Committee (6th Day)
Relevant documents: 2nd Report from the Delegated Powers Committee, 2nd Report from the Constitution Committee.
Clause 24 : Appeals against refusal of entry clearance to visit the UK
148A: Clause 24, page 23, line 2, at end insert—
“( ) This section shall not have effect in relation to an appeal against a refusal of entry clearance where that decision was taken wholly or partly on a general ground for refusal in rules as laid by the Secretary of State for the purposes of section 1(4) of the Immigration Act 1971.”
My Lords, the intention of Clause 24 is that refusal of a family visit visa will no longer be subject to a right of appeal, save on human rights or race discrimination grounds. However, as I shall explain, the race discrimination ground has been inadvertently removed, except in Northern Ireland.
In July 2011, the UK Border Agency stated in the publication Family Migration: A Consultation:
“Many British citizens and persons settled in the UK have family members living outside the UK. This results in a high volume of visa applications from people wishing to visit family in the UK”.
It goes on to say that such visits,
“are a means of maintaining family links and of enabling family members living abroad to participate in important family occasions in the UK, such as births, weddings and funerals. Such visits and associated tourism also bring economic benefits to the UK”.
The following month, the Prime Minister said:
“If it hurts families, if it undermines commitment, if it tramples over the values that keep people together, or stops families from being together, then we shouldn't do it”.
Clause 24 will undoubtedly stop many families being together by denying persons refused a visa to visit family a right of appeal to an independent tribunal to correct wrong assertions by entry clearance officers that otherwise would lead to the refusal of their current and future applications to visit family.
The rise in the success rate of appeals in family visit cases, from 19% in 2004 to 45% in 2010, underlines the necessity of the right of appeal against refusal. If Clause 24 remains in the Bill, nearly half of all applicants in future will be wrongly rejected and will have to reapply at a cost of £78 for a single visit or £270 for multiple visits over two years to get the decision reversed.
So what is the argument for this proposal? The Immigration Minister, giving evidence to the Home Affairs Select Committee, complained that there were many more appeals than had been anticipated in 2000, when the right of repeal was restored. He suggested that the removal of the full appeal rights would be better for applicants because, if a genuine mistake has been made on the application, the amended version is normally dealt with in 15 days, whereas an appeal takes eight months. Clearly, one good reason for the increasing volume of appeals is that the quality of first decisions has progressively deteriorated, as shown by the steady increase in the proportion of successful appeals. Another is that, as successive reports of chief inspectors have revealed, many refusals are not to do with a mistake by the applicant but a mistake by the ECO, or because applicants had to submit additional material, the need for which they could not have anticipated at the time of the original application.
Mrs N, who lives in Beirut, where she is the carer of her 89 year-old mother, has been here a dozen times in the past decade and has had no difficulty getting visas to visit her husband, a Londoner who is a close friend of mine. Now she has been refused a family visit because, they say, she has insufficient ties to Lebanon. This is one example of the way in which applications are being refused on the basis of failure to supply information, the need for which the applicant could not have anticipated. The agency dealing with applications for family visits in Beirut now wants a doctor’s certificate and bank statements from the applicant’s mother, documents that have never been required in the past. The Minister turned that sort of situation around and said that 63% of the appeals lost by the UKBA were the result of new evidence introduced at appeal stage. One way in which to reduce the number would be for the UKBA to make it clear exactly what information it wants in the explanatory notes that it sends to family visit applicants.
In 2011, the UKBA chief inspector, as he was then, looked at entry clearance decisions where there is currently no right of appeal. He found that the ECO had not properly considered the evidence in one-third of the 1,500-odd cases examined and, in a further 14% of the sample, it was not possible to determine from the file whether the evidence had been properly examined. In 16% of the cases, the refusal was based on failure,
“to provide information which”,
“could not have been aware”,
“at the time of making their application”.
When an ECO wrongly impugns an applicant’s integrity in the reason for refusal, if the applicant is not able to clear his or her name it may well be relied on to refuse any future application whether for a family visa or some other type of visa, whether in an application to the UK or some other country. In some circumstances the previous allegation by the ECO will require any future visa application to be refused for up to 10 years—for instance, when the ECO alleges that the applicant has made a false statement in his or her application. Among the reasons given for refusal of family visit applications are that the applicant is not genuinely seeking entry as a visitor only or is not intending to leave the UK at the end of the visit. Refusals may also include reasons impugning the character of the applicant, such as that she has made a false statement in her application. Any false statement would require the application to be refused. The right of appeal, at which family members appear and can give oral evidence, is essential to afford a proper opportunity to answer allegations as to the integrity of the applicant or her relations.
If your Lordships approve Clause 24, it will normally be possible to challenge these refusals only by way of judicial review or administrative review, a process internal to the UKBA, introduced in 2008 to replace the full right of appeal against refusal of entry clearance in student and worker visa cases dealt with under the points-based system. That involves a review by an entry clearance manager of the decision by the ECO, a procedure which means, as David Winnick MP observed in the Home Affairs Select Committee, that the UK is “judge and jury” in its own cause. The chief inspector, in his global review, looked at 475 such internal reviews and found that in 30% of the cases the entry clearance manager failed to pick up on poor decision-making by the ECO. He was explicit in finding that the internal review system is not working effectively.
The Immigration, Asylum and Nationality Act 2006 required the Secretary of State to lay before Parliament a report on the effect of removing the full right of appeal in points-based system entry clearance cases. That report, in March 2011, was by the UKBA itself and was therefore not independent. It sets out what is expected of entry clearance managers in conducting reviews whereas the chief inspector’s findings show that, in many cases, those expectations are not met. The report argues that it is reasonable to substitute an internal review for the right of appeal in points-based system cases and emphasis is placed on the context of the new, more objective and transparent process of making decisions under the points-based system.
The points-based system has not resulted in an objective and transparent process as intended but even if it had, it would not be an argument for applying internal reviews to the entirely different process of deciding on family visits. There is no suggestion that family visit visas are to be decided on criteria in relation to which scope for subjective decision-making is removed. The defects of the internal review system would therefore be intensified if applied to family visit refusals.
The Labour Party made the restoration of appeal rights a manifesto commitment in 1997, and when it implemented that undertaking in 2000 my right honourable friend Simon Hughes said:
“The Conservative Government … abolished the right of those who had applied for visas to enter this country to appeal against rejection. That caused widespread disapproval, dissatisfaction and anger. Understandably, the Labour Opposition, like the Liberal Democrats, were committed to restoring the right of appeal”.—[Official Report, Commons, 20/11/00; col. 109.]
This feeling was shared on all sides of another place and of this House. The late Lord Newton of Braintree was among many who emphasised the importance of family members in the UK being able to attend an independent tribunal to address implicit or explicit allegations as to the integrity of the would-be visitor or the family members. My friend the late Earl Russell, in his inimitable way, related a 17th century anecdote to illustrate a point about family relationships and the noble Lord, Lord Cope of Berkeley, speaking from the Conservative Front Bench, criticised the restoration of appeal rights in family visit cases only on the grounds that fees were to be payable which would mean that there would not be many appeals.
Last Tuesday, the noble Lord, Lord McConnell of Glenscorrodale, drew attention to the latest report of the chief inspector of the Border Agency on visa applications. Mr Vine points out that on entry clearance decisions as a whole ECOs had not considered the evidence properly in 33% of cases, and that rose to 37% for Africa and to 50% for the region covering the Gulf, Iran and Pakistan. The poorest performing posts on the use of evidence were Abu Dhabi, Abuja, Moscow and New Delhi and these same posts were the worst on failure to seek initial information as well. Three of them were among the five worst posts on the retention of documentation. The Government say that a right of appeal is to be retained on race discrimination and/or human rights grounds against the refusal of a family visit visa. Section 84(1)(e) of the Nationality, Immigration and Asylum Act 2002 permits as a ground of appeal that a decision is,
“not in accordance with the law”,
which includes a ground of race discrimination on an appeal, but unlike the specific race discrimination ground that had resided in Section 84(1)(b), it is only applicable when a full right of appeal is available. Reference to the Race Relations Act 1976 was removed from Section 84(1)(b) on 5 April 2011 by the Equality Act 2010 (Public Authorities and Consequential and Supplementary Amendments) Order 2011 and no substitute was included in its place. I hope that my noble kinsman, when he comes to reply, can give me an assurance that an amendment will be introduced to remedy this problem on Report.
In conclusion, the reasons advanced for Clause 24 are those given in the UKBA consultation document Family Migration: A Consultation in July 2011; namely, assertions about the use of new evidence in a sample of 363 determinations in family visit appeals that it had considered. ILPA put the following questions to the UK Border Agency regarding this sample:
“Of the allowed appeals, was the new evidence produced, evidence that is clearly required on the application form or website?”,
“Of the allowed appeals, was any contact made by the entry clearance officer making the decision with the applicant to request that the evidence be supplied?”.
The UK Border Agency’s response to each of these questions was:
“The information requested was not collated when the sampling was carried out”.
Without this information, the claims made by the UK Border Agency and the Minister—even in respect of the sample of 363 cases—regarding the need for and use of the right of appeal are unsubstantiated. Neither we nor ILPA are aware of any new information available that would support their case, which is not evidence-based. I beg to move.
My Lords, I will speak to our Amendments 148AA and 155EA. These are probing amendments into what I think are very serious issues. The Minister will recall that I raised concerns about these matters at Second Reading. I listened with great care to what the noble Lord, Lord Avebury, had to say, and I fear I may duplicate some of his comments, but only where they are worth duplicating and I think it useful to your Lordships’ House.
Our amendments would delay the commencement of Clause 24 until the Independent Chief Inspector of Borders and Immigration has completed a report on entry clearance decision-making within the UK Border Agency for family visit visas, which retain the right of appeal. The Minister will recall that I drew some comparisons at Second Reading with the issues that had arisen where the right of appeal had already changed in other visa applications.
It is worth rehearsing some of the difficulties, delays and problems that we have seen with initial decision-making in family visitor visa decisions. In 2010-11, 38% of the appeals against family visitor visa decisions were successful—over a third of the decisions were overturned on appeal. The noble Lord previously said that that was because in many cases people had provided wrong information. I will come on to that point but I do not think it is relevant in many cases. This seems to be a systemic problem and the Government cannot address the problem of inaccurate and wrong decisions being made by trying to change the rules. By removing the right of appeal, you cannot sweep under the carpet the fact that so many decisions have been appealed successfully.
Family visitor visas are an important way for many British communities to preserve family and cultural links with other countries. The kinds of applications we are talking about are for family members to attend family occasions such as weddings and birthdays; there can be urgent cases, many with a compassionate element, such as needing a visa to visit a sick relative or even attend a funeral. These are not the kind of people who are going to bring vexatious appeals against the Government. Appeals are brought in these cases to right a wrong, to overturn a wrong decision.
It is worth listening to what the Independent Chief Inspector of Borders and Immigration has said on this issue. In 2011 he reported that in 33% of cases he reviewed, the entry clearance officer had not properly considered the evidence that was submitted. Why should that 33% of people who have not had their applications properly considered be forced to resubmit an application because of chronic administrative errors within the UK Border Agency? It is penalising those who have been refused through no fault of their own but through poor decision-making.
As I mentioned earlier, the Government argued that,
“63% of appeals are lost entirely because of new evidence introduced at the appeal stage”.
That comment was made by the Immigration Minister, Damian Green, when he gave evidence to the Home Affairs Select Committee. I again look back at what John Vine, the chief inspector, noted in his report: in the 16% of cases reviewed, applications had been refused on the basis of a failure to provide information of which the applicant could not have been aware at the time of making their application.
It is true that in many cases, submitting a new application is quicker than appealing a decision, but the Government have failed to address the fact that, when a decision is appealed it allows, particularly in those highly urgent and exceptional cases, Members of Parliament and advocates to intervene directly with the Home Office on their behalf and expedite decisions. If they do not know, or are not aware, as the noble Lord, Lord Avebury, said, what information is required before submitting the application, that is a poor reason for the Government to change the rules. The wrong information was submitted, and it should be very clear to applicants what that information should be.
