Immigration Bill

Lord Wallace of Tankerness Excerpts

Tuesday 1st April 2014 Lords Chamber

[Baroness Smith of Basildon]

My Lords, I rise briefly to comment that the noble Baroness, Lady Berridge, has done a service to your Lordships’ House because she has given the Minister the opportunity to think again and to take advice from some of the best legal minds that the country has. I hope that he will take that opportunity.

I am not a lawyer, but one thing that strikes me is the issue of fairness. The noble Baroness, Lady Berridge, raised the point when she used a football analogy—not something that I would normally do in any event whatever. My noble friend Lord Bach laughs, because he knows my loathing of the obsession with football. But the idea that the scope of the tribunal’s jurisdiction should depend on the consent of one of the parties to the appeal is something that offends a great many noble Lords and their sense of justice and fairness.

My only question to the noble Baroness, which I asked her when I saw that she had raised this matter, was whether the Government had ever raised any concerns and whether this proposal would make it more difficult for them, given their problems in deporting foreign criminals. She was able to assure me that it has never been raised by the Government as causing any concern whatever. I think that the Minister should take the opportunity that has been presented to look at this again. The noble Baroness says that the amendment is not perfect, but it does not need to be perfect to take it away and give some further consideration to what has given a lot of concern to noble Lords across the House.

[The Advocate-General for Scotland (Lord Wallace of Tankerness) (LD)]

My Lords, I am grateful to my noble friend Lady Berridge for introducing this amendment, which, as the noble Baroness, Lady Smith, said, has given rise to many learned contributions in the course of debate. As has been indicated, the amendment would place the tribunal in a position of the primary decision-maker; it would allow matters to be considered and decided by the tribunal without the Secretary of State having considered and decided them.

The tribunal exists to consider appeals against the refusal of an application by the Secretary of State. That is why the Bill provides that the tribunal may not consider matters that have not first been considered by the Secretary of State unless the Secretary of State consents to it doing so. Picking up the point made by the noble and learned Lord, Lord Woolf, nothing in the proposal in any way reflects on the work that has been done by the tribunal. Indeed, the point he made from experience about it being more appropriate than the cases that went to court is in no way a reflection on the tribunal.

The Joint Committee on Human Rights stated in its report that the provision relating to the Secretary of State’s consent may not be compatible with the principles of equality of arms, right of access to a court and the separation of powers because it allows one of the parties to an appeal, the Secretary of State, to determine the scope of the tribunal’s jurisdiction. Of course, ultimately Parliament sets the jurisdiction of the parameters within which the tribunal will operate.

However, the principal reason why the Government have proposed this measure is that we do not believe it is right for the tribunal to be the primary decision-maker. I certainly will reflect on the points made on that principle. I noted that the noble and learned Lord, Lord Woolf, said that it was more practical for the tribunal to deal with this matter although, technically, the decision-making body was the Secretary of State. I think that my noble and learned friend Lord Mackay of Clashfern made the point that the primary decision-maker in these matters is the Secretary of State. Therefore, I do not think it is such a clear question of principle as perhaps has been suggested. The noble and learned Lord, Lord Woolf, maintained that there were compelling practical reasons. However, the primary decision-maker is, indeed, the Secretary of State. The role of the Secretary of State—

[Lord Woolf]

Perhaps the noble and learned Lord will ponder on the following. Although, of course, the Secretary of State must be the primary decision-maker, the Secretary of State may not be content for the tribunal to deal with a matter and may think it is much better that it should not do so, even though it would give the greatest attention to the fact that there is an objection to the matter being dealt with by it on the very ground the Minister sets out. The matter he sets out is just the sort of matter which you can rely on the tribunal to take into account at its discretion when deciding whether to send it back to the starting point. I refer to delay in this context. It is also just the sort of matter which the Court of Appeal, for example, will take into account in considering whether it will send a matter back to the Secretary of State or deal with it itself because it is in a better position to deal with it than anybody else.

[Lord Wallace of Tankerness]

My Lords, I hear the point which the noble and learned Lord makes. It is also important to recognise that we have to look at where this matter might best be dealt with. The Secretary of State can still consent to the new matter being determined within the context of the existing appeal. That is obviously an issue that the Secretary of State would have to consider in deciding whether or not to give that consent.

