Baroness Smith of Basildon
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Crime and Courts Bill [HL]
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Baroness Smith of Basildon
My Lords, I will speak to our Amendments 148AA and 155EA. These are probing amendments into what I think are very serious issues. The Minister will recall that I raised concerns about these matters at Second Reading. I listened with great care to what the noble Lord, Lord Avebury, had to say, and I fear I may duplicate some of his comments, but only where they are worth duplicating and I think it useful to your Lordships’ House.
Our amendments would delay the commencement of Clause 24 until the Independent Chief Inspector of Borders and Immigration has completed a report on entry clearance decision-making within the UK Border Agency for family visit visas, which retain the right of appeal. The Minister will recall that I drew some comparisons at Second Reading with the issues that had arisen where the right of appeal had already changed in other visa applications.
It is worth rehearsing some of the difficulties, delays and problems that we have seen with initial decision-making in family visitor visa decisions. In 2010-11, 38% of the appeals against family visitor visa decisions were successful—over a third of the decisions were overturned on appeal. The noble Lord previously said that that was because in many cases people had provided wrong information. I will come on to that point but I do not think it is relevant in many cases. This seems to be a systemic problem and the Government cannot address the problem of inaccurate and wrong decisions being made by trying to change the rules. By removing the right of appeal, you cannot sweep under the carpet the fact that so many decisions have been appealed successfully.
Family visitor visas are an important way for many British communities to preserve family and cultural links with other countries. The kinds of applications we are talking about are for family members to attend family occasions such as weddings and birthdays; there can be urgent cases, many with a compassionate element, such as needing a visa to visit a sick relative or even attend a funeral. These are not the kind of people who are going to bring vexatious appeals against the Government. Appeals are brought in these cases to right a wrong, to overturn a wrong decision.
It is worth listening to what the Independent Chief Inspector of Borders and Immigration has said on this issue. In 2011 he reported that in 33% of cases he reviewed, the entry clearance officer had not properly considered the evidence that was submitted. Why should that 33% of people who have not had their applications properly considered be forced to resubmit an application because of chronic administrative errors within the UK Border Agency? It is penalising those who have been refused through no fault of their own but through poor decision-making.
As I mentioned earlier, the Government argued that,
“63% of appeals are lost entirely because of new evidence introduced at the appeal stage”.
That comment was made by the Immigration Minister, Damian Green, when he gave evidence to the Home Affairs Select Committee. I again look back at what John Vine, the chief inspector, noted in his report: in the 16% of cases reviewed, applications had been refused on the basis of a failure to provide information of which the applicant could not have been aware at the time of making their application.
It is true that in many cases, submitting a new application is quicker than appealing a decision, but the Government have failed to address the fact that, when a decision is appealed it allows, particularly in those highly urgent and exceptional cases, Members of Parliament and advocates to intervene directly with the Home Office on their behalf and expedite decisions. If they do not know, or are not aware, as the noble Lord, Lord Avebury, said, what information is required before submitting the application, that is a poor reason for the Government to change the rules. The wrong information was submitted, and it should be very clear to applicants what that information should be.
When a wrong decision has been made, it is a matter of integrity that it should be addressed. The UK Border Agency should also consider when decisions have been wrongly made and address the problems within the organisation that has allowed that to happen. To remove appeal rights of applicants who have been wrongly refused because of Home Office errors is unfair. It also leaves applicants with no indication of how they should amend their application the second time around, and the possibility that the same errors or omissions could continue to be made. It also neglects the added burden of cost that many applicants face. The cost of an appeal is roughly the same as an application but the costs of making an application go beyond the fee. I am sure that the Minister and other noble Lords will be aware that family members travel hundreds of miles and cross borders to submit in person an application and the documents required. It is significant that when refusals are made on the basis of an allegation that an individual has made a false statement in the application, it can result in that individual being refused entry for up to 10 years. If there is no right of appeal it leaves no way to address the issue. Making another application cannot undo the fact that the individual has been banned for the next 10 years. That is a significant failing in the clause as it stands, particularly when we see how many errors are made in decision-making.
Most importantly, removing the full appeal rights removes pressure on the Home Office to improve the situation. We want a reduction in errors in decision-making. It is bad for the Home Office, and it is certainly bad for the applicant. I raised in a Question in your Lordship’s House not that long ago the report from Sir John Vine: A Comparative Inspection of the UK Border Agency Visa Sections that Process Applications Submitted in Africa. He looked at four areas. There was some good news and some improvements, but I found it fairly shocking. The most difficult part was when he said:
“Despite my making recommendations in previous inspections to help the Agency improve, I found that little progress had been made in a number of areas. This is especially frustrating considering the Agency has accepted the recommendations and yet I continue to identify the same issues”.
How frustrating is that for the chief inspector of the UK Borders Agency whose sole purpose is to want the agency to improve its decision-making? Yet, he is making the same recommendations; the agency agreed those recommendations and that there should be a plan to address the issues. He then has to make the same recommendations the next year and the year after that. He then said:
“In summary, I found performance varied significantly across the four posts inspected in the Africa region. I was disappointed to still find a clear need for improvement in the quality and consistency of decision making. I have made 12 recommendations, a number of which I have made before, in previous reports”.