When a wrong decision has been made, it is a matter of integrity that it should be addressed. The UK Border Agency should also consider when decisions have been wrongly made and address the problems within the organisation that has allowed that to happen. To remove appeal rights of applicants who have been wrongly refused because of Home Office errors is unfair. It also leaves applicants with no indication of how they should amend their application the second time around, and the possibility that the same errors or omissions could continue to be made. It also neglects the added burden of cost that many applicants face. The cost of an appeal is roughly the same as an application but the costs of making an application go beyond the fee. I am sure that the Minister and other noble Lords will be aware that family members travel hundreds of miles and cross borders to submit in person an application and the documents required. It is significant that when refusals are made on the basis of an allegation that an individual has made a false statement in the application, it can result in that individual being refused entry for up to 10 years. If there is no right of appeal it leaves no way to address the issue. Making another application cannot undo the fact that the individual has been banned for the next 10 years. That is a significant failing in the clause as it stands, particularly when we see how many errors are made in decision-making.
Most importantly, removing the full appeal rights removes pressure on the Home Office to improve the situation. We want a reduction in errors in decision-making. It is bad for the Home Office, and it is certainly bad for the applicant. I raised in a Question in your Lordship’s House not that long ago the report from Sir John Vine: A Comparative Inspection of the UK Border Agency Visa Sections that Process Applications Submitted in Africa. He looked at four areas. There was some good news and some improvements, but I found it fairly shocking. The most difficult part was when he said:
“Despite my making recommendations in previous inspections to help the Agency improve, I found that little progress had been made in a number of areas. This is especially frustrating considering the Agency has accepted the recommendations and yet I continue to identify the same issues”.
How frustrating is that for the chief inspector of the UK Borders Agency whose sole purpose is to want the agency to improve its decision-making? Yet, he is making the same recommendations; the agency agreed those recommendations and that there should be a plan to address the issues. He then has to make the same recommendations the next year and the year after that. He then said:
“In summary, I found performance varied significantly across the four posts inspected in the Africa region. I was disappointed to still find a clear need for improvement in the quality and consistency of decision making. I have made 12 recommendations, a number of which I have made before, in previous reports”.
It is very difficult to understand why this kind of measure is being brought in when we know that the decision-making is inadequate and not up to scratch.
There is another, slightly different side to this. Something caught my eye earlier today concerning the failings in visa controls and considerations. It was about not family visas but other visas. Mr Vine’s inquiry looked at 100 visa applications from Pakistani nationals and found that there were cases where entry was granted when it should not have been and cases where it was not granted where it should have been. Both are equally wrong and I am sure that that is an issue that the Minister wants to address.
I find it very difficult to understand why the Government want to remove the right of appeal for family visit visas when they know that the decision-making is inadequate, that many mistakes are made and that the consequences for those individuals are severe. The amendments that we are dealing with today are intended to find out how the Government intend to improve entry clearance decision-making within the UKBA and ensure that individuals are not unfairly penalised because of systemic failures if their full right of appeal is taken away. As things stand at the moment, significant harm is being caused to those individuals because of the quality of the decision-making.
My Lords, I do not want to repeat absolutely everything that the noble Baroness and my noble friend have said, but I am afraid that there will be a little repetition and I hope your Lordships will understand that it goes to emphasise the seriousness of the points being made. Both previous speakers referred to the knock-on effect on future applications of clearance being refused, with the applicant’s integrity being impugned in the reasons for refusal. I think that we should take that very seriously.
There have been many complaints about the lack of clarity regarding what is required at the application stage, with the real reason for refusal not being revealed until the appeal hearing. If that is the case—and I have no reason to doubt what we are hearing—it is bound to lead to additional evidence being presented. That is a simple consequence and not something for which we should be criticising applicants. Are there no mechanisms for additional information, or for clarification of information, to be requested without an application being rejected? It seems common sense that the mechanisms should allow for some simple process of that sort.
Like other noble Lords, I am keen to know whether the Government have confidence in the internal review process. Regarding confidence, the noble Baroness asked whether improvements will be made. I would add: are the Government confident that improvements have been made since the chief inspector’s review in December? Unless they have, we are presented with a difficulty regarding this proposal. I simply conclude by saying that it is quite clear that there is a problem, and it is quite clear to at least three speakers that this is not the solution to the problem.
My Lords, I start by saying to my noble friend Lady Hamwee that I accept the seriousness of the points being made and I hope that I can deal with them in the course of this debate. I also noted what my noble kinsman Lord Avebury said about the right of appeal on race discrimination grounds, which I think is the subject of his next amendment. As it was my noble kinsman who wanted the amendments to be taken separately, I would prefer to deal with that issue when we come to Amendment 148B.
We have three amendments and a clause stand part debate in this group. My noble kinsman has tabled Amendment 148A and has given notice of his intention to oppose Clause 24, and the noble Baroness, Lady Smith, has tabled Amendments 148AA and 155EA.
As we are all aware, Clause 24 makes provision to remove the full right of appeal against refusal of visa applications to visit family members in the United Kingdom. The Government understand that a visit visa can help maintain family links: we granted some 370,000 family visit visas in 2011 and 1.26 million other visit visas in 2010-11. That is also why we issue, on application, longer validity multiple entry visit visas in some cases, which offer convenience to the family visitors who are granted them. The clause is not in any way about stopping people visiting their family members in the United Kingdom. The rules to qualify for entry are the same for both tourists and family visitors. Any family member who meets our immigration rules will be granted that visit visa.
I will say a little about the original intention behind the family visit appeal and look at the original principles behind that appeal right. When the family visit visa appeal right was introduced in 2000—the noble Baroness will remember this well—it was supposed to be a self-financing system. I am afraid to say that it is not any longer and costs the taxpayer around £29 million a year to administer. It was also supposed to be a quick system and I have to say again, with some sadness, that it is not: appeals can take up to eight months to go through the process. That is not very suitable for those who are coming on family visits, particularly where the visit is for some family event that might be happening much sooner than eight months. It was expected, at the time, that there would be around 20,000 appeals a year but there are in fact around 50,000. The reintroduction of this appeal right has resulted in what one might call a clogging up of the immigration appeals system and a huge cost to the taxpayer.
The appeal right is not of great benefit where people are seeking to come to the UK for a specific family event. As I said, it can take up to eight months to be concluded, by which time it is more than likely that the event will have passed by. In contrast, a reapplication—which is what we are suggesting—to the United Kingdom Border Agency will typically result in a decision within 15 days. The noble Baroness, Lady Smith, raised the matter of costs. Not only is a reapplication much quicker than an appeal, it is also cheaper. It costs up to £140 to lodge an appeal against a refusal —allowing that there are different rates relating to whether there is an invitation or whatever—plus any associated legal costs which come with preparing and presenting the appeal, while an application to the Border Agency costs only the original £78.
I take the point raised by either the noble Baroness, Lady Smith, or my noble friend Lady Hamwee—I can not remember which, but it seemed to get a “Hear, hear” from my noble kinsman Lord Avebury—as to whether further points could be put in the case with the original application. I do not see why, if things are managed properly, further points can not be put during the course of any application. It is a matter of getting the processes right and I will certainly look at it and get back to whichever noble Lord it was—it was the noble Baroness, Lady Hamwee—in due course.
Those refused a visa may reapply as many times as they wish and every refusal is accompanied by a detailed letter setting out the reasons for the refusal, which can be addressed in a reapplication. This is particularly important if there is new evidence they want to put forward which they failed to put forward at an earlier stage. Each application is treated entirely on its own merits and a reapplication will not be prejudiced by a previous refusal, provided the earlier application involved no deception.
Moving on to the benefits of removing the appeal right, the full costs and savings will be in the order of £107 million over 10 years from enactment. It will free up a resource within the UK Border Agency and Her Majesty’s Courts and Tribunals Service, allowing greater priority to be given to cases that have far-reaching impact for the individuals involved and for society, such as asylum claims, settlement applications and the deportation of foreign criminals. It will also mean that the United Kingdom Border Agency will be able to concentrate on its core visa business when the burden of processing some 50,000 appeals is lifted from visa staff. This will result in improved decision-making and customer service. That is a better deal both for the taxpayer and for the applicant.
A reapplication is the proper course of action for a person wishing to provide additional information to support their original application. Presenting new information during the appeal essentially makes the appeal a second application, not a review of the original decision. We know that this happens all the time. I give the noble Baroness this figure: nearly two-thirds of family visit visa appeals are allowed on the basis of new information that was not considered by the original visa officer. It should be no surprise, then, that 32% of appeals are lost by the United Kingdom Border Agency. It is perhaps surprising that the proportion is not higher. That is not a reflection on the decision-making ability of hard-working visa staff but, rather, the natural consequence of the tribunal making a different decision based on different information.
My noble kinsman’s Amendment 148A would mean that the removal of the full appeal right for family visitors does not apply where the refusal of an application relied on a general ground for refusal. We are not persuaded that there is a case for retaining the full right of appeal in cases where general grounds of refusal are used, when otherwise there is not. Such an approach would, in effect, be rewarding criminality or dishonest behaviour, such as the use of deception, by affording greater appeal rights than would otherwise apply. Regardless of whether an application is refused, relying on a general ground of refusal the applicant is free to reapply setting out why the previous refusal was unjustified. All applications are assessed on their individual merits; an applicant will not automatically be re-refused before being given full consideration by an entry clearance officer. All refusals on general grounds are reviewed by entry clearance managers before being served.
On the comments of the noble Baroness, Lady Smith, I appreciate that her amendments are probing, but also that she has some considerable concerns about the standard of decision-making. I appreciate that she is anxious to be reassured that any decisions are looked at in the right way, and that the chief inspector will examine these things in the right manner. On the commencement orders relevant to her amendments, she will understand that there is an accepted practice that commencement orders are not subject to parliamentary procedure on the grounds that they simply bring into force the provisions which have already been approved by Parliament, with one or two exceptions. This clause should be no different.
I move on to the position of the chief inspector and what he has found in his most recent report. In that report, on Africa, published last month, he found that only 6% of family visit visa refusals were questionable as to whether the correct decision was made. Obviously, we want to see the number of errors reduced, and we will do everything that John Vine says, in so far as we can, to make sure that we can reduce those. He is already required to monitor and report on those entry clearance application routes where there is no full right of appeal, and he will obviously do so for family visit visas once the full right of appeal is removed.
I want to make it clear that we are anxious to make sure that all those involved in this are appropriately trained and that all visa officers will obviously have the appropriate mandatory training course. They will complete an overseas induction period of mentoring before they make any decision. All will be trained and all are trained to make correct use of all the available evidence that is put before them. They will properly apply the immigration rules, policy and guidance. They will be trained to make sure that they are objective and will correctly exercise any powers of discretion or balance of probabilities. In addition to the initial training, regular updating workshops are held for the visa officers to make sure that the quality of their decisions remains as high as possible.
I can assure the noble Baroness that we will continue to work with the chief inspector to identify any appropriate areas for improvement in the handling of visa applications and build on improvements. There have been considerable improvements over the years that have already resulted from his inspections. In the light of the points that I have made to my noble kinsman and to the noble Baroness, Lady Smith, I hope that they will not press their amendments and will support, in due course, the passage of Clause 24.
Before the Minister sits down, will he answer a simple question? When an appeal is refused under the new rules, he says that it will be open to the applicant to make a new application, benefiting perhaps from the reasons given for the asylum refusal. But that will surely add enormously to the load on the border control officers who are controlling applications for visas in the first place. Will that not give them a huge overload? Anyway, are there not rules that specify the length of time after the first application is refused before a second one can be made? What sort of period are we looking at? Is it six months, a year or two years? Is there a period at all?
My Lords, we are finding that, with a large number of appeals, the point that they are appealing on is in effect new evidence that they did not put in their original application. We suggest that it is cheaper to make a new application than to appeal. It does not clog up the appeal system if they make a new application, bringing in that new evidence. Therefore, the appropriate process is to use the new application route rather than clog up the appeals system. That is why I was emphasising that, despite the original intentions of the system brought in by the Government of whom the noble Lord is such a distinguished supporter, it has clogged up the system in a manner that we do not think is appropriate. The new application would be a far simpler, cheaper and better way of dealing with these matters.
A new application can be made immediately. That would be far quicker for the applicant than waiting for possibly eight months for the appeal to be dealt with. A new application can be dealt with within 15 days. That is a better deal for all involved, particularly if they are coming over for a family event such as a wedding. In eight months, the whole thing might be over: it would depend on how much advance notice they had for the wedding.
My Lords, as the Minister said, the fee for a new application is a little cheaper than that for an appeal. He quoted a figure for the savings that the measure would achieve. I have just had a look at the impact assessment—although I may not have the right piece of paper with me—which gives in narrative form an explanation of what is proposed, but I cannot find any figures in it for this particular clause.