[Lord Woolf]

I again apologise for interrupting, but will the noble and learned Lord bear in mind that the Secretary of State in this context means the person who is conducting the case on behalf of the Secretary of State in the tribunal on the day of the hearing? If he has not already received instructions on how to deal with it, all he can do is ask for an adjournment so that the matter can be referred back to those who have more authority than he has to decide what course to take. That will mean that, inevitably, the ability of the court—or, in this case, the tribunal—to deal with it in a sensible and summary way is in fact not going to happen in practice.

[Lord Wallace of Tankerness]

My Lords, one of the examples given by my noble friend Lady Berridge was that a matter may suddenly be raised. It is important to make the point that we are not talking about the appellant relying on new evidence to support a ground already before the tribunal. I know that the noble and learned Lord accepts and understands that. For example, if there was an appeal about refusal of the family life settlement, new evidence on family life would obviously be something which could be led. Nor will the clause prevent access to the court, because the individual would still have an appeal against the refusal. If the new matter on which an application was made was refused, then obviously that matter could be appealed to the tribunal.

I note what the noble and learned Lord says, but my noble friend Lady Berridge talked about a new ground of appeal which the Home Office may have found out about only the night before. When people talk about equality of arms, I am not necessarily persuaded that someone going into the tribunal will find that there is a completely new ground of appeal which they only learnt about within the previous 12 hours. That is an inequality of arms. My noble friend and my noble and learned friend Lord Mackay of Clashfern commented on whether or not the Home Office had been answering the telephone. These are practical issues that ought to be addressed, but I do not think they go to the principle we are discussing.

I am always wary—as was the noble Baroness, Lady Smith—of using football analogies, but they were mentioned by my noble friend in moving her amendment. If an FA Cup match went to penalties, it would not be for one party to say, “By the way, we will just go to the referee and say, ‘If we are having a penalty shoot-out, it will do for the other cup tie that we are to play next week. We will just do the two in one’”. If it is a completely new case, it is not reasonable that that should happen. I stress that this is not a situation where a person is going to be denied the opportunity to bring a separate case on a new matter. They would still be able to bring it and, if they were dissatisfied with the decision made by the Secretary of State, the appeal route would still be open to them.

The proposed measure could create an incentive for appellants to raise new matters at a late stage because they could try to persuade the tribunal that the matter should be heard despite the Secretary of State not having considered and decided the issue. The Secretary of State will have to strike that balance, depending on whether or not she wishes to give her consent—if, indeed, the case was adjourned. Documents may suddenly have been produced the veracity of which the Secretary of State will have had no opportunity to examine. If it is a new ground of appeal, the Government argue that the primary decision-maker is the Secretary of State and the proper role of the tribunal is to hear appeals against a decision of the Secretary of State, if the applicant is dissatisfied with the original outcome. As the noble and learned Lord, Lord Hope, said, I do not see that that is a case of being a judge in one’s own cause because the cause that is properly before the tribunal is one in which both parties will argue their case.

When a new cause is introduced, the Secretary of State makes a decision on it through his executive function. What in fact is being suggested is that that decision should not be made by those from the executive branch but should be a judicial decision. I think that there is a blurring there. If we are arguing as a matter of fundamental principle that a decision is one for the Executive, the question is whether, indeed, the primary decision should be made by the judiciary. I cannot ignore the force of the comments that have been made. The noble and learned Lord, Lord Hope, helpfully suggested where this might be amended. I should make it very clear that I cannot give any guarantee that the Government will come back at Third Reading with an amendment. However, it is only proper that we reflect on the very important issues that have been raised.

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[Lord Wallace of Tankerness]

My Lords, I appreciate the noble Lord’s comments and help, which I know are made with a view to trying to resolve this matter. I assume the noble Lord means that his suggestion would be preferable to judicial review. The withholding of consent by the Secretary of State would, of course, be challengeable by judicial review but one is well aware of the attendant costs of that and a new application and appeal to the tribunal may well be cheaper and, possibly, quicker.

I must make it very clear that I am not giving any undertaking to bring this back at Third Reading, but I do undertake that it is fair and proper to reflect on the comments that have been made. On that basis, I invite my noble friend to withdraw the amendment.

