Border Security, Asylum and Immigration Bill

Lord Faulks Excerpts

Report stage
Wednesday 5th November 2025 Lords Chamber

[Lord Davies of Gower (Con)]

My Lords, before the Immigration Appeals Act 1969, passed by the Labour Government of Harold Wilson, there was no general right of appeal against Home Office immigration decisions. After the establishment by that Act of the system of adjudicators and the Immigration Appeal Tribunal, we have had several revisions of the system of appeals. We had the Immigration Appellate Authority, the Asylum and Immigration Tribunal, established in 2005, and then the current asylum and immigration chamber of the First-tier Tribunal and the Upper Tribunal was created just five years later. With all these revisions and the litany of law that has grown out of immigration and asylum matters, we have ended up in a situation whereby the entire system is held in perpetual limbo.

The system as it stands incentivises endless appeals, procedural delays and the recycling of unfounded claims, all at the expense of the British taxpayer. We know the appeal and judicial review systems surrounding asylum and immigration cases have become a tool used by illegal migrants who should be deported to prevent their removal. There are cases where people have made repeated claims over time, covering human rights, modern slavery and asylum. These claims are often made at the last minute to prevent removal and are sometimes on completely contradictory grounds. For example, one man made a claim as an Iraqi and, when that was rejected, then made a further claim saying he was in fact Iranian. It took eight years to deport a Somali man, Yaqub Ahmed, who gang-raped a 16 year-old girl in 2008 following his release from prison. He used multiple modern slavery, human rights and asylum claims, costing taxpayers huge sums before eventually being deported in 2023.

Amendment 46 would abolish the immigration and asylum chambers of the First-tier and Upper Tribunals. This would prevent any person bringing a judicial appeal to a court or tribunal. Amendment 47 would remove the ability of any person to make an appeal to a court or tribunal in respect of an initial decision for an immigration or asylum matter. The decisions that cannot be appealed include any deportation order or removal directions; a decision to decline immigration bail; a decision to refuse asylum support; or a decision to refuse an asylum or protection claim.

The amendment includes a right of administrative review to a review board in the Home Office, which would consider initial decisions where there is an error in application of the law or rules but could not reconsider the substantive material of the decision. It would be able to overturn the initial decision if and only if it was satisfied it was made in error. The Secretary of State would have to make provisions about the review board by way of regulations subject to the negative procedure. The underlying principle here is that the judicial system should not have any role in the immigration and asylum process. As I have already stated, this used to be the norm. Instead, all reviews of any immigration decision will be decided by the review board in the Home Office.

Amendment 68 takes us to the logical conclusion: the removal of the ability to judicially review immigration decisions. The only exception here would be where the Home Secretary has acted outside their powers under the Immigration Acts. Importantly, it would not include review on the grounds of unreasonableness, proportionality, or the merits of a particular case. The current system diverts scarce resources away from those in genuine need. Every pound spent on repeat litigation is a pound not spent on border security, faster processing or refugee support. True compassion is helping the genuine and deterring abuse of the system. I beg to move.

[Lord Faulks (Non-Afl)]

My Lords, there cannot be any doubt that the system which has been working—if that is the right word—for some considerable time is very unsatisfactory. I think that is probably recognised by the Government and was certainly recognised by the previous Government. The noble Lord, Lord Davies, summarised the complex system that currently prevails, whereby applications are made and there are appeals and the like.

I should perhaps add that, until relatively recently, it was possible to judicially review the decision of the Upper Tribunal. The Supreme Court, in a case called Cart, had decided that, so there was yet another avenue available to those who wished to use the full possibilities inherent in the system. Parliament decided that that Supreme Court decision ought to be reversed. I declare an interest as having been chair of the Independent Review of Administrative Law. We recommended that and it was, in fact, supported by a number of judges who had sat on the decision itself. It became law, so these things are not sacrosanct.

As far as judicial review generally is concerned, I simply ask the Minister this. The ouster clause, as they tend to be described, in Amendment 68 is not a complete ouster but it is a substantial one. There was an indication in remarks that the Minister made earlier that any sort of ouster might be considered to violate the rule of law. Although there have been various obiter dicta of judges—I think in particular of the well-known case of Privacy International—suggesting that the courts could ultimately refuse to recognise an ouster clause, the Independent Review of Administrative Law took the view that Parliament was ultimately sovereign. It may or may not be a good idea to oust the courts, and that is a matter that Parliament will have to consider on the specific facts. I would very much like to know what the Government’s general view on that is.