The Minister may well not have the detail with him at the moment. If he does not, perhaps he could write to noble Lords to unpack that figure, which I think was £102 million, although I might have got that wrong. In any event, when it comes to the amount that the Government expect to save by this, I am having a little difficulty in putting all this together in a mathematical form.
My Lords, impact assessments are always somewhat obscure documents, as my noble friend and others will well understand. I do not have the impact assessment in front of me at the moment but I think the figure I quoted was savings over 10 years of something like £103 million. My noble friend says £102 million, but what is £1 million between friends? The best I can do on this particular occasion is to offer to write to my noble friend with greater clarity about the impact assessment and what we reckon the savings will be. We think that there are very considerable savings to be made here and that the process is not working as it should or as it was originally intended because there are far many more appeals coming in. A new application would be a simpler way of processing these matters.
My Lords, it might help if I just say that it seems that an explanation for any savings may be with regard to the time that officers put into dealing with either an appeal or an application. That in itself raises issues. I make that point now in case the answer comes back simply in terms of figures, when there will need to be an explanation if we are all to understand. However, we all agree that the system is not working very well.
My Lords, I am reminded that the figure I quoted originally was £107 million, so we are talking about a difference of £5 million between myself and my noble friend, which is real money. However, I still promise to write to my noble friend on these matters and to try to bring her greater clarity.
My Lords, I appreciate that the Minister seeks to reassure me and I wish that he could. However, unfortunately, he has not. There are a number of issues. If, as he points out, it would be quicker, cheaper and easier for everybody concerned—the Government and all the applicants—for there to be no appeals process, why does everybody not welcome this with open arms?
As I pointed out in my earlier comments and as was pointed out by the noble Lord, Lord Avebury, and the noble Baroness, Lady Hamwee, it would be quicker, cheaper and less onerous if so many wrong decisions were not made in the first place. I imagine that those appeals that were not upheld were much easier decisions to make if the application was turned down and the appeal rejected. I am very concerned about those where a wrong decision is made and the appeal is successful because of the wrong decision. I know the noble Lord says that in many cases it is because new information is provided, but it would be very simple to make it absolutely clear what information is required in the first place. That would make the whole application process much quicker and more efficient.
The other problem with making new applications is that there is no opportunity for advocacy or for people to make representations on an applicant’s behalf. I made the point earlier that if somebody is refused and the decision-maker says that they gave inaccurate or wrong information, they can be barred for 10 years. The Minister says they can apply next year and the year after, but in those circumstances they will not be able to apply for 10 years. Even though the decision may be based on inaccurate information, and the person who has been refused a family visitor visa has been told the information they gave was wrong and misleading, there is no opportunity to appeal that and they cannot make another application for 10 years. That seems to be a gap in the noble Lord’s reasoning.
I wonder whether he is dealing with this problem from the wrong end. If we deal with improving the quality of decision-making, in some cases by making it easier, and so more straightforward, for applicants to know what is required of them, we would see this logjam that he talks about removed. To try to deal with the logjam by merely removing the right to appeal does not seem to me to be the right way round.
I was surprised that he drew any comfort from the chief inspector’s report. I think that it is quite damning. Basically, he says, “I make these recommendations, people accept them, but it does not get any better”. Before the Government take an action such as this, they should seek significant changes and improvements in decision-making. I do not lay it all at the door of poor decision-making. However, he tells me that every decision is reviewed by a senior manager, so clearly something is wrong when so many appeals succeed despite that. Something in the process is going badly wrong.
I will not press my amendment today. I am grateful to the Minister for pointing out the deficiencies in my drafting but, despite his very brave attempts, I am not really reassured.
My Lords, before my noble kinsman decides what to do with his amendment—obviously, it is his decision—I want to pick up one point. The noble Baroness says that an awful lot of appeals are the result of wrong decisions. I accept that some are the result of wrong decisions, but as she would accept, an awful lot are the result of the wrong information coming forward, and that is something far better dealt with by means of a new application. Obviously, we might have to look at how to ensure that people get the right information into their original application so that the correct decision can be made. That is a matter of making sure that we have the right procedures in place and I will certainly be prepared to look at that. However, I do not think that she should imply that all the problems are down to bad decision-making; an awful lot are the result of new information coming forward. That is why there are so many appeals.
If the noble Lord reads Hansard and looks at my previous comments and at what I have just said, he will find that I acknowledge that sometimes a wrong decision is made because the right information is not supplied. Indeed, I quoted the chief inspector as saying that in 16% of the cases reviewed, applications had been refused on the basis of a failure to provide information, but the applicant was not aware of what information was required. I acknowledge that important point. If the Minister were to take that back to the UK Borders Agency and act on it, that would be an extremely positive step, so that all applicants are made fully aware at the time of application what information is required.
My Lords, may I raise one question? I live in a community where a lot of migration takes place and I can quote examples. However, I need some clarification from the Minister. On more than one occasion, applications from family visitors, who have visited Britain more than once, have been refused even though they have complied with the law and have done nothing against the law. They say, “Yes, we accept that the applicant has been to Britain in the past and that they have not broken any law, but things have changed and, on the balance of probabilities, we believe that they will not go back”. I wonder what sort of new information they will supply if they resubmit their application. The only answer I can see is a right of appeal, so that they can prove that they can fulfil all the requirements and guarantees needed to show that they will go back, as they have done in the past.
My Lords, without knowing more about the sort of cases that my noble friend refers to, I do not think that I can respond to him at this stage. The more general point, and the reason for bringing this clause forward, is that we feel that many of the applications can be dealt with by a new application and so the process of a right of appeal is not the right way forward. We are bringing it into line with other parts of the immigration system. In the main, we have found that so many appeals have been on the basis of new information. This is a more appropriate way of dealing with it.
My Lords, I dread to think of how many occasions I have sat here and listened to Ministers from the Front Bench saying that they will make amends for the all the criticisms that have come from the chief inspectors of the UK Border Agency or their predecessors; yet on the next occasion we debate precisely the same thing. It is with some reluctance that one accepts the assurances that the Minister has given that the Government are going to sort out the UK Border Agency so that fewer false decisions are made. I am sure that he has been told by the officials that they have this matter in hand but the benefit of past experience shows us that we cannot rely on that.
In relation to the suggestion made by my noble friend Lady Hamwee, that there should be some mechanism whereby, if the entry certificate officer needs some further information that the applicant could not possibly have known would be required on his original application, that should not be the cause of a refusal but of a communication from the ECO to the applicant to say exactly what kind of information is needed and that that would be considered in making the decision. There is no such mechanism at the moment and I am not satisfied that the assurances the Minister has given, that he will look at the proposal, are sufficient. My suggestion is that we could perhaps think about this before Report and come back to it then, to hear further from the Minister about what progress he has been able to make on my noble friend Lady Hamwee’s suggestion.
Even so, there remains a problem: that the applicant has a black mark against them in the Home Office records, which may have deleterious effects on any further application that he makes. When he comes to make another visit and officers look up what happened in the past, they will see that he has had a refusal. In the case that I mentioned of Mrs N in Beirut, who made a number of visits to her husband in London, no problem was ever encountered. It was rather like the case cited by my noble friend Lord Hussain. Quite simply, they granted the entry certificate. She came to visit her husband in London and went back to Beirut afterwards, for the very simple reason that she had an 89-year-old mother there for whom she is the primary carer, as I explained. That was known—it must be on the files—yet on this occasion, after she has been from Beirut to London perhaps a dozen times without any problem, suddenly she was refused.
Mrs N’s solicitor advised her not only to put in a fresh application, which my noble friend thinks is the ultimate solution, but to appeal because she does not want a stain to appear on her record. That is not going to vanish. There is no way in which you can rub off a record of a refusal, except by means of an appeal. Although people may be able to get permission more quickly to come here by putting in a fresh application, as my noble friend says, that application will have to be considered in the light of the fact that there is a record of a refusal. It is less likely that that person will be able to come here in future. The solution that my noble friend has suggested is not the answer and I say again that we will have to return to this on Report, when I hope we can make some further progress on it. Meanwhile, I beg leave to withdraw the amendment.
Amendment 148A withdrawn.
Amendment 148AA not moved.
Clause 24 agreed.
148B: After Clause 24, insert the following new Clause—
“Immigration appeals: race discrimination grounds
In the Nationality, Immigration and Asylum Act 2002, in section 84(1)(b), after “Race Relations (Northern Ireland) Order 1997” insert “or relates to section 115 of the Equality Act 2010 in relation to the protected characteristic identified in section 9 of that Act”.”
My Lords, the specific race discrimination ground of appeal in immigration cases now relates only to Northern Ireland. The 2002 Act continues to allow an immigration judge to find an immigration decision to be unlawful by reason of race or other unlawful discrimination, because Section 84(1)(e) provides a ground of appeal,
“that the decision is otherwise not in accordance with the law”,
but only where he or she has jurisdiction to hear the appeal in the first place.
The importance of the specific race discrimination ground of appeal is that it is one of two statutory grounds that generally preserve an appeal right that would otherwise be precluded by the 2002 Act. Thus, in the various and complex sections restricting appeal rights in that Act, the following general formula is repeated several times: that the relevant restriction,
“does not prevent the bringing of an appeal on either or both of the grounds referred to in section 84(1)(b) and (c)”.
This general formula previously preserved the right of appeal against an immigration decision, where the would-be appellant sought to challenge the immigration decision on race discrimination or human rights grounds. This has particular relevance to Clause 24 of the Bill, by which it is intended to remove the right of appeal against the refusal of a family visit visa. The provisions that Clause 24 amends will continue to retain the general formula intended to preserve a right of appeal on race discrimination or human rights grounds. Preserving the right of appeal on those grounds is clearly intended, as is stated by paragraph 373 of the Explanatory Notes. It was also made clear on the UK Border Agency website when the Bill was first published, as well as in a more recent announcement on that website concerning changes to remove the right of appeal for aunts, uncles, nieces, nephews and cousins against a refusal of a family visit visa.
However, the omission of the relevant words in Section 84(1)(b) undermines all this. The general formula now preserves appeal rights only where the appeal is brought on human rights grounds in England and Wales or Scotland, and on both race discrimination and human rights grounds in Northern Ireland. The Immigration Law Practitioners’ Association has raised this with the Home Office, and it has been confirmed that this was not intended. ILPA informs us that the Home Office is looking at how best to remedy the omission, and we hope that it can be done while this Bill is in progress. Ideally, the Government will be able to say how and by when this omission is to be corrected in answer to this amendment, and we would then expect to see it implemented on Report.
The events that led to the inadvertent omission of the specific race discrimination ground of appeal highlight once again the notorious complexity of immigration law, including the highly complex statutory appeal provisions. We have just enacted the Legal Aid, Sentencing and Punishment of Offenders Act 2012, in the face of widespread concern both within and outside Parliament about the removal of legal aid in areas such as immigration, which, as the noble Lord, Lord Pannick, said on the last day of debate in the House of Lords before enactment,
“will hit hardest the weakest and most impoverished sections of our society, often on complex questions of law such as are raised by immigration law”.—[Official Report, 25/4/12; col. 1797.]
If the Government cannot even foresee the consequences for the statutory immigration appeals scheme when they draft legislation with an impact on that scheme, they can hardly expect individuals without legal advice or representation to understand the rules and to know what appeal rights they still have, if any. I beg to move.
My Lords, my noble kinsman has spotted something, and it will be suitable for me to intervene at this stage and save ourselves a debate. As he has explained, Amendment 148B is intended to reinstate a right of appeal against an immigration decision on race relations grounds. Such a right of appeal existed prior to the commencement of the Equality Act 2010, but many noble Lords will remember that the latter stages of that Act were rushed through rather fast in the run-up to the election, and that right was inadvertently removed by the consequential amendments made under that Act. That might encourage us to think more carefully about the wash-up process in the future because of the mistakes that can creep in.
The Government’s stated policy remains that there should be a right of appeal on race relations grounds, and we agree that this appeal right should be reinstated. My noble kinsman asked how we can do that. We do not apparently need primary legislation to rectify this problem as we could effect the necessary change through secondary legislation made under the Equality Act 2010, a point that has been recognised by the Immigration Law Practitioners’ Association in its briefing on this amendment.
I am happy to give a commitment that the problem will be rectified and to explore further over the summer —my noble kinsman will be aware that we have quite a few months before we get to Report—how best this might be achieved. In light of this reassurance, I hope that he will withdraw his amendment.
Amendment 148B withdrawn.
148C: After Clause 24, insert the following new Clause—
“Immigration appeals: asylum and humanitarian protection
In the Nationality, Immigration and Asylum Act 2002, in section 83(1)(b) omit the words from “Kingdom” to the end.”
