Immigration Bill

Earl of Clancarty Excerpts

Tuesday 1st April 2014 Lords Chamber

[Lord Pannick]

My Lords, I have added my name to this amendment to remove Clause 15 from the Bill. A system of internal review is not a substitute for the right of appeal. The right to appeal confers a right to a decision by an independent adjudicator, but it is more than that. There is a public hearing with witnesses and with submissions on both sides. There is a public reasoned decision as a result of the process. I fear that, without independent appeals, the already poor standards of administration in relation to immigration decisions—the noble Baroness, Lady Smith of Basildon, has referred to the lamentable figures—will get even worse.

I do not think that another layer of internal decision-making through an administrative review can possibly be as effective a mechanism for improving standards and ensuring correct decisions as an independent and public appeal process. I welcome, of course, the Government’s decision to invite the Independent Chief Inspector of Borders and Immigration to review the new administrative review process. This will introduce some independent scrutiny of the process, but the chief inspector is not going to assess the substantive merits of individual cases in the way that the tribunal does.

The Government have emphasised that an individual dissatisfied with the internal review process—and there will be many of them—will have legal redress by way of judicial review. But of course a judicial review, unlike an appeal, is not an assessment of the merits of the case; it is a limited assessment of fair process and of legal errors. In any event, I simply cannot understand any more than the noble Baroness, Lady Smith, why the Government are seeking to push these cases—and there will be many of them—into judicial review when, at the same time, the Lord Chancellor is bringing forward legislative proposals to reduce the number of judicial reviews. Indeed, as the noble and learned Lord, Lord Woolf, explained in speaking to the previous amendment, the whole thrust of reform in recent years has, rightly, been to remove immigration cases from judicial review and to have them decided before tribunals.

The Minister, the noble Lord, Lord Taylor—like other noble Lords, I am very grateful to him for having meetings and correspondence on these issues—has previously emphasised that administrative review is cheap and quick. He is right, but there is nothing to stop the Home Office introducing a quick, cheap and effective process of administrative review. If it were to do so, no doubt it would find that a very large proportion of appeals would become unnecessary. My objection to the clause is the removal of the right to an independent appeal in cases which are not adequately addressed by a process of administrative review. That is why I oppose Clause 15.

[The Earl of Clancarty (CB)]

My Lords, I apologise to the House for not having spoken before on this Bill. I will be brief. I have put my name to this amendment and want to talk about fairness.

As the noble Baroness, Lady Smith, mentioned, we had an excellent debate on immigration last week in the name of the noble Lord, Lord Steel. Much of that debate was full of individual cases. Someone afterwards said that it was a sad debate because of the frustration felt on all sides of the House for those they knew or knew of who suffered difficulties or injustices as a result of the immigration system or regulations as they currently stand, or as likely from mistakes being made. The large proportion of appeals that succeed is testament to that.

Those who work in the area of our domestic legal process, which has developed over centuries, understand well that the system is not perfect, that it can be improved, that mistakes are made and, more than that, that significant safeguards need to be built in that are, crucially, an open aspect of the system. As a society, we are by and large grown-up and realistic enough to accept that. Surely those principles that currently exist in relation to immigration appeals and have now stood for more than four decades should in the same way be, at the very least, preserved and protected. The Government may baulk at the openness of the tribunal system when so many mistakes are clearly revealed to the public, but if the process is taken back in-house—as it were—as an administrative review, we will lose that openness, independence and accountability that we currently have, as my noble friend Lord Pannick said.

The Government wish to replace the current system with one that will be more complicated and inefficient. In addition to limiting the process, it will fragment it and be desperately unfair for the person concerned because that person would quite rightly—this should be a democratic right—want to hear the entirety of their case presented at a tribunal. I can understand the desire of the Government here. They are under considerable pressure to get immigration right, get a grip on it and put an authoritative stamp on it. However, if that is a spurious authority, which, through lack of independence, institutionalises mistakes—that is what will happen—it will be worthless. Whatever good intentions the Government may have, Clause 15 remains on Report a threat to our fundamental notions of fairness in this country. There is a world of difference between aiming for a perfect system, which is laudable, and attempting to construct in the here and now a system that assumes perfection. If we so significantly limit the right of appeal to tribunals, we will surely set off down the latter, dangerous and misguided, road.

[Baroness Hamwee]

My Lords, I was not sure whether to speak yet; I was looking for a Bishop. Amendment 14 in this group is in my name and that of my noble friend Lord Avebury. I have been torn over this issue. Of course, the lawyer in me wants to see access to the courts or tribunals but the pragmatist in me says, “Get it right first time”, especially when it is something where arguably the person involved does not start with having rights. I distinguish between human rights interests, family interests and, at the other end of the spectrum, perhaps permission to come and work in a different country. At issue here is a very wide range of types of decision. Also, of course, the pragmatist says, “Find ways to improve the process to get it right”.

I have to assume that the Secretary of State is satisfied on the basis of the current out-of-country process that what is proposed will be “efficient”, “effective” and “fair”—in the words of one of the amendments. I hope that effectiveness always means fairness. I do not know that one can become satisfied that the process is efficient, effective and fair on the issue raised by the possibility of shadow working and the two systems working in parallel. I know that there are different views about that. Frankly, I doubt that it is practicable. At the previous stage, I raised the issue of reviews of procedures and—particularly important to me —independent oversight and reports to Parliament. I welcome government Amendment 12. Could my noble friend confirm, because it does not quite say this, that what is intended is a report on the first year? It says that, “Before the end of” a year the Secretary of State will commission a review.

My Amendment 14 would introduce a two-stage process, the second of which would be the chief inspector reviewing the first year of operation, and the first of which would be an opportunity for Parliament to consider the procedures after the Government have consulted on them. I am grateful to my noble friend for a letter that I received following Committee and which was copied to other noble Lords. I hope that this will be a useful opportunity for him to explain from the Dispatch Box the Government’s proposals for consultation on the proposed rules—a targeted consultation, as I understand it. There might be, if you like, a pre-consultation of noble Lords as to who might be involved in that process. I am sure we would all have ideas as to who could usefully contribute.

Since Committee, I have seen the information given to those who seek an administrative review out of country under the current procedure. I had been concerned about how representations could be made to the reviewer and what representations could be made. I can infer that from the current information but I am sure that there is scope for spelling it out more clearly. That is a matter for the practitioners, really. I was also relieved to see information on something that had popped into my head and bothered me a lot: whether there would be a charge for an administrative review. I see that that is not the case. That reminded me that this is another reason for the Home Office getting it right first time, as it will not be able to get any income from that administrative review. As it were, it funds it—rightly—from its internal resources.