[Baroness Berridge]

My Lords, I thank the mainly noble and learned Lords who have spoken, predominantly in support of the amendment. I am obviously disappointed by the Minister’s response to the concerns which have been properly outlined. He cites that it is a clear question of principle that the principal decision-maker is the Secretary of State, but the overriding interest in this matter is the principle of justice. As in the circumstances that I outlined, a matter may remain before the tribunal solely because a barrister makes every effort to avoid being at the hearing and cannot get hold of the Home Office to get a fresh decision made, and yet the tribunal is not allowed to take that conduct into account at all in determining whether the court can take the new matter—which may be impinged on by illness—into account. In these circumstances, one can only imagine the sense of injustice that will be felt, not only by the appellant but by their legal representatives who have gone to every effort to avoid that situation occurring.

I have listened carefully to my noble friend who says that there is no guarantee about bringing this back at Third Reading but that the Government will reflect on this matter. My knowledge of the Companion is not detailed enough for me to understand whether I am entitled to bring it back at Third Reading to determine the matter because I have never heard that phrase before in my three years in your Lordships’ House.

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[Baroness Hamwee]

My Lords, I was not sure whether to speak yet; I was looking for a Bishop. Amendment 14 in this group is in my name and that of my noble friend Lord Avebury. I have been torn over this issue. Of course, the lawyer in me wants to see access to the courts or tribunals but the pragmatist in me says, “Get it right first time”, especially when it is something where arguably the person involved does not start with having rights. I distinguish between human rights interests, family interests and, at the other end of the spectrum, perhaps permission to come and work in a different country. At issue here is a very wide range of types of decision. Also, of course, the pragmatist says, “Find ways to improve the process to get it right”.

I have to assume that the Secretary of State is satisfied on the basis of the current out-of-country process that what is proposed will be “efficient”, “effective” and “fair”—in the words of one of the amendments. I hope that effectiveness always means fairness. I do not know that one can become satisfied that the process is efficient, effective and fair on the issue raised by the possibility of shadow working and the two systems working in parallel. I know that there are different views about that. Frankly, I doubt that it is practicable. At the previous stage, I raised the issue of reviews of procedures and—particularly important to me —independent oversight and reports to Parliament. I welcome government Amendment 12. Could my noble friend confirm, because it does not quite say this, that what is intended is a report on the first year? It says that, “Before the end of” a year the Secretary of State will commission a review.

My Amendment 14 would introduce a two-stage process, the second of which would be the chief inspector reviewing the first year of operation, and the first of which would be an opportunity for Parliament to consider the procedures after the Government have consulted on them. I am grateful to my noble friend for a letter that I received following Committee and which was copied to other noble Lords. I hope that this will be a useful opportunity for him to explain from the Dispatch Box the Government’s proposals for consultation on the proposed rules—a targeted consultation, as I understand it. There might be, if you like, a pre-consultation of noble Lords as to who might be involved in that process. I am sure we would all have ideas as to who could usefully contribute.

Since Committee, I have seen the information given to those who seek an administrative review out of country under the current procedure. I had been concerned about how representations could be made to the reviewer and what representations could be made. I can infer that from the current information but I am sure that there is scope for spelling it out more clearly. That is a matter for the practitioners, really. I was also relieved to see information on something that had popped into my head and bothered me a lot: whether there would be a charge for an administrative review. I see that that is not the case. That reminded me that this is another reason for the Home Office getting it right first time, as it will not be able to get any income from that administrative review. As it were, it funds it—rightly—from its internal resources.

[Lord Wallace of Tankerness]

My Lords, as the noble Baroness, Lady Smith, indicated, we debated this matter at some length in Committee. We will necessarily go over some of that ground again but I appreciate the opportunity to do so and to inform the House why we believe that it is helpful and a positive development that we should move to this system of administrative review.

Obviously, the noble Baroness’s Amendment 11 would remove Clause 15 from the Bill. In doing so, it would retain the current appeals system, which we believe is too complex and does not provide the most appropriate and effective remedy in each case against refusal decisions. I understand the reservations that have been expressed here—we rehearsed a number of the issues in Committee—about decision quality in immigration cases. First, it is again important that those concerns are seen in context. As I said—and as was once said back to me—the great majority of decisions are not refused in error. The majority of applications are successful. The noble Baroness quoted me on that. Of decisions taken in the United Kingdom, only 10% were refused in 2012. Therefore, when the majority are successful, it is not about an absence of appeals. The noble Baroness asked if some of these decisions had been wrong, too. I suspect we will never know because people tend not to appeal against decisions when they have been successful. Some 51% of that 10% that were refused in 2012 succeeded on appeal. Therefore, 5% of the total decisions taken succeeded on appeal. Of that 5% of decisions, 60% succeeded because an error was made. By my calculation, we are down to 3% of all decisions in managed immigration cases being attributable to an error.