I shall speak also to Amendment 148D. Section 83 of the Nationality, Immigration and Asylum Act 2002 currently provides that a person may appeal to the tribunal against the rejection of his asylum claim where,
“he has been granted leave to enter or remain in the United Kingdom for a period exceeding one year (or for periods exceeding one year in aggregate)”.
This amendment would extend the right of appeal against refusal of asylum in any case where the Secretary of State had granted the person leave to enter or remain for whatever period. Asylum seekers who are not granted leave to enter or remain when refused asylum have a right of appeal under the provisions of Section 83(1), thus currently it is only asylum seekers who are granted leave to enter or remain for 12 months or less who are unable to appeal when refused asylum.
Where an asylum seeker is refused, there are various reasons why he or she might none the less be granted leave to enter or remain for a limited period. For example, a person refused asylum may be granted humanitarian protection because it is accepted that he or she is at risk of serious harm if returned to his or her country of origin, but it is not accepted that that harm is for a refugee convention reason—that is to say that the harm is not,
“for reasons of race, religion, nationality, membership of a particular social group or political opinion”—
or because it is accepted that his or her removal would constitute an unlawful interference with his or her private or family life. Grants of leave on either basis would normally be for more than 12 months. In these situations, Section 83 provides a right of appeal against the asylum refusal.
The group of asylum seekers most affected by the 12-month stipulation in Section 83(1)(b) is unaccompanied children. Unaccompanied children refused asylum are often granted discretionary leave on the basis that there are no adequate reception arrangements in their country of origin to which they could be returned. Discretionary leave granted to an unaccompanied child on this basis is granted for whichever is the shorter period of three years or until he or she is aged 17 and a half. Thus an unaccompanied child aged 16 and a half or over at the time of being refused asylum will not be granted discretionary leave of sufficient length to allow him or her to appeal against the refusal of asylum. He or she will have to wait until his or her discretionary leave is nearing its expiry and apply for an extension of the discretionary leave. If that extension is refused or granted for a period that when added to the period in the original grant comes to more than 12 months, he or she can appeal against the refusal of asylum.
This has serious implications for such a child. First, in many cases the UKBA does not decide an application for an extension of discretionary leave for many months, or sometimes years, after the application is made, so a child age 16 and a half when originally refused asylum may be well into adulthood before he or she is provided any opportunity of bringing an appeal against the refusal of asylum. Delay in establishing refugee status can cause substantial harm to the child’s welfare and development over and above the ongoing uncertainty as to the child’s longer term future. For example, children and young people with only discretionary leave to remain rather than refugee leave may have difficulty accessing further or higher education or accessing financial support for this purpose. Generally, unaccompanied children and young people awaiting a decision on their application for an extension of discretionary leave may have difficulties accessing a range of entitlements because, while in law they continue to have discretionary leave, the document by which that leave is given will show it to have expired.
Secondly, changes in circumstances as regards the child or his or her country of origin may mean it is more difficult or not possible to now succeed on appeal. This is because in an asylum appeal the issue for the immigration judge is not whether a person was a refugee when he or she originally claimed or was refused asylum, but whether the person is now at risk of persecution. For example, the child wrongly refused asylum but at risk of being recruited as a child soldier may be unable to establish his or her asylum claim by being denied a right of appeal until after he or she has ceased to be a child. Additionally, a child, like any other person, will normally be best able to recall events and give evidence in an appeal the closer in time the appeal is to those events.
Thirdly, provisions and guidance designed to protect a child’s interests in immigration procedures, including appeals, will be unavailable during procedures that take place after the child reaches adulthood. These provisions and guidance include judicial guidance on dealing with child applicants and witnesses, UK Border Agency guidance on dealing with children and Legal Services Commission guidance on availability of legal aid. The protections stipulate that particular care is needed in taking evidence from a child, that children are not to be detained and that a child should not be left without legal representation at appeal.
In the light of these considerations, the current provision acts contrary to the UK’s international and domestic obligations to safeguard and promote the welfare of children. It is contrary to the children’s best interests and hence to Article 3 of the 1989 UN Convention on the Rights of the Child. Given that the provision overwhelmingly acts to prejudice children, it is contrary to Article 2 of the convention as being discriminatory in practice on grounds of age and a person being a child.
I turn to Amendment 148D. Section 94 of the Nationality, Immigration and Asylum Act 2002 empowers the Secretary of State to prevent an asylum seeker or person making a human rights claim from exercising a right of appeal before his or her departure, voluntary or enforced, from the UK. The provision is often referred to as a non-suspensive appeals provision because ordinarily where an asylum or human rights claim was made by a person in the UK, the power to remove a person from the UK is suspended while he or she may bring or is pursuing an appeal.
When Section 94 was first debated by your Lordships in July 2002, the late Lord Archer of Sandwell asked:
“How many basic principles can be brought into contempt in 65 lines?”.
Having noted that succeeding on an asylum or human rights appeal after one has been removed from the UK may simply be too late, he cautioned:
“Once the claimant has passed out of the jurisdiction of the United Kingdom, we have no control over what happens to him”.
He also highlighted the great difficulties presented in trying to exercise one’s appeal from outside the country, including in particular where,
“the outcome may—usually does—depend on the assessment”,
by the immigration judge,
“of the applicant's evidence … and … to a substantial degree on seeing and hearing the witness”.—[Official Report, 23/7/02; cols. 344-45.]
The amendment removes the presumption of safety contained in Section 94(8) where the Secretary of State intends to remove the person to what she claims is a safe third country—not the person’s country of origin—and where she says the person will not suffer any human rights abuse and where she has issued a certificate under Section 94(7).
On the presumption, Section 94(8) states:
“In determining whether a person in relation to whom a certificate has been issued under subsection (7) may be removed from the United Kingdom, the country specified in the certificate is to be regarded as … a place where a person’s life and liberty is not threatened by reason of his race, religion, nationality, membership of a particular social group, or political opinion, and … a place from which a person will not be sent to another country otherwise than in accordance with the Refugee Convention”.
This is intended to be irrebuttable and may be applied by the Secretary of State’s certification to any country to which she proposes to remove a person who has claimed asylum, other than that person’s country of origin. Similar statutory presumptions apply in respect of countries that the Secretary of State may specify by order by virtue of paragraphs 8(2) and 13(2) of Schedule 3 to the Asylum and Immigration (Treatment of Claimants, etc.) Act 2004. By including an additional presumption relating to human rights, paragraph 3(2) of that schedule provides a further and wider statutory presumption in relation to member states of the European Union as places,
“where a person’s life and liberty are not threatened by reason of his race, religion, nationality, membership of a particular social group or political opinion … from which a person will not be sent to another State in contravention of his Convention rights, and … from which a person will not be sent to another State otherwise than in accordance with the Refugee Convention”.
The Secretary of State has relied on such presumptions as providing complete and irrebuttable answers to judicial review claims that seek to assert that it is unsafe for the Secretary of State to remove an asylum seeker to what is said to be a safe third country. In Nasseri v Secretary of State for the Home Department, the House of Lords concluded, in agreement with the courts below, that the presumption precluded any intervention by the court to stop an individual’s removal to Greece.
In 2011, the European Court of Justice considered questions referred to it by the Court of Appeal, including whether it was compatible with European Union law for such an irrebuttable presumption to operate in respect of a third-country return of an asylum seeker to a member state of the European Union, namely Greece. The Court concluded in relation to this question:
“European Union law precludes the application of a conclusive presumption that the Member State which Article 3(1) of Regulation No 343/2003 indicates as responsible observes the fundamental rights of the European Union”.
Earlier that same year, the European Court of Human Rights had held that Belgium had violated an asylum seeker’s Article 3 rights, on the prohibition of torture, by returning him to Greece under European third-country return arrangements, by reason of the appalling conditions to which he had been exposed there. These judgments of the European Court of Justice and the European Court of Human Rights separately show that the presumption addressed by this amendment is both unlawful and inappropriate. The Government should take the opportunity presented by this Bill to remove it. I beg to move.
My Lords, I, too, was sent a brief with the same information by the Immigration Law Practitioners’ Association, which briefed the noble Lord, Lord Avebury, on his amendments. There is a case here that is of interest. There is not much that I can add to what the noble Lord has said but I am interested to hear the Minister’s response, particularly to Amendment 148C. I am concerned about the arrangements for young people and children, particularly those aged under 16. My only comment is that I am willing to listen to the noble Lord’s response to those amendments.
My Lords, I will deal with the amendments in the same order as my noble kinsman did. Amendment 148C would create a right of appeal whenever someone is refused asylum but is granted any form of leave. It would also have the effect of providing for multiple rights of appeal against the refusal of asylum for a group of cases where no right currently exists, as there will be a right of appeal every time a fresh grant of leave is given. That is possibly an undesirable position.
The original purpose of Section 83 of the Nationality, Immigration and Asylum Act 2002, which, again, the noble Baroness will well remember, was to provide a right of appeal where an asylum application has been refused but the applicant was granted more than 12 months’ leave. Normally when a claim for asylum is refused, there is a right of appeal against the subsequent removal from the UK rather than against the refusal of asylum itself. The appellant can raise asylum grounds as part of that appeal against his removal. However, where someone has been refused asylum but granted leave of less than 12 months, removal directions will not be set and therefore no appeal right arises. In these cases, the short duration of the leave necessarily means that the case will be considered again quickly, reducing the need for an appeal. Where there are no grounds to grant asylum but there are other valid reasons why someone cannot return to their home country, another form of immigration leave is sometimes granted. If leave is granted for more than 12 months, Section 83 of the 2002 Act provides for a right of appeal against the refusal of asylum.
Amendment 148C would remove the 12-month restriction and would create a right of appeal against the refusal of asylum, even where a short period of leave is granted. It is not unusual for these short periods of leave to be extended more than once, and recent case law means that the amendment would create a right of appeal against the earlier refusal of asylum every time further leave was granted. If a decision to remove the applicant from the UK was ultimately taken, a separate right of appeal would arise against that decision. The amendment would possibly undermine the intention of the existing asylum appeals framework, which aims to prevent multiple, fruitless appeals being used to prolong someone’s time in the United Kingdom, often at significant cost to the taxpayer.
My noble kinsman and the noble Baroness asked about the impact on children, particularly unaccompanied children, who are refused asylum. They are normally granted leave until they reach the age of 17 and a half. The 12-month restriction therefore means that some unaccompanied children will be refused asylum and granted less than 12 months’ leave, which means that they do not get an appeal right under Section 83 of the 2002 Act. Those children may not have their asylum considered by a court for more than a year after they first claimed asylum. That is an unfortunate consequence of the otherwise very sensible 12-month restriction, and I can assure my noble kinsman that we will review our policies concerning the length of leave granted to children to ensure that there are no unintended consequences of the sort that he and the noble Baroness implied.
Amendment 148D concerns the Secretary of State’s powers to certify, under Section 94(7) of the Nationality, Immigration and Asylum Act 2002, that removing a person to a safe third country will not breach his or her human rights. The effect of the certificate in such cases is that an appeal can be brought out of country only after that person has been removed. This provision is designed to prevent spurious appeals being used to delay removal in hopeless cases. When determining whether such persons may be removed, the third country must be a place from which the person will not be sent to another country other than in accordance with the refugee convention; we want to make that clear. If the certificate is challenged by judicial review, the court is required to regard the third country as one where the person’s rights under the refugee convention will not be breached. I believe, therefore, that Amendment 148D is unnecessary because the courts are already able to consider whether the person’s human rights may be breached by way of judicial review challenging the issue of that certificate. Once the person has been removed to the third country, an appeal may be brought and refugee convention issues can be considered. In light of that assurance, I hope that my noble friend will feel able to withdraw his amendments.
My Lords, I am grateful to my noble kinsman for what he has said about Amendment 148C. I look forward to hearing further from him, perhaps on Report, about the results of the policy review on the length of permission granted for a child and the effects of an appeal being heard after the child has reached the age of adulthood. I hope that I may take it, from what he said, that we will be able to have a more concrete idea of what the Government propose to do to remedy the situation before Report. If legislation is required to remedy it, we must not miss the opportunity presented by the Bill.
On Amendment 148D, the question of whether we need changes in the statute to cope with the cases that I have mentioned, where it was found that the presumption was not justified, is a matter on which I need to take further legal advice, so I will not pursue the matter any further at this point but may well return to it on Report. I beg leave to withdraw the amendment.
