Immigration Bill

Debate between Lord Paddick and Baroness Hamwee

Wednesday 5th March 2014 Lords Chamber

[Baroness Hamwee (LD)]

My Lords, Amendment 30 is about administrative review. I am not commenting on the reduction in rights of appeal per se, but if we are to see a reduction of the basis of appeals, and if they are to be reduced on the basis of the use of administrative review, the procedure must be robust and trusted. However much we hear that it will be robust—I have seen the statement of intent—it is fair to say that critics have not been won over. Many noble Lords will have received briefings, including examples of reviews previously undertaken under different—but not so very different—procedures, and I shall give a couple of them to the Committee.

The first is a student applying to transfer his tier 4 leave to a new passport. The university provided letters quoting the relevant Home Office guidance confirming that a new certificate of acceptance for studies was not required because it was not a fresh application, merely a transfer to a new passport, but the application was refused on the grounds that the student did not have a valid certificate. He applied for administrative review. He was outside the UK and needed to be back here quickly to get on with his studies. He waited a couple of weeks and then decided he had to submit a fresh application. The review upheld the original decision on the grounds that he did not have a valid certificate.

My second example is a student applying for leave for a master’s course after having studied as an undergraduate in the UK and undertaken two years of tier 1 post-study work leave. The application was refused because the case officer thought that the five-year limit on degree-level study would be exceeded, taking into account the two years, but in fact the case worker had incorrectly included the two years of post-study work. Reconsideration was requested, but the casework team would not overturn the refusal.

The point that decisions should be got right the first time is entirely reasonable and appropriate, and I am sure my noble friend accepts that. One can also entirely understand the point that reviewing colleagues’ work as a substitute for appeal is counterintuitive. Not only are colleagues being asked to attack, as it were, their colleagues’ work, but they are actually attacking the Secretary of State’s decision. One can understand their diffidence in doing so.

The amendment I propose does not seek not to have administrative review; it seeks to find a way to get procedures into a document that will require the approval of both Houses of Parliament. This might sound a rather heavy-handed way of going about something administrative, but we are talking about a proposed substitute for appeals. The amendment seeks to have procedures agreed by an independent person—I stress the term “independent”—with oversight of reviews as they take place by an independent person and a lapse after five years unless Parliament thinks that the procedures are suitable to be continued. This would be negative.

I am aware that the Home Office proposes that the process which it plans will be included—or, at any rate, it will ask for it to be included—in the chief inspector’s reviews. That is necessary, but I am seeking more than that. I have not tried to define “independent” in the amendment, but I do mean independent. There are in many parts of our legislation provisions for independent persons. By and large, the people who are appointed are independent. Once they have been given a remit, they tend to prove themselves really very independent and sometimes quite forthright.

I have comments on the statement of intent that was included in the bundle which was helpfully circulated. I am not going to take up the Committee’s time on that, other than to say that I note that the time limit for the applicant to seek an administrative review is 10 days, or two days if they are in detention—which seems to be very little if they want to take advice. I wonder how the Home Office will ensure that the limit of 28 days to come to a decision will be met, given the current timescales of which we are aware. I wonder, too, whether my noble friend can explain what opportunity there will be for an applicant—the “customer”, as he is called in the statement—to make representations on the facts to the reviewer.

However, that is not at the heart of this amendment. When I raised the issue of trying to stiffen the arrangements for reviews with those who work in the field, they said that when the issue had been discussed in 2006, when the House was talking about out-of-country reviews, administrative review became a “chimera” chased through many hours of debate, a “red herring”, and a “scarlet pimpernel”. We do not have a “smokescreen” in there; I will not pursue what other metaphors there might be. I thought that that was harsh, but it is important that we have reassurances on how we are going to have real detail on this that both Houses can consider.

In the statement of intent, in answer to the question of how it can be confident that it will be able to operate administrative review effectively, the Home Office referred to the current operation overseas—where there is a strong record, with over 90% of reviews completed within the target of 28 days for the quarter in question—and said that administrative review also makes a difference in entry clearance cases: in 2012, the initial decision was overturned in 21% of cases. I think that my noble friend would understand that some of this is in the eye of the beholder. It rather depends on whether you are the applicant as to how you perceive this. I note that success is expressed here in terms of time limits rather than substance. I suppose we could really know if administrative review is working well only if it were possible to run it as a sort of shadow to the appeals process—but we cannot, to my mind anyway, run two systems in parallel.

Therefore, the amendment focuses on how to get as robust and trusted a system as possible. Having said that—this is a trite point but it needs to be made again at this point in the debate, and I am sure that my noble friend will agree—there should be a robust, trusted system of internal review in any event, because this is about making the right decision as efficiently, effectively and quickly as possible. I beg to move.

[Lord Paddick (LD)]

My Lords, I support Amendment 30, at least in principle. I support the move that the Government are trying to make to avoid abuse of the system of appeals, whether by unscrupulous organisations which try to make money from endless and inevitably futile appeals that exploit not only the taxpayer but also the applicant, or by those who are not entitled to be here or come here but who want to exploit the system in order to extend their stay, despite not having legitimate grounds to stay. However, before I can support removal of the right to a judicial tribunal appeal, I would ask the Minister for reassurance that the proposed replacement with an administrative review will provide an equally reliable route of appeal.

My noble friend Lady Williams of Crosby and I share a common concern about the culture within the Home Office to which my noble friend Lady Hamwee alluded—that it would be very difficult for an officer in the Home Office, particularly someone of equal grade to the original reviewing officer, to overturn a decision made by their colleague. Perhaps I can help the House with a definition of “independent”, to which my noble friend Lady Hamwee refers in this amendment. Nobody can be a commissioner of the Independent Police Complaints Commission if they have previously been a sworn police officer. One would expect a completely independent person who reviews these decisions to be somebody who has not been and is not currently a member of the Home Office.

Under the current system, even when the presenting officer for the Home Office at the judicial tribunal has reviewed the case, a high proportion of those appeals are still successful. Can the Minister tell us how the new system of administrative review will differ from that, and, therefore, give us more confidence that it will be far more effective than the current one? Of course, decisions made under the new administrative review system can still be challenged by judicial review with an appeal to the High Court. Can the Minister reassure us that this route will not be even more expensive than the current judicial review process; or, bearing in mind the recent cuts in legal aid, does the Minister believe that far fewer people will be able to afford to go down that judicial appeal route?

In short, I am not in principle against the new system of administrative review if—but only if—the Minister can reassure the House that it will be far more effective than the current system in achieving swift and just outcomes for applicants. Neither does my noble friend Lady Hamwee call in her amendment for an abandonment of the new system. In the absence of the Minister being able to convince the House on the matters that I have raised, perhaps it would be better for him simply to support my noble friend’s amendment.