What I want to address at this moment is the amendment in the name of the noble Lords, Lord Murray, Lord Jackson and Lord Lilley, in relation to the Human Rights Act. This Bill, entitled “Border Security”, was the Government’s first response to the various attempts by previous Governments to cope with illegal migration. The opposition to the various Bills that went through this House was firm, but I was never quite clear what the policy was on the part of the Labour Party. Ultimately, it came down to the idea that the Government would crack down on the smuggler gangs. The word “crackdown” came often into the debates, and the future Prime Minister, Sir Keir Starmer, was held out as being just the man to crack down because of his experience as the Director of Public Prosecutions. Now, I yield to no one in my admiration for his discharge of that role, but I was always somewhat confused by the idea that someone who was in charge of macro decision-making as the Director of Public Prosecutions was in some way fitted to crack down on smuggler gangs.

The crackdown was apparently to start straight away when the Government came into power some 15 months ago, but I think it is fair to say that it has not been a success. We can see the figures, and I do not wish to weary the House with what those figures are. The Bill, which in some ways is uncontroversial, gives a little extra power to allow that crackdown to take place, but what we really have here is a complete vacuum of policy on the part of the Government. We know they did not like the Rwanda scheme, but what is to replace it? The position of those who opposed the previous Government was that we could not do anything to in any way amend the ECHR or the Human Rights Act, both of which obviously play a significant part in the whole process of gaining asylum, and anyone who suggested as much was considered almost to be in the headbanger category.

Things have moved on a bit, and a number of senior Labour figures are saying that we really need to think again about the ECHR. Indeed, I think 17 nations, members of the Council of Europe, are considering trying to do something about the ECHR in view of the fact that so many European countries do not find it to be working satisfactorily. When the Attorney-General, the noble and learned Lord, Lord Hermer, gave evidence before a committee, he said that that might take as much as 10 years, but this is an emergency, and I am sure the Government will acknowledge that.

As for the amendment of the Human Rights Act, when I asked the Minister in Committee, he confirmed that there was no way in which there would be any amendment of the Human Rights Act—I have on me what he said in Hansard—nor would there be any deviation from the ECHR. That begs the question as to what is going to happen. What is going to fill the policy vacuum? The previous Home Secretary, Yvette Cooper, made some noises to the effect that the situation was far from satisfactory and something needed to be done, and her successor, Shabana Mahmood, has said that nothing is off the table. We know that nothing is off the table but we are entirely unclear as to what is on it, and it really is time that we knew.

I can remind the noble Lord that he said in Committee, on 13 October:

“I hope to assure the noble Lord, Lord Faulks, that we will legislate to reform our approach to the application of Article 8 in the immigration system so that fewer cases are treated as exceptional. We will set out how and when someone can make a claim. We are also reviewing the application of Article 3”.—[Official Report, 13/10/25; col. 132.]


How is that going to happen? Apparently there is going to be no amendment of the HRA and any changes to the ECHR are in the far distant future, yet he said to the Committee that there was going to be legislation. The only form of legislation that seems to be at all possible is some form of legislation that says that these decisions are not satisfactory and so the approach has got to be changed—in other words, guidance to judges. I am concerned about that, as it would be interference with judicial independence. The Government ought to have the courage, if they think the law is wrong, to change it. The Human Rights Act is a domestic statute and can be amended.

I come with help, I hope. The amendment in the names of the noble Lords, Lord Murray, Lord Jackson and Lord Lilley, provides for the suspension of the Human Rights Act in the face of this emergency. It is a domestic statute, and the powers of the Government enable them to do that if necessary. It may be that that will at least help. I do not pretend that changes to the Human Rights Act are the complete answer to the almost intractable problem that we face, but it is a very real suggestion. It is contained in the amendment and I suggest that the Government should take it seriously.

--- Later in debate ---

[Lord Faulks (Non-Afl)]

I do not want the noble Lord to have to repeat himself, but he said earlier that there was going to be a statement in relation to the Government’s approach to asylum, but then he said to me that there was going to be legislation. Now, I understand that he has not yet got clear riding instructions. Is there to be a statement of intent or is there to be legislation? Which is it?

[Lord Hanson of Flint (Lab)]

Let me phrase it this way: the Government will always bring before the House, in the form of a Statement, matters on which we intend to provide policy changes. When we are in a position to make further policy announcements in this area, there will undoubtedly be a Statement in the House of Commons and in this House that Members can question and examine in detail. That Statement may include signalling for legislation; the two things are not incompatible. I know I said this in September and I have said it again today, but that is the direction of travel, and when we are in a position to make clear the policy direction the Government wish to take for public scrutiny, we will make that Statement and bring forward proposals accordingly. I hope that satisfies the noble Lord.

I cannot agree to the amendments, and I hope that Members will not press them. I hope too that, if nothing else, the case I have made today on Report is as clear as I can make it in the circumstances.

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[Lord Murray of Blidworth (Con)]

My Lords, we all know the perils of hanging around too long in the Chamber of the House of Lords on 5 November, so I will be as brief as I can in introducing this group.

