My Lords, Amendment 2 is to Clause 15(5), which provides that the tribunal may not hear a new matter unless the Secretary of State consents to its doing so. There was a debate on that provision on Report, and I am grateful to those noble Lords and noble and learned Lords who have had an opportunity since then to follow that up and to have a better understanding of the concerns which prompted the tabling of that amendment. Since the Government tabled this amendment a number of points have been raised by my noble friend Lady Hamwee and the noble and learned Lord, Lord Hope of Craighead. I hope that I can address those points in speaking to this amendment.
Our discussions were helpful and not least identified that the definition of a “new matter” is wider than necessary because it includes reasons for wishing to remain in the United Kingdom which, if refused, would not give rise to a right of appeal. This potentially extends the scope of the power to give consent beyond appealable matters. As the significance of “new matter” is restricted to circumstances in which an appeal would arise as a consequence of the decision, the definition should be similarly restricted—hence this amendment.
My noble friend Lady Hamwee has asked why the amendment does not address the substance of the arguments made on Report. The Government remain committed to the important principle that the Secretary of State should be the primary decision-maker. An amendment that provided for the tribunal to have discretion as to whether it should hear a new matter would undermine that principle. It could also create a substantial risk of satellite litigation about the circumstances in which that discretion should be exercised.
We have heard examples, particularly on Report, where it was suggested that it would not be right for the tribunal to be prohibited from hearing a new matter. It is our intention that the Home Office will
publish detailed guidance on when consent should be given. I can assure your Lordships that the examples given—such as when the illness of the appellant makes determination of the appeal urgent, or where inadequate legal representation has meant that the new matter could not have been raised earlier—are the types of circumstance in which that guidance will direct presenting officers to give substantial weight when considering the issue of consent.
In certain circumstances, however, the Secretary of State’s consideration of a new matter is fundamental to that matter being correctly decided, including by the tribunal. For example, where the new matter is an asylum claim it is only the Secretary of State who, having taken fingerprints from the individual, can verify that the claim has not been made previously in the United Kingdom or another EU member state. It is in those cases that consent for the tribunal to hear the new matter may be refused. However, even in such cases, whether to grant consent will also be informed by the individual’s circumstances.
The noble and learned Lord, Lord Hope of Craighead, asked whether guidance would be provided for the situation where the presenting officer is unable to take instructions on whether to grant consent. I assure the noble and learned Lord that the guidance will provide for this situation. I can also elaborate on the details, which I hope will provide further reassurance.
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In this context, it is important to note that at the tribunal the Secretary of State is generally represented by a presenting officer rather than by counsel, it being a First-tier Tribunal. From reviewing the file, a presenting officer can establish whether a new matter has been raised. If, having considered the guidance, the presenting officer takes the view that consent should be granted for the tribunal to hear the new matter, instructions do not need to be taken in order for that decision to be made. It is therefore only where the presenting officer, having considered the guidance, takes the view that consent should not be granted that instructions need to be taken. I believe it is highly unlikely that a presenting officer would be unable to take such instructions. There is an established process by which senior caseworkers in each presenting officer’s unit work on a rota system to provide instructions to presenting officers. If a presenting officer is unable to contact the senior caseworker in his or her unit, he or she can contact a senior caseworker in another unit. This system has, we believe, operated effectively for a number of years.
My noble friend Lady Hamwee asked for further detail about the guidance that I have referred to. This will be published guidance to presenting officers who appear for the Secretary of State before the tribunal. We do not propose to consult on the contents of this guidance, which will be to Home Office staff on the exercise of this power. However, it is important to note that if the guidance is not followed and there is no sound basis for departing from it, judicial review of any such decision may well be sought.
The guidance will set out the factors to be considered in each case when the presenting officer who has conduct of the case at the appeals stage decides whether
to grant consent for the tribunal to hear a new matter. It will also set out the process to be followed in each case, including consultation with the original decision-maker where appropriate.
It was useful to have our discussions and I hope that I have clarified the position and have given appropriate reassurance to your Lordships’ House. I beg to move.