We believe that retaining the current system, as would be the consequence of the noble Baroness’s amendment, would not improve decision quality. It would mean that people continued to wait longer and incur more expense for errors to be corrected than under the system established by Clause 15. Under Clause 15, where a claim based on a fundamental right is refused—I think we heard about some of those under the previous amendment—it can be appealed and the fundamental rights are set out in the Bill. It is right that a full-merits appeal should be available for these cases. Where the claim is not based on fundamental rights, we can indeed show that 60% of cases that succeed on appeal do so because of a working error. It is also worth reflecting that the kinds of cases we tend to deal with are those that are a matter not of judgment but of the application of objective rules. If the rules are met, leave is granted. If they are not met, leave is refused. That type of decision is well amenable to administrative review. As the noble Baroness said, the process will be quicker and cheaper than an appeal.

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[Lord Avebury]

The figures that the noble and learned Lord has just given are interesting. He said that 21% of administrative reviews uphold the appeal, whereas earlier he said that 51% of those reviews succeeded on appeal in 2012. Does that not illustrate the anxiety everyone feels that when an appeal system is replaced with an administrative review, the rate of success goes down not for any objective reason but just because the administrative review is less favourable to the applicant?

[Lord Wallace of Tankerness]

My Lords, I am almost tempted to say that you are damned if you do and damned if you do not. That 51% included those cases where there was administrative error. If one wishes to drive to improve the quality of decision-making, inevitably the number of successful appeals will go down.

In Committee, concern was expressed about the opportunities for scrutiny of the Immigration Rules. I am pleased to confirm that we are committing to publishing draft rules no later than the Summer Recess. I hope that that reassures my noble friend Lady Hamwee about what I have said in my letter to her. I am happy to repeat that those rules will be the subject of a targeted consultation with key interested parties, including the Immigration Law Practitioners’ Association and Universities UK. We certainly are open to discussions with noble Lords and organisations to which noble Lords consider this consultation should be addressed. The aim of the consultation will be to ensure that all relevant views are taken into consideration before the rules are finalised. The consultation will offer an opportunity for the rules to be scrutinised and potentially amended before they are laid before Parliament in accordance with Section 3(2) of the Immigration Act 1971. Clause 15 creates a better process for all concerned—applicants, decision-makers and the court system. It will help to address the legitimate concerns raised about decision quality.

Amendment 13, which stands in the name of the noble Baroness, Lady Smith, would impose three conditions that would need to be met before the appeals provisions in Clause 15 came into force. The proposed sunrise clause would require: that the Chief Inspector of Borders and Immigration must first report on decision-making for entry clearance and managed migration; that the Secretary of State must be satisfied that decision-making for entry clearance and managed migration is efficient, effective and fair; and that the order to commence Clause 15 must be laid before and approved by both Houses. My noble friend Lady Hamwee raised the possibility that, to be able to do that, we might need to have a shadow operation, which probably would be an administrative nightmare.

I submit that we already have reports from the chief inspector on decision-making in entry clearance and managed migration. In 2013, he reported on investor and entrepreneur applications, concluding that 91% of decisions on investor applications were reasonable. That report recommended that the overseas approach of sharing administrative review outcomes to improve decision quality should be adopted in-country. That recommendation of an approach recommended by the chief inspector has informed the changes which this Bill seeks to implement through Clause 15.

The inspection of entry clearance decision-making in Warsaw in December 2013 of out-of-country administrative reviews concluded that the service was efficient and consistently meeting service standards for completing decisions. In 88% of cases reviewed, the report concluded that the right decision had been reached. We accept that this report made five recommendations for improvement. We have accepted all of these either in whole or in part.

I assure your Lordships that the Home Office takes the chief inspector’s inspections and reports seriously. A dedicated team manages the implementation of his recommendations. In his spot-checking report of August 2013, the chief inspector considered the progress that had been made against recommendations from three earlier inspections and was pleased to see evidence that the Home Office was acting upon his recommendations. We already have evidence from the chief inspector who has looked at the administrative review procedures that are applied at present for out-of-country cases of managed migration. He appears to confirm that, in the cases that were reviewed, the right decisions had been reached. As I have said, in Warsaw that was in 88% of cases.

