Borders, Citizenship and Immigration Bill [HL]

I am not sure I agree with that. Amendment 111BA retains the general effect of the clause, allowing immigration judicial reviews to be dealt with in the Upper Tribunal. However, this amendment would remove the power of the relevant senior judiciary to direct that cases relating to nationality decisions must be transferred. It has been suggested that as some nationality claims may be brought before the High Court in private law proceedings, judicial review cases should also remain before the High Court. Clause 50 allows the judiciary to ensure that public law judicial review cases are handled in the most efficient way, including transferring them into the Upper Tribunal if that is appropriate; not necessarily to do it, but if it is appropriate. It is true that Clause 50 does not address the issue of private law cases being brought before the High Court. The fact that it is possible to bring a private law case before the High Court does not justify restricting the ability of our most senior judiciary to decide how public law cases should be heard. Nationality decisions do not currently attract a right of appeal, except a decision to deprive a person of British citizenship, which has rarely been used to date. This means that senior immigration judges, who would become judges of the Upper Tribunal under the unified system, do not currently have the same level of expertise in handling nationality cases as they do in immigration and asylum cases. It is worth being clear, however, that the Tribunals, Courts and Enforcement Act 2007 specifies that judicial review applications in the Upper Tribunal can be heard by judges of the High Court, Court of Appeal or Court of Session, and indeed these are the only judges with an automatic right to hear the applications by virtue of that Act. Other judges, including senior immigration judges, can hear applications only where the relevant Lord Chief Justice or Lord President has agreed for them to do this with the Senior President of Tribunals, who is already required to consider the need for judges to be experts in the subject matter or law relating the types of cases that they hear. We believe that the decision as to whether particular judges outside those specified in the TCE Act are suitable to hear applications should rest with the relevant Lord Chief Justices and Lord President. As an example, decisions to deprive people of British citizenship carry a right of appeal. If tribunal judges hear a significant number of these appeals, the chief justices and the Senior President of Tribunals may take the view that they have acquired sufficient expertise to hear judicial review cases relating to other nationality decisions. This amendment would limit their ability to make that decision and therefore to manage cases in the best interests of justice. Amendment 111DA retains the full powers of the clause for England, Wales and Northern Ireland, but excludes Scotland. I am aware of the concern that we should not pre-empt the ongoing reviews in Scotland and, of course, I recognise that the Scottish legal system is different from that in the rest of the United Kingdom. It is worth pointing out, however, that the power to transfer most judicial review cases into the Upper Tribunal is already in place in Scotland, and the Lord President has already made an Act of Sederunt designating a class of cases which must be transferred. All that Clause 50 does is extend existing powers to immigration and nationality cases. We should be clear that the powers contained in Clause 50 are permissive powers only; that is important. The Lord President is not required to designate a class of cases which must be transferred, and the judges of the Court of Session do not have to transfer specific cases if they do not believe that it is right to do so. If we give judges in the rest of the United Kingdom the power to transfer cases, it seems right that we should ensure that judges in Scotland have the same powers and let the Scottish judiciary decide whether to use them. The chief justices exercise their powers with the responsibility that is expected of them and fully consider all arguments as to whether a class of case is suitable for transfer before they issue any directions. We should not restrict the ability of our most senior judiciary to manage judicial review cases as they see fit, and I therefore urge the Committee to resist both these amendments. I will now deal with the Question that Clause 50 stand part of the Bill. Clause 50 allows immigration judicial review cases to be transferred into the Upper Tribunal on a case-by-case basis. The clause also allows the Lord Chief Justice, the Lord President and the Lord Chief Justice of Northern Ireland, with the agreement of the Lord Chancellor, to specify a class of case which must be transferred into the Upper Tribunal. These powers are already available for non-immigration cases. This clause does not remove access to the remedy of judicial review. The Upper Tribunal has exactly the same jurisdiction in judicial review matters as the higher courts and may grant the same kinds of relief. It is important to make the context of this clause clear. We are hopeful that we will be able to transfer the Asylum and Immigration Tribunal—I will refer to this using its usual abbreviation, AIT—into the unified tribunals system. The unified tribunals system has been operating for other jurisdictions since November last year. The AIT is a single-tier appeals system, and there is a statutory right to apply to the High Court for an order for the AIT to reconsider its decision. There are clear benefits