Borders, Citizenship and Immigration Bill [HL]

My Lords, I move this amendment on the basis of the report from the Joint Committee on Human Rights, which is in the Printed Paper Office and gives useful background, most of which I am not going to weary the House with because everyone in the House can read at least as well as I can. The background begins on page 9 at paragraph 1.22, under the heading ““Judicial review and access to court””. I recommend a reading of that background in order to understand the issue that this amendment and others in the group raise. Having dealt with the background, I come to paragraph 1.28 of our report. The committee, which was unanimous, accepted that, "““there may be good reason why many immigration judicial reviews that are currently heard by the High Court, and which do not raise issues of any great difficulty or complexity, should be transferred to the Upper Tribunal. We remain concerned, however, that immigration and asylum cases which raise complex issues of fact and law, or in which human rights such as life, liberty or freedom from torture are at stake, should continue to be decided by judges of the standing of a High Court Judge. The Bill’s transfer of immigration and nationality cases to the Upper Tribunal does not guarantee this: a High Court judge may sit on the Upper Tribunal, but this is not guaranteed””." I emphasise that we are dealing with those particularly important kinds of human rights cases. We recommend that, "““a means be devised for ensuring that judicial reviews which are of sufficient significance and complexity, including those in which important human rights are at stake, are heard by a High Court judge, by, for example, developing a sifting mechanism and ensuring that the more significant and complex cases either remain in the High Court or are heard by a High Court judge in the Upper Tribunal””." Then we come to the passage that is really the basis for this amendment, which says: "““The Joint Council for the Welfare of Immigrants … has also drawn our attention to a further restriction on the right of access to court as a consequence of the Bill’s provisions transferring judicial reviews relating to immigration or nationality from the High Court to the Upper Tribunal. Sir Richard Buxton, until recently a Lord Justice of Appeal in the Court of Appeal, has provided JCWI with a legal opinion in which he points out that if immigration and nationality judicial reviews are transferred to the Upper Tribunal, the Lord Chancellor will have the power, under a provision in the Tribunals, Courts and Enforcement Act 2007, to limit appeals from the Upper Tribunal to the Court of Appeal to cases where the Court of Appeal considers (a) that the proposed appeal would raise some important point of principle or practice, or (b) that there is some other compelling reason for the relevant appellate court to hear the appeal. This is a very restrictive test for leave to appeal, originally designed to limit ‘second appeals’, that is, appeals against decisions which are themselves made on appeal from the original decision””." We continue: "““As Sir Richard Buxton points out, immigration cases in the domestic courts almost always engage the UK’s obligations under international conventions, including the Refugee Convention and the ECHR. If the ‘second appeal’ restriction is imposed on appeals from the Upper Tribunal to the Court of Appeal that the Upper Tribunal has misinterpreted or misapplied the UK’s human rights obligations””." We say this: "““We agree with the opinion of Sir Richard Buxton that in a case where there is a real prospect that the decision of the Upper Tribunal is in breach of the UK’s international human rights obligations, that issue demands the attention of a court of the stature of the Court of Appeal. We recommend a simple amendment to the Bill to ensure that the Lord Chancellor’s power to impose the restrictive ‘second appeal’ test on appeals to the Court of Appeal is not available in immigration and nationality cases””." That is what this amendment is designed to achieve. I bet there are not more than four Members of this House who understand what I have just said, but I hope that at least the Minister and those who have the good or bad fortune to be lawyers or former lawyers will understand why this is a very important issue. I beg to move.