Borders, Citizenship and Immigration Bill [HL]

My Lords, I was much struck by the invocation of the right reverend Prelate the Bishop of Lincoln of a spirit of hospitality rather than hostility when he addressed his remarks to your Lordships. As the noble Lord, Lord Patten, pointed out a moment ago, over the centuries we have gained very greatly from immigration to this country, and over the centuries we have a proud record of granting safe refuge to those who flee persecution. Refugees, too, have enriched the United Kingdom’s culture and wealth immeasurably. We differentiate between asylum and migration but only because the one is essentially a human rights issue and the other essentially a social, economic and political issue. One major problem in this area is that the original decision-making in asylum cases is very poor. The Home Office is slow at making decisions; it loses track of people; and, while nine out of 10 applications are initially refused, 20 per cent of the cases that go to appeal are successful and 40 per cent of refugees from certain countries succeed in their appeals. That indicates a very high error rate in initial decisions and poor training of caseworkers and interview staff. There may be political pressures on caseworkers to refuse applications, which amounts to what refugee support organisations have called a ““culture of rejection””. The Refugee Legal Centre, which is one of those organisations, made a series of freedom of information requests and discovered that publicly funded appeals were 22 per cent, but when people were not represented on their judicial reviews the success rate was as low as 3 per cent. That indicates that when there is proper legal representation and proper submissions are made, applications for judicial review can be successful. I refer to judicial review because I am confining myself to Clause 50. As the noble and learned Lord, Lord Lloyd, said when referring to the letter from the Lord Chief Justice, the judiciary has a desire to reduce the pressure on judicial time and the courts. On the other hand the Home Office appears to have a desire to get rid of as many people as quickly as it can, and decisions are taken in highly sensitive cases accordingly. Asylum cases in particular involve life and death decisions, but all these immigration appeals, as the noble Lord, Lord Avebury, said, are fraught with human rights implications. Whereas the transfer of judicial review applications to the Upper Tribunal may be carried out with proper safeguards, such safeguards are not contained in this Bill. The High Court judges are used to dealing not merely with the areas of asylum and immigration but with constitutional and administrative law and have a much broader way of looking at things. The Abdi case recently against the Home Secretary showed that the Home Office had been operating a secret and illegal system of dealing with asylum seekers. Such matters make it important that cases should be dealt with at an appropriate level. The history of judicial review in this area stretches over a number of years. In the Immigration and Asylum Bill of 2003, your Lordships will recall that the Government proposed to abolish judicial review in immigration cases altogether. That was resoundingly defeated in this House. The noble and learned Lord, Lord Lloyd, referred to the Tribunals, Courts and Enforcement Act 2007, in which he played an important part when it was initially proposed that the Upper Tribunal should hear judicial review cases. As a result of his efforts, an undertaking was given by the noble Baroness, Lady Ashton, on behalf of the Government that these types of cases would be excluded from being transferred for hearing in the Upper Tribunal until there had been some experience of how that tribunal worked. The Upper Tribunal has been in place for only a month or two—I think it started in October or November of last year—and there is no experience as yet of how it works. Nor is it clear which judges will preside at hearings of application review that are made to them. The noble and learned Lord, Lord Lloyd, referred to the fact that, through Section 19(7), he had ensured that an application for judicial review could not be heard if it called into question any decision that was made under legislation dealing with immigration, British nationality, and so on. Why then, so soon after the Tribunals, Courts and Enforcement Act was passed, do we now have these proposals before us? It seems that the matter has been transferred from the Ministry of Justice to the Home Office. One would have thought that the appropriate government department to deal with where cases of judicial review should be heard and for laying down the rules on that, or controlling how the rules are made, should be the Ministry of Justice. That has not happened. For some reason, the Home Office has stepped in. With the recently created UK Border Agency, it published a consultation document last August that set out the proposals now before us. That document was prepared by a working party of the judiciary and Home Office officials, but there was not a single representative from the agencies who assist asylum seekers and refugees. As consultees, they have submitted their views, but the Bill has been brought forward before any response to their views has been published by the Home Office. Clause 50 removes the limitation in an Act of Parliament that is only 18 months or so old, and the rules under which applications are to be heard in the Upper Tribunal are to be created not by the Tribunal Procedure Committee, which will govern all other rules made about procedures in the Upper Tribunal and is an independently constituted body, but by the Lord Chancellor, who appears to have devolved his powers to the Home Office. So it is possible that judicial review will be brought to the Upper Tribunal under rules made by one party to the proceedings. That is completely inappropriate. I should be obliged if in his reply the Minister could tell us why, if the proposals pass and judicial review proceedings are to be held in the Upper Tribunal, the procedure rules are not to be made by the committee that makes the rules for everyone else. Why has the power effectively been retained by the Home Office, which will be a party in almost all the proceedings brought there? Many issues arise as a result of the Government proposing Clause 50 before their consultation document has been properly considered and reviewed and in such a hurry, with such speed, after the Act passed only in 2007. We will be examining Clause 50 with considerable particularity.