It is very difficult to understand why this kind of measure is being brought in when we know that the decision-making is inadequate and not up to scratch.
There is another, slightly different side to this. Something caught my eye earlier today concerning the failings in visa controls and considerations. It was about not family visas but other visas. Mr Vine’s inquiry looked at 100 visa applications from Pakistani nationals and found that there were cases where entry was granted when it should not have been and cases where it was not granted where it should have been. Both are equally wrong and I am sure that that is an issue that the Minister wants to address.
I find it very difficult to understand why the Government want to remove the right of appeal for family visit visas when they know that the decision-making is inadequate, that many mistakes are made and that the consequences for those individuals are severe. The amendments that we are dealing with today are intended to find out how the Government intend to improve entry clearance decision-making within the UKBA and ensure that individuals are not unfairly penalised because of systemic failures if their full right of appeal is taken away. As things stand at the moment, significant harm is being caused to those individuals because of the quality of the decision-making.
Baroness Hamwee
My Lords, I do not want to repeat absolutely everything that the noble Baroness and my noble friend have said, but I am afraid that there will be a little repetition and I hope your Lordships will understand that it goes to emphasise the seriousness of the points being made. Both previous speakers referred to the knock-on effect on future applications of clearance being refused, with the applicant’s integrity being impugned in the reasons for refusal. I think that we should take that very seriously.
There have been many complaints about the lack of clarity regarding what is required at the application stage, with the real reason for refusal not being revealed until the appeal hearing. If that is the case—and I have no reason to doubt what we are hearing—it is bound to lead to additional evidence being presented. That is a simple consequence and not something for which we should be criticising applicants. Are there no mechanisms for additional information, or for clarification of information, to be requested without an application being rejected? It seems common sense that the mechanisms should allow for some simple process of that sort.
Like other noble Lords, I am keen to know whether the Government have confidence in the internal review process. Regarding confidence, the noble Baroness asked whether improvements will be made. I would add: are the Government confident that improvements have been made since the chief inspector’s review in December? Unless they have, we are presented with a difficulty regarding this proposal. I simply conclude by saying that it is quite clear that there is a problem, and it is quite clear to at least three speakers that this is not the solution to the problem.
Lord Henley
My Lords, I am reminded that the figure I quoted originally was £107 million, so we are talking about a difference of £5 million between myself and my noble friend, which is real money. However, I still promise to write to my noble friend on these matters and to try to bring her greater clarity.
Baroness Smith of Basildon
My Lords, I appreciate that the Minister seeks to reassure me and I wish that he could. However, unfortunately, he has not. There are a number of issues. If, as he points out, it would be quicker, cheaper and easier for everybody concerned—the Government and all the applicants—for there to be no appeals process, why does everybody not welcome this with open arms?
As I pointed out in my earlier comments and as was pointed out by the noble Lord, Lord Avebury, and the noble Baroness, Lady Hamwee, it would be quicker, cheaper and less onerous if so many wrong decisions were not made in the first place. I imagine that those appeals that were not upheld were much easier decisions to make if the application was turned down and the appeal rejected. I am very concerned about those where a wrong decision is made and the appeal is successful because of the wrong decision. I know the noble Lord says that in many cases it is because new information is provided, but it would be very simple to make it absolutely clear what information is required in the first place. That would make the whole application process much quicker and more efficient.
The other problem with making new applications is that there is no opportunity for advocacy or for people to make representations on an applicant’s behalf. I made the point earlier that if somebody is refused and the decision-maker says that they gave inaccurate or wrong information, they can be barred for 10 years. The Minister says they can apply next year and the year after, but in those circumstances they will not be able to apply for 10 years. Even though the decision may be based on inaccurate information, and the person who has been refused a family visitor visa has been told the information they gave was wrong and misleading, there is no opportunity to appeal that and they cannot make another application for 10 years. That seems to be a gap in the noble Lord’s reasoning.
I wonder whether he is dealing with this problem from the wrong end. If we deal with improving the quality of decision-making, in some cases by making it easier, and so more straightforward, for applicants to know what is required of them, we would see this logjam that he talks about removed. To try to deal with the logjam by merely removing the right to appeal does not seem to me to be the right way round.
I was surprised that he drew any comfort from the chief inspector’s report. I think that it is quite damning. Basically, he says, “I make these recommendations, people accept them, but it does not get any better”. Before the Government take an action such as this, they should seek significant changes and improvements in decision-making. I do not lay it all at the door of poor decision-making. However, he tells me that every decision is reviewed by a senior manager, so clearly something is wrong when so many appeals succeed despite that. Something in the process is going badly wrong.
I will not press my amendment today. I am grateful to the Minister for pointing out the deficiencies in my drafting but, despite his very brave attempts, I am not really reassured.
