My Lords, I will come to the amendments in a moment but, since we have had a number of references to the old detained fast-track scheme, I will start by saying a word about that.
Obviously we considered carefully the legal challenges to the detained fast-track. We are confident that the new accelerated detained appeals route will ensure fairness as well as improving speed. It is right to say that the courts have been clear, in upholding the principle, that an accelerated process for appeals made in detention, operated within certain safeguards, is entirely legal. We believe that the new accelerated detained appeals route will contribute significantly to the timeliness with which appeals can be decided. We will be able to remove swiftly people found not to be eligible to remain while those people with valid claims can be released from detention more quickly, which is also important.
So far as the Tribunal Procedure Committee is concerned, the Bill sets out a clear policy intent but, as the noble Lord, Lord Rosser, says, changes to tribunal procedure rules are for the TPC to draft and are subject to its statutory consultation requirements and procedures. We have already begun to engage with the TPC on the elements of the Bill that will require tribunal rules to be made or amended and will continue to do so as the Bill progresses and passes into law.
I turn to the amendments before the Committee. I thank the noble Baroness, Lady Ludford, and, in his absence, the noble Lord, Lord Dubs, for Amendment 97. I understand the motivation behind it. It is right that appeals made from detention should be dealt with in a timely way so that, as I have said, people are not deprived of their liberty for longer than necessary, but we recognise that not all appeals made from detention will be suitable for the accelerated detained appeals route. So Clause 26 specifies that if a decision is certified as suitable for an accelerated detained appeal, in those circumstances the Secretary of State must consider that any appeal to the decision is likely to be disposed of expeditiously. Importantly, the tribunal may remove a case from the accelerated detained appeals route if that is the only way to ensure that justice can be done in a particular case.
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If the Secretary of State considers that any appeal of a decision is likely to be disposed of expeditiously, this suggests that the Secretary of State would expect the tribunal to take the view that, in this case, justice can be done within the accelerated detained appeal timeframes. But, ultimately, the tribunal has the discretion set out in subsection (5). It is therefore not necessary to amend the clause to specify that the Secretary of State must also consider whether any appeal could be resolved within the time limit without giving rise to injustice or fairness. That would be implicit in the Secretary of State’s decision that any appeal would be likely to be disposed of expeditiously. I can assure the Committee and state clearly that this will form part of the Secretary of State’s consideration.
I thank the noble and learned Lord, Lord Etherton, for his Amendment 98. To a certain extent, it covers ground we canvassed earlier. We will ensure, through regulations and guidance, that only suitable cases will be allocated the accelerated route. The requirements of the Equality Act, including protected characteristics, will form part of that consideration. I should clarify at this point that the regulations will not include provision for certification procedures, as was referred to in the department’s memorandum. We have written to the Delegated Powers and Regulatory Reform Committee on this point.
Cases will be assessed on whether they are likely to be able to be decided fairly within the shorter timeframe, and individuals will be assessed for removability as well as vulnerability and other factors that may affect their ability to engage with an accelerated process. That, together with subsection (5), sets out that appropriate safeguards are in place. I therefore invite the noble and learned Lord not to move that amendment.
On Amendment 99, judicial discretion to remove cases is an important safeguard, as I have just said. Clause 26(5) provides that an appeal should be removed only when there is no other way of securing justice. The drafting makes it clear the Government’s intention that appeals should remain in the accelerated detained appeals route, where possible, to ensure that they are resolved in a timely way. I underline the point that that does not cut across ultimate judicial discretion. It invites the tribunal to make use of other case management mechanisms that may be more appropriate in a particular case than outright removal of the appeal from the accelerated route. Ultimately, that is at the tribunal’s discretion and is its decision.
Turning to Clause 27, protection or human rights claims that are certified as clearly unfounded are those that are so clearly without substance that they are bound to fail. The refusal of such claims can currently be appealed after the person has left the UK. By contrast, there is no right of appeal against the rejection of further submissions received after a protection or human rights claim has previously been refused, where those submissions do not create a realistic prospect of success. That of course is right: there should not be a right of appeal unless there is something of real substance for the tribunal to consider. This clause removes the out-of-country right of appeal under Section 94 of the Nationality, Immigration and Asylum Act 2002 for
those whose protection or human rights claims are certified as clearly unfounded and bound to fail. That brings it into line with how we treat further submissions that have no realistic prospect of success, and that, I suggest, is entirely right and proper. It will apply only to claims that are certified after the clause has come into effect.
I should be clear that removing the right of appeal does not prevent a person applying for a judicial review to challenge a certification decision. In practice, a right of appeal is rarely used; normally, judicial review is the avenue that people choose, and that also provides an effective safeguard.
For those reasons, I respectfully ask noble Lords in whose names the amendments stand, or on whose behalf they are speaking, not to press their amendments.