Borders, Citizenship and Immigration Bill [HL]

I, too, was surprised to find Clause 50 tucked away in the Bill so soon after the Tribunals, Courts and Enforcement Bill received Royal Assent in 2007. A key feature of the Act was that asylum and immigration cases were excluded from the operation of Section 19, so that High Court judges sitting in the administrative court are not obliged to transfer such cases to the Upper Tribunal, and indeed are prohibited from doing so. The purpose of Clause 50, as has been pointed out by both noble Lords who have spoken, is to remove that prohibition. So there are two related questions for the Minister. First, why were asylum cases excluded from the operation of Section 19 as recently as 2007? Secondly, why is he seeking now to reverse that exclusion? The answer to the first question is relatively easy and has already been given by both noble Lords who have spoken. Asylum cases have always given rise to sensitive issues, and they often give rise to difficult questions of fact and law, some of which end up in the House of Lords, as I know from my personal experience. As the late Lord Bridge said of one such case, R v the Secretary of State for the Home Department Ex parte Bugdaycay, decisions in asylum cases may, and sometimes do, put the applicant’s very life at risk. They therefore call, as Lord Bridge pointed out, for the most anxious scrutiny. That must be right, and is one good reason why such cases should be dealt with by judges of the standing of High Court judges in the administrative court. However, there is a second reason. The current workload of the AIT is very heavy. It may have been thought that the judges of the new Upper Tribunal should gain experience in other, less sensitive and less pressurised, areas before being swamped with asylum and immigration cases. It is not only the difficulty of such cases, but their number, which is of concern. A third possible reason for excluding immigration cases in 2007 is that immigration law and practice seem to be in a constant state of flux. We are at this moment anxiously awaiting the so-called simplification Bill that the Minister has promised for this Session. It may have been thought that it would be more sensible to keep immigration cases where they are, at least until the law has settled down a bit. Indeed, I think that I am right in saying that there is an important immigration case currently being heard in the House of Lords at this moment, but I may be wrong about that. Each of those three reasons is a good reason—there may be others—why immigration cases were left out of Section 19 when the 2007 Act was given Royal Assent. I suggest that they are still good reasons why we should not act too quickly now. That brings me to the second question that I hope the Minister will answer: why are we changing direction now, so soon after the 2007 Act was passed? Why are we having second thoughts when we have as yet, as has been pointed out, so little experience of how the Upper Tribunal is working? It has only been in operation for three or four months. The answer can only be the enormous pressure under which the administrative court is currently operating. There can be no other explanation. It is important to draw a distinction between the ordinary work of the AIT and applications for judicial review. I see no reason why the ordinary work of the AIT should not be transferred to the First-tier and Upper Tribunals as soon as the judges have sufficient experience. That would be the logic behind the 2007 Act, and I hope that we will follow it through. I also hope that such cases will, when transferred, be dealt with in a separate chamber, of which the president should be a High Court judge. However, applications for judicial review in such cases stand on an entirely different footing. These are the sensitive cases that raise the difficult questions of fact and law, and should be dealt with by judges of the status as a High Court judge. It is for that reason that it is so important that the applications for judicial review in asylum cases should continue to start in the administrative court as they always have. However, the problem, as has been pointed out, is that there are just too many of them. Applications for judicial review are currently running at a rate of about 4,000 a year. What is needed is some way of sifting out those cases that must be dealt with by High Court judges in the administrative court as they always have been, and as, I think, everybody agreed that they should be, from those cases that could be transferred by the administrative court to the Upper Tribunal. If the Minister could find a way of doing that, then he should by all means let us have a look at it. However, as I said on Second Reading, it is to my mind essential that we should know from him what exactly is proposed before we are asked to agree to Clause 50. Lastly, I have spoken of the high status of High Court judges. The High Court judge is the key figure in the whole judicial hierarchy. The quality of the present High Court judges is very high indeed, and it is vital that that quality should be maintained. There is at least a risk that we will not get enough High Court judges of the right calibre to serve in the administrative court if the burden we place on them is too heavy, or if too much of the work that they are required to do could be done as well by others. That may be a question for the Lord Chancellor rather than the Home Secretary, but I thought it worth making that point in this context.