Lord Henley
My Lords, before my noble kinsman decides what to do with his amendment—obviously, it is his decision—I want to pick up one point. The noble Baroness says that an awful lot of appeals are the result of wrong decisions. I accept that some are the result of wrong decisions, but as she would accept, an awful lot are the result of the wrong information coming forward, and that is something far better dealt with by means of a new application. Obviously, we might have to look at how to ensure that people get the right information into their original application so that the correct decision can be made. That is a matter of making sure that we have the right procedures in place and I will certainly be prepared to look at that. However, I do not think that she should imply that all the problems are down to bad decision-making; an awful lot are the result of new information coming forward. That is why there are so many appeals.
Baroness Smith of Basildon
If the noble Lord reads Hansard and looks at my previous comments and at what I have just said, he will find that I acknowledge that sometimes a wrong decision is made because the right information is not supplied. Indeed, I quoted the chief inspector as saying that in 16% of the cases reviewed, applications had been refused on the basis of a failure to provide information, but the applicant was not aware of what information was required. I acknowledge that important point. If the Minister were to take that back to the UK Borders Agency and act on it, that would be an extremely positive step, so that all applicants are made fully aware at the time of application what information is required.
Lord Hussain
My Lords, may I raise one question? I live in a community where a lot of migration takes place and I can quote examples. However, I need some clarification from the Minister. On more than one occasion, applications from family visitors, who have visited Britain more than once, have been refused even though they have complied with the law and have done nothing against the law. They say, “Yes, we accept that the applicant has been to Britain in the past and that they have not broken any law, but things have changed and, on the balance of probabilities, we believe that they will not go back”. I wonder what sort of new information they will supply if they resubmit their application. The only answer I can see is a right of appeal, so that they can prove that they can fulfil all the requirements and guarantees needed to show that they will go back, as they have done in the past.
Baroness Smith of Basildon
My Lords, I, too, was sent a brief with the same information by the Immigration Law Practitioners’ Association, which briefed the noble Lord, Lord Avebury, on his amendments. There is a case here that is of interest. There is not much that I can add to what the noble Lord has said but I am interested to hear the Minister’s response, particularly to Amendment 148C. I am concerned about the arrangements for young people and children, particularly those aged under 16. My only comment is that I am willing to listen to the noble Lord’s response to those amendments.
Lord Henley
My Lords, I will deal with the amendments in the same order as my noble kinsman did. Amendment 148C would create a right of appeal whenever someone is refused asylum but is granted any form of leave. It would also have the effect of providing for multiple rights of appeal against the refusal of asylum for a group of cases where no right currently exists, as there will be a right of appeal every time a fresh grant of leave is given. That is possibly an undesirable position.
The original purpose of Section 83 of the Nationality, Immigration and Asylum Act 2002, which, again, the noble Baroness will well remember, was to provide a right of appeal where an asylum application has been refused but the applicant was granted more than 12 months’ leave. Normally when a claim for asylum is refused, there is a right of appeal against the subsequent removal from the UK rather than against the refusal of asylum itself. The appellant can raise asylum grounds as part of that appeal against his removal. However, where someone has been refused asylum but granted leave of less than 12 months, removal directions will not be set and therefore no appeal right arises. In these cases, the short duration of the leave necessarily means that the case will be considered again quickly, reducing the need for an appeal. Where there are no grounds to grant asylum but there are other valid reasons why someone cannot return to their home country, another form of immigration leave is sometimes granted. If leave is granted for more than 12 months, Section 83 of the 2002 Act provides for a right of appeal against the refusal of asylum.
Amendment 148C would remove the 12-month restriction and would create a right of appeal against the refusal of asylum, even where a short period of leave is granted. It is not unusual for these short periods of leave to be extended more than once, and recent case law means that the amendment would create a right of appeal against the earlier refusal of asylum every time further leave was granted. If a decision to remove the applicant from the UK was ultimately taken, a separate right of appeal would arise against that decision. The amendment would possibly undermine the intention of the existing asylum appeals framework, which aims to prevent multiple, fruitless appeals being used to prolong someone’s time in the United Kingdom, often at significant cost to the taxpayer.
My noble kinsman and the noble Baroness asked about the impact on children, particularly unaccompanied children, who are refused asylum. They are normally granted leave until they reach the age of 17 and a half. The 12-month restriction therefore means that some unaccompanied children will be refused asylum and granted less than 12 months’ leave, which means that they do not get an appeal right under Section 83 of the 2002 Act. Those children may not have their asylum considered by a court for more than a year after they first claimed asylum. That is an unfortunate consequence of the otherwise very sensible 12-month restriction, and I can assure my noble kinsman that we will review our policies concerning the length of leave granted to children to ensure that there are no unintended consequences of the sort that he and the noble Baroness implied.
Amendment 148D concerns the Secretary of State’s powers to certify, under Section 94(7) of the Nationality, Immigration and Asylum Act 2002, that removing a person to a safe third country will not breach his or her human rights. The effect of the certificate in such cases is that an appeal can be brought out of country only after that person has been removed. This provision is designed to prevent spurious appeals being used to delay removal in hopeless cases. When determining whether such persons may be removed, the third country must be a place from which the person will not be sent to another country other than in accordance with the refugee convention; we want to make that clear. If the certificate is challenged by judicial review, the court is required to regard the third country as one where the person’s rights under the refugee convention will not be breached. I believe, therefore, that Amendment 148D is unnecessary because the courts are already able to consider whether the person’s human rights may be breached by way of judicial review challenging the issue of that certificate. Once the person has been removed to the third country, an appeal may be brought and refugee convention issues can be considered. In light of that assurance, I hope that my noble friend will feel able to withdraw his amendments.
