My Lords, I apologise for the croak in my voice. As two noble Lords have already recognised, the ultimate issue in this batch of amendments is whether Clause 2 remains part of the Bill. Therefore, we should look with some precision at the Bill. Proposed new Section 11A(2) states in respect of the decision of the Upper Tribunal:
“The decision is final, and not liable to be questioned or set aside in any other court.”
That means that any appeal from the Upper Tribunal will now be forbidden. There is a proviso a little further down, in new subsection (4), which can be summarised as “if the Upper Tribunal has behaved improperly or ultra vires”, and there lies an exception, but it is a very strong provision in new subsection (2), as inserted by Clause 2.
At Second Reading, which was the first time I addressed this House after 22 years, I made two points on that issue. I said that, as a matter of principle, it was wrong to shut this out of the judicial process, because no appeals would actually go into the judicial process of our law courts. I argued that it was as a matter of principle wrong, because many of the applicants concerned—and this provision will absorb all the asylum applicants—are among the most vulnerable people who will ever want access to our courts. I argued, secondly, that the processes already in existence were good enough to pick out the unmeritorious applications, which far exceed in number the meritorious applications and which will find no further favour through the judicial process.
Therefore, we should look quite precisely at the decision-making as it now stands. We move from the Home Office decision—asylum or not asylum—to the First-tier Tribunal, then to the Upper Tribunal and then, in limited circumstances, to the single judge, who will make a decision on paper. We then move to an oral hearing, which I think will be in front of the
Court of Appeal, and a journey, or a door, into our judicial process. What are the limitations in the present system, which I say are sufficient to sort out the difference between the meritorious and the unmeritorious application?
On the first issue, on the rules relating to the first tier, all issues of fact and law are to be considered by the First-tier Tribunal—but once it has made its decision, there are great limitations on the rights of appeal, and the right to appeal from the First-tier Tribunal is only on errors of law and on the permission of the Upper Tribunal. Of course, that throws out something that is very important, which is any further consideration of the merits of the application. When the matter goes to the Upper Tribunal, there are much more severe restrictions; it is only a paper application and only on the grounds of important principles of law and practice, or for some other compelling reasons. That then brings us, if that can be satisfied, and the law courts accept it, to a single judge—and then it is very limited, with only a paper application and only on the grounds of important principles of law and practice, or for some other compelling reason.
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Indeed, the court has adjusted itself to changes in the CPR and High Court rules that were introduced in October 2016. One test provided there was whether the appeal had a real prospect of success—but it goes further than that. Other provisions were brought in in October 2016, such as a short, 16-day deadline for making the appeal from the Upper Tribunal, instead of the ordinary three months. There is no right of appeal or for an oral hearing after permission has been refused. It also goes further in that a high test that is provided: there must be an arguable case that both the decision of the Upper Tribunal refusing permission to appeal was wrong in law and the decision of the First-tier Tribunal being appealed was also wrong in law.
Under the present procedures, these applications are restricted and clamped down. It is quite wrong, in the Government’s approach to this issue, to cut out further the rights of these appeals, as well as being unnecessary, because the proper defence is already there.