Immigration, Asylum and Nationality Bill

In general, I fully support the amendment moved by the noble Lord, Lord Dholakia. The amendments would preserve in-country appeals and avoid eroding our present appellate system any further. I will specifically speak to Amendment No. 16, which has become lost in the groupings and probably should be spoken to now as a consequential amendment. Is it appropriate, as has already been mentioned by the noble Lord, Lord Dholakia, for the Secretary of State for the Home Office to make regulations granting or taking away rights of appeal, given that the Home Secretary is a party to the appeal? The Select Committee on the Constitution commented to the Minister in its letter of 13 December that in its view, following the Constitutional Reform Act 2005:"““primary legislation such as this should make clear whether a particular power can be exercised by the [Home Secretary] or by the Secretary of State who also holds the office of Lord Chancellor””." This may clear up the confusion. The Constitutional Reform Act contains several functions that are vested in the Lord Chancellor which cannot be reassigned by a decision of the Prime Minister. Other organisations are equally concerned about the human rights aspects of these clauses which continue the process of dismantling previous Bills. The removal of appeal rights and the substitution of an out-of-country appeal as a remedy are likely to increase the number of cases going to the higher courts, so the provision will have an effect on the workings of the courts. The Immigration Law Practitioners’ Association, among others, considers that:"““even if the Home Office is leading policy in this area,—" as the noble Lord, Lord Dholakia, said—"““for the sake of substantive fairness and the appearance of fairness final authority to make regulations should be given to the Department for Constitutional Affairs.””" It appears that the order-making powers on appeals in Part 1 of the Bill are to be exercised by the Secretary of State for the Home Office rather than the Secretary of State for Constitutional Affairs. I understand that that situation has arisen in previous Bills but has not been fully debated. I can give two examples. Section 53 of the 1999 Act to which we shall return in a later amendment on bail states that the Secretary of State ““may by regulations”” make provision for bail hearings instigated by the applicant, but Section 53(7), notes that the Lord Chancellor must approve the regulations. Section 53(8) brings in the Scottish Ministers as well. Section 60 of the 1999 Act, which is now repealed, set out that family visitors would have a right of appeal, but the Secretary of State and not Lord Chancellor was given the right to set fees for family visitors under Section 60(6). There is therefore considerable ambiguity in this Bill and its predecessors about whether one Minister or another is responsible or whether there should be dual oversight. Even if plans are drawn up in the Home Office, they should be approved by a Minister outside the Home Office and presented to Parliament by that Minister. There are also serious practical considerations in the case of out-of-country appeals. I am sure that the Minister will clarify the position with reference to that. The Select Committee also comments—and this appears in many of the briefings—that,"““it has long been the view of the Council on Tribunals . . . that rights of appeal should be defined in primary legislation and not in secondary legislation””." In the view of the Select Committee some provisions in the Bill infringe that principle. As a member of the Committee, I should be interested to hear the Minister’s view or some hint that the Government will introduce appropriate amendments to cover that point. Unfortunately, I have not had time to study the Minister’s reply to the comments from the Constitution Committee, which arrived only this morning and have still to be seen by the chair and discussed by the committee next week. I believe that the committee is likely to make another comment before the next sitting of this Committee. At first sight, her answer is disappointing, as there is only one paragraph dealing with the technical point. I do not believe that the Committee will feel that that is adequate. However, the letter is potentially positive about the categories under Clause 1(4). After discussing humanitarian protection, it says:"““Other categories may be designated under this power, such as unaccompanied minors. The order-making power allows appeal rights to be conferred on a well defined range of cases that may be amended in future to reflect changing circumstances without amending primary legislation””." I understood that the Minister had previously said that other categories would be designated under this power, so I should be grateful for more clarification on that. I look forward to the Minister’s comments.