Crime and Courts Bill [HL]

Lord Avebury Excerpts

Tuesday 4th December 2012 Lords Chamber

[Lord Ahmad of Wimbledon]

My Lords, Amendments 106 and 107 will remove current restrictions to enable applications for judicial reviews in immigration, asylum and nationality cases, made either to the Court of Session in Scotland or the High Court of Northern Ireland, to be transferred to the Upper Tribunal.

As noble Lords may recall, the House has already considered this issue in relation to England and Wales in Committee when what is now Clause 20 was added to the Bill. I believe that it is fair to say that the Committee welcomed those provisions. Having discussed the matter further with the judiciary and the devolved Administrations in Northern Ireland and Scotland, we are now moving to replicate this provision across the United Kingdom.

The effect of these amendments would be to allow more judicial reviews on immigration, asylum and nationality matters to be heard by Upper Tribunal judges with specialist immigration knowledge and would free up judges in the Court of Session and the High Court in Northern Ireland to deal with other complex civil and criminal work.

Amendment 108 also aims to ensure consistency in the justice systems across the United Kingdom by reintroducing the second-tier appeals test for applications to the Court of Session to appeal against a decision of the Upper Tribunal. The rule of court which introduced this test in Scotland was found to be ultra vires in a decision of the Inner House and, as a result, the rule was revoked by the Lord President. The test requires that, in order for the Court of Session to grant permission to appeal, it should be satisfied that the proposed appeal raises an important point of principle or practice, or that there is some other compelling reason to hear the appeal.

My noble friend Lord Avebury has tabled two amendments seeking to limit or remove the second-tier appeal test in nationality and immigration cases. I do not wish to prejudge what my noble friend has to say and I will, of course, respond in due course, when we come to the next group. However, as Amendment 108 suggests, the Government fully support a second-tier appeals test throughout the United Kingdom.

In summary, the Government believe that where an appeal has been heard and determined by both the First-tier Tribunal and the Upper Tribunal, it seems entirely appropriate that the test to take the matter to a third judicial body should be high. Furthermore, the test is designed to manage effectively the flow of cases to the Court of Appeal and ensure that the court’s attention is focused on the most important cases.

As I have indicated, Amendments 106, 107 and 108 will ensure that there is a consistent framework across the United Kingdom and will remove the spectre of forum shopping between jurisdictions. I therefore beg to move.

[Lord Avebury]

My Lords, can my noble friend confirm that these provisions concerning Scotland will be the subject of a debate on a Sewel motion in the Scottish Parliament? Your Lordships may recall that when we debated the Bill that became the Borders, Citizen and Immigration Act 2009 in your Lordships' House, the Court of Session stated very clearly in its response to the government consultation, Immigration Appeals: Fair decisions, Faster justice, that it regarded the proposed transfer as premature. The Scottish Government had expressed similar concerns and had asked the UK Government not to proceed with the change at that time. I would be most grateful if my noble friend could respond to that point.

[Lord Ahmad of Wimbledon]

My Lords, Amendments 106 and 107 would not in themselves lead to any cases being transferred from the Court of Session or the High Court of Northern Ireland to the Upper Tribunal. It is simply an enabling power. In Scotland, an act of sederunt would need to be made by the Lord President, with the agreement of the Lord Chancellor, before any class of judicial reviews could be transferred from the Court of Session to the Upper Tribunal. The Court of Session will continue to have the discretion to transfer other applications for judicial reviews relating to reserved matters not specified in the act of sederunt by order.

I say to my noble friend that the same is true for Northern Ireland. Before the transfer of a class of judicial review cases from the Northern Ireland High Court to the Upper Tribunal, a direction would be made. As such, a legislative consent motion would not be required.

--- Later in debate ---

Moved by

[Lord Avebury]

108ZA: After Clause 20, insert the following new Clause—
“Immigration and nationality appeals from the Upper Tribunal
Section 13(6) of the Tribunals, Courts and Enforcement Act 2007 (right of appeal to court of appeal etc.) does not apply in relation to immigration and nationality appeals from the Upper Tribunal.”

[Lord Avebury]

My Lords, noble Lords will be relieved to hear that I am not going to repeat the arguments that were advanced when these proposed new clauses were debated in Committee. But I should remind noble Lords that the first new clause would remove altogether the additional and highly restrictive requirement to show an important point of principle, practice or some other compelling reason in immigration and nationality appeals generally from the Upper Tribunal to the Court of Appeal. The second new clause removes that requirement only where the grounds of appeal include refugee or human rights grounds.

My noble friend Lady Northover, who replied to the amendment in July, agreed that the class of cases that we are dealing with can be both complex and of the utmost importance. They deal with grave problems that deserve the anxious scrutiny of the court system. But she claimed that the second-tier appeals test provided just that.

