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Special Immigration Appeals Commission (Procedure) (Amendment) Rules 2018

Volume 791: debated on Wednesday 23 May 2018

Motion to Approve

Moved by

My Lords, the statutory instrument before us today updates the procedure of the Special Immigration Appeals Commission so that it reflects new bail provisions in the Immigration Act 2016, which I had the opportunity to bring before this House on behalf of the Home Office in the then Immigration Bill. It also implements measures included in the Criminal Justice and Courts Act 2015 allowing appellants to appeal directly to the Supreme Court, bypassing the Court of Appeal. Related to the second point, it also makes changes to the time limits for applying for permission to appeal to make them consistent with the High Court.

For noble Lords who are not familiar with it, the Special Immigration Appeals Commission, more generally known as SIAC, is a specialist tribunal which deals with challenges to immigration and asylum decisions made by the Home Office, such as decisions to deport a person or to refuse them leave to remain. Challenges to such decisions are usually heard by the First-tier Tribunal, the Upper Tribunal, or the High Court. However, when a decision is made for reasons of national security or international relations, or is made relying on evidence which it would not be in the public interest to disclose, any challenge is heard instead by SIAC.

SIAC is different from other immigration tribunals in that it has the ability to operate a process known as the closed material procedure, which allows sensitive material that the Home Secretary intends to use in his response to the appeal to be protected. In the closed material procedure part of the hearings, appellants and their legal representatives are excluded from the court but are represented by special advocates. These are lawyers who have undergone strict security vetting and are of the highest integrity and ability. The system of special advocates is designed to provide a balance between the right to a fair hearing and the need to protect national security.

The first piece of legislation to which this rule amendment is designed to give effect is Schedule 10 to the Immigration Act 2016, which simplifies the previous framework with a single power of immigration bail. This allows for illegal immigrants, including foreign national offenders, who are awaiting removal to be released subject to conditions if detention is not appropriate. Financial conditions were also introduced to replace recognizances, which in this context are undertakings to pay a sum of money in the event that bail conditions are breached, in England and Wales and bail bonds in Scotland. This statutory instrument will bring the SIAC procedure rules in line with the new bail provisions in the Immigration Act 2016.

The other piece of legislation that we are concerned with is the Criminal Justice and Courts Act 2015 which, among other things, extended the concept of cases leap-frogging to the Supreme Court, extending it from just civil cases in the High Court to include cases in the Upper Tribunal, the Employment Appeal Tribunal and SIAC. Leap-frogging will allow SIAC appellants to apply for a certificate which will allow them to appeal SIAC’s decision directly to the Supreme Court without first going to the Court of Appeal, provided they can demonstrate that their case raises a point of law of general public importance. Leap-frogging is not a new concept; it has been allowed for civil cases in the High Court since the Administration of Justice Act 1969. This statutory instrument will bring SIAC into line with other courts on the same level of the appellate system.

The final change brought about by this statutory instrument is to increase the time limit for making an application for permission to appeal, which will bring it into line with time limits in the High Court.

To conclude, the draft rule amendment before us today makes technical but necessary changes to the procedures used by SIAC to make sure they are consistent with measures already set out in primary legislation, namely the Immigration Act 2016 and the Criminal Justice and Courts Act 2015. We have also taken the opportunity to make time limits for permission to appeal consistent with those in the High Court. I beg to move.

My Lords, I will be very brief. We note that these changes are supported by the judge who chairs SIAC, Mrs Justice Laing, and whatever we may think about the closed material procedure, the changes themselves are clearly sensible.

I use this opportunity to suggest that it is very important that closed material procedure be used only as a last resort and in cases of necessity. I note that only 14 cases have been before SIAC in the year under consideration, and that itself is a helpful indication.

On the implementation of the changes to immigration bail under Schedule 10 to the Immigration Act 2016, it is plainly sensible that there should be arrangements for the commission to grant bail. “Financial condition” is sensible terminology that is much better than “recognizances”, if I may say so. We also think it sensible that there should be arrangements for the amendment or variation of bail conditions in appropriate cases.

The Minister is plainly right that leap-frogging is a useful procedure that is used in other courts and jurisdictions. Where there is a point of law of public importance or binding authority that would prevent a decision at a lower level than a Supreme Court, it is plainly sensible that the Supreme Court should be the first port of call in cases that are so certified by the commission, and where the importance of the case warrants it.

We also applaud the longer time limits. The time limit was five days for appellants who were in detention and 10 days otherwise. Fourteen days is a very short time limit, but it is at least a little longer, and it is of course important that appellants have a chance to consider their appeals and their applications for a certificate under the legislation before they have to make the application. However, broadly, we support this statutory instrument.

I have one brief question, about the role of the special advocates. When we discussed the Justice and Security Act, one of the drawbacks of the special advocate procedure, very good though it was, was the inability to re-interview the client after an initial briefing. Does that proviso still work in these cases? In the case of an immigration appeal, are special advocates still unable to re-interview their client to find out their views on the information that has been put before them?

My Lords, I am grateful to the Minister for a very clear explanation of the provisions of this statutory instrument. I note that in the House of Commons Delegated Legislation Committee, all of 11 minutes were spent on this matter. The Minister has provided us with somewhat more information than was provided on that occasion. Is he in a position to indicate the number of cases expected? The noble Lord, Lord Marks, referred to a very limited number, but is it anticipated that it will remain at a low level, or is there likely to be any growth?

Can the Minister also make some reference to the condition of the asylum centres where, presumably, some of these applicants will be held pending the outcome of their cases? Of course, great concern has been voiced about the management of some of these establishments. I confess that this issue is not directly related to the statutory instrument, but it is a matter of concern and I would be pleased if the Minister could say that the Government are looking seriously at the management of these places, whatever the outcome of the applications by the individuals involved.

I am obliged to noble Lords for their contributions. We consider that this instrument is necessary to make sure that the SIAC procedure rules are consistent with the primary legislation, as has been acknowledged. SIAC does of course perform an essential function in dealing with appeals without compromising national security.

On the point made by the noble Lord, Lord Marks, and followed up by the noble Lord, Lord Beecham, there have indeed been about 14 cases before SIAC in the past year. There is only one party on bail from SIAC at present, pending a determination by the commission, so the use of these powers is extremely limited and I am not aware of any indication that that will increase in the foreseeable future.

On the point raised by my noble friend Lord Hodgson, I am not aware of the current position on re-interview by special advocates, but I will determine what the current procedural position is and write to him on that and place a copy of the letter in the Library. On the point about the condition of centres where persons are held pending determinations by the commission, I am not in a position to comment upon any adverse management issues at present, but I will inquire of the appropriate department as to what current work, if any, is ongoing with regard to that issue. Again, I will write to the noble Lord and place a copy of that letter in the Library.

Motion agreed.