, unlike mine, he proposes to remove Clause 52 from the Bill altogether. That will have serious consequences in relation to the 2,000 applications remaining after the 1,000 applications have been removed, which will remain thereafter, but which will have to be dealt with by High Court judges themselves and cannot be transferred as a result of an exercise of the individual judge’s discretion. The remaining 2,000 applications under my amendment could be transferred at the discretion of the judges on a case-by-case basis, but under the noble Lord’s amendment they would not be. They would all have to be dealt with by High Court judges, and that cannot be a proper use of High Court judges’ time.

To remove Clause 52 from the Bill altogether cannot be the right way ahead and is not supported by the judiciary. It must make sense to leave the judges with that limited discretion to transfer individual cases to the tribunal. However, there is a second reason why I have difficulty. Let us suppose that fresh claims have been transferred as a class and the system is working well, as I hope and believe it will. If it then emerges that a further class of claims could be transferred with advantage, under my amendment that could happen with the Lord Chief Justice’s consent. There would be a fresh class transferred which would come before this House on an affirmative order. On the noble Lord’s amendment, a fresh class transfer would require primary legislation. Once again, I suggest that it would not be right to tie down the judiciary in that way. For those reasons, I shall move my amendment when the time comes.

7 pm

Lord Kingsland: My Lords, I shall be moving not Amendments 56 and 56A but rather Amendment 56B in my name and that of the noble Lord, Lord Thomas of Gresford. The noble Lord, Lord Thomas, is unable to be with your Lordships today, for compelling reasons, and has asked me to try to represent his views as faithfully as I can.

The amendment tabled by the noble Lord, Lord Lester, in itself, for all the reasons that he has given, is wholly admirable and, if we ignore the text to which it is added, totally acceptable. Indeed, it is identical to proposed new subsection (4) in our own Amendment 56B. However, for reasons that will become plain if one glances at proposed new subsections (1) and (2) of our amendment, the text of Clause 52 to which the amendment tabled by the noble Lord, Lord Lester, relates is quite unacceptable to us. For these reasons, we cannot support the amendment.

The Tribunals, Courts and Enforcement Act 2007 permits the transfer, as I trust your Lordships are now aware, of certain judicial review applications from the High Court to the Upper Tribunal. During the passage of the legislation through your Lordships’ House, the Government accepted that further primary legislation was necessary before immigration and asylum matters could be so transferred. As I indicated in Committee,

1 Apr 2009 : Column 1125

they made clear their reason for taking this course, which was that proceedings in these cases, unlike in other tribunal cases, often give rise to disputes over internationally binding principles concerning the right to liberty, the right not to be put at risk of torture and the right not to be placed in danger of undergoing cruel and unusual punishment or capital punishment.

The noble Baroness, Lady Ashton, stated, during the passage of the 2007 Act, that, before introducing further primary legislation to allow transfer of judicial review applications in respect of asylum and immigration cases, the Government wanted to see how the new regime would work. The Government are in plain breach of that undertaking. This Bill was introduced, containing Clause 52, almost simultaneously with the opening of the Upper Tribunal for business. The Government have had no time at all to consider the appropriateness of allowing the transfer of judicial review cases from the administrative court to the Upper Tribunal. As I said in Committee, I regard what is now Clause 52 as a straightforward breach of faith with your Lordships’ House.

In Committee, I also allowed myself to speculate as to why the breach of faith had occurred. There seems little doubt that pressure from the High Court judges in the administrative court has played an important part. Such statistics as are available suggest that as much as 70 per cent of the court’s resources are dedicated to asylum and immigration matters. However, unless there is a fundamental reform in how the existing Asylum and Immigration Tribunal operates, the only consequences of passing these matters to the Upper Tribunal will be to create a similar problem there. The pressures of which the administrative court is making us aware are—again, as I ventured to suggest in Committee—the symptom of a deeper malaise: the failure of the AIT to make fair and timely decisions.

The main, although not the only, reason for this was the decision of the right honourable gentleman, Mr David Blunkett, the then Home Secretary, to change from a two-tier AIT to a single-tier system in 2004. Of course, the judiciary’s concerns, which have been well explained by the noble and learned Lord, Lord Lloyd, have to be taken seriously, especially when they are endorsed by the Lord Chief Justice. However, we sit here not as judges but as Members of Parliament. Pressure of work on the High Court Bench is indeed a relevant consideration and should be granted considerable weight, but other considerations have to be weighed in the balance, too.