Lord Avebury
My Lords, under Sections 96 to 99 of the Nationality, Immigration and Asylum Act 2002, the Secretary of State may issue a certificate causing a properly initiated and extant appeal before the First-tier Tribunal, Immigration and Asylum Chamber, or onward appeal against a decision of that chamber, to be summarily terminated. The cases dealt with in Sections 97 and 98 concern matters of national security or certain cases where the Secretary of State has certified that a person’s presence in the UK is, or would not be, conducive to the public good, and these amendments do not affect those provisions.
Section 96(1) and (2) concern situations where the Secretary of State asserts that the subject matter a person now relies upon could and should have been raised in previous appeal proceedings. However, the Secretary of State’s opportunity to make such an assertion and issue a certificate to exclude a right of appeal to the First-tier Tribunal is when she is making her decision in relation to the subject matter, not after she has rejected it and an appeal initiated. Indeed, Section 96 expressly recognises this. Section 96(7) states:
“A certificate under subsection (1) or (2) shall have no effect in relation to an appeal instituted before the certificate is issued”.
Section 99 was commenced on 1 April 2003 by the Nationality, Immigration and Asylum Act (Commencement No. 4) Order. Section 96, however, was later revised and Section 96(7) inserted on 1 October 2004 by the Asylum and Immigration (Treatment of Claimants, etc.) Act 2004 (Commencement No. 1) Order 2004. However, when this revision was made, Section 99 was not amended so as to reflect the change introduced under the 2004 Act. The ineffective and erroneous part of Section 99, which the amendment seeks to remove, is another example highlighting the degree of complexity in the statutory immigration appeals provisions. I beg to move.
Baroness Smith of Basildon
My Lords, I can be very brief on this, as the noble Lord, Lord Avebury, explained his amendment in great detail. My understanding from the briefing that I received is that this proposal would be a modest tidying and simplification of what the Immigration Law Practitioners’ Association said was a highly complex statutory appeals process. On that basis, it appears to be a tidying-up amendment, but it would be helpful to know whether the Minister shares that view or whether he believes that it represents a significant change. My legal knowledge is not great enough, but I would like to hear the other side of it, and if it is just a simplification and tidying-up I hope that the Government would agree to it.
Baroness Smith of Basildon
My Lords, I have a copy of the briefing that was sent to the noble Lord, Lord Avebury, and I have had the opportunity to read through what is quite a lengthy and complex explanation as he has been speaking, which has been helpful. Therefore, I do not want to repeat the arguments that he has made.
I do have some questions, although I do not know whether the noble Lord will be able to respond. I suspect that the noble Lord, Lord Avebury, will withdraw his amendment, possibly bringing it back on Report depending on the Minister’s answer. However, I have a few questions, as I am uncertain about some of the provisions in the clause and in the amendment, and it would be helpful if the noble Lord could address them. I am quite happy to have the response in writing.
From the briefing—I am sure I am not the only Member of the Committee to have received the same briefing on the amendments of the noble Lord, Lord Avebury—there is an implication regarding the circumstances under which somebody’s leave to remain will be cancelled while they are out of the country. I should be interested to hear from the Minister the criteria for cancelling somebody’s leave to remain while they are out of the country. Is this purely an administrative decision or, as is implied, is it almost the case that the Home Secretary is lying in wait, wanting to cancel leave to remain and waiting until a person leaves the country before doing so? It would be helpful to have some information on that. What proportion of cancelled leave to remain is taken when somebody is out of the country, as opposed to somebody being in-country?
Finally—we have had a very full explanation of the amendments—the legislation refers to the decision on removing the right to remain as being,
“taken wholly or partly on the ground that it is no longer conducive to the public good”,
for the person to have that leave. Is there a definition of “public good”? Is there a definition of when there is no longer that public good and the leave to remain is withdrawn? My concerns are about people being treated fairly and that there is no presumption that, because somebody leaves the country—well, I will come back to that. However, there must not be many of these cases. It would be interesting to know what proportion of cancelled leave to remain relates to people out of the country as opposed to people who are in-country.
Lord Judd
My Lords, the noble Lord, Lord Avebury, is absolutely right to put down the amendment. I am glad he drew attention to the comments by UNHCR, because UNHCR has immense responsibilities on behalf of the international community and its very serious considerations are sometimes treated too lightly.
