My Lords, I speak to our Amendments 27 to 29, and to the question that the clause stand part of the Bill. We have heard examples from the noble Lord, Lord Hannay, and my noble friend Lady Lister of why we consider this clause one of the most controversial in the Bill.
The Government have made it clear that the clause reduces the number of immigration decisions that can be appealed from the current 17 to just four. Only three types of decision will remain appealable: a decision to refuse a claim of asylum or humanitarian protection; a decision to refuse a human rights claim; or a decision to revoke asylum or humanitarian protection. A decision by the Home Office to refuse an application which does not involve one of these claims but is made, for example, on erroneous grounds or without reference to highly relevant information could not be challenged before a tribunal. Instead, the Government’s
plans are that an administrative review system be set up to, according the Government’s fact sheet on the clause,
“provide a proportionate and less costly mechanism for resolving case working errors”.
We can all sign up to a process that gives timely, accurate decisions with a swift process to address any errors. However, taken in context, that is not what this clause does. We have therefore tabled a number of amendments, and have given notice of our opposition to the clause standing part of the Bill. Often, clause stand part debates are used as a kind of probing amendment, a technical way of ensuring discussion on the principle of the clause or an attempt to tease out the detail and address questions. We will be doing that with this clause. However, I also say to your Lordships’ Committee that removing the clause entirely would be our preference given the current position. Failing that, our Amendment 27 would ensure that appeal rights could not be abolished until the quality of Home Office decision-making for managed migration is deemed by the Independent Chief Inspector of Borders and Immigration and the Secretary of State to be efficient, effective and fair. That would require that the provision be introduced by order subject to affirmative procedure; that is also the position of the Joint Committee on Human Rights.
We have also tabled Amendments 28 and 29 to introduce two new clauses. Amendment 28 would require the Secretary of State to undertake an impact assessment before being able to commence the clause. The issue of students, as raised by the noble Lord, Lord Hannay, would be relevant to Amendment 28. Amendment 29 would require the Secretary of State to undertake a review of the number of people successfully deported within a calendar year of a decision under Clauses 11 to 14.
We have tabled those amendments because of deep concerns about the clause. Our country has one of the most highly respected judicial systems in the world, and the right to appeal is a fundamental principle of British law. There can be few decisions more important, or which have a greater impact on an individual or community, than who is able to live here. These are decisions of life and livelihood which affect families, communities and, potentially, businesses and employers.
The noble Lord, Lord Hannay, has highlighted the situation with students. Other noble Lords are concerned about the position of families and children. However, we are looking at the wider concerns and principles raised by the Bill. The evidence, and the impact on businesses and the economy, make it very important that we get these decisions right. It is right that such a decision should be challengeable and that recourse should be available.
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A system that provides for appeals is even more essential given that we know how flawed the current system is. It is well documented, and we have heard today, that the department is already struggling to deliver a high-quality service, and that there are huge casework backlogs. Recent figures show that of the 4,102 ex-foreign national offenders living in the community while awaiting deportation, 65% of cases are more
than two years old; the number of foreign national ex-offenders living in the community rose by 122; and there are 12,816 asylum cases awaiting an initial decision—a 17% increase on the previous quarter. Evidence placed before the Home Affairs Select Committee revealed a previously undisclosed new backlog in permanent and temporary migration decisions of 190,000, and the total immigration backlog at the end of 2012 stood at more than half a million—502,467.
These are very sobering figures, but more important than that is the quality of decision-making. The latest statistics reveal that 32% of deportation decisions, 49% of managed migration appeals—that is, work and student appeals—and 49% of entry clearance applications were successfully appealed last year. Shockingly, the Government acknowledged in a recent letter to me from the Minister that,
“neither the Home Office nor the Ministry of Justice collect data on why appeals are allowed”.
I find that surprising given that this is such a significant clause in the Bill. However, what the department did have was a sample exercise of, I understand, around 2% of cases, which showed that 60% of the volume of appeals allowed are due to casework errors. That would mean that almost 30% of all appeals—that is, 60% of the 49%—are allowed due to casework errors. When so many decisions are found to be flawed, should we really be trying to remove the current routes of appeal and replacing them with administrative reviews? It would be helpful if the Minister could tell me today—or write to me—when that sample exercise was undertaken and what period it relates to. That would be very useful information to have. However, should we not be focusing on improving the efficiency of these initial decisions and making sure that there is little need for appeals in the first place? It really cannot be right that the Home Office’s response to its own inefficiency is simply to stop people being able to challenge that inefficiency.
I am sure that the Minister will point to administrative reviews as the recourse. The Government have already made clear that, as evidence of the appropriateness of this new system, they rely on the fact that it is already used overseas when people are refused entry clearance. I am sure the Minister will also tell me that, under this process, 21% of original decisions are overturned. I appreciate that we are not comparing exact like for like, but it has to be recognised that these are two very different figures—50% of appeals granted under the current system compared with 21% of administrative reviews overturning original decisions. Even accounting for appeals overturned on the basis of new evidence or Article 8 claims, this still leaves roughly 10% difference between appeals and administrative reviews.
The Government have said time and again that the person reviewing the decision will not be the person making the original decision, but it will still be a cohort of immigration staff drawn from those who already make the decisions, so there is a conflict. Given the very high proportion of appeals that are allowed, and given the reasons for those appeals, it is clear that there is a serious problem in the quality of decision-making. Therefore, should not any administrative review be completely independent so that there is confidence in the administrative process?
As we have heard from my noble friend Lady Lister, the Government have again relied on the availability of judicial review as a recourse. We have pointed out on previous amendments that reliance on judicial review is likely to be more costly for the taxpayer. In their impact assessment on appeals, the Government said that the displacement on to judicial review could not be quantified, and therefore could not be costed. However, the “sensitivity analysis” in the assessment models the effects of an extra 5,600 reviews being started, and of up to 1,000 being granted permission. That would be an extraordinary increase in the number of judicial reviews. In 2011, there were 8,711 immigration and asylum reviews and only 4,630 reached the stage of a decision on permission. Judicial reviews cost more than appeals, costs can be sought from the other party—and, of course, the Government will do that—and damages may be claimed.
As we heard from the noble Baroness, Lady Lister, the Joint Committee on Human Rights has criticised the Government’s reliance on the availability of judicial review as an effective remedy, pointing points out that it does not consider how it is,
“affected by the Government’s other proposals to reform both legal aid and judicial review itself”.
We have not seen the evidence for this clause. We do not believe that the evidence is there. It could leave a number of people with a right to be here without recourse against a wrong decision. It could also end up costing more if more people go down the judicial review route. It is ill thought out and unfair. I hope that the Minister will listen to what is said today and reconsider this proposal.