Immigration Bill

Debate between Lord Wallace of Tankerness and Lord Woolf

Tuesday 1st April 2014 Lords Chamber

[The Advocate-General for Scotland (Lord Wallace of Tankerness) (LD)]

My Lords, I am grateful to my noble friend Lady Berridge for introducing this amendment, which, as the noble Baroness, Lady Smith, said, has given rise to many learned contributions in the course of debate. As has been indicated, the amendment would place the tribunal in a position of the primary decision-maker; it would allow matters to be considered and decided by the tribunal without the Secretary of State having considered and decided them.

The tribunal exists to consider appeals against the refusal of an application by the Secretary of State. That is why the Bill provides that the tribunal may not consider matters that have not first been considered by the Secretary of State unless the Secretary of State consents to it doing so. Picking up the point made by the noble and learned Lord, Lord Woolf, nothing in the proposal in any way reflects on the work that has been done by the tribunal. Indeed, the point he made from experience about it being more appropriate than the cases that went to court is in no way a reflection on the tribunal.

The Joint Committee on Human Rights stated in its report that the provision relating to the Secretary of State’s consent may not be compatible with the principles of equality of arms, right of access to a court and the separation of powers because it allows one of the parties to an appeal, the Secretary of State, to determine the scope of the tribunal’s jurisdiction. Of course, ultimately Parliament sets the jurisdiction of the parameters within which the tribunal will operate.

However, the principal reason why the Government have proposed this measure is that we do not believe it is right for the tribunal to be the primary decision-maker. I certainly will reflect on the points made on that principle. I noted that the noble and learned Lord, Lord Woolf, said that it was more practical for the tribunal to deal with this matter although, technically, the decision-making body was the Secretary of State. I think that my noble and learned friend Lord Mackay of Clashfern made the point that the primary decision-maker in these matters is the Secretary of State. Therefore, I do not think it is such a clear question of principle as perhaps has been suggested. The noble and learned Lord, Lord Woolf, maintained that there were compelling practical reasons. However, the primary decision-maker is, indeed, the Secretary of State. The role of the Secretary of State—

[Lord Woolf]

Perhaps the noble and learned Lord will ponder on the following. Although, of course, the Secretary of State must be the primary decision-maker, the Secretary of State may not be content for the tribunal to deal with a matter and may think it is much better that it should not do so, even though it would give the greatest attention to the fact that there is an objection to the matter being dealt with by it on the very ground the Minister sets out. The matter he sets out is just the sort of matter which you can rely on the tribunal to take into account at its discretion when deciding whether to send it back to the starting point. I refer to delay in this context. It is also just the sort of matter which the Court of Appeal, for example, will take into account in considering whether it will send a matter back to the Secretary of State or deal with it itself because it is in a better position to deal with it than anybody else.

[Lord Wallace of Tankerness]

My Lords, I hear the point which the noble and learned Lord makes. It is also important to recognise that we have to look at where this matter might best be dealt with. The Secretary of State can still consent to the new matter being determined within the context of the existing appeal. That is obviously an issue that the Secretary of State would have to consider in deciding whether or not to give that consent.

[Lord Woolf]

I again apologise for interrupting, but will the noble and learned Lord bear in mind that the Secretary of State in this context means the person who is conducting the case on behalf of the Secretary of State in the tribunal on the day of the hearing? If he has not already received instructions on how to deal with it, all he can do is ask for an adjournment so that the matter can be referred back to those who have more authority than he has to decide what course to take. That will mean that, inevitably, the ability of the court—or, in this case, the tribunal—to deal with it in a sensible and summary way is in fact not going to happen in practice.

[Lord Wallace of Tankerness]

My Lords, one of the examples given by my noble friend Lady Berridge was that a matter may suddenly be raised. It is important to make the point that we are not talking about the appellant relying on new evidence to support a ground already before the tribunal. I know that the noble and learned Lord accepts and understands that. For example, if there was an appeal about refusal of the family life settlement, new evidence on family life would obviously be something which could be led. Nor will the clause prevent access to the court, because the individual would still have an appeal against the refusal. If the new matter on which an application was made was refused, then obviously that matter could be appealed to the tribunal.

I note what the noble and learned Lord says, but my noble friend Lady Berridge talked about a new ground of appeal which the Home Office may have found out about only the night before. When people talk about equality of arms, I am not necessarily persuaded that someone going into the tribunal will find that there is a completely new ground of appeal which they only learnt about within the previous 12 hours. That is an inequality of arms. My noble friend and my noble and learned friend Lord Mackay of Clashfern commented on whether or not the Home Office had been answering the telephone. These are practical issues that ought to be addressed, but I do not think they go to the principle we are discussing.

