My Lords, I thank my noble friend Lady Hamwee for tabling this amendment. She described it as being a self-standing amendment outwith Clause 11. However, it would delay the commencement of Clause 11 until such time as an instrument which provided for the conduct of administrative review had been approved by both Houses of Parliament. The proposed new clause also seeks to include within that instrument provision for procedures for administrative review to be agreed by independent persons, for oversight of those reviews by an independent person and for that independent person to report to Parliament. The proposed new clause also provides that Clause 11 should lapse after five years unless an order for it to continue in force is laid and not annulled by either House of Parliament.
The process governing administrative review will be set out in the Immigration Rules. There is no power in this Bill to make an order that will set out the administrative review procedure. Furthermore, as I have said, the administrative review procedure will be set out in the Immigration Rules prepared under the power in Section 3(2) of the Immigration Act 1971. The procedure under that Act provides that the Immigration Rules are laid before Parliament. Either House may seek a debate on those rules and pass a resolution disapproving of the changes proposed. Such a resolution would require the Secretary of State to lay
further rules within 40 days. This procedure provides for parliamentary scrutiny of the process for administrative review, so there will be an opportunity for your Lordships’ House, if it so wishes, to scrutinise the process for administrative review, and indeed there will be an opportunity for Parliament to seek changes to that process. Therefore, I believe that it is unnecessary to seek an amendment to the Bill that provides for parliamentary scrutiny and approval of the rules governing the administrative review process. The process for scrutinising the Immigration Rules already provides for that.
However, I fully accept that there are concerns about the requirements relating to the administrative review process. Those concerns were expressed by the noble Baroness, Lady Smith, in our debates on Monday and are indicated by the new clause proposed by my noble friend and in the comments of a number of other of my noble friends. The safeguards sought are that the administrative review procedure should be agreed with an independent person, that there should be oversight of reviews by an independent person and that that independent person should report to Parliament.
It is our view that the administrative review procedure is best developed and finalised by those who will operate it. That does not mean that the process is being developed behind closed doors. As I think was acknowledged by my noble friend in moving her amendment, before Committee stage in the other place we published a statement of intent on administrative review setting out the details of the procedure, and it is that procedure which has come under scrutiny in this new clause.
I can confirm that administrative reviews will be undertaken by Home Office staff who will be independent of the original decision-maker and entirely separate from the initial decision-maker’s line management chain. We intend to establish a separate administrative review function for in-country migration casework. This means that those undertaking the reviews will be separate from those taking the decisions under review. We expect some of our most experienced staff to be among those undertaking administrative reviews. That does not mean that the initial decision-making will be left to inexperienced staff. I agreed entirely with my noble friend Lord Avebury when he said that the important thing is to get these decisions right in the first place. I could not agree more. It is worth noting that only 10% of decisions taken in-country are refused and therefore only a proportionate number of experienced caseworkers will be redeployed to review work from initial decision-making.
The noble Baroness, Lady Smith, quite properly said that, of the cumulative figure of 60% from the sample, 30% of refusals are due to that kind of administrative error. However, it is also important to recognise that, in terms of the totality of decisions taken in this field, that amounts to something like only 3% of all decisions taken. Of course, that presumes that every decision on granting an application is correct—we tend not to have appeals against incorrect grantings—but that puts it into some kind of perspective. Although 30% is a high figure, I am not running away from the fact that 60% came as a surprise, and it is important that we bear down on and reduce that figure.
The point of arguing for an administrative review is that, as the noble Baroness pointed out from that sample, there have been caseworking errors. It is better that those on the receiving end of the errors are able to get them corrected more quickly and we are serious about meeting the 28-day target. Indeed, it would be far less costly to do so through an administrative review than through the whole panoply of an appeal.