Amendment 148C withdrawn.
Amendment 148D not moved.
148E: After Clause 24, insert the following new Clause—
“Appeal in progress
In the Nationality, Immigration and Asylum Act 2002, in section 99(1), omit “96(1) or (2)”.”
My Lords, under Sections 96 to 99 of the Nationality, Immigration and Asylum Act 2002, the Secretary of State may issue a certificate causing a properly initiated and extant appeal before the First-tier Tribunal, Immigration and Asylum Chamber, or onward appeal against a decision of that chamber, to be summarily terminated. The cases dealt with in Sections 97 and 98 concern matters of national security or certain cases where the Secretary of State has certified that a person’s presence in the UK is, or would not be, conducive to the public good, and these amendments do not affect those provisions.
Section 96(1) and (2) concern situations where the Secretary of State asserts that the subject matter a person now relies upon could and should have been raised in previous appeal proceedings. However, the Secretary of State’s opportunity to make such an assertion and issue a certificate to exclude a right of appeal to the First-tier Tribunal is when she is making her decision in relation to the subject matter, not after she has rejected it and an appeal initiated. Indeed, Section 96 expressly recognises this. Section 96(7) states:
“A certificate under subsection (1) or (2) shall have no effect in relation to an appeal instituted before the certificate is issued”.
Section 99 was commenced on 1 April 2003 by the Nationality, Immigration and Asylum Act (Commencement No. 4) Order. Section 96, however, was later revised and Section 96(7) inserted on 1 October 2004 by the Asylum and Immigration (Treatment of Claimants, etc.) Act 2004 (Commencement No. 1) Order 2004. However, when this revision was made, Section 99 was not amended so as to reflect the change introduced under the 2004 Act. The ineffective and erroneous part of Section 99, which the amendment seeks to remove, is another example highlighting the degree of complexity in the statutory immigration appeals provisions. I beg to move.
My Lords, I can be very brief on this, as the noble Lord, Lord Avebury, explained his amendment in great detail. My understanding from the briefing that I received is that this proposal would be a modest tidying and simplification of what the Immigration Law Practitioners’ Association said was a highly complex statutory appeals process. On that basis, it appears to be a tidying-up amendment, but it would be helpful to know whether the Minister shares that view or whether he believes that it represents a significant change. My legal knowledge is not great enough, but I would like to hear the other side of it, and if it is just a simplification and tidying-up I hope that the Government would agree to it.
The noble Baroness knows that my legal knowledge is equally limited but my understanding also is that this is a relatively simple tidying-up amendment, and I congratulate my noble kinsman on doing it. If I have understood him properly, he is trying to clarify that certifying a decision under Section 96 of the Nationality, Immigration and Asylum Act 2002 has no effect on any pending appeal. If that is correct, we would want to look at it. If he is willing to withdraw his amendment I am more than happy to consider the matter further and to report back to him in advance of the next stage. Because of the timing of this Bill we are in the very happy position of having some months, even with party conferences, between this stage and the next stage of the Bill—although, sadly, some of us might miss our own party conference because of the date of the next day in Committee on the Bill. We will look at this and if my noble kinsman is prepared to withdraw it, I will get back to him and see what we can do.
Perhaps I may ask the noble Lord a question. I have been following these debates as best I can. I have been at the Bar for a very long time. My wife is an immigration and asylum judge. I note that the Court of Appeal has begged the Government to codify and simplify the morass of unintelligible legislation which only my noble friend Lord Avebury truly understands. Is there any hope that once this Bill becomes law the Government will heed the court’s plea—to which I would add people such as my wife who, as a judge, has to interpret and apply this law—so that even if ordinary men and women cannot understand it, at least ordinary lawyers may be able to do so?
My Lords, I would be the first to say to my noble friend that he is not an ordinary lawyer and nor is his wife—they are both very eminent lawyers. If they say it is a morass of unintelligible law obviously it must be. However, I am not sure it is as unintelligible as he claims. Obviously, we will look at this. As with all law, if consolidation can make matters simpler it is something that can be looked at. If it is a matter for departments—in this case the Home Office—we must look at it. As my noble friend will be aware, finding time for any legislative changes is always difficult.
I hope that my noble friend will accept that it is not just a matter of making the law intelligible for lawyers. The people who suffer—if I may put it like that—under the immigration laws are people who ought to feel, at least as far as they can, that they have been dealt with fairly. We have had examples already this afternoon of situations that are so complex that it would be very hard to explain to one of these people that they have been dealt with fairly. If they leave this country I would be much happier if they said, “Of course, I ought to have got in but actually I was dealt with fairly”, than if they go away feeling, “I really don’t know why the blazes I wasn’t allowed in”. It seems to me hugely important that we get this formulation right.
My noble friend is absolutely correct. It is always difficult to make sure that any law is understandable to the ordinary man or woman in the street or the ordinary man or woman on the Clapham omnibus. It is obviously, as our noble friend Lord Lester of Herne Hill put it, sometimes difficult to make the law intelligible to even the extraordinary lawyers let alone the ordinary ones. We try to make sure that it is as intelligible as possible but, as I think my noble friend Lord Lester is aware, even with some of the simplest laws one lawyer will take one view and another will take another view. These matters are often argued in the courts at some considerable length. We try to do what we can to make things as simple as possible. I hoped that this would be a very short amendment, and I hope that the reassurance that I offered to my noble kinsman will be sufficient for him to withdraw the amendment.
Amendment 148E withdrawn.
Clause 25 : Restriction on right of appeal from within the United Kingdom
148F: Clause 25, page 23, line 22, at end insert—
“(4) This section does not apply if—
(a) the person concerned is stateless, (b) the person concerned has previously made an asylum claim or a human rights claim and been granted leave on that basis, or(c) the person concerned asserts in his or her grounds of appeal an asylum claim or a human rights claim.”
My Lords, in moving Amendment 148F, I will speak also to Amendments 148G, 149A and Clause 25 stand part.
Clause 25 is unjust and oppressive. It is contrary to the principles underpinning a fair trial. It applies where the Secretary of State cancels or curtails a person’s leave to be in the UK while that person is outside the UK, using the power in Section 82(2)(e) of the Nationality, Immigration and Asylum Act 2002. If the Secretary of State certifies that the decision is or was taken wholly or partly on the grounds that it is no longer conducive to the public good for the person to have leave to enter or remain in the United Kingdom, the person will be precluded from exercising any right of appeal from within the UK. Even when the person has returned to the UK and launched an appeal before the certificate is issued, Clause 25(4) means that when the Secretary of State issues the certificate, the appeal will lapse and the person will be excluded from any right of appeal until he or she has again left the UK.
That persons are outside the UK when their leave is cancelled is not an unhappy accident; it is a result of the policy of waiting until a person is outside the country to serve the decision to cancel their leave. A person whose leave is cancelled is normally entitled to an in-country appeal against the decision to take away their leave, as well as the continuation of their leave on the same terms and conditions during the period within which an appeal can be brought and, if they do appeal, while the appeal is pending. The Home Office took the view that a person who was outside the country at the time when the leave was cancelled was not entitled to an in-country appeal. The courts held that as a matter of statutory construction, a person’s leave continues on the same terms and conditions during the 10-day period within which an in-country appeal can be brought and that they must be given the opportunity to return to the UK to launch the appeal within this time limit. If the person does not take that opportunity, they do not have an in-country right of appeal, but if they do, they have such a right and their leave continues until that appeal is finally determined. It is this ruling that Clause 25 would reverse.
Why should the Secretary of State use the information she holds about a person’s whereabouts to cancel their leave when they are out of the country and thus dictate whether or not they have an in-country right of appeal? That one party to litigation can control whether the other party has an in-country right of appeal offends against the principles of fairness. Why should one person have an in-country right of appeal and another, who has received the very same immigration decision, not do so just because one of them happened to have left the UK for a few days at the time the decision was served? There is no rational basis for the differential treatment.
The case of MK illustrates the oppressive nature of Clause 25. He was a recognised refugee and lived in the UK for several years with his wife and daughters. A European arrest warrant was issued for his arrest in connection with terrorism-related activities. Extradition to Italy was sought. His challenge to extradition failed. It was accepted in the course of the extradition proceedings that he was at risk of torture in Tunisia, his country of nationality. No real risk was seen that Italy would refoule him to Tunisia. MK’s wife and daughters, his dependants, remained at home in the UK.
MK was tried in Italy and acquitted of all charges except one, relating to the procurement of a false travel document, which all agreed did not relate to terrorist activities. He was sentenced to 12 months’ imprisonment but had already served that time on remand. Nevertheless, he continued to be held in immigration detention in Italy against his return to the country of his nationality, Tunisia, because a request was immediately made by the Italian police for his expulsion there. What had been considered unthinkable by the court in the UK extradition hearings was actually happening.
MK told the Italian authorities that he was a refugee and they took steps to determine whether he could be returned to the UK, his country of refuge. Meanwhile, the European Court of Human Rights intervened at MK’s request, indicating to Italy that under rule 39 of the rules of court he should not be returned to Tunisia. Seven days later, the Secretary of State wrote to MK’s solicitors in the UK that she had decided to revoke his refugee status and had also decided to cancel his indefinite leave to remain on the grounds that his exclusion from the UK would be conducive to the public good. MK’s solicitors lodged an appeal within the time limits applicable. It was argued by the Secretary of State that she was under no obligation to facilitate his return so that he could exercise an in-country right of appeal. The judge disagreed, concluding that the proper construction of Section 3D of the Immigration Act 1971 was that leave was extended for the 10 days that would enable the individual wishing to do so to make arrangements to return to the UK to pursue the appeal against the cancellation.
MK’s case is chilling but it is far from as bad as it could be. He knew of the decisions taken against him. They were not simply sitting on the mat undiscovered but served on him as a matter of law, which provides that a decision is deemed to be served two days after delivery to a person’s last known address. He had at all times the benefit of lawyers on the record ready to act in the UK, overseas and at the level of the European Court of Human Rights to protect him. He had challenged his extradition in the UK prior to its execution and thus had findings of fact as to the risk of torture in Tunisia. He was extradited to a country that is party to the European Convention on Human Rights, being thus able to benefit from an intervention by the European Court of Human Rights, designed to prevent onward refoulement from Italy.
MK lodged an appeal before the Special Immigration Appeals Commission, and also had a claim involving asylum matters, on both of which grounds, even after the coming into effect of the LASPO Act 2012, he would continue to be eligible for legal aid. It is not difficult to imagine cases to which Clause 25 will apply when the facts are very different and the risks enormously increased.
In MK, the Secretary of State accepted that there are advantages in being present in the UK to pursue an appeal. The Court of Appeal in that case described the right to an in-country appeal as “valuable”. It is difficult to pursue an appeal that turns on your character when you cannot appear in person before the court. It is difficult to find and work with legal representatives to bring an appeal if you are outside the UK and particularly, as was the case with MK, you are not in your country of nationality but stranded in a third country. It can be costly. Under the LASPO Act those who come before the SIAC or who claim asylum continue to be eligible for legal aid for their appeal, but those who are heard before ordinary tribunals and who make no claim for asylum will not.
If a person does return to the UK to appeal, they submit to the UK’s powers. They can be prosecuted for any criminal offence they have committed. The Home Secretary loses none of her powers of administrative detention under the immigration Acts. The person gains the advantage of continuing leave to be in the UK but at a price. The only reason for wanting to be in the UK to challenge the decision is that a person thinks that they have a chance of winning.
On Amendment 148F, I draw noble Lords’ attention to the concerns expressed by the UNHCR. It has exercised its good offices for many persons recognised as refugees by the UK but who, having left the country temporarily for personal reasons, found themselves unable to return here. They can turn only to us, as it was the UK that granted them international protection. The UNHCR says that if they are now to be deprived of the right to return to the UK to challenge a decision to cancel or curtail their leave to enter or remain in the UK, this would increase their vulnerability and leave them at a risk of refoulement. Amendment 148F addresses this concern by disapplying Clause 25 to stateless persons, refugees and persons granted humanitarian protection, and persons who challenge the cancellation of their leave on the basis that it would breach their rights under the UN convention relating to the status of refugees.
