Borders, Citizenship and Immigration Bill [Lords]

I speak mainly to new clause 6 and to Government amendment 41, which will remove clause 54. Some of the Minister's opening comments were very welcome, as were his reassurances about the safeguards that will be put in place. If he did as he suggested and put into writing something that everyone could see, with examples of how he expected the safeguards to operate, that would be helpful. He has, none the less, certainly provided me with considerable reassurance about how the system might operate. I still have a few concerns, however. The hon. Member for Ashford (Damian Green) raised the first concern, which is about the timing of the changes. As recently as 2007, the Government accepted that the power to allow for the transfer of applications for judicial review in immigration and nationality cases would be expressly excluded because of their complexity and sensitivity. During the passage of what became the Tribunals, Courts and Enforcement Act 2007, the Minister in the Lords said on Report that before introducing any legislation to allow the transfer of judicial review applications in asylum and immigration cases, the Government wanted to see how the new tribunal regime would work. But we have not seen how the system works, and the introduction of the Bill before us—with clause 54—took place more or less simultaneously with the opening for business of the upper tribunal in the tribunal system. We have not had the chance to see properly how the system works before agreeing to the transfer. I therefore hope that the Minister will indicate his thoughts on the possible timing of a transfer of responsibilities, because we would not want it to happen prematurely—before the new tribunal system had bedded in and was capable of dealing with the undoubtedly considerable work load. We have heard that we currently deal with a few thousand judicial review applications. If the bulk of that work load is to go to the upper tribunal, we need to be satisfied that it is functioning properly and capable of taking it on. Otherwise, we will just be shifting a blockage from one part of the system to another—from the courts to the upper tribunal—which would not achieve a great deal. New clause 6 was intended to prevent the Lord Chancellor from introducing a restriction on the right of appeal to the Court of Appeal on the immigration and nationality law decisions of the upper tribunal. At the moment, the Court of Appeal will hear appeals from the asylum and immigration tribunal where the court considers that the tribunal's decision is arguably wrong in law or where the appeal appears to have a reasonable prospect of success. Those are the hurdles that have to be jumped in order to get a case into the Court of Appeal. I am sure that all of us who deal with immigration and asylum casework will have seen applications for judicial review put in that look as though they have remarkably little prospect of success and do not even try to argue a point of law. I am afraid that that is about lawyers making money from clients in a completely unjustifiable way by putting forward a case that they must know has very little chance of success. If section 13 of the 2007 Act is brought into play, allowing the Lord Chancellor to add restrictions, what is then suggested is that there will be an extra condition—that an appeal would have to raise some further compelling reason or point of principle or practice. If immigration and nationality judicial reviews are to be transferred from the High Court to the upper tribunal, I assume that those restrictions could also apply there in terms of judicial reviews that were decided on by the upper tribunal. If this change goes ahead, I would like to be clear about whether it will mean not only that there is a transfer of judicial reviews to the upper tribunal, but that the extra hurdle will be in place, so that we do not simply say that a case is arguably wrong in law or has a reasonable prospect of success, but also that it must involve some further compelling reason or point of principle. It would concern me if we were to end up with that extra condition. My final point concerns what the Minister said about fresh claims. I know from the debates in the House of Lords that the judiciary believe that there is no problem with transferring across fresh claims. They pointed out that only a very small proportion of applications for judicial review that are made as fresh claims get anywhere. Of the 900 or 1,000 cases in 2008 that the Minister mentioned, only a very small number were found to merit a substantive hearing. In the vast majority of applications that were argued as a fresh claim, the Court of Appeal decided that they did not deserve a substantive hearing. The judiciary obviously believe that they could be transferred, as a class, to the upper tribunal, and that would not raise any injustice. That still worries me a little bit. Although only a small number of the applications that are regarded as fresh claims lead to substantive hearings, I suspect that they are cases that raise important points, and it is those cases that one wants to be sure will be heard by High Court judges. At the moment, there is no guarantee that a High Court judge will be involved in hearing a case in the upper tribunal. Some High Court judges would be involved with the tribunal, but would they necessarily be involved in these cases? In view of what the Minister said, I am not inclined to pursue new clause 6 to a Division, but I hope that he will follow through on the reassurances that he gave us. I also hope that in winding up he can say a little more about when he intends to bring in the changes. We need to be satisfied that the small number of fresh claims that will now not end up in the Court of Appeal will be dealt with by senior judges—High Court judges, if at all possible.