Transfer of Functions of the Asylum and Immigration Tribunal Order 2009

I am grateful to the Minister for his statement. We have always supported the concept of the tribunals being unified into one body, and the division into a lower or first tier and an upper tier has been very acceptable. We welcome, in particular, the transfer of the Asylum and Immigration Tribunal into its own chamber of the first-tier tribunal. That is a very good step. One reason that we welcome it is that the previous tribunal had procedures which favoured the Home Office over the applicant. I noted that the Minister said that the applicant—I think that he meant the applicant—was to be placed at the centre of the new tribunal procedures. I hope that that is right and that his rights are considered. Having regard to the unsatisfactory nature of the procedural rules in the old system, we also welcome the fact that the procedural rules are now to be put in the hands of the Tribunal Procedure Committee. When the consultation paper, Immigration Appeals: Fair Decisions; Faster Justice, was published by the UK Border Agency in 2008, it asked for comments on the rule-making powers for the new chamber. As a result of representations made to it, the border agency decided that the Lord Chancellor would no longer make and amend the procedure rules but that the Tribunal Procedure Committee would have that job. The Tribunal Procedure Committee has consulted on draft rules which it has promulgated, and the Immigration Law Practitioners’ Association has responded in a document dated 23 November 2009. It raises certain very serious issues, and I should like to have a response one way or the other on some of them. It mentions reporting determinations, which I do not need to follow up on, but it also refers to evidence in the upper tribunal, the European Court of Justice and fast-track provisions. It makes some very worthy comments and I shall read the Government’s response to its submission in due course. However, ILPA also states that, whereas previously there was a case management review hearing, nothing in the draft rules that are now promulgated maintains that hearing. It is a hearing of great advantage in determining what issues the tribunal has to determine. There has been no consultation on abandoning case management review hearings. There is undoubtedly concern that, for many years, applicants and appellants have faced endemic and systemic obstacles in persuading the Home Office to disclose its case on the relevant issues with sufficient clarity and sufficiently in advance. There are a number of aspects to that, but basically the problem is that presenting officers are told that they can change the basis of the Secretary of State’s decision, including raising new matters, without reference to the original decision-maker, so long as notice is given. That is to say that the applicant will receive reasons for the refusal of his application, but they can be changed by the Home Office when the matter goes on appeal. The Home Office has said that, as a matter of policy, the "reasons for refusal" letter will not necessarily identify all matters that the Secretary of State for the home department proposes to raise at the hearing, and that new issues may well be raised much less than 48 hours before the hearing, including at the hearing itself. It is fundamental, and contrary to basic justice, that a person bringing an appeal against a decision based on particular reasons should know, and know plenty of time in advance, if those reasons are to be fiddled about with and changed to the advantage of the Home Office. If that system has become, as ILPA says, the practice in the old tribunal, I hope that when this comes before the first-tier or upper tribunals we will not have a similar system in operation, whereby reasons can be changed at any moment, even up to the hearing itself. That is one aspect that I would like some response to, not necessarily now but certainly in due course. I want to hear from the Home Office why it has had this practice in the past and whether it will persist with it in the future. The other matter about which ILPA has considerable concern is that the draft practice directions that have been put forward do not include the provisions that exist with respect to children and vulnerable adult witnesses. Children involved in asylum appeals are likely to have experienced serious physical and psychological harm and ILPA considers that their treatment should be addressed by a further practice statement in the immigration and asylum chamber of both tribunals. This matter is the subject of a Private Member’s Bill coming before your Lordships shortly, dealing with the United Nations Convention on the Rights of the Child. It is very important when we are dealing with practice rules for a new tribunal and for a new procedure that the articles of the United Nations Convention on the Rights of the Child should be followed, so that, in all decisions affecting children, whether directly or indirectly, the tribunal must ensure that its procedures satisfy the highest standards in relation to children’s rights. We all know of the detention of children that is taking place in the Yarl’s Wood detention centre in asylum cases; that is highly unsatisfactory. Concern for children should apply to all judicial administrative hearings. The new procedure rules, when they are produced, should be flexible in order to give positive effect to the rights of children in terms of their immediate and longer term best interests, principles of non-discrimination and effective participation rights. Such practice directions exist in the Family Division of the High Court and in the criminal courts, and it is essential that they apply in asylum and immigration cases. I hope the Minister will be able to give me some satisfaction, either now or at some later stage, that these principles will be followed in the practice rules put forward by the tribunal. Having said that, we do not object to these orders and will not oppose them.