Transfer of Functions of the Asylum and Immigration Tribunal Order 2009

In moving this order, I shall speak also to the other two Motions standing in my name on the Order Paper. The orders transfer the jurisdictions of the gambling appeals tribunal, claims management services tribunal, information tribunal, immigration services tribunal, adjudication panel for England, financial services and markets tribunal, pensions regulator tribunal, family health services appeal authority and the asylum and immigration tribunal into the unified tribunal structure created by the Tribunals, Courts and Enforcement Act 2007—the 2007 Act. As noble Lords will recall, Sir Andrew Leggatt’s review, Tribunals for Users: One System, One Service, lead to the creation by the Government of the Tribunals Service in 2006, and this was followed by the Tribunals, Courts and Enforcement Act 2007. The 2007 Act provided for the first-tier tribunal and upper tribunal, creating a unified appeal structure. These orders form a further part of a series of tribunal transfers into the unified appeal structure under the 2007 Act, which commenced in November 2008. This has since been followed by subsequent transfer orders in 2009. I shall deal, first, with the draft Transfer of Tribunal Functions Order 2009. It provides for the transfer of the gambling appeals tribunal, adjudication panel for England, claims management services tribunal and immigration services tribunal into the general regulatory chamber of the first-tier tribunal. This chamber commenced work on 1 September 2009 and the functions of these tribunals are already allocated under the existing chambers order. The order also provides for the transfer of the information tribunal into the first-tier tribunal—general regulatory chamber—and the upper tribunal, with the question as to which one of them is to exercise the functions in a particular case being determined by or under the tribunal procedure rules. Appeals from all these jurisdictions will be heard in the administrative appeals chamber of the upper tribunal. The jurisdiction of the family health services appeal authority is transferred to the first-tier tribunal—health, education and social care chamber. A separate order, which is subject to the negative resolution procedure, will amend the existing chambers order to assign the functions of this tribunal to the chamber. The transfer of the family health services appeal authority, as well as the tribunals transferring into the general regulatory chamber, is to take effect on 18 January 2010. The jurisdiction of the financial services and markets tribunal is transferred to the upper tribunal and the former tribunal is abolished. An amendment to the chambers order will provide for the former jurisdiction of the financial services and markets tribunal to be dealt with by the tax and chancery chamber of the upper tribunal. The jurisdiction of the pensions regulator tribunal in Great Britain is transferred to the first-tier tribunal and the upper tribunal. Currently, that jurisdiction arises under the Pensions Act 2004, and amendments to that Act made by the order provide that those cases will be heard by default in the upper tribunal. An amendment to the chambers order will provide for those cases to be dealt with by the tax and chancery chamber of the upper tribunal. The pensions regulator tribunal in Great Britain and the financial services and markets tribunal transfer into the unified structure with effect from 6 April 2010 to coincide with the start of the financial year. In all cases, the tribunals are abolished and the existing judges and members are transferred into the first-tier tribunal or upper tribunal as appropriate. This is essential for ensuring that a good service is maintained for users and existing specialist expertise is protected. The Amendment to Schedule 6 to the Tribunals, Courts and Enforcement Act 2007 Order 2009 adds the Asylum and Immigration Tribunal to the list of tribunals that are transferable into the unified structure created by the 2007 Act. The transfer of the Asylum and Immigration Tribunal was consulted on for 12 weeks from August 2008. The majority of consultation respondents were in favour of the transfer and, on 8 May 2009, it was announced that the tribunal would transfer as proposed. The Transfer of Functions of the Asylum and Immigration Tribunal Order 2009 provides for the transfer of the Asylum and Immigration Tribunal into the first-tier tribunal. The transfer will take effect on 15 February 2010. Appeals from the immigration and asylum chamber of the first-tier tribunal will be heard in the upper tribunal. A separate order, which is subject to the negative resolution procedure, will amend the existing chambers order to establish an immigration and asylum chamber of the first-tier tribunal and an immigration and asylum chamber of the upper tribunal, and assign functions to the chambers as appropriate. Again, in common with previous transfer orders, transitional provisions ensure that cases currently being heard by the transferring tribunals will not be adversely affected by the transfer. Directions and orders made by a transferring tribunal prior to each of these orders coming into force will continue in force as