Wrapped up in this issue is something on which I dwelt at Second Reading: concern about the division between what I would call administrative law and a real search for justice. In the fraught area of migration in general and the more difficult areas of asylum and the rest in particular, where all kinds of pressures and real dangers operate for the people concerned, it is most important to be certain that the balance remains on the side of justice. I would be grateful for the Minister’s considered view on whether this priority for justice—as distinct from a self-evident rationalisation of what may be convenient within political circles—can be pursued. The individual concerned is much more vulnerable when they are abroad. As the noble Lord has said, it is much more complex, challenging and difficult to mount an appeal from abroad. Can we really ensure that justice prevails if we have this provision? Should someone who has a right to appeal not have the right to pursue it here, where they can put their case fully before the courts and be tested in depth by them on their position and where there is an opportunity for others who may have a perspective on a case to bring their views and judgments into the deliberations that are taking place?
I hope the Minister will forgive me for saying that I am profoundly worried about this and would like his assurance that he is equally worried and is looking to make sure that, in this area, it is justice and not administrative convenience—whatever the apparent logical reasons for this administrative convenience—that has pride of place.
Lord Avebury
My Lords, in moving Amendment 149B, I shall also discuss Amendment 149C. These are alternative amendments reducing the impact of the additional and highly restrictive requirement to show an important point of principle or practice, or some other compelling reason, in immigration and nationality appeals from the Upper Tribunal to the Court of Appeal. This additional requirement is referred to as the “second-tier appeals test”. The second of the two alternatives I have tabled is narrower, removing this test in asylum and human rights appeals but not other immigration appeals.
The second-tier appeals test was introduced by Section 13(6) of the Tribunals, Courts and Enforcement Act 2007 for certain appeals from the Upper Tribunal to the Court of Appeal. During the passage of the Borders, Citizenship and Immigration Bill in 2009, your Lordships voted through amendments to prevent the test applying to immigration and nationality appeals. This amendment derives from the wording of the amendment originally tabled by my noble friend Lord Lester of Herne Hill, QC, the noble Lord, Lord Pannick, QC, and the noble and learned Lord, Lord Lloyd of Berwick, and subsequently adopted by my noble friend Lord Thomas of Gresford and the late Lord Kingsland as part of a wider amendment concerning the Upper Tribunal. The Joint Committee on Human Rights had concurred with the legal opinion of Sir Richard Buxton, a recently retired Lord Justice of Appeal in the Court of Appeal, that the introduction of such restrictions might not be compatible with the UK’s international obligations.
The same considerations apply now as they did then, and there is a new factor. The increased rotation of judges under the Crime and Courts Bill will mean that there are more judges in the Upper Tribunal who are not immersed in these cases making asylum and immigration decisions, and they will be without the supervision of the Court of Appeal if the clause is unamended. At the moment, we continue to see the higher courts engaged on these issues. There are some poor tribunal decisions but, to be fair, this is an incredibly complex, difficult and fast-moving area of the law. The tribunal judges sitting from time to time in the immigration and asylum chambers of the tribunal may be excellent tribunal judges. However, they are not infallible, and the effect of the LASPO Act 2012, whether directly, in immigration, or indirectly, in asylum, will be that more appellants are unrepresented.
Among the concerns expressed in 2009 was the impact of the second-tier appeals test in potentially excluding appeals to the Court of Appeal where the individuals faced removal in breach of the refugee convention and their human rights as a result of errors of law by the tribunal. Ministers gave assurances in both Houses that these sorts of cases would be the ones that could be expected to meet the test. Phil Woolas said,
“the test would not stop cases that raise important issues concerning human rights or asylum being granted permission to appeal to the Court of Appeal”.—[Official Report, Commons, 14/7/09; col. 210.]
There were other soothing comments, of which I will cite only one, made by the current Immigration Minister, Damian Green, who said:
“The widespread feeling is that Home Office failings must not be compensated for by a lessening of appeal rights in those complex cases that involve human rights issues or constitutional principles, and that the inadequate handling of judicial reviews by an untested tribunal risks increasing the work load of the supervising court, the Court of Appeal, and reducing supervision at the Home Office”.—[Official Report, Commons, 14/07/09; col. 212.]
Those assurances have proved to be ephemeral following the judgment of the Court of Appeal in the case of PR (Sri Lanka). The Court of Appeal considered the ministerial assurances given in 2009, concluding that,
“it would be wrong in principle”,
to be constrained by those assurances and, in applying the second-tier appeals test, refused permission to appeal in each of the three asylum cases before the court. In one of those cases the appellant had been detained and tortured in Sri Lanka. Applying the test, the Court of Appeal concluded:
“The claimed risks are, unhappily, in no way exceptional in this jurisdiction, and not in themselves such as to require the attention of the Court of Appeal”.
In another of the three cases, the judge identified an error of law in the failure of the tribunals below to correctly apply country guidance in respect of Zimbabwe asylum claims, but concluded that the test none the less precluded any appeal to the court. In the last of the three cases, Lord Justice Pitchford found the reasoning of the tribunals below to be, “obscure and contradictory” and such as to give rise to a real prospect of success on the appeal if permission had been granted.
In the case of JD (Congo), however, the Court of Appeal granted JD permission to appeal on the basis that there was an error of law in the Upper Tribunal’s conclusion that the First-tier Tribunal had erred in law, but the UT’s criticisms of the FTT’s decision amount to no more than a disagreement as to the proportionality of removal. The consequences of removal for JD and his partner were acknowledged to be very severe.