The UNHCR refers specifically to new Section 97B or the NIA Act, which deprives a person of his normal in-country right of appeal if the Secretary of State deems him to be a person whose presence in the UK is not conducive to the public good. The 1951 convention and its 1967 protocol list exhaustively the means by which a person can have their refugee status abrogated, and these do not include the procedure of the kind specified in proposed new Section 97B. The UNHCR says that a UK refugee labelled as “non-conducive to the public good” while he is out of the country should be able to return here and challenge the decision before the courts. The same principle should apply to stateless persons. The reduction, if not eradication, of statelessness is a shared responsibility of states. As was demonstrated at a conference to mark the 50th anniversary of the Convention on the Reduction of Statelessness organised jointly by the UNHCR and the Parliamentary Human Rights Group last December, the UK has effectively assumed responsibility for many different stateless communities, such as the Kuwaiti Bidoon, altogether numbering thousands of people, by granting them leave to remain and ultimately, after a lapse of years, UK citizenship.
My Amendment 148G has been withdrawn from the Marshalled List, as my noble kinsman Lord Henley tabled an amendment with the identical wording at some point after I did—Amendment 149—so we need not spend much time on it. The purpose is to remove the Secretary of State’s power to exclude an in-country appeal which has already been lodged by the person concerned. We welcome the Government’s decision to eliminate the extra layer of confusion and injustice that would have been created by subsection (4). The scenario would have been that a person’s leave was cancelled, that he then appealed and the appeal was pending, that the Secretary of State would issue the certificate causing the appeal to lapse, and the person would then have to make an invidious choice between not appealing at all or travelling to a foreign country to lodge an appeal from abroad. I shall not go into the complexities that this would have spawned, with such matters as time limits or the likelihood that judicial review applications would have been brought against certificates on human rights grounds, because these considerations have no doubt also occurred to the Home Office.
Finally, Amendment 149A provides for legal aid, advice and representation, including at any appeal, for a person who is outside the country when their leave to remain is curtailed by proposed new Section 97B. We are not suggesting that the fundamental injustice of Clause 25 can be dealt with by the provision of legal aid in these cases, but we seek to highlight by this amendment the double iniquity of the clause when combined with the effects of the Legal Aid, Sentencing and Punishment of Offenders Act as it applies to immigration. Obviously, a person stranded overseas where there are no sources of advice on UK immigration law and who has little or no knowledge of the local language requires a great deal more help than someone living in the UK. It was said repeatedly during the passage of the LASPO Bill that legal aid should be reserved for the most serious of cases, and one could hardly imagine more desperate circumstances than the ones to which this amendment applies. These exiles must be granted legal aid, subject of course to the usual means and merits test. I beg to move.
My Lords, I have a copy of the briefing that was sent to the noble Lord, Lord Avebury, and I have had the opportunity to read through what is quite a lengthy and complex explanation as he has been speaking, which has been helpful. Therefore, I do not want to repeat the arguments that he has made.
I do have some questions, although I do not know whether the noble Lord will be able to respond. I suspect that the noble Lord, Lord Avebury, will withdraw his amendment, possibly bringing it back on Report depending on the Minister’s answer. However, I have a few questions, as I am uncertain about some of the provisions in the clause and in the amendment, and it would be helpful if the noble Lord could address them. I am quite happy to have the response in writing.
From the briefing—I am sure I am not the only Member of the Committee to have received the same briefing on the amendments of the noble Lord, Lord Avebury—there is an implication regarding the circumstances under which somebody’s leave to remain will be cancelled while they are out of the country. I should be interested to hear from the Minister the criteria for cancelling somebody’s leave to remain while they are out of the country. Is this purely an administrative decision or, as is implied, is it almost the case that the Home Secretary is lying in wait, wanting to cancel leave to remain and waiting until a person leaves the country before doing so? It would be helpful to have some information on that. What proportion of cancelled leave to remain is taken when somebody is out of the country, as opposed to somebody being in-country?
Finally—we have had a very full explanation of the amendments—the legislation refers to the decision on removing the right to remain as being,
“taken wholly or partly on the ground that it is no longer conducive to the public good”,
for the person to have that leave. Is there a definition of “public good”? Is there a definition of when there is no longer that public good and the leave to remain is withdrawn? My concerns are about people being treated fairly and that there is no presumption that, because somebody leaves the country—well, I will come back to that. However, there must not be many of these cases. It would be interesting to know what proportion of cancelled leave to remain relates to people out of the country as opposed to people who are in-country.
My Lords, the noble Lord, Lord Avebury, is absolutely right to put down the amendment. I am glad he drew attention to the comments by UNHCR, because UNHCR has immense responsibilities on behalf of the international community and its very serious considerations are sometimes treated too lightly.
Wrapped up in this issue is something on which I dwelt at Second Reading: concern about the division between what I would call administrative law and a real search for justice. In the fraught area of migration in general and the more difficult areas of asylum and the rest in particular, where all kinds of pressures and real dangers operate for the people concerned, it is most important to be certain that the balance remains on the side of justice. I would be grateful for the Minister’s considered view on whether this priority for justice—as distinct from a self-evident rationalisation of what may be convenient within political circles—can be pursued. The individual concerned is much more vulnerable when they are abroad. As the noble Lord has said, it is much more complex, challenging and difficult to mount an appeal from abroad. Can we really ensure that justice prevails if we have this provision? Should someone who has a right to appeal not have the right to pursue it here, where they can put their case fully before the courts and be tested in depth by them on their position and where there is an opportunity for others who may have a perspective on a case to bring their views and judgments into the deliberations that are taking place?
I hope the Minister will forgive me for saying that I am profoundly worried about this and would like his assurance that he is equally worried and is looking to make sure that, in this area, it is justice and not administrative convenience—whatever the apparent logical reasons for this administrative convenience—that has pride of place.
My Lords, we are speaking to my noble kinsman’s Amendment 148F, to which is attached his Motion relating to whether Clause 25 should stand part of the Bill, his new Amendment 149A and Amendment 149 in my name and his—which my noble kinsman seemed to think he got down first. I presumed I had got it down first, because my name is at the top of the list. However, we will not argue about that point because I presume that my noble kinsman is grateful for the fact that we have both come to the same conclusion on that, and I will deal with it in due course.
I say to the noble Baroness, Lady Smith, that I have also seen the briefing from the Immigration Law Practitioners’ Association on these amendments and others. I will therefore, I hope, address most of the points that have been put forward by noble Lords on these matters in my response. I will deal with the questions that she has raised and those put by the noble Lord, Lord Judd. Obviously, again—because I presume my noble kinsman is not going to press these amendments, other than government Amendment 149 —we can come back to this on Report. The noble Baroness is making signs of a writing nature at me. I will, of course, write to her in due course; I thought that she was asking for the bill—but not this Bill.
I will first set out what we think Clause 25 does and then say something about the amendments as appropriate. Clause 25 addresses the current anomaly in legislation that allows an individual to return here to appeal a decision to cancel leave, despite being excluded by the Secretary of State—that is, my right honourable friend the Home Secretary—from the United Kingdom. Exclusion is obviously a key tool in tackling those who seek to cause harm to the United Kingdom; we have to remember my right honourable friend’s key and important role in the safety of the kingdom. Exclusion is used to tackle a range of conduct, including terrorist-related activity, serious criminality and engagement in unacceptable behaviours. The exclusion power is used sparingly and is reserved for those who are considered to be the highest-harm cases. It is therefore crucial that, once the Secretary of State makes such a decision, it is given full and immediate effect. It should not be undermined by a separate immigration decision, taken only to give effect to the exclusion and the accompanying appeal right it brings.
Of course, any such decision by my right honourable friend should be open to challenge and review by the courts. However, the Government believe that, given the nature of these cases, it is—despite what the noble Lord, Lord Judd, was saying—wholly reasonable that judicial scrutiny of the decision should be carried out while the individual remains outside the United Kingdom.
Clause 25 therefore seeks to provide the Secretary of State with a certification power where she decides that the decision to cancel leave under Section 82(2)(e) of the Nationality, Immigration and Asylum Act 2002 was taken on the grounds that the individual’s presence in the United Kingdom would not be conducive to the public good. The effect of that is that, upon certification, where the individual is outside the United Kingdom at the time of the decision, the in-country right of appeal under Section 92 of the 2002 Act no longer applies to such a decision and is replaced by an appeal from outside the United Kingdom only.
We accept that the power to remove appeal rights from the UK to abroad must be reserved for the highest-harm cases; this is obviously not something that can be done on a whim. This is why we have restricted such a change to individuals whose presence in the UK is certified by the Secretary of State to be non-conducive to the public good. We have also expressly stated that this applies only to individuals outside the United Kingdom at the time of the decision.
Government Amendment 149, which is also in the name of my noble kinsman, seeks to remove subsection (4) of Clause 25. My noble kinsman has identified an issue of concern, which we want to address with our amendment. Subsection (4) would result in the lapsing of appeals against a cancellation of leave which are certified under the new certification power. These individuals will be left without any appeal right. That is not our intention. The intention of subsection (4) was to provide for an initial in-country right of appeal to lapse in the event that the decision to cancel leave was taken before the exclusion decision. However, as drafted, subsection (4) would cause all appeal rights to lapse. Removing subsection (4) ensures that all cases falling within the provisions of Clause 25 will have an out-of-country right of appeal against the decision to cancel leave.
I turn now to Amendment 148F in the name of my noble kinsman. It seeks to provide an in-country right of appeal for those individuals who are stateless or who have previously been granted leave to enter or remain based on a successful asylum or human rights claim. In addition, it seeks to exclude from Clause 25 those individuals who raise human rights or asylum issues in their grounds of appeal.
It is right that we provide protection to those in need and the Government remain committed to their international obligations to such individuals. However, the Government have an equally important obligation to protect the public from high-harm individuals whose actions pose a threat to national security or the rule of law.
As I indicated, a decision to exclude an individual from the UK is not taken lightly. These decisions are reserved for individuals who have left the UK and whose presence or actions are considered by the Secretary of State to be non-conducive to the public good to return here to exercise a right of appeal.
Therefore, Amendment 148F could provide every individual refused under this provision with an in-country right of appeal, as they would merely need to raise human rights or asylum grounds in their appeal. That cannot be right and for that reason we cannot offer any support to the amendment.
Amendment 149A would extend the provision of legal aid. This would provide that all decisions made under Clause 25 are eligible for legal aid, regardless of whether they are heard by the First-tier Tribunal or the Special Immigration Appeal Commission.
Legal aid will be available under the Government’s legal aid reforms where a case is transferred to the Special Immigration Appeal Commission or where the person concerned claims asylum. We have always been clear that most other immigration cases do not raise issues that are of this level of importance, nor will they generally be so complex that people cannot deal with them themselves. That is true even if the appeal has taken place overseas. Therefore, we cannot accept the amendment proposed.
However, legal aid will remain available for most judicial reviews of immigration decisions—which I think answers the point made by the noble Lord, Lord Judd—other than those that raise the same or substantially similar issues to those that have already been considered, and judicial reviews of removal directions. That provides an important safeguard in this area.
We believe that Clause 25 seeks to maintain the operational integrity of the Home Secretary’s power to exclude an individual from the United Kingdom. That is an important power for the Secretary of State, bearing in mind the duties and responsibilities that she has. Such decisions, as I wanted to make clear in my speech, will not be taken lightly and are reserved for the highest potential harm individuals. It is therefore imperative that such a decision remains operationally effective pending judicial scrutiny.
My noble kinsman may wish to come back to these but in the light of those remarks and my commitment to write to the noble Baroness with any further points that need covering, I hope that he will feel able to withdraw his amendment. I hope that all noble Lords will support the Government’s amendment in my name and that of my noble kinsman.
My Lords, we will not quarrel about the priority of tabling subsection (4) and I express my gratitude to my noble kinsman for agreeing that that provision should be deleted. With regard to the question of the noble Baroness, Lady Smith of Basildon, about the criteria for declaring a person non-conducive to the public good, of course they do not have to be stated. It is the Secretary of State’s right to make such a declaration without explanation and no appeal can be mounted against that because the individual concerned has no knowledge of the reasons why that order was made in the first place. The power to declare somebody non-conducive to the public good is a very draconian power and it is a pity we have to invoke it without giving the target any legal right of challenge.
On Amendment 148F, I am not sure that my noble kinsman fully addressed the concerns that were expressed by the UNHCR, which, I agree with the noble Lord, Lord Judd, have to be taken very seriously indeed, because they are the guardians of the people who are concerned by this amendment. As the noble Lord suggested, we will probably have to return to this matter on Report. Meanwhile, I beg leave to withdraw the amendment.
Amendment 148F withdrawn.
Amendment 148G had been withdrawn from the Marshalled List.
149: Clause 25, page 23, line 23, leave out subsection (4)
Amendment 149 agreed.
Clause 25, as amended, agreed.
