Borders, Citizenship and Immigration Bill [Lords]

I thank the Minister for his warm and entirely justified tribute to Lord Kingsland, who died so suddenly and tragically at the weekend. His work on this legislation will serve as an exemplar for much of the very good work that he did in Parliament and elsewhere. It showed his concern that the legal system should provide justice and that the legislation that we pass through both Houses should promote justice. The Minister has taken on many of the arguments that Lord Kingsland employed, and that is a fine mark in his memory. I acknowledge that fact, and that the Government's new clause bears the imprint of his arguments. As the Minister is aware, this is a vexed issue, but I sympathise with his attempt to strike a balance. We all agree that something must be done to ease the case load of the asylum and immigration tribunal. It is one of many things that are wrong with the system, and it promotes delay and, therefore, frustration. Indeed, part of the reason for the backlog is that poor initial decision making leads to a large number of appeals and to problems with cases that are being decided only on paper. The Minister will be aware of those concerns, which he seeks to address in new clause 8, and of the Government's rush to transfer immigration cases to the new upper tribunal. It is barely up and running, but it cuts down access to the higher courts. The widespread feeling is that Home Office failings must not be compensated for by a lessening of appeal rights in those complex cases that involve human rights issues or constitutional principles, and that the inadequate handling of judicial reviews by an untested tribunal risks increasing the work load of the supervising court, the Court of Appeal, and reducing supervision at the Home Office. Those are the issues that the Minister seeks to address, and he is aware that there is widespread agreement in this House and in another place that many cases from the immigration and asylum courts could be transferred satisfactorily to the new upper tribunal. We all agree that it would be an effective way of reducing the pressure on the administrative courts. He will be aware also that the Home Affairs Committee looked at the issue and did not object in principle to the upper tribunal considering cases that were neither highly significant nor complex. That is the balance that he needs to strike. I have two specific points to make. First, Liberty made the point that""removing the exception before assessing the performance and capacity of the newly established Tribunal is dangerously premature."" The Minister has sought to address that, but I hope that he will again reassure the House that there is no intention of moving too quickly to the new system, because, as Liberty argues:""More frequently than in other spheres decisions regarding immigration and asylum applications engage fundamental rights."" Secondly, the Minister yet again brought up the point that 85 per cent. of judicial review applications fail, and the clear implication was that a large number are in some way frivolous, which is why they fail. He will be aware of his correspondence with the Immigration Law Practitioners Association, which disputes the factual basis of that point. In a letter to the Minister last month, the acting chair of ILPA said:""Our experience is that many judicial reviews are not progressed because the decision that is being challenged (a decision of the UK Border Agency) is withdrawn or agreed to be reconsidered. In other words, many judicial reviews do not proceed because the claimant has succeeded in his or her challenge to the lawfulness of the decision without requiring the Court to consider the matter further."" If ILPA is right, the gloss that the Minister puts on the 85 per cent. figure is not right. It suggests that claimants are overwhelmingly in the wrong and have to give up because they cannot justify their case. ILPA makes the point that the opposite is true: often, the claimant's case is proved and they do not have to go through the whole judicial process. This is the ideal opportunity for the Minister to address what seems to be a factual point. Where does the balance lie in that 85 per cent. figure? With those caveats, I am delighted that the Minister has recognised that strong arguments were advanced not only in another place but in Committee, that he has recognised those concerns, and that he has tried to deal with them in new clause 8. By and large, it represents an attempt to acknowledge the strength of those arguments, and I welcome the Government's change of mind.