I am always wary—as was the noble Baroness, Lady Smith—of using football analogies, but they were mentioned by my noble friend in moving her amendment. If an FA Cup match went to penalties, it would not be for one party to say, “By the way, we will just go to the referee and say, ‘If we are having a penalty shoot-out, it will do for the other cup tie that we are to play next week. We will just do the two in one’”. If it is a completely new case, it is not reasonable that that should happen. I stress that this is not a situation where a person is going to be denied the opportunity to bring a separate case on a new matter. They would still be able to bring it and, if they were dissatisfied with the decision made by the Secretary of State, the appeal route would still be open to them.

The proposed measure could create an incentive for appellants to raise new matters at a late stage because they could try to persuade the tribunal that the matter should be heard despite the Secretary of State not having considered and decided the issue. The Secretary of State will have to strike that balance, depending on whether or not she wishes to give her consent—if, indeed, the case was adjourned. Documents may suddenly have been produced the veracity of which the Secretary of State will have had no opportunity to examine. If it is a new ground of appeal, the Government argue that the primary decision-maker is the Secretary of State and the proper role of the tribunal is to hear appeals against a decision of the Secretary of State, if the applicant is dissatisfied with the original outcome. As the noble and learned Lord, Lord Hope, said, I do not see that that is a case of being a judge in one’s own cause because the cause that is properly before the tribunal is one in which both parties will argue their case.

When a new cause is introduced, the Secretary of State makes a decision on it through his executive function. What in fact is being suggested is that that decision should not be made by those from the executive branch but should be a judicial decision. I think that there is a blurring there. If we are arguing as a matter of fundamental principle that a decision is one for the Executive, the question is whether, indeed, the primary decision should be made by the judiciary. I cannot ignore the force of the comments that have been made. The noble and learned Lord, Lord Hope, helpfully suggested where this might be amended. I should make it very clear that I cannot give any guarantee that the Government will come back at Third Reading with an amendment. However, it is only proper that we reflect on the very important issues that have been raised.

Immigration Bill

Debate between Lord Wallace of Tankerness and Lord Woolf

Wednesday 5th March 2014 Lords Chamber

[Lord Wallace of Tankerness]

My Lords, I again thank my noble friend Lady Hamwee for moving her amendment and raising the issues which arise under Clause 12.

At present, all appeals where there is a human rights claim suspend deportation unless the claim can be certified as clearly unfounded. The powers introduced by Clause 12(3) mean that those facing deportation, including foreign criminals, may be deported, and their appeal heard while they are out of the country, if the Secretary of State certifies that that would not breach the UK’s obligations under the European Convention on Human Rights—a point well made by my noble friend Lord Bourne of Aberystwyth. This is intended to build on the Crime and Courts Act 2013, where the Government made similar provisions for out-of-country appeals in national security deportations. The serious irreversible harm test is one used by the European Court of Human Rights when it decides whether an individual deportation must be suspended, and also in its rulings on what types of claim must be granted an in-country appeal. Amendment 31 would limit the scope of the power to those who are being deported who do not have a child in the United Kingdom, while Amendment 31A would remove the power entirely from what would become Section 94B of the Nationality, Immigration and Asylum Act 2002.

I reassure the Committee that the clause will impact only on a very small cohort of cases—those whose actions and behaviour is non-conducive to the public good—and that in limiting the power to deportation cases, the Government are acting in a proportionate way, and not going as far as European Court of Human Rights cases allow. I assure the Committee that by framing the provision in this way, an arguable asylum claim would never qualify for certification under the power. The Secretary of State cannot use the new power where there is an arguable risk of a breach of Article 2 or Article 3 of the European convention.

Equally, the drafting of the Bill means that this power will not be available for those whom the Government are seeking administratively to remove for the purposes of immigration control—such as illegal entry or overstaying a visa, although ECHR case law would in fact have allowed such an approach.

