Immigration Bill

Baroness Berridge Excerpts

Tuesday 1st April 2014 Lords Chamber

Moved by

[Baroness Berridge]

10: Clause 15, page 13, line 39, leave out from “unless” to end of line 40 and insert “the Tribunal is satisfied that the matter is within its jurisdiction and there were good reasons for not raising the matter before the Secretary of State”

[Baroness Berridge (Con)]

My Lords, I declare an interest as a trustee of the think tank British Future. I apologise that this my first speech in your Lordships’ House on the Bill although I am a member of the Joint Committee on Human Rights and have been involved in considering this Bill from an early stage. I have been grateful for the comments of my noble and learned colleagues, and I accept that the amendment is not perfect. It was intended to raise this matter in Committee, but unfortunately your Lordships went rather quickly and a time limit was missed.

I thank the Minister for the lengthy and detailed correspondence that he has engaged in with the Joint Committee on Human Rights. As I hope noble Lords will realise, there are important points of principle in Amendment 10. There is no suspicion of the matters that were properly raised by the noble Baroness, Lady Smith. I think all parties share the concern about the difficulties that are faced in deporting foreign criminals, but that is not part of the principled and mature correspondence that has passed between the JCHR and the Government.

This amendment reflects the view of the Joint Committee on Human Rights and provides a more appropriate solution to a problem that it is accepted has arisen in the tribunal. The tribunal hears appeals from immigration decisions made by the Home Office. The Bill in my view breaches a constitutional principle that you cannot be both a party to a case and determine how it is heard. In colloquial terms, you cannot be both the football referee and the captain of one of the teams.

The problem that has arisen in the tribunal is that the law changed in 2002 and introduced the one-stop appeal notice, which meant, sensibly, that the tribunal should deal with all the immigration issues concerning the person before it in one hearing. This has largely prevented the proliferation of appeals from different claims made consecutively by the same person that was bogging down the immigration appeals system.

However, following the statutory instructions to hear everything together, the tribunal has developed the practice of hearing new matters that have arisen, perhaps even on the morning of the hearing, there and then. The new matter is determined by the tribunal without the Secretary of State first having made a decision on it.

I always find it hard to grasp issues in the abstract, and I thank the practitioners who make their living going daily in and out of the First-tier Tribunal for having helped me enormously in the past few days. A typical case might be where a person is appealing a Home Office decision to refuse an asylum case; for instance, because they fear persecution as a Baha’i believer from Iran. However, they come to the hearing with a new wife who is a British citizen, meaning that they now have a Human Rights Act claim in addition to the asylum claim. Sometimes the tribunal will adjourn the asylum appeal to give the Secretary of State an opportunity to make a decision on the new claim for family life, but it may say that as everyone is there, all the evidence is present in court and the appellant has a serious illness it should get on with it and decide the matter there and then.

It is this situation that the Government wish the Bill to change. Section 85(5) will meant that the tribunal must not consider the new matter—the claim to family life—unless the Secretary of State has given consent for it to do so, so a party to the proceedings has to consent to the judge hearing that new matter. The scope of the tribunal’s jurisdiction is dependent on the consent of the respondent to the appeal. If I am counsel in the case, I feel I must turn away from the judge towards my opponent and start making submissions, pleading for consent for the new matter to be raised. That would be a most unusual situation. That was conceded by the Government in a response to a question by the Joint Committee, in which they stated,

“as far as the Home Office is aware there are no other similar provisions in other statutory contexts”.

This would be new law.

--- Later in debate ---

[Lord Wallace of Tankerness]

My Lords, I appreciate the noble Lord’s comments and help, which I know are made with a view to trying to resolve this matter. I assume the noble Lord means that his suggestion would be preferable to judicial review. The withholding of consent by the Secretary of State would, of course, be challengeable by judicial review but one is well aware of the attendant costs of that and a new application and appeal to the tribunal may well be cheaper and, possibly, quicker.

I must make it very clear that I am not giving any undertaking to bring this back at Third Reading, but I do undertake that it is fair and proper to reflect on the comments that have been made. On that basis, I invite my noble friend to withdraw the amendment.

[Baroness Berridge]

My Lords, I thank the mainly noble and learned Lords who have spoken, predominantly in support of the amendment. I am obviously disappointed by the Minister’s response to the concerns which have been properly outlined. He cites that it is a clear question of principle that the principal decision-maker is the Secretary of State, but the overriding interest in this matter is the principle of justice. As in the circumstances that I outlined, a matter may remain before the tribunal solely because a barrister makes every effort to avoid being at the hearing and cannot get hold of the Home Office to get a fresh decision made, and yet the tribunal is not allowed to take that conduct into account at all in determining whether the court can take the new matter—which may be impinged on by illness—into account. In these circumstances, one can only imagine the sense of injustice that will be felt, not only by the appellant but by their legal representatives who have gone to every effort to avoid that situation occurring.

I have listened carefully to my noble friend who says that there is no guarantee about bringing this back at Third Reading but that the Government will reflect on this matter. My knowledge of the Companion is not detailed enough for me to understand whether I am entitled to bring it back at Third Reading to determine the matter because I have never heard that phrase before in my three years in your Lordships’ House.

[Earl Attlee (Con)]

My Lords, it would entitle the noble Baroness to bring it back at Third Reading.

[Baroness Berridge]

I thank my noble friend for his clarification. I also ask the Minister to consider the resources that will have to be put behind presenting officers and barristers, who are often very junior. If consent has to be given on the day of the hearing you are going to have to get hold of the Home Office to get instructions on whether to give consent there and then, otherwise we can have yet another thing clogging up the system. I have tried to be generous to the junior barristers: there is nothing worse than getting the papers at 5 pm the night before and trying to do the best you can for your client.

Finally, I am incredibly disappointed because, as a Conservative, I believe in a small state. I never thought that I would have to defend the state trying to dip its toe into interfering with judicial proceedings. I thank noble Lords for their support but, with the clarification that we can, perhaps, bring this matter back at Third Reading, it is with great regret that I beg leave to withdraw the amendment.

Amendment 10 withdrawn.