Borders, Citizenship and Immigration Bill [HL]

Clause 50 is concerned with judicial review in Part 4 of the Bill. The Tribunals, Courts and Enforcement Act 2007 set up a new system of tribunals, but the transfer of immigration and nationality judicial reviews was excluded. What was the purpose of, and reason for, that? The noble Baroness, Lady Ashton of Upholland, told us in Grand Committee that judicial reviews in immigration cases were particularly sensitive, as indeed they are. They engage absolute rights against torture and inhuman and degrading treatment, and involve complex issues under the Human Rights Act. The noble Baroness also said that there was no question of removing the statutory bar on the transfer of judicial reviews at that time because it would be necessary to review how the transfer to the Upper Tribunal of all the other tribunals had worked in other less sensitive cases. In Grand Committee, the noble and learned Baroness, Lady Butler-Sloss, supported the noble and learned Lord, Lord Lloyd of Berwick, in relation to the requirement to have someone of the level of a High Court judge to hear a judicial review in the tribunal. She said it would be invidious for there not to be a judge of that rank dealing with it. Your Lordships will recall at Second Reading that the noble Baroness, Lady Ashton, was inclined to support this clause, not for any reason other than the pressure on the judiciary in the administrative court by the number of judicial reviews that are brought in immigration cases. However, after arguments in all directions, eventually a compromise was struck in which the Government accepted that, if they sought to remove the exclusion of these types of cases, it would be only by way of primary legislation, which is no doubt why this clause appears in the current Bill. The noble Baroness, Lady Ashton, also accepted that the removal of the exclusion should not be contemplated prior to there being an opportunity to review how the Upper Tribunal worked. That was the position only some 18 months ago. The Upper Tribunal commenced its work in November 2008, only two or three months ago, but the consultation on the inclusion of the Asylum and Immigration Tribunal in the two-tier tribunal service was started in August of 2008, before the Upper Tribunal ever came into existence. It was a Home Office-led consultation. The working group included representatives of the judiciary and the Home Office, but no other body was involved in that working group. The consultation set out two primary aims, which are interesting. The first was to reduce the immigration workload of the High Court and the Court of Appeal judiciary. The second was to assist the Home Office in its immigration work, particularly in relation to the speed with which asylum claims are dealt. Relieving the load on the one hand was of interest to the judiciary and getting immigration business through was of interest to the Home Office. All the previous assurances that this House received that it would not happen until the Upper Tribunal was up and running and we were able to assess how it worked fell by the board. As was recognised when we were discussing the Tribunals, Courts and Enforcement Bill, immigration judicial reviews may be especially contentious because of the failure by the Home Office as a litigant—as a party—to show proper respect for the procedure in the court and for the rule of law. Your Lordships will be aware that the Home Office has been taken to task by the courts on many occasions. The risk now in allowing the transfer of these judicial reviews without any opportunity to assess the capacity and the competency of the Upper Tribunal to deal with them is threefold. First, there is an immediate risk of injustice to the individual litigant in relation to his fundamental rights, including rights to liberty, life and so forth. That was not one of the aims of the Home Office-led consultation I outlined. Secondly, there is a risk that inadequate handling of these judicial reviews by an untested tribunal will result in an increase in the workload of the supervising court—the Court of Appeal. If judicial reviews go to the Upper Tribunal, which has only just started, that will result in a greater workload for the Court of Appeal. Thirdly, there is the risk of reduced supervision of the Home Office resulting in it taking greater liberties, leading to more instances of injustice and increased litigation. The introduction of Clause 50 to this Bill is completely premature and contrary to the assurances given to this House when we were discussing the Tribunals, Courts and Enforcement Bill only a very short time ago. That is why this clause should not stand part of the Bill. I now move to the particular amendments which raise other important issues in any event. We will press these amendments if your Lordships agree this clause. Amendment 111BA deals with nationality decisions. Immigration issues are concerned with administrative decisions. The granting of certain rights to people who come to this country is an administrative decision taken by government officials. Nationality issues, on the other hand, are concerned with status. They are concerned with the declaration of whether an individual is or is not a British citizen. Immigration issues and nationality issues are two completely different things. Under the present proposals in Clause 50, both immigration and nationality claims are to be transferred. The judicial reviews of administrative systems are presently heard in the administrative court of the Queen's Bench Division of the High Court by High Court judges. The judicial review in that context is frequent and there is a great deal of expertise in the administrative court in that regard. But nationality judicial reviews are very few. In 2007, only three cases concerning nationality law were heard in the High Court and in the Court of Appeal that led to final judgment after a substantive hearing. In 2008 there were just two. Unlike immigration claims, some nationality law claims can also be brought in private law proceedings as well as by public law claims for judicial review. Nationality law claims concern challenges to the refusal to register or naturalise a person as a British national of a particular description. Those are public law claims. Nationality law claims can also be an issue for declarations about whether a person has automatically acquired a form of British nationality at birth, for example. It is a completely different sort of animal from the immigration judicial reviews that are part of the subject of Clause 50. We would like to probe why the two types of issues are lumped together in Clause 50. I look forward to hearing the noble Lord on that topic. The other issue raised is that of Scottish claims. The Scottish Court of Session would be allowed to retain the jurisdiction to hear asylum and immigration appeals under the terms of the Tribunals, Courts and Enforcement Act 2007, at least until full and proper consideration is given to removing that jurisdiction. The clause transfers asylum and immigration appeals from the Court of Session to the Upper Tribunal. The clause proceeds on the basis of the publication Consultation: Immigration Appeals. Fair Decisions, Faster Justice. However, there has been no separate consideration of the Scottish issues in the consultation, when the issues are very different. The proposal in Clause 50 relating to Scotland pre-empts the civil justice review currently being conducted by Lord Gill, although the Minister, Vera Baird MP, told the Public Bill Committee when the 2007 Act was being debated, that, ""we concluded that the judicially led review of the Scottish civil courts announced by the Minister for Justice in the Scottish Executive in March 2006 would be best placed to consider the detail of possible application for second appeals in Scotland".—[Official Report, Commons, Tribunals, Courts and Enforcement Bill Committee, 20/6/07; col. 36.]" It also pre-empts the Scottish Administrative Justice Steering Group’s final report. The group’s first report left open the question of whether proposals made in the consultation paper are a preferable option. There is no obvious demand in Scotland for transfer from the Court of Session to the Upper Tribunal. In June 2008, in its submission to the civil justice review, the border agency suggested this proposal as one of a range of possibilities. However, it did not receive a great deal of favour. Thus, for separate reasons, the Law Society of Scotland, which put forward this amendment, says that the clause is premature. I beg to move.