Borders, Citizenship and Immigration Bill [HL]

I speak only to Amendment 111DA, which affects the Court of Session. Section 20 of the Tribunals, Courts and Enforcement Act 2007 provided for the transfer of judicial review applications from that court to the Upper Tribunal subject to four conditions. Under the Act, transfer was statutorily barred in two cases. The first is if the subject matter of an application to the supervisory jurisdiction of the Court of Session was a devolved Scottish matter. As the Minister has already pointed out, immigration is not a devolved matter. The second statutory bar related to judicial review applications relating to immigration or nationality decisions. This was constituted by Section 20(5) of the 2007 Act as condition 4. Clause 50(3) would remove that bar. It is important to have in mind how Section 20 operates. It contemplated two situations: first, where there was mandatory transfer, the court must transfer an application to its supervisory jurisdiction if certain conditions are fulfilled; and secondly, where transfer could be made at the discretion of the judge of the Court of Session hearing the application. In either case, transfer could only take place if the application did not seek anything other than an exercise of the supervisory jurisdiction of the Court of Session. That was condition 1. Condition 2 made provision for the Court of Session to specify classes of case apt for transfer by passing an Act of Sederunt made with the consent of the Lord Chancellor, an Act of Sederunt being the instrument by which the Court of Session exercises its statutory power to regulate its jurisdiction and procedures. Thus, unless and until the Court of Session exercised its power to determine which, if any, specific class of applications to its supervisory jurisdiction is to be transferred to the Upper Tribunal, and the Lord Chancellor consents, there can be no mandatory transfer to the Upper Tribunal of any class of applications. In the absence of any act of sederunt, there remains a discretion in a particular case for the judge hearing the application to determine that the application be transferred to the Upper Tribunal, even though the Court of Session has not specified the class of case into which the application falls as being one for mandatory transfer. That discretion would extend to immigration and nationality appeals, with the removal of the statutory bar created by condition 4. At Second Reading, the Minister referred to the judiciary’s responses to the consultation paper Fair Decision, Faster Justice, which has already been mentioned. Can the Minister confirm that in their response to the paper, the judges of the Court of Session indicated that they were not able to express firm views on the proposal to amend Section 20 until Lord Gill, the Lord Justice Clerk, had reported on his review of the civil courts in Scotland? In paragraph 39 of its consultation paper, the UK Border Agency acknowledged that the process for judicial review in Scotland was, ""currently subject to any changes that may or may not be introduced following the review … currently being undertaken under the chairmanship of Lord Gill"." Lord Gill has not yet reported. It might be thought premature at this stage to remove the statutory bars so far as they affect the Court of Session, pending publication of that report. This factor is fortified by a further consideration, which has already been mentioned—as I understand it, further primary legislation would be required to enable the Asylum and Immigration Tribunal to be replaced by the two-tier system which has been established by the 2007 Act. Perhaps the Minister would confirm that this is the case. As a footnote to that observation, I draw attention to the provision in Section 21(3) of the 2007 Act. This section gives the Upper Tribunal the function of deciding applications transferred to it by the Court of Session under Section 20. Subsection (3) states: ""In deciding an application by virtue of subsection (1), the Upper Tribunal must apply principles that the Court of Session would apply in deciding an application to the supervisory jurisdiction of that Court"." Can the Minister provide any assurance to the Committee as to how that provision is to be secured? At first blush it would suggest that the judge presiding at the hearing of the application should be a judge of the Court of Session. I refer in passing to the provisions of the 2007 Act, including Section 18(8), which contemplate a judge of the Court of Session being a member of the Upper Tribunal. A question may arise whether there is likely to be any saving of time or expense in the transfer of applications to the Upper Tribunal from the Court of Session. That is not a question, I suggest, which can be answered until Lord Gill has reported. Indeed, in the consultation paper the agency stated: ""The Upper Tribunal would need to be well-established before any such a provision on transferring judicial review applications would be commenced and any transfers could be made. First, it would be important to ensure the Upper Tier had the capacity to deal with the additional workload quickly and efficiently. It would also be necessary to consider the best use of judicial time, the desirability of allocating cases to the appropriate level of judiciary, and the impact on judicial resources within the higher courts and the Upper Tribunal"." While I remain open to the view that perhaps at this stage the Court of Session could make sure that there was no mandatory transfer of applications, and using its discretion judges would have to be persuaded that any application should be transferred, I suggest the better course at the moment is to defer consideration of the type of matters under review in Clause 50.