Amendment 149A not moved.
149B: After Clause 25, insert the following new Clause—
“Immigration and nationality appeals from the Upper Tribunal
Section 13(6) of the Tribunals, Courts and Enforcement Act 2007 (right of appeal to Court of Appeal etc.) does not apply in relation to immigration and nationality appeals from the Upper Tribunal.”
My Lords, in moving Amendment 149B, I shall also discuss Amendment 149C. These are alternative amendments reducing the impact of the additional and highly restrictive requirement to show an important point of principle or practice, or some other compelling reason, in immigration and nationality appeals from the Upper Tribunal to the Court of Appeal. This additional requirement is referred to as the “second-tier appeals test”. The second of the two alternatives I have tabled is narrower, removing this test in asylum and human rights appeals but not other immigration appeals.
The second-tier appeals test was introduced by Section 13(6) of the Tribunals, Courts and Enforcement Act 2007 for certain appeals from the Upper Tribunal to the Court of Appeal. During the passage of the Borders, Citizenship and Immigration Bill in 2009, your Lordships voted through amendments to prevent the test applying to immigration and nationality appeals. This amendment derives from the wording of the amendment originally tabled by my noble friend Lord Lester of Herne Hill, QC, the noble Lord, Lord Pannick, QC, and the noble and learned Lord, Lord Lloyd of Berwick, and subsequently adopted by my noble friend Lord Thomas of Gresford and the late Lord Kingsland as part of a wider amendment concerning the Upper Tribunal. The Joint Committee on Human Rights had concurred with the legal opinion of Sir Richard Buxton, a recently retired Lord Justice of Appeal in the Court of Appeal, that the introduction of such restrictions might not be compatible with the UK’s international obligations.
The same considerations apply now as they did then, and there is a new factor. The increased rotation of judges under the Crime and Courts Bill will mean that there are more judges in the Upper Tribunal who are not immersed in these cases making asylum and immigration decisions, and they will be without the supervision of the Court of Appeal if the clause is unamended. At the moment, we continue to see the higher courts engaged on these issues. There are some poor tribunal decisions but, to be fair, this is an incredibly complex, difficult and fast-moving area of the law. The tribunal judges sitting from time to time in the immigration and asylum chambers of the tribunal may be excellent tribunal judges. However, they are not infallible, and the effect of the LASPO Act 2012, whether directly, in immigration, or indirectly, in asylum, will be that more appellants are unrepresented.
Among the concerns expressed in 2009 was the impact of the second-tier appeals test in potentially excluding appeals to the Court of Appeal where the individuals faced removal in breach of the refugee convention and their human rights as a result of errors of law by the tribunal. Ministers gave assurances in both Houses that these sorts of cases would be the ones that could be expected to meet the test. Phil Woolas said,
“the test would not stop cases that raise important issues concerning human rights or asylum being granted permission to appeal to the Court of Appeal”.—[Official Report, Commons, 14/7/09; col. 210.]
There were other soothing comments, of which I will cite only one, made by the current Immigration Minister, Damian Green, who said:
“The widespread feeling is that Home Office failings must not be compensated for by a lessening of appeal rights in those complex cases that involve human rights issues or constitutional principles, and that the inadequate handling of judicial reviews by an untested tribunal risks increasing the work load of the supervising court, the Court of Appeal, and reducing supervision at the Home Office”.—[Official Report, Commons, 14/07/09; col. 212.]
Those assurances have proved to be ephemeral following the judgment of the Court of Appeal in the case of PR (Sri Lanka). The Court of Appeal considered the ministerial assurances given in 2009, concluding that,
“it would be wrong in principle”,
to be constrained by those assurances and, in applying the second-tier appeals test, refused permission to appeal in each of the three asylum cases before the court. In one of those cases the appellant had been detained and tortured in Sri Lanka. Applying the test, the Court of Appeal concluded:
“The claimed risks are, unhappily, in no way exceptional in this jurisdiction, and not in themselves such as to require the attention of the Court of Appeal”.
In another of the three cases, the judge identified an error of law in the failure of the tribunals below to correctly apply country guidance in respect of Zimbabwe asylum claims, but concluded that the test none the less precluded any appeal to the court. In the last of the three cases, Lord Justice Pitchford found the reasoning of the tribunals below to be, “obscure and contradictory” and such as to give rise to a real prospect of success on the appeal if permission had been granted.
In the case of JD (Congo), however, the Court of Appeal granted JD permission to appeal on the basis that there was an error of law in the Upper Tribunal’s conclusion that the First-tier Tribunal had erred in law, but the UT’s criticisms of the FTT’s decision amount to no more than a disagreement as to the proportionality of removal. The consequences of removal for JD and his partner were acknowledged to be very severe.
Taken together, these two judgments show that asylum and other human rights cases are neither exempt from the test, nor grounds in themselves to meet the test. That an error could lead to a person being returned to a country where he or she may be tortured will not necessarily mean that the test is met, as in the case of PR (Sri Lanka).
There are other significant conclusions to be drawn from these cases, as the Immigration Law Practitioners’ Association emphasised in its briefing for your Lordships on these amendments. I hope that my noble kinsman has had an opportunity of considering them carefully in making up his mind as to how to respond this afternoon.
In conclusion, leaving aside all the complexities of the second-tier appeals test, which have preoccupied the Court of Appeal, it has been shown that without Amendment 149B, or at least Amendment 149C, we shall be in breach of our obligations under both the refugee convention and the ECHR and that we have been warned by no less an authority than the UNHCR itself. I beg to move.
My Lords, we are again grateful to the noble Lord, Lord Avebury, for the detail with which he explained his amendment. I think that these are amendments drafted by the Immigration Law Practitioners’ Association. As I understand the noble Lord, they are alternative amendments. The first removes the requirement to show an important point of principle or practice, or some other compelling reason, in immigration and nationality appeals from the Upper Tribunal to the Court of Appeal: that is known as the second-tier appeals test. The second, if I understand it correctly, is a lesser amendment and would apply to all immigration and nationality appeals concerning asylum and human rights. The noble Lord indicates that I do understand correctly.
The noble Lord referred to the impact the second-tier appeals test has had and I would like to hear the response of the noble Baroness, Lady Northover. There were some serious points raised by the noble Lord, Lord Avebury. If the Government are opposing the amendment, we need to understand their case for doing so, including their views on the impact this would have if implemented and the reasons and evidence used to justify holding those views. It would be helpful to hear from the noble Baroness. The noble Lord, Lord Avebury, has made a detailed and interesting case and there must be some justification if the Government are not going to accept the amendments.
My Lords, Amendment 149B, tabled by my noble friend Lord Avebury, seeks to remove immigration and nationality appeals from the provisions in Section 13(6) of the Tribunals, Courts and Enforcement Act 2007. Similarly, Amendment 149C seeks to remove a narrower class of appeals—those which relate to the refugee convention or the European Convention on Human Rights—from the provisions in that section. Section 13(6) of the 2007 Act enables the Lord Chancellor to set out, by order, the test which applications have to meet for permission to appeal to the Court of Appeal from the Upper Tribunal. That order-making power has been exercised so that where a party seeks permission to appeal on a point of law against a decision of the Upper Tribunal, the second-tier appeals test will be applied, as noble Lords have said. That test requires that in order to grant permission, the Upper Tribunal or Court of Appeal has to consider that the proposed appeal would raise an important point of principle or practice, or that there is some other compelling reason for the Court of Appeal to hear the appeal.
The Government, like the courts themselves, fully appreciate the gravity of the subject of these appeals. Amendment 149C is concerned with appeals of the most serious kind, where the claim may be that if the appellant is returned home they may face torture or even death. Such cases undoubtedly deserve what has been called anxious scrutiny. In the Government’s view, that is what the system currently provides. At present, if a person makes a claim to asylum in the United Kingdom, for example, and that claim is rejected, he or she can appeal to the First-tier Tribunal. If that tribunal dismisses the appeal, there is a right of appeal to the Upper Tribunal. Alternatively, if the appeal is allowed, the UK Border Agency may appeal to the Upper Tribunal.
Both the First-tier Tribunal and the Upper Tribunal are composed of judges who are experts in this most sensitive of subjects. Therefore, if the Upper Tribunal rejects the appeal, it seems right to the Government that the test to take the matter to a third judicial body should be high. The courts have been clear that there is no case for saying that the UK would be in breach of its international obligations if appeals from the Upper Tribunal are available only in these circumstances. At present, all appeals from the various jurisdictions of the Upper Tribunal to the Court of Appeal are considered under the second-tier appeals test. That same test, under the Access to Justice Act 1999, also applies where there is an appeal against a decision of the High Court and where the latter was acting in its appellate capacity.
The Government believe that the same level of consideration should be given to all types of appeals, even to the sorts of cases with which Amendment 149C is concerned. One reason for this is that not all claims which are made are substantiated when they are put to the test. The second-tier appeals test gives judges appropriate control over the cases that reach the Court of Appeal. Removing this test could cause the Court of Appeal to be inundated with cases that may not justify their consideration. This would cause delays in the provision of justice for the whole range of decisions that are brought to the Court of Appeal and put further pressure on the judicial resources available to that court.
The courts have made a number of important judgments recently that help to clarify the application of the test for cases seeking permission to appeal to the Court of Appeal in the immigration and asylum context. For instance, if a person maintains in their application for permission to appeal that they will be persecuted if they are returned home, that will be a matter which the Upper Tribunal can consider in determining whether the “some other compelling reason” limb of Section 13(6), is met in reference to the second-tier appeals test. If it refuses permission, it is open to the appellant to apply direct to the Court of Appeal for permission.
There is no doubt that the class of cases dealt with by Amendment 149C can be both complex and of the utmost importance. It is our belief that the current structure, including applying the second-tier appeals test in appeals from the Upper Tribunal to the Court of Appeal, is the right one. That was of course the position of those who are now the Opposition when they were in government, as they argued the case then. As we consider that the case is not made out to change the test for the most serious kinds of cases—and as we also heard the other day from the noble and learned Lord, Lord Woolf, in defence of the Upper Tribunal’s track record in what has happened since this was debated a few years back—it follows that we do not accept that that test should be removed for the wider category of cases covered by Amendment 149B. I therefore urge my noble friend to withdraw this amendment.
I cannot say that I am not disappointed by that reply, because, as I said initially, there have been cases where people at very serious risk of torture have not been allowed to appeal to the Court of Appeal. For example, in the case that I mentioned of PR (Sri Lanka), the individual had been tortured in Sri Lanka and that was acknowledged by the courts but not deemed to be sufficient reason for the second-tier appeal test to have been satisfied. There have been conflicting decisions by the courts on the second-tier appeal. The only safe thing would be to ensure that where considerations of human rights are involved, as they were in the case of PR, the right of appeal to the Upper Court should be retained and the second-tier appeal test should be modified in the manner that I suggested. However, since my noble friend has suggested that we defer this matter until Report—
Perhaps I might point out to my noble friend that it is not the case that the second-tier appeals test does not allow for materially wrong decisions to be challenged by the Court of Appeal and that in the JD (Congo) case, three of the four appellants seeking permission were granted it. The immigration and asylum chambers of the First-tier Tribunal and the Upper Tribunal have been set up specifically to deal with these kinds of matters. My noble friend mentioned the complexity and sensitivity of these kinds of cases, and I should have answered by addressing that point.
I mentioned the case of JD (Congo) in my first speech—I have it in front of me—and I accept that in that case, the second-tier appeals test was found to have been met. However, there are other cases in which the circumstances were equally compelling and where that test has not been met. It was in the hope that we would clear up that ambiguity in how the second-tier appeals test is interpreted that I tabled my amendment. As I was about to say, we will have to reflect on this and perhaps come back to it on Report. Meanwhile, I beg leave to withdraw the amendment.
Amendment 149B withdrawn.
Amendment 149C not moved.
Clause 26 : Powers of immigration officers
149CA: Clause 26, page 23, line 29, at end insert “who is working in Criminal and Financial Investigation”
My Lords, in the clause that my amendment seeks to address the Government are proposing to extend vastly the powers of the UK Border Agency’s customs and immigration officers. I do not necessarily oppose this in principle. We have to understand the very challenging nature of the work undertaken by border control. The nature of international and global threats is constantly changing and we have to pay tribute to the immigration officers. They have a difficult job, they work in a challenging environment, and they have suffered cuts to their numbers in the last couple of years. However, we need to look at two things.