to transferring into the unified system—which is a two-tier system—in terms of removing the burden of those immigration reconsideration applications from the higher courts. That burden has been referred to by a number of noble Lords. The noble and learned Lord, Lord Lloyd, pointed out the huge pressure that there is at the moment. There is no need for a reconsideration process in the unified tribunals system, as there is a right of appeal against a First-tier Tribunal decision to the Upper Tribunal. Before we can make the decision to transfer the AIT, however, we must be sure that the new system will be faster, final and respected. Officials in the UK border force and the Tribunals Service are finalising work on this at the moment, and we hope to make an announcement very shortly. Other, non-immigration judicial review cases can already be transferred into the Upper Tribunal and, if we transfer the AIT, it makes sense to remove the existing bar to transferring immigration judicial reviews. Noble Lords have referred to the fact that the matter of transferring immigration judicial reviews into the Upper Tribunal was debated during the passage of the Tribunals, Courts and Enforcement Act, and agreed that the timing of such a measure was not right. I, too, was surprised at how rapidly after the decision was made this was being looked at. There was quite a lot of pressure, not least from the judiciary. Two years on, the large volume of immigration judicial reviews is creating a huge, significant and increasing burden on the higher courts. Last year, the Government published a consultation setting out proposals for reforming the way in which immigration appeals are heard. One of the aims of those proposals was to reduce the existing burden of immigration matters in the higher courts. As a result, we are deciding whether to transfer the AIT into the unified tribunals system. We are still working with colleagues in the Ministry of Justice to ensure that if we bring the AIT into the unified tribunals structure, it will result in a system which is faster, final and respected, delivering the benefits that were set out in the consultation paper last year. This clause forms part of that package of reforms. I am pleased to report that the senior judiciary supported this provision in their response to the consultation. We will not commence this provision unless and until the AIT has been transferred into the unified tribunals system, which may be done under existing powers. Although existing powers also enable certain members of the AIT to sit in the Upper Tribunal, we do not think that it makes sense for immigration judicial reviews to be considered in the Upper Tribunal unless and until the AIT is fully integrated within that system. This provision is needed to give the higher courts greater flexibility in dealing with immigration matters, and it is a significant part of the wider reform of immigration appeals currently under consideration. If it is considered right to transfer the AIT, we wish to be in a position to implement this clause to complete that package. Concerns were expressed on Second Reading that the Government intended to retain existing arrangements for the making of procedure rules in respect of immigration cases. I have written to noble Lords to advise that this is not the case, and that if we do transfer the AIT into the unified system, the procedure rules will be made by the Tribunal Procedure Committee in the same way as for other cases in the Upper Tribunal. A number of specific questions were asked. The noble Lord, Lord Kingsland, asked about procedure rules made by the Home Office. This is incorrect. The procedure rules for the Asylum and Immigration Tribunal—AIT—have been made by the Lord Chancellor since at least 2002. We have indicated that if the AIT transfers, the rules will be made by the Tribunal Procedure Committee. The noble and learned Lord, Lord Cameron, was absolutely correct in what he said about the response made by the judges of the Court of Session. However, the important point is that this is a permissive power; the judges in the Court of Session do not have to use it if they feel that it is too soon. That point was made also by the noble Lord, Lord Pannick. The noble and learned Lord, Lord Cameron, also asked about the primary legislation required to transfer the AIT. That is not necessary. A statutory instrument to transfer the functions is what is required, and that will be subject to affirmative resolution. The noble Lord, Lord Pannick, asked whether there was an intention to transfer all judicial reviews to the Upper Tribunal. The answer is no. It is a matter for the judiciary which case should be transferred. That is the point: they will be able to judge it themselves and they are the people who really understand those issues. It is not for the Government to dictate because they are very sensitive issues and the judges are the right people to make those decisions. The noble Lord, Lord Pannick, also raised questions about nationality decisions. We recognise that nationality cases often raise very complex issues, but if we exclude them they will be almost the only judicial reviews that cannot be transferred. Again, we think that it is better to leave it to the judiciary to do that on a case-by-case basis. I know that this has been a rather long-winded response but I hope that it has covered most of the points and removes the remaining reservations on the matter. As I have said, I do not regard the decisions on Clause 50 to be consequential on decisions on the amendments, but I would be grateful to noble Lords if they would withdraw their amendments.