In particular, first, the Government have broken their promise to your Lordships’ House not to introduce primary legislation permitting the transfer of judicial review matters in asylum and immigration cases until we have sufficient evidence that the system for judicial transfers in other classes of case are working well. Secondly, the Opposition and the noble Lord, Lord Thomas of Gresford, would be extremely unhappy to permit such transfers unless we were satisfied that the transferred AIT single-tier regime to the Upper and Lower Tribunals did indeed have the effect of leading to much fairer and more timely decisions, thus reducing substantially the overall number of judicial review cases. This raises myriad issues, such as the rules of procedure of the new regime, the prompt respect of

1 Apr 2009 : Column 1126

those rules by the Home Office, the quality of judges in the Lower Tribunal and the role of lay members. Thirdly, as I have indicated, judicial review is a crucial component in the struggle to protect the individual. Many of these cases raise issues, at best, of the freedom of the individual and, at worst, of torture and death. It is vital that it remains open to someone in such cases to have the application heard by a High Court judge.

The Minister kindly wrote to me on 27 March, seeking, quite properly, to allay my fears. In essence, he says that government Amendment 62A requires,

“the provision on the mandatory transfer of classes of cases of judicial review to be commenced by affirmative resolution order”.

The decision to specify a particular class is delegated to the judiciary, with the approval of the Lord Chancellor. The noble Lord encapsulates what he has done in another paragraph. He adds that he did,

“not believe that we should restrict the classes of case that may be suitable for mandatory transfer on the face of the Bill as this would require primary legislation before any additional classes of case could be added beyond those that could be identified now”.

In another paragraph, the Minister states:

“Our amendment would require Parliament to have the opportunity to consider whether the time is right for the mandatory transfer of classes of case before the power is commenced”.

I hope that the Minister will not mind my observing that the letter is as significant for what it omits as for what it contains. There is no reference to the undertaking given by the Government in 2007 not to introduce primary legislation on this matter at all until sufficient time had elapsed for us to consider the success or otherwise of the transfer of other classes of judicial review to the Upper Tribunal. There is no apparent understanding of the likely consequences of what will, one hopes, be a vastly improved AIT regime, following its transfer to the tribunal system, on the reduced need to transfer judicial review cases, which prima facie ought to remain in the High Court. Again, there is to be blanket approval by order for all classes of case regarded by the judges as suitable for mandatory transfer.

Finally, there is the assertion that Parliament is protected because none of this can happen without its approval through the mechanism of an affirmative order. It is this last consideration that leads me to the amendment tabled by the noble and learned Lord, Lord Lloyd. That amendment goes further than that of the noble Lord, Lord West. In particular, the noble and learned Lord, Lord Lloyd, requires that each class of case proposed to be transferred should have a separate, positive approval by both Houses of Parliament. In itself, that is a welcome advance. However, in common with the proposal of the noble Lord, Lord West, the involvement of Parliament is by delegated, not primary, legislation.

The amendment tabled by the noble and learned Lord, Lord Lloyd, is a characteristically thoughtful and elegant attempt to solve the problem. We would support it were it not for one matter: it allows the transfer of asylum and immigration judicial reviews to the Upper Tribunal by affirmative order. The noble and learned Lord, Lord Lloyd of Berwick, and perhaps many of his Cross-Bench companions, enviably, as far as I am concerned, feel free to vote against unamendable

1 Apr 2009 : Column 1127

delegated legislation. The Opposition do not; we regard ourselves as bound by constitutional convention to vote against affirmative orders only in the most rare and exceptional circumstances. I am not at all confident that, when the affirmative orders of the noble and learned Lord, Lord Lloyd, come to be voted on, they would be classified by the Leader of the Opposition as falling into that category. In short, the noble and learned Lord’s amendment provides us with no protection against inappropriate transfers. Therefore, we cannot, I fear, support it. I express the same sympathy as the noble and learned Lord kindly did to me about the consequences of that conclusion.

I referred earlier to the weight that Parliament should give in all the circumstances to the plight of the administrative court judges. In his letter to the noble and learned Lord, Lord Lloyd of Berwick, of 12 March, the Lord Chief Justice made a special plea to Parliament to allow the speedy transfer of a class of judicial review applications described as “fresh claims applications” made under Rule 353 the of Immigration Rules. He pointed out, as did the noble and learned Lord, Lord Lloyd, that in 2008, 76 per cent of these applications were refused on paper. A small number then proceeded to an oral hearing. Most of these were refused permission to apply for judicial review. In the end, only 12 substantive judicial review cases were held. Out of the approximately 3,000 asylum and immigration judicial review cases lodged in the administrative court annually, fresh claims applications under Rule 353 comprised no fewer than 1,000. We found the case made out by the Lord Chief Justice for a transfer of this class of case compelling, and subsections (1) and (2) of our Amendment 56B reflect that conclusion.