Taken together, these two judgments show that asylum and other human rights cases are neither exempt from the test, nor grounds in themselves to meet the test. That an error could lead to a person being returned to a country where he or she may be tortured will not necessarily mean that the test is met, as in the case of PR (Sri Lanka).
There are other significant conclusions to be drawn from these cases, as the Immigration Law Practitioners’ Association emphasised in its briefing for your Lordships on these amendments. I hope that my noble kinsman has had an opportunity of considering them carefully in making up his mind as to how to respond this afternoon.
In conclusion, leaving aside all the complexities of the second-tier appeals test, which have preoccupied the Court of Appeal, it has been shown that without Amendment 149B, or at least Amendment 149C, we shall be in breach of our obligations under both the refugee convention and the ECHR and that we have been warned by no less an authority than the UNHCR itself. I beg to move.
Baroness Smith of Basildon
My Lords, we are again grateful to the noble Lord, Lord Avebury, for the detail with which he explained his amendment. I think that these are amendments drafted by the Immigration Law Practitioners’ Association. As I understand the noble Lord, they are alternative amendments. The first removes the requirement to show an important point of principle or practice, or some other compelling reason, in immigration and nationality appeals from the Upper Tribunal to the Court of Appeal: that is known as the second-tier appeals test. The second, if I understand it correctly, is a lesser amendment and would apply to all immigration and nationality appeals concerning asylum and human rights. The noble Lord indicates that I do understand correctly.
The noble Lord referred to the impact the second-tier appeals test has had and I would like to hear the response of the noble Baroness, Lady Northover. There were some serious points raised by the noble Lord, Lord Avebury. If the Government are opposing the amendment, we need to understand their case for doing so, including their views on the impact this would have if implemented and the reasons and evidence used to justify holding those views. It would be helpful to hear from the noble Baroness. The noble Lord, Lord Avebury, has made a detailed and interesting case and there must be some justification if the Government are not going to accept the amendments.
Baroness Smith of Basildon
My Lords, in the clause that my amendment seeks to address the Government are proposing to extend vastly the powers of the UK Border Agency’s customs and immigration officers. I do not necessarily oppose this in principle. We have to understand the very challenging nature of the work undertaken by border control. The nature of international and global threats is constantly changing and we have to pay tribute to the immigration officers. They have a difficult job, they work in a challenging environment, and they have suffered cuts to their numbers in the last couple of years. However, we need to look at two things.
First, such an extension of powers would need to be properly justified and explained to your Lordships’ House. Secondly, we need to ensure that those exercising those powers have the necessary skills, rank, and remit, in order to ensure public confidence in the UK Border Agency as well as confidence within it. Also, is it up to it? I do not in any way mean the individual border officers, but rather whether they have the resources, training and capacity to undertake those roles.
Clause 26 extends a number of powers to immigration officers, both under the Regulation of Investigatory Powers Act and the Proceeds of Crime Act. Those powers are significant: the power to authorise the use of covert surveillance—“intrusive surveillance”, according to the Bill—and property interference such as wiretapping and installation of listening devices, as well as powers to authorise confiscation and detained cash and money-laundering investigations. These are serious new powers to give to immigration officers. They are currently only authorised by senior officers, and they are exercised by experienced and specialised professionals. Our amendments seek to ensure that if those powers are to be extended to immigration officers, they will be exercised with the same level of expertise and seniority.
When I first looked at the Bill it seemed to contain very wide-ranging powers, and there is a case for the Government to justify those. However, I looked at the Explanatory Notes, and the amendments seek to put on the face of the Bill what is in them. The Explanatory Notes are very helpful in this regard, because they make clear—I refer to page 64 and paragraph 380 in particular—that the intrusive surveillance available under RIPA should only be extended to officers working within the criminal and financial investigation teams. The paragraph says:
“The purpose of this amendment”—
which we are talking about, and which is in the clause—
“is to provide for immigration officers working in Criminal and Financial Investigation (‘CFI’) teams in the UK Border Agency … to be able to apply to exercise property interference powers equivalent to those already used by customs officials”.
It cites the Act and legislation under which they can use them, and states that:
“CFI teams have responsibility for investigating smuggling of drugs, firearms and weapons and organised immigration and customs crimes”.
If, as I understand from the Explanatory Notes, the Government intend these powers to be used only in the specific context of criminal and financial investigation by immigration officers, then it would be helpful to state that in the Bill and be very clear about it, rather than allowing the scope—as seems to be the case at the moment in this clause—for any immigration officer to exercise those powers. I am concerned about whether training and support could be available to all immigration officers, and whether it would be for all staff or only for those above a certain rank. That gives me some cause for concern, because if all immigration officers had that power, there is then the understanding that any immigration officer could exercise that power, even without the training or the appropriate rank or experience. What is in the Explanatory Notes is therefore better than what is in the Bill, though that may be an oversight in drafting.
