Borders, Citizenship and Immigration Bill [HL]

My Lords, I share the concern of the noble Baroness, Lady Warwick of Undercliffe, and the noble Lord, Lord Wallace of Saltaire, about Clause 47. I should declare an interest as Chancellor of the University of the West of England. I do not propose to say anything about Clause 47 today, although I hope to say something at Committee stage. I wish to speak briefly about Part 4 and two rather disparate clauses—Clauses 50 and 51. I am afraid that I take a different view from the noble and learned Lord, Lord Lloyd of Berwick, and the noble Lord, Lord Thomas of Gresford, in relation to Clause 50 on the transfer of judicial review from the administrative court to the Upper Tribunal. None the less, I have a number of reservations about how this should be done. I am very well aware of the huge burden on the administrative court and the Court of Appeal. Immigration judicial review cases to the administrative court are running at more than 4,000 a year. Reconsiderations of decisions of senior immigration judges also go to the administrative court. The result of both factors is that two-thirds of the time of the administrative court is taken up, creating considerable delays there, and there are considerable delays in the Court of Appeal, where not every application for permission or appeal has much importance. There is delay in all these courts. The former Lord Chief Justice, who is now the senior Law Lord, drew attention to these problems in March 2008 in his review of the administration of justice in the courts, which was presented to Parliament. Quite simply, there are not enough High Court judges to cope with all the work going to the administrative court. Something has to be done. The noble and learned Lord, Lord Lloyd of Berwick, referred to the response of the senior judiciary to the consultation paper of last autumn. It would appear that senior judges very much support the implementation of Clause 50 for very practical reasons. As I understand it, the hearings in the Upper Tribunal would be by senior immigration judges who are all very experienced in immigration, and also by High Court judges where appropriate when the cases are difficult or high profile. A High Court judge would preside over the chamber. The noble and learned Lord, Lord Lloyd, is concerned that every case should start in the administrative court and be transferred if it were not of sufficient importance to the Upper Tribunal. It seems to me that the point is not which court, but which judge, should deal with the case. Therefore there will be cases that are appropriate to be tried by senior immigration judges in the Upper Tribunal who could not try them in the administrative court. I hope that the judge in charge of that chamber, a High Court judge, would ensure that High Court judges tried cases that were of sufficient importance and sufficiently high profile. The noble Lord, Lord Thomas of Gresford, asked for safeguards in relation to such a transfer to the Upper Tribunal. I entirely agree. I understand that Clause 50 is almost certainly part of a wider process which will transfer all immigration work and appeals to the Upper Tribunal, including in due course the Asylum and Immigration Tribunal. My understanding is that all that can be done by statutory instrument. The transfer across will undoubtedly relieve the overburdened Court of Appeal as well as the administrative court. The Court of Appeal will continue to hear appeals on points of law, which is its function, with the leave of the Upper Tribunal. My first reservation for the Minister is that I hope that any important point of principle, practice or other compelling reason would find its way to the Court of Appeal under Section 13(6) of the Tribunals, Courts and Enforcement Act 2007, and that this provision will not be narrowly construed. I have other reservations on which I shall seek assurances in due course from the Minister. The judges who try this work—those who are not High Court judges—should be carefully selected it. I assume that Section 18(8) of the 2007 Act will apply and that the judges appointed to the Upper Tribunal for immigration cases will be subject to the agreement of the Lord Chief Justice in England, the Lord President in Scotland and the Lord Chief Justice in Northern Ireland. As I have said, high-profile and difficult cases should continue to be tried by High Court judges. I also hope that the Judicial Studies Board will provide suitable and very good training for all who sit on the Upper Tribunal who have not done immigration work previously, to make certain that they have that instruction before they sit. My final reservation regarding Clause 50 is one about which I have extremely strong feelings, and I very much support what has been said by the noble Lord, Lord Thomas of Gresford. The rule-making body for the immigration hearings should be the Tribunal Procedure Committee of the tribunal structure and they should not be delegated to the Home Office which is, of course, a party to the proceedings. There will be a very real danger of a perception, at the very least, of a lack of impartiality if there is Home Office input. I would be very concerned about, and would vote against, Clause 50 if I were not assured that the Home Office would play no part in the rule procedures of a judicial court. I welcome Clause 51 as far as it goes, although I share the concerns of the noble Lord, Lord Sheikh, about it. It deals with the welfare of children. I declare an interest as a vice-chairman of the All-Party Parliamentary Group on the Trafficking of Women and Children. I understand that the UK Border Agency code of practice for keeping children safe from harm will be withdrawn when Clause 51 is passed, as it is dependant on Section 21 of the UK Borders Act 2007. The current code of practice is, in my view, good except in relation to trafficking. I hope that an even better code of practice will be put its place. There is only one reference to trafficking in the present code. As the Government ratified the European Convention on trafficking last December, I assume that there must be guidance to Border Agency personnel, among others. I have been unable to find it. I asked the Minister in the other place if I could have a copy, and I have not yet received one. Will guidance be given under Clause 51, or, if not, where will it be found? The UK is a receiving country for victims of traffickers and trafficking gangs work here at this moment. One has only to ask the Metropolitan police. We are also a transit point from and to other countries, and there is internal trafficking through this country. I agree with the points made by the noble Lord, Lord Sheikh. We need clear guidance to the Border Agency personnel at airports in particular, to the police and to all other agencies including social services which have to manage the children and young people who are victims. Training is extremely important. We need to provide children who are trafficked here with identification cards, because nearly all of them are instructed either to flush their documents down the lavatory in the plane, or to eat them before they arrive in this country. There is a real doubt, which has already been raised, as to whether the current law is sufficiently clear or strong to deal with certain types of trafficking, particularly the trafficking of babies and young children who are too young to know what is going on, or to have a say in their movements. Section 4(4) of the Asylum and Immigration (Treatment of Claimants, etc.) Act 2004 requires that a person is said to be exploited, if, and only if, requested or induced to undertake an activity such as begging. For goodness’ sake, how are babies or young children able to comply with that requirement in the legislation? The victims are immigrant children and so part of Clause 51. I should like the Minister to look at this very real problem with a view to dealing more effectively with some of the trafficking gangs. It might interest the House to know that, in this deplorable and immensely lucrative trade in our country, more than 1,000 Roma children from Romania are being managed by a gang from Romania, mostly in London, and that each of those children is worth £100,000 to the traffickers.