Borders, Citizenship and Immigration Bill [HL]

My Lords, I shall speak to Amendments 55C, 55D, 56B and 62A. As noted by the noble Lord, Lord Lester, Amendment 55C reflects comments made by the Joint Committee on Human Rights in its report on the Bill. The committee recommended that the Bill be amended to remove the Lord Chancellor’s power to restrict the test for onward appeals to the Court of Appeal. This is not necessary in relation to judicial review applications, as the test in Section 13(6) of the Tribunals, Courts and Enforcement Act 2007, to which this amendment refers, applies only where the application is for permission or leave to appeal from any decision of the Upper Tribunal on an appeal under Section 11 of the Act. Section 11 relates to appeals from decisions made by the First-tier Tribunal. Therefore, Section 13(6) does not apply to appeals to the Court of Appeal on judicial reviews. In relation to appeals that Section 13(6) will apply to, it is the case that the number of immigration cases on which there is an application for permission to appeal to the Court of Appeal is significant and has risen considerably in recent years, as mentioned by the noble and learned Lord, Lord Lloyd. The Master of the Rolls, in his response to our consultation on immigration appeals, has said that this is putting significant pressure on the resources of the Court of Appeal, both in terms of administration and judicial time. I am concerned that, while addressing the burden on the High Court, we also need to address the burden on the Court of Appeal. I therefore believe that we should retain the Lord Chancellor’s power to restrict the test for appealing to the Court of Appeal in immigration cases. I accept that there may be some cases which raise the real prospect that the decision of the Upper Tribunal is in breach of the UK’s human rights obligations, but these are precisely the sort of cases that would meet the test set out in Section 13(6). I also stress that, where the Upper Tribunal considers that an onward appeal application does not meet the test, the Act provides for permission or leave to be sought from the relevant appellate court. However, the Master of the Rolls has also pointed out that the majority of these appeals raise no point of general importance, and it is therefore wholly disproportionate for there to be an automatic right for them to be substantively considered by the most senior judges who sit in the Court of Appeal. Amendment 55D would require that Parliament approves every class of judicial review in Clause 52 which the Lord Chief Justice of England and Wales, the Lord President in Scotland and the Lord Chief Justice of Northern Ireland wanted to direct for mandatory transfer into the Upper Tribunal. I do not believe that this should be necessary, once Parliament has agreed that the power should be used in principle. The classes of case designated for mandatory transfer should be at the discretion of the senior judiciary, as set out in the Tribunals, Courts and Enforcement Act. While I accept that there is a role for Parliament in deciding when the time is right for the Upper Tribunal to deal with the mandatory referral of classes of immigration and nationality judicial review cases, I do not believe that we should constrain the ability of the most senior judges to exercise their constitutional responsibility for the allocation of work within the courts. The amendment would place an unnecessary burden on Parliament and, while I understand the reasons that the noble Lord has tabled it, I believe that the clause as drafted, with the government amendment, strikes the right balance between parliamentary oversight and discretion for the most senior judges. The purpose behind Amendment 56B seems to be that only those judicial review cases which relate to Section 353 of the Immigration Rules can be transferred to the Upper Tribunal. These cases could be transferred only after the Asylum and Immigration Tribunal has been transferred into the unified tribunal system and only after an order subject to the affirmative resolution procedure. I confirm that there is no intention to transfer judicial reviews to the Upper Tribunal unless and until the AIT is transferred. Amendment 56B duplicates the effect of Amendment 55C, so I will not duplicate my arguments. Amendment 56B does not achieve its first aim, as it refers to applications made under Rule 353 of the Immigration Rules. In reality, applications are refused under Rule 353, rather than made. More importantly, this amendment removes all flexibility for the Lord Chief Justice and his equivalents in Scotland and Northern Ireland to manage cases as they see fit. As a consequence of this amendment, the Lord Chief Justice of England and Wales, the Lord President of Scotland and Lord Chief Justice of Northern Ireland would have no power to direct the mandatory transfer of any additional classes of case. The clause would remove all flexibility and discretion and would therefore make it harder for the most senior judges to ensure that cases are managed in the best interests of justice. In addition, High Court judges and judges of the Court of Session would not have the power to transfer cases on a case-by-case basis, other than in relation to fresh claims. The House has not previously expressed concern over this aspect of Clause 52, and I am surprised that this amendment now seeks to limit the power to enable transfer of this single class of case only, rather than also to allow judges to exercise their discretion in individual cases. While I understand and accept the intention that class transfer of cases should not begin until Parliament has had a further chance to debate whether the Upper Tribunal is ready to hear them, it is not in the best interests of justice to limit the classes of case that may be transferred. Fundamentally, I believe that it is in the best interests of justice to allow the senior judiciary, with the agreement of the Lord Chancellor, to decide which classes of judicial review cases are suitable to be heard in the Upper Tribunal, once we reach that stage. This procedure already operates in non-immigration jurisdictions. The Lord Chief Justice, the Lord President and the Lord Chief Justice of Northern Ireland are responsible for the allocation of work between courts, and this responsibility should be reflected in Clause 52. This amendment does not achieve that, so I urge the House not to support it. The noble Lord, Lord Kingsland, talked about the Government breaking their promise not to bring forward legislation until the Upper Tribunal was established. The commitment given by the Government during the passage of the Tribunals, Courts and Enforcement Bill was not to transfer immigration judicial reviews until the Upper Tribunal was firmly established and not to do so without further primary legislation. This Bill is that further primary legislation, and the government amendment goes further by giving Parliament a further opportunity to debate the matter before the commencement of the clause. I have tabled Amendment 62A because there are two separate concerns in relation to Clause 52. The first relates to timing and why this clause is in this Bill. The Upper Tribunal has not been in existence long, as the noble Lord, Lord Kingsland, mentioned, and the Asylum and Immigration Tribunal has not yet been transferred into the unified system. The transfer of the AIT was referred to by the noble and learned Lord, Lord Lloyd; we would hope to make any transfer as swiftly as possible, but given that a number of orders need to be made, it is unlikely to happen until early 2010. While I hope that we will be able to make an announcement on this soon, I accept that it is difficult at this time for Parliament to be satisfied that it will be appropriate to allow the mandatory transfer of a class of immigration judicial review cases at an as yet unknown date. My amendment would require Parliament to have the opportunity to consider whether the time is right for the mandatory transfer of classes of case before the power is commenced. I have already given an assurance that we will not commence Clause 52 until the AIT has been transferred. As a result of Amendment 62A, powers to provide for case-by-case transfers of judicial reviews under Clause 52 can be commenced by order in the normal way. In all these cases, the decision to transfer the case to the Upper Tribunal will be made by a High Court judge, or a Court of Session judge in Scotland, only where he or she thinks it just and convenient to do so. I do not believe there is the same concern about case-by-case transfer of judicial reviews as there is about class transfer, but I reiterate the assurance I have given that we will not commence this provision until the AIT has been transferred. The second concern relates to the classes of case which may be transferred. As I have said, we should allow the most senior judges to manage the allocation of work between courts, in line with their constitutional responsibilities. This amendment would give Parliament a further chance to decide that the Upper Tribunal is sufficiently well established for the power for mandatory transfer of classes of judicial review to begin, while ensuring that there is sufficient flexibility and discretion available to respond to future challenges. In answer to the query about whether Clause 13(6) applies to Scotland, it does not apply in relation to appeals to the Court of Session. The noble Lord, Lord Avebury, also asked about Scotland; I am not aware of any correspondence and I shall have to check on what commitments have been given and come back to him. I urge the House to support Amendment 62A and to resist Amendments 55C, 55D and 56B.