Amendments 149CB and 153B, which follow Amendment 149CA, are intended to probe the Government’s justification for these highly specialised powers. These probing amendments remove Clause 26(4) and (5) and paragraphs 14 to 39 of Schedule 14, which extend to the UK Border Agency’s chief operating officer the ability to authorise immigration officers’ powers of investigation into confiscation, detained cash and money-laundering under the Proceeds of Crime Act. At present, the only individuals who can exercise those powers are accredited financial investigators, police constables or Customs officials, and in the case of confiscation investigations only SOCA officers—although SOCA has now been absorbed into the National Crime Agency. Notwithstanding police constables, all these individuals work within the specific field of serious financial and economic crime. I assume that once the National Crime Agency is up and running and fully established, it will have responsibility for those crimes.
The Government need to explain and justify for what purposes immigration officers also need such powers. What will be the relationship between the immigration officers who have this power and the National Crime Agency? Earlier clauses in the Bill refer to the relationship between the National Crime Agency and local police forces, and the powers of notification. If immigration officers are given new powers, there should be the same kind of co-operation and information-sharing between immigration officers, who have such powers, and the National Crime Agency, otherwise there will be a gap to fall through; both groups could end up investigating similar crimes or there could be an overlap of crimes. It would be helpful if the Government could clearly explain for what purposes immigration officers need these powers, and why, with the existing powers they have, there could not be co-operation with the National Crime Agency.
Paragraph 381 in the Explanatory Notes says that:
“At present, the UKBA is able to authorise applications from immigration officers investigating serious organised immigration for directed surveillance and Covert Human Intelligence Sources … and the ‘senior authorising officer’ can authorise applications for intrusive surveillance”.
However, this amendment takes it one stage further, so there needs to be a little more justification and understanding. I can understand the issue around the crimes, but I am not clear why any immigration officer could have those powers—which appears to be the case in the Bill, though perhaps not in the Explanatory Notes. Why is it not sufficient to extend the powers of current specialised officers, or to work with them and the National Crime Agency? I would also be interested in some information on the training that would be given to the specialised officers. Would there originally have been any expectation that they should have any specialised skills, or would it have been something that any immigration officer could take on if they had had the appropriate training?
Finally, does the UK Border Agency have the capacity to take on this role? The following amendment, in the name of the noble Lord, Lord Berkeley, which we will discuss shortly, covers a number of issues including queues at Heathrow, where we have seen enormous pressures put on the staff. Given the current wording of the Bill, and in particular that it would seem to apply to any immigration officer, I worry about giving very wide-ranging additional powers and responsibilities to a border agency that, as we heard earlier, is struggling to maintain its current responsibilities. It has had to draft in officers from the Ministry of Defence and civil servants from other parts of the Government. I want an assurance that anybody drafted in on a temporary basis—to help out with extended queues at Heathrow, for example—would not be given the powers of entry and surveillance as outlined in the Bill.
It would be helpful if the Minister could give some answers to those questions. The new powers given to the UK Border Agency are very extensive, and it would be interesting to know the Minister’s justification of them, and how he imagines that they will operate.
Lord Henley
My Lords, I am grateful to the noble Baroness for setting out what she is trying to do in these amendments, which I take it are merely probing amendments, as I believe she said. I am also grateful that she paid tribute to the very difficult job that immigration officers do. However, she probably used rather unfortunate language when she asked whether they were quite up to it, although she qualified what she meant by that. She then said that she thought that the Explanatory Notes were possibly better than the Bill itself. Sadly, we do not have legislation by Explanatory Note. However, I am always more than happy to look again at the wording of individual clauses, should it be necessary. Again, as always, we have any amount of time to deal with these matters between now and Report and the further stages as this Bill proceeds through Parliament.
Put very simply, the noble Baroness is asking what Clause 26 is about and why we think it is necessary. The proposed extension of powers is saying that it is necessary for the United Kingdom Border Agency to have extra powers to respond robustly to serious and organised crime. Customs officials within the UK Border Agency are already entitled to apply for intrusive surveillance under RIPA and for property interference under the Police Act for the purpose of investigating customs offences. This clause will rightly extend these powers to immigration officers for the purpose of investigating serious and organised crime.
I turn to the amendments and, in doing so, I hope that I will answer some of the points. I suspect that the noble Baroness has not quite got the wording of the amendments right because Amendment 149CA achieves the opposite effect to the one she wants. It would require the authorising officer, who is responsible for authorising applications to interfere with property under Section 93 of the Police Act 1997, to be a senior official who is working within a criminal and financial investigation team of the UK Border Agency. Although I suspect it may not have been the intention of the noble Baroness, the effect of this amendment would be to restrict and potentially lower the grade of the authorising officer.
Clause 26(1) already limits the role of the authorising officer to a senior official within the meaning of RIPA who has been designated for that purpose by the Secretary of State—that is, the Home Secretary. Within the police, the relevant rank for an authorising officer would be a chief constable. Under the UK Border Agency’s structure, this would be the current director of operations and deputy chief executive. No one working in the criminal and financial investigation teams would be senior enough to equate to that grade. I am sure that the Committee and the noble Baroness share our view that an authorisation to interfere with property should not be approved by anyone less senior than that level. I should also note that the director of operations and deputy chief executive of the UK Border Agency already effectively authorises applications under Section 93 of the Police Act 1997 with regard to customs investigations.
