Borders, Citizenship and Immigration Bill [HL]

I also gave notice of my intention to oppose the Question that Clause 50 stand part of the Bill. I am puzzled by the fact that the clause is being promoted by the Home Office. The Tribunals, Courts and Enforcement Act 2007, to which it relates, was promoted by a department that is now part of the Department of Justice. The Home Office is a party to all immigration and asylum proceedings and therefore, for reasons that do not need elucidating, should not be, or even be perceived to be, an advocate for one form of procedure over another. The Tribunals, Courts and Enforcement Act allows for the transfer of certain judicial review applications from the High Court to the Upper Tribunal. However, as we have heard from the noble Lord, Lord Thomas of Gresford, primary legislation is necessary before immigration and asylum matters can be so transferred. Noble Lords may recall that this was a concession made to your Lordships by the noble Baroness, Lady Ashton, in the course of the proceedings on the Bill. The reason is clear; it is principally because disputes in that area raise issues such as the right to liberty, and the right not to be put in danger of torture, cruel and unusual punishment or capital punishment, which are distinct from those rights that are dealt with under the new integrated tribunal regime. When the 2007 Act became law, the Government were not confident that the transfer of applications for judicial review in this area to the Upper Tribunal was appropriate. The noble Baroness, Lady Ashton, stated in your Lordships’ House that she wanted to see how the new regime worked before making changes. The new Upper Tribunal, as we have also heard from the noble Lord, Lord Thomas of Gresford, began its work as recently as November 2008, leaving hardly enough time to come to a mature conclusion about its appropriateness as a vehicle for judicial review cases in immigration and asylum matters. Moreover, as the noble Lord, Lord Thomas of Gresford, has also pointed out, in August 2008 the Home Office launched a consultation on the merits of moving immigration and asylum matters to the new integrated institutions. The response to this consultation may be complete, but it has not yet been published. I find astonishing the timing of the consultation. What was the point of initiating it at a time when no one could possibly have had any experience of how the Upper Tribunal would fare? There was no evidence to submit to it, and upon which to opine. I regard Clause 50 as a straightforward breach of faith with your Lordships’ House. I suspect that pressure for premature change is being generated mainly by members of the administrative court. It is no exaggeration to say that High Court judges, there, are inundated by applications to judicially review immigration and asylum decisions. Statistics suggest that 70 per cent of that court’s resources are absorbed by such matters. However, the only consequence of passing these matters to the Upper Tribunal would be to create a similar problem there. The colossal growth in such applications is the symptom of a deeper malaise: the failure of the existing Asylum and Immigration Tribunal to make fair and timely decisions. This in turn is a function of two features. The first is the structure of the immigration and asylum tribunal system, following the move by the then Home Secretary, the right honourable gentleman David Blunkett, to change from a two-tier to a single-tier system. As was widely predicted, this has proved a disaster. The second feature is that the procedure of the tribunals is determined not, as one might expect, by a tribunal service responsible to the Department of Justice, but by the Home Office. As I have stated, the Home Office is invariably a party to a dispute. So unsatisfactory are these procedures that it is often impossible for an appellant to know what the case against him is. The procedures also often lead to lengthy delays, so that many applications for judicial review are made, for example, in the field of deportation orders, on the grounds that circumstances have changed since the initial decision to deport was handed down. The Home Office has indicated that the Government intend to publish a draft immigration simplification Bill in the autumn. If that is so, it would provide us with an opportunity to address the issues that underlie the explosion of judicial review applications. Until those questions are addressed and answered, there is little point in proceeding to the measure outlined by Clause 50.