I have already explained why we cannot support the amendment tabled by the noble Lord, Lord Lester, in the particular context in which it is introduced. However, subsection (4) of our amendment, in identical terms to the text proposed by the noble Lord, Lord Lester, demonstrates that we wholly support its substance.

As the noble Lord has explained, there are powerful reasons why the existing test for appeals from the AIT to the Court of Appeal should remain. First, there will be applicants who face the prospect, if deported, of returning home to torture and perhaps even death. Moreover, the Upper Tribunal, in reaching its decision, will frequently have to grapple with submissions concerning often complex points of international law under the European Convention on Human Rights or the refugee convention. Therefore, it would, in my submission, be wrong for an appellant from the Upper Tribunal to be denied the opportunity of going to the Court of Appeal in circumstances where that court adjudges an appeal to have a real prospect of success.

7.15 pm

Lord Pannick: My Lords, I support the amendments in the names of the noble Lord, Lord Lester, and the noble and learned Lord, Lord Lloyd. I support with less enthusiasm the amendment in the name of the noble Lord, Lord Kingsland. As I understand it, Clause 52 confers power on the Lord Chief Justice to transfer immigration and nationality judicial reviews, like other categories of judicial review, to the Upper

1 Apr 2009 : Column 1128

Tribunal. I accept that it is undoubtedly appropriate to transfer many of those cases to the Upper Tribunal rather than to have them heard in the administrative court—that is, in the High Court—because a large proportion of these cases simply concern specific facts and raise no issue of general principle or importance. That is recognised by the fact that a large proportion of them are currently heard in the High Court not by High Court judges but by deputy High Court judges. These cases take up a substantial proportion of the time of the administrative court, but it would not be appropriate to transfer to the Upper Tribunal all categories of immigration cases. For example, those cases that raise issues concerning whether removal of a person from this country would be a breach of his or her fundamental rights or of the United Kingdom’s international obligations should be heard in the High Court by a High Court judge.

The defect of Clause 52 is the breadth of the power that it confers. It fails to identify any criterion whatever for distinguishing those cases that should remain in the High Court and those cases in respect of which there should be a power to transfer them to the Upper Tribunal. The virtue of Amendment 55D, in the name of the noble and learned Lord, Lord Lloyd of Berwick, is that it would preserve parliamentary control. Amendment 56B, in the names of the noble Lords, Lord Kingsland and Lord Thomas, is not ideal. Subsection (1) of the amendment tabled by the noble Lord, Lord Kingsland, would allow the transfer only of fresh claims cases. Many other immigration cases ought to be subject to transfer powers. Subsection (2) is unnecessary. If provision is made under subsection (1), cases would be transferred and no exercise of discretion would be necessary or appropriate. However, I support the noble Lord’s amendment, far from ideal though it is, because, if approved, it would have the virtue of making the Government think again on this important issue.

As regards Amendment 55C in the name of the noble Lord, Lord Lester, a consequence of the enactment of Clause 52 is that the Lord Chancellor would then have power, under Section 13(6) of the Tribunals, Courts and Enforcement Act 2007, to limit appeals from the Upper Tribunal to the Court of Appeal. By reason of Section 13(6), it would not be enough for a litigant to show that he or she had a properly arguable point of law. In order to obtain leave to appeal to the Court of Appeal from the Upper Tribunal, the litigant would also need to show that the proposed appeal would,

“raise some important point of principle or practice, or ... that there is some other compelling reason for the relevant appellate court to hear the appeal”.

The Joint Council for the Welfare of Immigrants has understandably expressed concern that the result of this may be that litigants are prevented from appealing to the Court of Appeal against decisions of the Upper Tribunal when they have arguable points of law, even when the point of law is that the immigration decision involves a breach of the international obligations of the United Kingdom. As the noble Lord, Lord Lester, has mentioned, the JCWI relies on an opinion to that effect from Sir Richard Buxton, a recently retired Court of Appeal judge.

1 Apr 2009 : Column 1129

---