if they were directions or orders of the first-tier tribunal or upper tribunal as appropriate. I turn to the detail of the orders. Articles 1, 2 and 3 of the draft Transfer of Tribunal Functions Order 2009 provides for the abolition and transfer of each tribunal into the unified structure on the dates outlined above. All the tribunals are transferring into chambers within the first-tier and upper tribunal that have already been created and are currently in operation. Article 4 of the order provides for existing judges and members of each tribunal to be transferred to hold offices in the first-tier tribunal and in the upper tribunal as appropriate. Article 5 provides for consequential amendments to, and repeals and revocations of, primary and secondary legislation, and transitional and saving provisions. These are set out in full in the schedules. The Amendment to Schedule 6 to the Tribunals, Courts and Enforcement Act 2007 Order 2009 amends Schedule 6 to the Tribunals, Courts and Enforcement Act 2007 by adding the Asylum and Immigration Tribunal to the list of tribunals that are transferable into the unified structure as created by the 2007 Act. Following on from that order, Article 2 of the draft Transfer of Functions of the Asylum and Immigration Tribunal Order 2009 transfers jurisdiction of that tribunal into the first-tier tribunal in its entirety and abolishes the Asylum and Immigration Tribunal. Article 3 of the order provides for immigration judges of the Asylum and Immigration Tribunal to be transferred in as first-tier tribunal judges, and for designated immigration judges of the Asylum and Immigration Tribunal to be transferred in as first-tier tribunal judges and deputy judges of the upper tribunal. Senior immigration judges and non-legal members are transferred in as judges and members of the upper tribunal respectively. Article 4 of the order provides for the current Asylum and Immigration Tribunal (Procedure) Rules 2005 and the Asylum and Immigration Tribunal (Fast Track Procedure) Rules 2005 to transfer to the immigration and asylum chamber of the first-tier tribunal and to have effect as if they were tribunal procedure rules upon commencement, as mentioned earlier. I confirm that the power to make procedure rules for this chamber will in future lie with the Tribunal Procedure Committee. The Tribunal Procedure Committee was created under the Act and is chaired by a Lord Justice of Appeal—currently Lord Justice Elias—and includes representatives from a number of organisations, including the Administrative Justice & Tribunals Council, the Bar Pro Bono Unit and the Free Representation Unit. Honourable Members may be aware that we had originally proposed that the procedure rules for immigration and asylum should continue to be made by, and under the ownership of, the Lord Chancellor. However, following consultation on this we have decided that it is appropriate that this power should rest with the Tribunal Procedure Committee. Article 5 of the order provides consequential amendments to, and repeals and revocations of, primary and secondary legislation, and transitional and saving provisions. These are set out in full in the schedules and include the revocation of Section 26(6) of the Asylum and Immigration (Treatment of Claimants, etc.) Act 2004, which inserted Sections 103A to E into the Nationality, Immigration and Asylum Act 2002. Those sections of the Nationality, Immigration and Asylum Act 2002 established the higher court review and reconsideration process following an appeal to the Asylum and Immigration Tribunal. The schedules also provide for the revocation of Part 2 of Schedule 2 to the Asylum and Immigration (Treatment of Claimants, etc.) Act 2004, which established the higher court filter review and reconsideration process. This process enabled a disappointed party, following an appeal to the Asylum and Immigration Tribunal, to apply to the tribunal for reconsideration of its decision. If the tribunal decided not to reconsider its decision, the party could then go to the higher courts to seek an order for reconsideration. This will be replaced by the onward appeals process provided by Section 11 of the TCE Act, whereby initial appeals will be dealt with by the first-tier tribunal and the reconsideration process will be replaced by onward appeals to the upper tribunal. Those wishing to appeal to the upper tribunal will be required to seek permission to appeal from the first-tier tribunal in the first instance. Where the first-tier tribunal refuses to grant permission, a party may then apply for permission directly to the upper tribunal. We will, however, maintain the current bar on onward appeals against procedural, ancillary, preliminary or interlocutory decisions and decisions on bail applications. We will be bringing forward an excluded decisions order under Section 11(6) of the TCE Act for this purpose. The Government are committed to ongoing transformation of our tribunals, placing the user at the heart of the service. The unified system will have greater flexibility in absorbing new work and responding to fluctuations. The order before the Committee today is another step in achieving this process. I commend the draft statutory instruments to the Committee.