Crime and Courts Bill [HL]

Baroness Northover Excerpts

Wednesday 4th July 2012 Lords Chamber

[Baroness Northover]

My Lords, Amendment 149B, tabled by my noble friend Lord Avebury, seeks to remove immigration and nationality appeals from the provisions in Section 13(6) of the Tribunals, Courts and Enforcement Act 2007. Similarly, Amendment 149C seeks to remove a narrower class of appeals—those which relate to the refugee convention or the European Convention on Human Rights—from the provisions in that section. Section 13(6) of the 2007 Act enables the Lord Chancellor to set out, by order, the test which applications have to meet for permission to appeal to the Court of Appeal from the Upper Tribunal. That order-making power has been exercised so that where a party seeks permission to appeal on a point of law against a decision of the Upper Tribunal, the second-tier appeals test will be applied, as noble Lords have said. That test requires that in order to grant permission, the Upper Tribunal or Court of Appeal has to consider that the proposed appeal would raise an important point of principle or practice, or that there is some other compelling reason for the Court of Appeal to hear the appeal.

The Government, like the courts themselves, fully appreciate the gravity of the subject of these appeals. Amendment 149C is concerned with appeals of the most serious kind, where the claim may be that if the appellant is returned home they may face torture or even death. Such cases undoubtedly deserve what has been called anxious scrutiny. In the Government’s view, that is what the system currently provides. At present, if a person makes a claim to asylum in the United Kingdom, for example, and that claim is rejected, he or she can appeal to the First-tier Tribunal. If that tribunal dismisses the appeal, there is a right of appeal to the Upper Tribunal. Alternatively, if the appeal is allowed, the UK Border Agency may appeal to the Upper Tribunal.

Both the First-tier Tribunal and the Upper Tribunal are composed of judges who are experts in this most sensitive of subjects. Therefore, if the Upper Tribunal rejects the appeal, it seems right to the Government that the test to take the matter to a third judicial body should be high. The courts have been clear that there is no case for saying that the UK would be in breach of its international obligations if appeals from the Upper Tribunal are available only in these circumstances. At present, all appeals from the various jurisdictions of the Upper Tribunal to the Court of Appeal are considered under the second-tier appeals test. That same test, under the Access to Justice Act 1999, also applies where there is an appeal against a decision of the High Court and where the latter was acting in its appellate capacity.

The Government believe that the same level of consideration should be given to all types of appeals, even to the sorts of cases with which Amendment 149C is concerned. One reason for this is that not all claims which are made are substantiated when they are put to the test. The second-tier appeals test gives judges appropriate control over the cases that reach the Court of Appeal. Removing this test could cause the Court of Appeal to be inundated with cases that may not justify their consideration. This would cause delays in the provision of justice for the whole range of decisions that are brought to the Court of Appeal and put further pressure on the judicial resources available to that court.

The courts have made a number of important judgments recently that help to clarify the application of the test for cases seeking permission to appeal to the Court of Appeal in the immigration and asylum context. For instance, if a person maintains in their application for permission to appeal that they will be persecuted if they are returned home, that will be a matter which the Upper Tribunal can consider in determining whether the “some other compelling reason” limb of Section 13(6), is met in reference to the second-tier appeals test. If it refuses permission, it is open to the appellant to apply direct to the Court of Appeal for permission.

There is no doubt that the class of cases dealt with by Amendment 149C can be both complex and of the utmost importance. It is our belief that the current structure, including applying the second-tier appeals test in appeals from the Upper Tribunal to the Court of Appeal, is the right one. That was of course the position of those who are now the Opposition when they were in government, as they argued the case then. As we consider that the case is not made out to change the test for the most serious kinds of cases—and as we also heard the other day from the noble and learned Lord, Lord Woolf, in defence of the Upper Tribunal’s track record in what has happened since this was debated a few years back—it follows that we do not accept that that test should be removed for the wider category of cases covered by Amendment 149B. I therefore urge my noble friend to withdraw this amendment.

[Lord Avebury]

I cannot say that I am not disappointed by that reply, because, as I said initially, there have been cases where people at very serious risk of torture have not been allowed to appeal to the Court of Appeal. For example, in the case that I mentioned of PR (Sri Lanka), the individual had been tortured in Sri Lanka and that was acknowledged by the courts but not deemed to be sufficient reason for the second-tier appeal test to have been satisfied. There have been conflicting decisions by the courts on the second-tier appeal. The only safe thing would be to ensure that where considerations of human rights are involved, as they were in the case of PR, the right of appeal to the Upper Court should be retained and the second-tier appeal test should be modified in the manner that I suggested. However, since my noble friend has suggested that we defer this matter until Report—

[Baroness Northover]

Perhaps I might point out to my noble friend that it is not the case that the second-tier appeals test does not allow for materially wrong decisions to be challenged by the Court of Appeal and that in the JD (Congo) case, three of the four appellants seeking permission were granted it. The immigration and asylum chambers of the First-tier Tribunal and the Upper Tribunal have been set up specifically to deal with these kinds of matters. My noble friend mentioned the complexity and sensitivity of these kinds of cases, and I should have answered by addressing that point.

[Lord Avebury]

I mentioned the case of JD (Congo) in my first speech—I have it in front of me—and I accept that in that case, the second-tier appeals test was found to have been met. However, there are other cases in which the circumstances were equally compelling and where that test has not been met. It was in the hope that we would clear up that ambiguity in how the second-tier appeals test is interpreted that I tabled my amendment. As I was about to say, we will have to reflect on this and perhaps come back to it on Report. Meanwhile, I beg leave to withdraw the amendment.