However, we recognise the concerns that prompted Amendment 13. Therefore, we have brought forward a government amendment which takes a different but effective approach to address those concerns. Amendment 12 in the name of my noble friend Lord Taylor imposes a specific obligation on the Secretary of State to secure an independent review of administrative review. It looks forward and will review new processes. The new clause requires the Secretary of State to commission the independent chief inspector within a year of Clause 15 being commenced to prepare a report on administrative review.

My noble friend Lady Hamwee asked for confirmation that it was intended that the report would be on the first year although commissioned ahead of the first year. As I have said, the report will be commissioned within 12 months of administrative review being implemented. The Secretary of State will ask the chief inspector to complete the report within the first 12 months of the operation of administrative review. In timing the commissioning of the report, we want to strike a balance between a desire for an early report on how administrative review is working and the need to let the process operate for a period before a meaningful report can be prepared. It is therefore intended that the Secretary of State asks the chief inspector to undertake his report once administrative review has been in operation for six months and to complete his report within the first year of the operation of administrative review. The chief inspector should build flexibility into his inspection plans to allow such specific requests.

The new clause requires that the Secretary of State commissions that report and the report must address specific concerns. If noble Lords look at the terms of the amendment, they will note that the specific concerns that the chief inspector is being asked to address are ones that quite fairly reflect some of those raised in your Lordships’ House in Committee—namely, the effectiveness in identifying and correcting case working errors and the independence of the person conducting the administrative review in terms of their separation from the original decision-maker.

[Baroness Manzoor (LD)]

Will the chief inspector look at the substantive elements of the case rather than just the procedural review of the case and whether that has been effective? Will he also assess the merits of the case in the samples that he takes?

[Lord Wallace of Tankerness]

My Lords, I mentioned to my noble friend the report on out-of-country cases in Warsaw in December last year which concluded that in 88% of the cases reviewed the right decision had been reached. You can do that only if you actually look at the subject matter. Therefore, I would fully expect that the chief inspector, in undertaking his report, would have to be able to give some indication as to whether there was greater efficiency and greater accuracy in decision-making. You would have to look at sample cases to see whether the right decisions had been reached.

Amendment 14, in the names of my noble friends, requires the Government to consult on the immigration rules for administrative review. As I have already indicated, the Government will undertake a targeted consultation on the immigration rules establishing administrative review before those rules are laid before Parliament. It is not necessary to place an obligation to consult on the face of the Bill as the Government have already committed to doing so. The proposed new clause also seeks to ensure that administrative review is the subject of an early inspection and report by the Independent Chief Inspector of Borders and Immigration. As my noble friend Lady Hamwee acknowledged, Amendment 12, tabled by the Government, requires the Secretary of State to commission such a report from the chief inspector.

My noble friend raised the out-of-country administrative review note that she received. She saw the same point that I had noticed, which indicated that out-of-country reviews are free. I then noted that the statement of intent, which was published along with the Bill, indicated that there would be a fee of £80. I have queried why that is the case. I understand that a separate charge for an administrative review is incorporated into the visa application charge. To do that for in-country reviews would require increasing visa charges. I rather suspect, given what has been said in a number of other debates, not least with regard to students, that that would not be the most popular course to go down. The review is free, but the cost is already incorporated within the visa charge.

I believe that we have accepted a recommendation emanating from the chief inspector about how administrative review can work. I believe that it will work because we are following up on recommendations that have been made about how these decisions can be made more efficiently. Where we have heard evidence of administrative review working for out-of-country applications, there has been a significant improvement over the 60% of errors that were identified in that period with regard to in-country appeals. Therefore, particularly with regard to the huge difference between 28 days and 19 weeks—I suspect overall that it will be cheaper if one does not have to engage learned counsel—we are proposing something here that will be of benefit not only to applicants but to the general administrative procedure as a whole.

Therefore—I suspect without any success—I ask the noble Baroness to withdraw her amendment and to recognise that the Government have listened to what was said in many cases in Committee. We are putting on the face of the Bill an obligation on the Secretary of State to commission a report from the chief inspector and particularly to have regard to the specific concerns raised in Committee. I therefore hope that she will withdraw her amendment.