I appreciate that this is a probing amendment but, in short, it would weaken rather than tighten the controls on the exercise of these intrusive powers under Part 3 of the Police Act 1997. All that said, the noble Baroness made it clear that she is seeking to give effect to our commitment that we will limit the exercise of these intrusive powers—that is why she wanted to know why we are seeking extra powers—to specially trained immigration officers in the UK Border Agency’s criminal and financial investigation teams. We do not, however, consider it appropriate to include such an express provision in the Bill given the existing safeguards in the Police Act 1997 and the Regulation of Investigatory Powers Act 2000. We do not have such specificity for customs officials, and the aim is to provide parity for immigration officers.
As the noble Baroness will be aware, Section 28 of RIPA provides that for a senior authorising officer to grant an authorisation for the carrying out of intrusive surveillance, they must ensure that the activity is proportionate and necessary for preventing or detecting serious crime or in the interests of national security or in the interests of the economic well-being of the United Kingdom. The Police Act 1997 also imposes similarly strict controls over the authorisation of property interference.
I appreciate that Amendments 149CB and 153B are probing amendments. They would remove the powers sought for immigration officers in relation to the Proceeds of Crime Act 2002. These powers have been sought for good reason in an attempt to improve the effectiveness of the UK Border Agency’s investigatory capability. Providing access to the relevant Proceeds of Crime Act powers will ensure that the UK Border Agency’s immigration officers are able to play their part in dealing with the proceeds of organised immigration crime.
Moreover, these provisions will place immigration officers on the same footing as their police and customs counterparts and reduce their reliance on outside bodies such as the police. At present, only the UK Border Agency’s customs officials are able to use the full range of Proceeds of Crime Act powers and even then only in relation to customs offences. Immigration officers presently have to rely on the very few accredited financial investigators within the UK Border Agency or on seconded police officers to conduct those investigations. This is clearly a weakness in the UK Border Agency’s ability to fight organised immigration crime. The Bill ultimately ensures that the UK Border Agency can take action to deal with the proceeds of all the criminal offences in its remit, whether commodity smuggling or serious immigration and nationality crime.
The noble Baroness sought an assurance that, where civil servants and others are drafted in to help, we will be able to maintain the border appropriately and that they will have the extant powers. I can give an assurance that any civil servants brought in to help check passports will not be given the powers being sought. They would obviously not have the training that the noble Baroness and we think is appropriate to do so. In any case, those who are brought in to assist with the management of queues are being brought in specifically for that purpose and not to investigate criminal activity.
I do not know what the usual channels and others are thinking about the timing of these matters or whether the noble Baroness will have to keep going for another three minutes, but I hope that, with those assurances, she will feel able to withdraw her amendment. It may be necessary for me to write to her with further detail. I have explained why I think Amendment 149CA is defective. I leave it to the noble Baroness to consider what to do with her amendments.
Baroness Smith of Basildon
I am grateful to the noble Lord. I am puzzled about my amendment being defective. I know the noble Lord has enjoyed explaining that to me on a number of amendments. I always say they are about the intention behind the amendment and that we will come back on Report with one that satisfies him.
I understand that the Explanatory Notes are not part of legislation, as the Minister pointed out to me the other week—I am rather long in the tooth in regard to some of these things—and I am sure that they are not intended to be misleading. They state:
“The purpose of this amendment is to provide for immigration officers working in Criminal and Financial Investigation … teams in the UK Border Agency … to be able to apply to exercise”—
and then they go on to say what those powers are.
I will have to read very carefully what the Minister said in Hansard to make sure I fully understand what he is saying about it not being exclusively those officers—even though the Explanatory Notes say it would be—but that it would be other officers of a certain grade and level.
I said at the very beginning that we are not opposed to the extension of powers in principle, but we just need to understand the Government’s justification and to have some explanations and clarifications. I will read the Minister’s comments in Hansard to clarify the position for myself, but I wonder whether he is talking about slightly different things. At some point, he may have been talking about the authorisation of the action, while I am talking about the officers undertaking the surveillance as well. I hope we have not misunderstood each other. I want an assurance that the officers undertaking very intrusive forms of surveillance—perhaps phone tapping, as it says in here—will not just be authorised by a senior officer, but will have the appropriate skills, experience and training and that safeguards for the public are built in. This is a probing amendment but it may not remain one. We want to look at this a bit further and in more detail, but I am grateful to the Minister for taking time to explain some of the measures. I will look at what he has said in Hansard and I may come back to him on the point about who will have the powers and what training will be provided and I shall also look for an assurance that it will not undermine the skills of existing police officers.
One area on which the Minister did not respond was the relationship between such officers and the National Crime Agency. Given the debates that we have had earlier during the passage of the Bill, it would be helpful to explore the relationship that border officers, who deal with organised and serious crime issues as regards immigration and border control, have with the National Crime Agency, which is a national police force for organised and serious crime. We need to explore that further. I would be happy for the Minister to write to me on that point. I am happy to withdraw my amendment.