Borders, Citizenship and Immigration Bill [HL]

My Lords, I have put my name to this amendment, which I strongly support. The noble Lord, Lord Lester, has made a strong case, by reference among other things to the report of his committee, for saying that the power under Section 13(6) of the Tribunals, Courts and Enforcement Act for the Lord Chancellor to restrict the grounds on which the Court of Appeal may grant leave to appeal should not apply to asylum and immigration appeals. The Court of Appeal should continue to be able to grant leave to appeal in these very sensitive and difficult cases on the traditional grounds that there is a real prospect of the appeal succeeding. I support the amendment and, if the noble Lord were to divide the House on it, I should certainly support it. My amendment falls in the same group. It is perhaps better that I should deal with it now. I apologise for not moving the amendment in Committee. That was not because Clause 52 has not been controversial from the start—because it has been. The reason I did not move an amendment in Committee was quite simply that discussions were still going on, including discussions with very senior members of the judiciary, to find the best way ahead. As a result of those discussions, the noble Lord, Lord West, has tabled Amendment 62A, which we will come to, which provides that Clause 52—the controversial clause—will not come into operation until a further order on an affirmative basis in both Houses. I shall support the noble Lord's amendment when the time comes, but I will explain very briefly now why I support it, because it is relevant to my amendment. The Asylum and Immigration Tribunal has not yet been transferred to the new tribunal system. There may be changes, when it is transferred, to the way that such appeals are dealt with. It simply does not make sense to transfer judicial review of asylum and immigration cases to the new Upper Tribunal before the AIT itself has been transferred. That does not make sense. Moreover, the upper tier has been in operation for only six months or less. It needs to gain experience, especially once the AIT has been transferred into the new system. So I shall, as I say, support the noble Lord’s amendment, which resolves at least one of the major concerns that some of us have had. I now come to my other cause for concern. The background is this. The High Court judges who deal with judicial review in immigration cases in the administrative court are under huge pressure. There are currently 3,000 applications for judicial review annually in such cases alone. Some of these cases are complex and sensitive, as I am sure we all know. Everyone agrees that those cases should continue to be dealt with by High Court judges, as they are now. However, many of those 3,000 cases are comparatively straightforward. They do not raise any real points of difficulty and are not unusually sensitive. Of course they need to be dealt with judicially—there is no question about that—but they need not take up the time of the limited number of High Court judges available to deal with these cases. What was needed from the start, from the moment that Clause 52 appeared, was a filter—a means of distinguishing those cases that should be retained in the administrative court from those that could be transferred. That was one of the main recommendations in paragraph 1.29 of the report of the Joint Committee on Human Rights, which the noble Lord, Lord Lester, has already read. The purpose of my amendment is to provide just such a filter in the most convenient way. Of the 3,000 applications for judicial review, about 1,000 are so-called fresh claim applications—that is to say, cases where the appellant seeks to challenge a decision of the Secretary of State on the basis of further grounds put forward by him. The question then arises of whether those fresh grounds constitute a fresh claim or not. Those applications amount to some 1,000 applications a year. Of those 1,000 cases in 2008, only 12—a tiny proportion—were found to merit a substantive hearing. It is the view of the senior judiciary that those applications should be transferred as a class to the Upper Tribunal and could be done without injustice. I suggest that we would all accept their view on that. If so, the effect of my amendment, coupled with the amendment to be moved by the noble Lord, Lord West, would be as follows. Once the AIT has been transferred and the system is working smoothly, the Secretary of State would then lay an order bringing Clause 52 into operation. At the same time, he would lay another order transferring the class of fresh claims to the upper tier of the tribunal. In that way, we would relieve the administrative court of a main part of its burden in the shortest possible time. There is no way that we could do it more quickly than that. The starting point will be the transfer of the AIT to the new system, which I strongly support. I hope that the noble Lord, Lord West, will confirm that it is the Government's intention to transfer the AIT to the new system sooner rather than later, and everything thereafter will follow. I now deal with the amendment of the noble Lord, Lord Kingsland. The noble Lord and I have almost always, as I am sure he will confirm, seen eye to eye on questions of law and legal procedure. But for once, and with the utmost respect, as lawyers say, I beg to differ. I hope that he will understand. The noble Lord’s amendment does indeed transfer fresh claim applications, as will mine, but no sooner than mine. So far, his amendment is good. The trouble with his amendment is that, unlike mine, he proposes to remove Clause 52 from the Bill altogether. That will have serious consequences in relation to the 2,000 applications remaining after the 1,000 applications have been removed, which will remain thereafter, but which will have to be dealt with by High Court judges themselves and cannot be transferred as a result of an exercise of the individual judge’s discretion. The remaining 2,000 applications under my amendment could be transferred at the discretion of the judges on a case-by-case basis, but under the noble Lord’s amendment they would not be. They would all have to be dealt with by High Court judges, and that cannot be a proper use of High Court judges’ time. To remove Clause 52 from the Bill altogether cannot be the right way ahead and is not supported by the judiciary. It must make sense to leave the judges with that limited discretion to transfer individual cases to the tribunal. However, there is a second reason why I have difficulty. Let us suppose that fresh claims have been transferred as a class and the system is working well, as I hope and believe it will. If it then emerges that a further class of claims could be transferred with advantage, under my amendment that could happen with the Lord Chief Justice’s consent. There would be a fresh class transferred which would come before this House on an affirmative order. On the noble Lord’s amendment, a fresh class transfer would require primary legislation. Once again, I suggest that it would not be right to tie down the judiciary in that way. For those reasons, I shall move my amendment when the time comes.