A deliberate decision has been taken to make the power available only for a small cohort of cases where the individual’s actions—the action of the person for whom certification for deportation is relevant—the vast majority of whom will be convicted criminals. I will come on to the point raised by the noble Baroness about others. This applies if the individual’s actions mean that the Secretary of State considers that their presence in the United Kingdom is not conducive to the public good. Perhaps I may illustrate the size of the issue for the Committee. According to Ministry of Justice figures, in 2012-13 the Asylum and Immigration Tribunal received 1,800 appeals against deportation, which included a number of miscellaneous appeals. This change would have impacted on less than 2% of the appeals that the tribunal received that year.

The Government would not seek to remove family members of those whom we are seeking to deport if they have immigration status in the UK in their own right; for example, if they are an EEA national exercising treaty rights or individuals with indefinite leave to remain, or have valid leave as a student. Even in the rare cases where the Government seek to deport family members along with the principal, for example because their status in the UK is based solely on their relationship with the deportee, this clause does not allow the appeals of dependants to be certified: they will be suspensive. The power is also a permissive one in that the Secretary of State may certify appeals but is not required to. This will allow cases to be considered on their individual facts and ensure that the Government complies with their duty to consider the best interests of the child as a primary consideration in immigration decisions.

The noble Baroness asked what would happen if a person wins their appeal. If an individual wins an appeal from abroad, the UK Government will facilitate their re-entry into the United Kingdom.

In summary, the power will be used only where an individual’s own conduct, such as criminality, leads the Secretary of State to consider that their presence is not conducive to the public good. The clause is limited and tightly defined to ensure that only those who have caused or are trying to cause harm are deported from the country quickly.

[Lord Woolf (CB)]

Would the Minister be good enough to indicate what “facilitate” means? Does it mean that the Government are going to pay their costs of returning, as used to be the practice?

[Lord Wallace of Tankerness]

I am grateful to the noble and learned Lord. Clearly, there will be an opportunity to challenge the decision to certify taken before the deportation took place. We do not believe that there would be a liability to pay compensation if an appeal were successful. I think that I have a fuller answer somewhere on that particular point; I know that I have read it. If I do not get it in my hand before I sit down, I will certainly write to the noble and learned Lord. And here it is. If an individual wins at appeal, they will be entitled to return to the United Kingdom and the United Kingdom Government may pay for their airfare, which will be considerably less than the cost of detaining them while waiting for their appeal. I am grateful to the noble and learned Lord for his forbearance on that.

I was trying to get to the point at which the Baroness, Lady Smith, asked about the original Bill being amended in the House of Commons. The provision as it originally stood stated “criminals”, but that was extended because the Government realised on reflection that this definition would leave out a cohort of harmful individuals who should not have a suspensive right of appeal. That could include individuals who are being deported from the United Kingdom on the grounds that their presence is not conducive to the public good, a broader judgment than automatic deportation on the grounds of a single offence. For example, they could be gang members where witness intimidation and a culture of silence means that there has not been a successful prosecution but there is compelling evidence about their conduct that can be used in an immigration decision. The Home Secretary would consider the intelligence against a person and on the basis of that intelligence deport him as his presence in the UK would not be conducive to the public good.

A case is certified for the Special Immigration Appeals Commission on the basis that it has been taken considering secret intelligence, so it does go wider. My right honourable friend Mark Harper gave examples in the other place of where there may be good information and intelligence but, for reasons possibly to do with witness intimidation, it has not been possible to bring a prosecution. Obviously, this can be tested in any appeal which takes place.

I turn to Amendment 31, which was moved by my noble friend. The amendment would mean that this group of cases, of people whose presence in the UK is deemed harmful, would be able to use a child—who may have been in the UK for only a matter of days or weeks, because there is no definition of what a qualifying child would be—to avoid certification of their appeal and their early departure from the UK. They would be able to use the presence of that child even if they were not in fact responsible for caring for the child—who might live somewhere else or with other family members.

Crime: Rape

Debate between Lord Wallace of Tankerness and Lord Woolf

Wednesday 16th June 2010 Lords Chamber

[Lord Woolf]

My Lords, I congratulate the noble and learned Lord on his new office. In the consideration which is being given to this very delicate and difficult issue of rape, will attention be given to the age at which an offender can properly be prosecuted for this offence?

[Lord Wallace of Tankerness]

I thank the noble and learned Lord for his kind remarks. I had much pleasure working with him on your Lordships’ Constitution Committee over the past 18 months. I understand his point and perhaps the implied reference to a recent case. We have indicated that the most immediate issue we are considering relates to anonymity. However, rape is never far away from the consideration of both Houses of Parliament. I have no doubt that the point about age, to which the noble and learned Lord referred, will recur in our debates.