My Lords, I congratulate my noble friend on moving this important amendment, based on one of the recommendations of the Joint Committee on Human Rights, of which she is a distinguished member.
Clause 15 removes the right of appeal to the tribunal from all immigration decisions except those dealing with protection and human rights. In those remaining cases, new Section 85(5) of the Nationality, Immigration and Asylum Act, inserted by Clause 15, requires the Secretary of State’s consent for a new matter to be raised before the tribunal, as it frequently is because new evidence comes to light following the original decision; my noble friend has given examples of how this can happen. We also heard from my noble friend that in the opinion of the JCHR it should be for the tribunal itself to decide whether the new matter is within its jurisdiction and, if so, to consider it on appeal, with the Secretary of State responding to it as she normally does.
It is not suggested that the tribunal has allowed the abuse of its own process in the past, or that it has treated the Secretary of State unfairly, or that the existing process is inefficient. What can happen not infrequently, however, is that the Secretary of State withdraws her decision, saying that she wishes to reconsider the case, and then returns several months later with a new decision very similar to the previous one, wasting the time and money of both the appellant and the tribunal. The Tribunal Procedure Committee is consulting on a rule for the First-tier Tribunal similar to the one that prevents the Secretary of State from putting a stop to an appeal in the Upper Tribunal by withdrawing her decision. The Immigration Law Practitioners’ Association suspects that the subsection we seek to amend is designed to thwart such a change.
My noble friend referred to the Constitution Committee, which has drawn the attention of your Lordships to what it and the JCHR both consider to be a serious question in relation to Clause 15(5): whether it undermines the common law right of access to justice. The Government’s case is that appellants may be able to get to the court by way of judicial review, and no doubt some will do so in spite of the financial obstacles created by the abolition of legal aid. However, this conditional route does not satisfy the common law, and that will no doubt be tested in the courts. The judicial review cases will be more expensive and take longer than appeals, even though it will now be the tribunal that hears them because Treasury solicitors and counsel will have to be employed; they are very expensive people. Have the Government made any estimate of the number of JR cases and the reduction in the savings that were otherwise expected arising from the JR cases that were otherwise to be heard?
In the remaining cases, now to be dealt with via administrative review, a smaller proportion of those concerned will be successful than if they had been able to appeal. That is the whole point of the exercise: not to simplify the way the cases are handled but getting to the same outcomes.
Like my noble friend, I object to a proposal which gives the Executive power to intervene in the procedures of a court of law, and particularly so when it is one of the parties to the case in question. I hope that the Government will think again.