First, such an extension of powers would need to be properly justified and explained to your Lordships’ House. Secondly, we need to ensure that those exercising those powers have the necessary skills, rank, and remit, in order to ensure public confidence in the UK Border Agency as well as confidence within it. Also, is it up to it? I do not in any way mean the individual border officers, but rather whether they have the resources, training and capacity to undertake those roles.
Clause 26 extends a number of powers to immigration officers, both under the Regulation of Investigatory Powers Act and the Proceeds of Crime Act. Those powers are significant: the power to authorise the use of covert surveillance—“intrusive surveillance”, according to the Bill—and property interference such as wiretapping and installation of listening devices, as well as powers to authorise confiscation and detained cash and money-laundering investigations. These are serious new powers to give to immigration officers. They are currently only authorised by senior officers, and they are exercised by experienced and specialised professionals. Our amendments seek to ensure that if those powers are to be extended to immigration officers, they will be exercised with the same level of expertise and seniority.
When I first looked at the Bill it seemed to contain very wide-ranging powers, and there is a case for the Government to justify those. However, I looked at the Explanatory Notes, and the amendments seek to put on the face of the Bill what is in them. The Explanatory Notes are very helpful in this regard, because they make clear—I refer to page 64 and paragraph 380 in particular—that the intrusive surveillance available under RIPA should only be extended to officers working within the criminal and financial investigation teams. The paragraph says:
“The purpose of this amendment”—
which we are talking about, and which is in the clause—
“is to provide for immigration officers working in Criminal and Financial Investigation (‘CFI’) teams in the UK Border Agency … to be able to apply to exercise property interference powers equivalent to those already used by customs officials”.
It cites the Act and legislation under which they can use them, and states that:
“CFI teams have responsibility for investigating smuggling of drugs, firearms and weapons and organised immigration and customs crimes”.
If, as I understand from the Explanatory Notes, the Government intend these powers to be used only in the specific context of criminal and financial investigation by immigration officers, then it would be helpful to state that in the Bill and be very clear about it, rather than allowing the scope—as seems to be the case at the moment in this clause—for any immigration officer to exercise those powers. I am concerned about whether training and support could be available to all immigration officers, and whether it would be for all staff or only for those above a certain rank. That gives me some cause for concern, because if all immigration officers had that power, there is then the understanding that any immigration officer could exercise that power, even without the training or the appropriate rank or experience. What is in the Explanatory Notes is therefore better than what is in the Bill, though that may be an oversight in drafting.
Amendments 149CB and 153B, which follow Amendment 149CA, are intended to probe the Government’s justification for these highly specialised powers. These probing amendments remove Clause 26(4) and (5) and paragraphs 14 to 39 of Schedule 14, which extend to the UK Border Agency’s chief operating officer the ability to authorise immigration officers’ powers of investigation into confiscation, detained cash and money-laundering under the Proceeds of Crime Act. At present, the only individuals who can exercise those powers are accredited financial investigators, police constables or Customs officials, and in the case of confiscation investigations only SOCA officers—although SOCA has now been absorbed into the National Crime Agency. Notwithstanding police constables, all these individuals work within the specific field of serious financial and economic crime. I assume that once the National Crime Agency is up and running and fully established, it will have responsibility for those crimes.
The Government need to explain and justify for what purposes immigration officers also need such powers. What will be the relationship between the immigration officers who have this power and the National Crime Agency? Earlier clauses in the Bill refer to the relationship between the National Crime Agency and local police forces, and the powers of notification. If immigration officers are given new powers, there should be the same kind of co-operation and information-sharing between immigration officers, who have such powers, and the National Crime Agency, otherwise there will be a gap to fall through; both groups could end up investigating similar crimes or there could be an overlap of crimes. It would be helpful if the Government could clearly explain for what purposes immigration officers need these powers, and why, with the existing powers they have, there could not be co-operation with the National Crime Agency.
Paragraph 381 in the Explanatory Notes says that:
“At present, the UKBA is able to authorise applications from immigration officers investigating serious organised immigration for directed surveillance and Covert Human Intelligence Sources … and the ‘senior authorising officer’ can authorise applications for intrusive surveillance”.
However, this amendment takes it one stage further, so there needs to be a little more justification and understanding. I can understand the issue around the crimes, but I am not clear why any immigration officer could have those powers—which appears to be the case in the Bill, though perhaps not in the Explanatory Notes. Why is it not sufficient to extend the powers of current specialised officers, or to work with them and the National Crime Agency? I would also be interested in some information on the training that would be given to the specialised officers. Would there originally have been any expectation that they should have any specialised skills, or would it have been something that any immigration officer could take on if they had had the appropriate training?
Finally, does the UK Border Agency have the capacity to take on this role? The following amendment, in the name of the noble Lord, Lord Berkeley, which we will discuss shortly, covers a number of issues including queues at Heathrow, where we have seen enormous pressures put on the staff. Given the current wording of the Bill, and in particular that it would seem to apply to any immigration officer, I worry about giving very wide-ranging additional powers and responsibilities to a border agency that, as we heard earlier, is struggling to maintain its current responsibilities. It has had to draft in officers from the Ministry of Defence and civil servants from other parts of the Government. I want an assurance that anybody drafted in on a temporary basis—to help out with extended queues at Heathrow, for example—would not be given the powers of entry and surveillance as outlined in the Bill.
It would be helpful if the Minister could give some answers to those questions. The new powers given to the UK Border Agency are very extensive, and it would be interesting to know the Minister’s justification of them, and how he imagines that they will operate.
My Lords, I am grateful to the noble Baroness for setting out what she is trying to do in these amendments, which I take it are merely probing amendments, as I believe she said. I am also grateful that she paid tribute to the very difficult job that immigration officers do. However, she probably used rather unfortunate language when she asked whether they were quite up to it, although she qualified what she meant by that. She then said that she thought that the Explanatory Notes were possibly better than the Bill itself. Sadly, we do not have legislation by Explanatory Note. However, I am always more than happy to look again at the wording of individual clauses, should it be necessary. Again, as always, we have any amount of time to deal with these matters between now and Report and the further stages as this Bill proceeds through Parliament.
Put very simply, the noble Baroness is asking what Clause 26 is about and why we think it is necessary. The proposed extension of powers is saying that it is necessary for the United Kingdom Border Agency to have extra powers to respond robustly to serious and organised crime. Customs officials within the UK Border Agency are already entitled to apply for intrusive surveillance under RIPA and for property interference under the Police Act for the purpose of investigating customs offences. This clause will rightly extend these powers to immigration officers for the purpose of investigating serious and organised crime.
I turn to the amendments and, in doing so, I hope that I will answer some of the points. I suspect that the noble Baroness has not quite got the wording of the amendments right because Amendment 149CA achieves the opposite effect to the one she wants. It would require the authorising officer, who is responsible for authorising applications to interfere with property under Section 93 of the Police Act 1997, to be a senior official who is working within a criminal and financial investigation team of the UK Border Agency. Although I suspect it may not have been the intention of the noble Baroness, the effect of this amendment would be to restrict and potentially lower the grade of the authorising officer.
Clause 26(1) already limits the role of the authorising officer to a senior official within the meaning of RIPA who has been designated for that purpose by the Secretary of State—that is, the Home Secretary. Within the police, the relevant rank for an authorising officer would be a chief constable. Under the UK Border Agency’s structure, this would be the current director of operations and deputy chief executive. No one working in the criminal and financial investigation teams would be senior enough to equate to that grade. I am sure that the Committee and the noble Baroness share our view that an authorisation to interfere with property should not be approved by anyone less senior than that level. I should also note that the director of operations and deputy chief executive of the UK Border Agency already effectively authorises applications under Section 93 of the Police Act 1997 with regard to customs investigations.
I appreciate that this is a probing amendment but, in short, it would weaken rather than tighten the controls on the exercise of these intrusive powers under Part 3 of the Police Act 1997. All that said, the noble Baroness made it clear that she is seeking to give effect to our commitment that we will limit the exercise of these intrusive powers—that is why she wanted to know why we are seeking extra powers—to specially trained immigration officers in the UK Border Agency’s criminal and financial investigation teams. We do not, however, consider it appropriate to include such an express provision in the Bill given the existing safeguards in the Police Act 1997 and the Regulation of Investigatory Powers Act 2000. We do not have such specificity for customs officials, and the aim is to provide parity for immigration officers.
As the noble Baroness will be aware, Section 28 of RIPA provides that for a senior authorising officer to grant an authorisation for the carrying out of intrusive surveillance, they must ensure that the activity is proportionate and necessary for preventing or detecting serious crime or in the interests of national security or in the interests of the economic well-being of the United Kingdom. The Police Act 1997 also imposes similarly strict controls over the authorisation of property interference.
I appreciate that Amendments 149CB and 153B are probing amendments. They would remove the powers sought for immigration officers in relation to the Proceeds of Crime Act 2002. These powers have been sought for good reason in an attempt to improve the effectiveness of the UK Border Agency’s investigatory capability. Providing access to the relevant Proceeds of Crime Act powers will ensure that the UK Border Agency’s immigration officers are able to play their part in dealing with the proceeds of organised immigration crime.
Moreover, these provisions will place immigration officers on the same footing as their police and customs counterparts and reduce their reliance on outside bodies such as the police. At present, only the UK Border Agency’s customs officials are able to use the full range of Proceeds of Crime Act powers and even then only in relation to customs offences. Immigration officers presently have to rely on the very few accredited financial investigators within the UK Border Agency or on seconded police officers to conduct those investigations. This is clearly a weakness in the UK Border Agency’s ability to fight organised immigration crime. The Bill ultimately ensures that the UK Border Agency can take action to deal with the proceeds of all the criminal offences in its remit, whether commodity smuggling or serious immigration and nationality crime.
The noble Baroness sought an assurance that, where civil servants and others are drafted in to help, we will be able to maintain the border appropriately and that they will have the extant powers. I can give an assurance that any civil servants brought in to help check passports will not be given the powers being sought. They would obviously not have the training that the noble Baroness and we think is appropriate to do so. In any case, those who are brought in to assist with the management of queues are being brought in specifically for that purpose and not to investigate criminal activity.
I do not know what the usual channels and others are thinking about the timing of these matters or whether the noble Baroness will have to keep going for another three minutes, but I hope that, with those assurances, she will feel able to withdraw her amendment. It may be necessary for me to write to her with further detail. I have explained why I think Amendment 149CA is defective. I leave it to the noble Baroness to consider what to do with her amendments.
I am grateful to the noble Lord. I am puzzled about my amendment being defective. I know the noble Lord has enjoyed explaining that to me on a number of amendments. I always say they are about the intention behind the amendment and that we will come back on Report with one that satisfies him.
I understand that the Explanatory Notes are not part of legislation, as the Minister pointed out to me the other week—I am rather long in the tooth in regard to some of these things—and I am sure that they are not intended to be misleading. They state:
“The purpose of this amendment is to provide for immigration officers working in Criminal and Financial Investigation … teams in the UK Border Agency … to be able to apply to exercise”—
and then they go on to say what those powers are.
I will have to read very carefully what the Minister said in Hansard to make sure I fully understand what he is saying about it not being exclusively those officers—even though the Explanatory Notes say it would be—but that it would be other officers of a certain grade and level.
I said at the very beginning that we are not opposed to the extension of powers in principle, but we just need to understand the Government’s justification and to have some explanations and clarifications. I will read the Minister’s comments in Hansard to clarify the position for myself, but I wonder whether he is talking about slightly different things. At some point, he may have been talking about the authorisation of the action, while I am talking about the officers undertaking the surveillance as well. I hope we have not misunderstood each other. I want an assurance that the officers undertaking very intrusive forms of surveillance—perhaps phone tapping, as it says in here—will not just be authorised by a senior officer, but will have the appropriate skills, experience and training and that safeguards for the public are built in. This is a probing amendment but it may not remain one. We want to look at this a bit further and in more detail, but I am grateful to the Minister for taking time to explain some of the measures. I will look at what he has said in Hansard and I may come back to him on the point about who will have the powers and what training will be provided and I shall also look for an assurance that it will not undermine the skills of existing police officers.
One area on which the Minister did not respond was the relationship between such officers and the National Crime Agency. Given the debates that we have had earlier during the passage of the Bill, it would be helpful to explore the relationship that border officers, who deal with organised and serious crime issues as regards immigration and border control, have with the National Crime Agency, which is a national police force for organised and serious crime. We need to explore that further. I would be happy for the Minister to write to me on that point. I am happy to withdraw my amendment.
Amendment 149CA withdrawn.
Amendment 149CB not moved.