However, I also observed that because of the increased rotation of judges under the Bill, inevitably there would be judges in the Upper Tribunal who would be less familiar with the complexities of immigration and asylum law. In the case of PR (Sri Lanka), which I mentioned on the last occasion, Lord Justice Carnwath said at paragraph 39:

“Parliament has thus provided a statutory framework within which the Senior President and Chamber President should be able to ensure that the gateway to appeals to that level is controlled by judges of appropriate status and experience”.

I fear that that may not always be the case.

In the same case, the Court of Appeal found against the argument that there was a compelling reason for allowing PR's application to appeal from the Upper Tribunal’s adverse decision. It was acknowledged that he had been tortured and that the Second-tier Tribunal had corrected an error of law on the part of the First-tier Tribunal. But the Court of Appeal concluded that:

“The claimed risks are, unhappily, in no way exceptional in this jurisdiction, and not in themselves such as require the attention of the Court of Appeal”.

That reference was not picked up in our previous debate, nor did the Minister say anything about the Court of Appeal's remark that it would be wrong in principle for it to be constrained by ministerial assurances on asylum cases given in 2010.

There was also the point that because of the LASPO Act there would be more unrepresented appellants in the Upper Tribunal, which has already been mentioned on a previous debate. One cannot help feeling that the real reason the Government have got to this point is concern that the rights of immigrants and asylum-seekers, never a popular minority, are being subordinated to the need to ration scarce judicial resources. As the noble and learned Lord, Lord Brown of Eaton-under-Heywood, put it, and quoted with approval in PR (Sri Lanka):

“The rule of law is weakened not strengthened if a disproportionate part of the court’s resources is devoted to finding a very occasional grain of wheat on a threshing floor full of chaff”.

Personally, I cannot think of any more compelling circumstances than the risk that a person may be tortured. I am sorry if the Government do not agree with me. I beg to move.

[Lord Ahmad of Wimbledon]

My Lords, as my noble friend Lord Avebury has explained, his Amendments 108ZA and 108A also relate to the second-tier appeals test. These amendments seek to remove immigration and nationality appeals, or alternatively those relating to the Refugee Convention or the European Convention on Human Rights, from the scope of the second-tier appeals test. We debated similar proposals in Committee on 4 July.

As my noble friend Lady Northover said at that time, the Government fully appreciate the serious nature of these kinds of appeals, as do the courts. In fact, the immigration and asylum chambers in the First-tier Tribunal and Upper Tribunal were created expressly to deal with these matters and are composed of judges who are experts in this particular area. The Government remain satisfied that they provide the expert rigorous scrutiny that is required in appeals of this kind.

It is therefore the Government’s view that it is neither necessary nor desirable to make it easier for appeals to continue on to a third judicial hearing, unless there is a very good reason for doing so. The test which is applied at present is either that the proposed appeal would raise some important point of principle or practice, or that there is some other compelling reason for the relevant appellate court to hear the appeal.

Removing the test in these cases could see the Court of Appeal in receipt of a high volume of cases which would not have been granted permission under the second-tier appeals test and which may further slow down decisions on some of the most important cases heard there. The test allows judges to determine which cases have a compelling reason to reach the Court of Appeal, a situation which the Government are keen to see continue.

My noble friend also raised the issue that the Court of Appeal in PR (Sri Lanka) ruled that the second-tier appeals test did not allow permission to appeal for individuals facing torture or death on their return to their country of origin. The judgment in this particular case upheld the current system and the suitability of the Upper Tribunal to make decisions on matters of this nature. The judgment specifically states that:

“The two tiers of the Tribunal system are, and are plainly to be regarded as, competent to determine matters of this kind”.

It then goes on to say:

“In short, there is no case for contending that the nature of an asylum-seeker’s case which has failed twice in the Tribunal system is a compelling reason for giving permission for a further appeal”.

These cases have already been heard in the most appropriate part of the system and the second-tier appeals test allows sufficient discretion for judges to grant permission to appeal where they see that there is a compelling reason to do so.

My noble friend Lord Avebury is someone who I personally regard as a great champion of human rights and he is someone who has stood firm in ensuring that, where there is torture across the world, people who come to this country are fully protected. I totally align myself with the sentiments that he has expressed. However, the position of the Government is clear. Finally, I would add that the courts have been clear that there is no reason to believe that the United Kingdom would be in breach of any international obligation if appeals from the Upper Tribunal are available only under the second-tier appeals test.

I would therefore urge my noble friend to withdraw his amendment.

[Lord Avebury]

My Lords, I am most reluctant to withdraw the amendment, but I can see that at this point in the Bill it would be purposeless to press the matter to a Division. I can say only that I am really disappointed in the reply that I have had from my noble friend. I am sure that I am not going to be the only one to feel that emotion. I know that the Immigration Law Practitioners’ Association has submitted a detailed argument on this matter to the Government as well to your Lordships who are likely to take part in this debate. I do not feel that adequate justice has been done to the force of its arguments. But, as I say, I do not see any reason why I should press this to a Division this evening. I therefore beg leave to withdraw the amendment.

Amendment 108ZA withdrawn.