I have four points. The first is that the principle of open justice is well known. As the noble and learned Baroness, Lady Hale of Richmond, made clear when she sat judicially in the case of Cape v Dring in the Supreme Court, the first purpose of open justice is

“to enable public scrutiny of the way in which courts decide cases—to hold the judges to account for the decisions they make and to enable the public to have confidence that they are doing their job properly”.

The second is

“to enable the public to understand how the justice system works and why decisions are taken”.

The First-tier Tribunal (Immigration and Asylum) is one of the largest of seven chambers of the First-tier Tribunal. The other chambers of the tribunal—the Tax Chamber, the Property Chamber and the General Regulatory Chamber, which deals with Information Commissioner matters—routinely publish all their decisions, among other things, on the website. Furthermore, the employment tribunal also publishes all its decisions on its website. These are all tribunals of the same status as the First-tier Tribunal (Immigration and Asylum). Accordingly, this amendment would require there to be a standard practice that the immigration and asylum chamber also publishes its decisions.

There is no small number of cases. In 2022-23 there were 38,000 appeals, and in the last year for which we have numbers, 2023-24, there were 39,000 appeals. There is plainly very significant public interest in the making of decisions, largely on human rights grounds, in the First-tier Tribunal (Immigration and Asylum).

Presently, the decisions are not published. There is no good reason for this. In the First-tier Tribunal, it is open to litigants to apply for an order that the identity of everybody in the case be anonymised. The amendment would expressly allow that to continue, so there is no suggestion that it would expose anyone to any risk of reprisal or any other problem that would be posed by their identity being revealed, because they would be able to apply for anonymity.

In 2011, the Supreme Court made it clear in the Kambadzi case that, while anonymity needs to be justified in each case, there is now an expectation that there are frequently anonymity orders in asylum cases. So there is no argument that non-publication of First-tier Tribunal decisions can be based on a desire to achieve anonymity.

The reason why this is so important now is that there is a widespread amount of public interest in the decisions of the First-tier Tribunal. One need only recall the excellent journalism of the Daily Telegraph in reporting cases that it said demonstrated flawed human rights decision-making.

This cuts both ways. If this amendment is carried by the House tonight and then incorporated into the enacted Bill, we would see the publication of the decisions. That would have the effect of allowing the public to interrogate and understand the basis on which decisions are made in the immigration and asylum chamber. It would be a very significant myth-busting tool, because it would show how these decisions are taken. There would be no suggestion that these decisions are partial to one side or the other. This is simply the application of the normal principle of open justice.

Turning to the reason why it is not at present done, it is hard to identify an original reason why the practice of not publishing these decisions was adopted. There is a practice direction in the immigration and asylum chamber that allows the President of Tribunals to release a judgment on an application by a researcher or a journalist. The problem with that—the noble Lord, Lord Katz, encountered this when he gave his speech on this topic in Committee and said that this was in some way an answer to the point—is that, as the noble Lord, Lord Sandhurst, observed to him, you cannot apply for the disclosure of a judgment you do not know about. So that, I am afraid, is no good answer.

The other defence, as it were—or rather a flimsy stockade put up by the Government for not accepting this amendment—was that it is a matter for the judges. The answer is that no, it is not. It is actually a matter for this Parliament to decide that these judgments should be published, and, what is more, it is consistent with the common law, as set out so clearly by the noble and learned Baroness, Lady Hale, in her landmark decision in Cape v Dring. As I said in Committee, this amendment’s time has certainly come, and I urge all noble Lords to support it.

[Lord Faulks (Non-Afl)]

My Lords, I put my name to this amendment, together with the noble Lord, Lord Alton, whom we are very glad to see in the Chamber after his most unfortunate accident. I apprehend that one reason he might support it—although, if he is able to, he could contradict me—is simply that it is a good idea that we know what is being decided. It may be that this confirms what many journalists identify as rather egregious cases, or it may be that it provides reassurance; whatever it is, we should know what they are deciding. It is hard to overstate how engaged the public is on this particular issue, and yet they do not know what is being decided in their name on what is probably one of the burning political issues of the moment.

I referred in Committee to the report of the noble Lord, Lord Wolfson, which has been published. He said:

“A further difficulty in this area”—


he is talking about the decision-making—

“is that many of these decisions are not reported, making accountability difficult, and often these only come to light on appeal to the Upper Tribunal … there may well be low-quality decision-making going on in the initial stages, much of which is never corrected”.

So we have to rely on what journalists select, doing their job as journalists. People say that they are unfairly selecting certain cases and that there have been plenty of decisions that are wholly satisfactory, but it would be much better if there was some sunlight on this.

I fail to understand the Government’s objection. The only objection that we were given in Committee was, “The previous Government didn’t make a fuss about this, and that suits us”. I am afraid that is simply not good enough, and I therefore support this amendment and invite the House to join me.

[Lord German (LD)]

My Lords, I find myself in the unusual position of supporting this amendment, in the interests of transparency in the matters that the noble Lord, Lord Faulks, raised.