Borders, Citizenship and Immigration Bill [Lords]

There are an incredible 4,600-plus applications. Around 85 per cent. of them are rejected. That backs up my assertion that some of them are an attempt to play the system. Of course we do not wish to deny justice or access to justice, and our proposals do not do so. That has been accepted. The hon. Gentleman is right: justice delayed is justice denied. The new clause extends the same powers to the Lord Chief Justice in Northern Ireland and the Lord President in Scotland, in line with the procedures set out in the Tribunals, Courts and Enforcement Act 2007. It also provides that it cannot be commenced—the hon. Member for Ashford has tabled an amendment on the commencement provisions—until the asylum and immigration tribunal has been transferred into the first-tier tribunal and upper tribunal system established by the Tribunals, Courts and Enforcement Act. That was always the policy intention, which is why I am happy to make it clear in the Bill. The amendments tabled by the Opposition address a number of points. Some are on similar lines to the Government's own amendment, so I cannot in all fairness resist them on policy grounds. Others limit the power to transfer judicial reviews in ways that we regard as unacceptable. The effect of new clause 6 and amendments 31 to 38 is that the Lord Chancellor cannot limit the test for appealing to the Court of Appeal. High Court judges must review every case before transferring them to the upper tribunal, and even then cannot transfer nationality cases—not until the asylum and immigration tribunal has transferred into the unified tribunal system. As I said, I have no difficulty with this last point, which is covered in the Government's new clause. Similarly, the requirement under amendment 38 that the Secretary of State make provision for the transfer of fresh claims is unnecessary, first because we are committed to addressing the burden in the High Court as soon as possible, and secondly because such orders are not required to implement case-by-case transfer of cases. Amendment 25, however, would mean that the clause cannot be commenced until two years after Royal Assent. The burden on the higher courts exists now and we need to address it now. I understand the motive behind the amendments, but we need to get on with it. Amendment 38 requires commencement by affirmative order. This is not necessary or desirable, if we are talking only about commencing the power to transfer a limited class of cases, as I said we are. The judiciary have made it very clear, and the other place has accepted in principle, that fresh claims cases should be transferred, which makes commencement by affirmative order unnecessary. The other amendments cause considerable difficulty. Primarily, they would cause difficulty for the judiciary, who would be hampered in their ability to manage cases in the best interests of justice. Some of the amendments in the group are concerned with limiting the categories of case that may be transferred, and the Government amendments achieve much the same ends. Amendment 38 suffers from the same drafting difficulties as we have seen in previous amendments to the clause— applications are not made under rule 353 of the immigration rules; they are refused under it. Requiring a High Court judge to consider every case before transferring it defeats the point of allowing cases to be transferred into the upper tribunal. This is not what the judiciary want and it does not address the burden that the higher courts are facing. If there is to be any positive impact from transferring fresh claims judicial review cases into the upper tribunal, they should be transferred on a class basis, without the need for a High Court judge to scrutinise every case. That is what the judiciary has asked for and what the Government amendments provide. The Opposition amendments would take away any possible benefit from clause 54, and I therefore ask the House to consider carefully the real-world impact and therefore to resist them. New clause 6 prevents the Lord Chancellor from making an order which restricts the test for permission to appeal to the Court of Appeal to that set out in the Access to Justice Act 1999. The Master of the Rolls supports this more restrictive test—it is not something that we are imposing on the judiciary against their will, as some had feared. We are clear that the test would not stop cases that raise important issues concerning human rights or asylum being granted permission to appeal to the Court of Appeal. That is a critical point, which came up in the other place. The test would simply allow judges to refuse permission in cases where there was no important point of principle or practice and no other compelling reason to grant permission. It is preferable to have a single test for the hearing of appeals by the Court of Appeal, and we are satisfied that the amendment is not necessary to provide the protection for immigration cases, which we accept can raise important issues of life and liberty, although other appeals can also raise important issues. Again, I ask hon. Members to consider the impact of new clause 6.