Borders, Citizenship and Immigration Bill [HL]

My Lords, I support the amendments in the names of the noble Lord, Lord Lester, and the noble and learned Lord, Lord Lloyd. I support with less enthusiasm the amendment in the name of the noble Lord, Lord Kingsland. As I understand it, Clause 52 confers power on the Lord Chief Justice to transfer immigration and nationality judicial reviews, like other categories of judicial review, to the Upper Tribunal. I accept that it is undoubtedly appropriate to transfer many of those cases to the Upper Tribunal rather than to have them heard in the administrative court—that is, in the High Court—because a large proportion of these cases simply concern specific facts and raise no issue of general principle or importance. That is recognised by the fact that a large proportion of them are currently heard in the High Court not by High Court judges but by deputy High Court judges. These cases take up a substantial proportion of the time of the administrative court, but it would not be appropriate to transfer to the Upper Tribunal all categories of immigration cases. For example, those cases that raise issues concerning whether removal of a person from this country would be a breach of his or her fundamental rights or of the United Kingdom’s international obligations should be heard in the High Court by a High Court judge. The defect of Clause 52 is the breadth of the power that it confers. It fails to identify any criterion whatever for distinguishing those cases that should remain in the High Court and those cases in respect of which there should be a power to transfer them to the Upper Tribunal. The virtue of Amendment 55D, in the name of the noble and learned Lord, Lord Lloyd of Berwick, is that it would preserve parliamentary control. Amendment 56B, in the names of the noble Lords, Lord Kingsland and Lord Thomas, is not ideal. Subsection (1) of the amendment tabled by the noble Lord, Lord Kingsland, would allow the transfer only of fresh claims cases. Many other immigration cases ought to be subject to transfer powers. Subsection (2) is unnecessary. If provision is made under subsection (1), cases would be transferred and no exercise of discretion would be necessary or appropriate. However, I support the noble Lord’s amendment, far from ideal though it is, because, if approved, it would have the virtue of making the Government think again on this important issue. As regards Amendment 55C in the name of the noble Lord, Lord Lester, a consequence of the enactment of Clause 52 is that the Lord Chancellor would then have power, under Section 13(6) of the Tribunals, Courts and Enforcement Act 2007, to limit appeals from the Upper Tribunal to the Court of Appeal. By reason of Section 13(6), it would not be enough for a litigant to show that he or she had a properly arguable point of law. In order to obtain leave to appeal to the Court of Appeal from the Upper Tribunal, the litigant would also need to show that the proposed appeal would, "““raise some important point of principle or practice, or … that there is some other compelling reason for the relevant appellate court to hear the appeal””." The Joint Council for the Welfare of Immigrants has understandably expressed concern that the result of this may be that litigants are prevented from appealing to the Court of Appeal against decisions of the Upper Tribunal when they have arguable points of law, even when the point of law is that the immigration decision involves a breach of the international obligations of the United Kingdom. As the noble Lord, Lord Lester, has mentioned, the JCWI relies on an opinion to that effect from Sir Richard Buxton, a recently retired Court of Appeal judge. I doubt that it is the intention of the Minister that the Upper Tribunal and the Court of Appeal should be prohibited from granting leave to appeal in a case where there is an arguable error of law that, if not remedied, would put this country in breach of its international obligations, but this matter needs to be clarified by an appropriate amendment. I therefore hope that the House will support the amendments, so that the Government can think again.