APPEALS FROM IMMIGRATION APPEAL TRIBUNAL (Hansard, 7 June 1993)

§ Mr. Charles Wardle
I beg to move, That this House doth agree with the Lords in the said amendment.

§ Madam Deputy Speaker
With this it will be convenient to discuss the following: Lords amendment No. 7, Lords amendment No. 8 and amendment (a) to the Lords amendment, and Lords amendments Nos. 9 and 15.

§ Mr. Wardle
This group of amendments extends the new avenue of appeal created by clause 9 from asylum cases only to all final determinations by the immigration appeal tribunal. That should be generally welcomed. It means that the opportunities to seek leave to appeal on a point of law to the relevant court will be available in both asylum and other immigration cases. I should perhaps confirm that nothing in the clause removes the availability of judicial review.
It may be helpful if I briefly explain the effect of the various amendments. Amendments Nos. 6 and 7 amend subsection (1), which creates the new avenue of appeal and removes the limitation to appeals in asylum cases. Amendment No. 8 specifies the appropriate court to deal with these cases. If the appeal was originally heard by an adjudicator in Scotland, the appropriate appeal court will be the Court of Session. In all other cases it will he the Court of Appeal.
Amendment No. 9 amends the 1971 Act so as to provide that an appeal shall continue to be treated as pending while an appeal may be or is being brought under this new provision. That will protect appellants from being required to leave the United Kingdom during that stage of the process.
60 As for amendment (a) to Lords amendment No. 8, the appeal system that the Bill provides for asylum seekers and the appeal system which already exists under the 1971 Act for other immigration appeals already provide a two-stage appeal—first, to an adjudicator, then to the tribunal. The Bill adds a further right of appeal, with leave on a point of law, to the Court of Appeal. Lords amendment No. 8 extends that to all immigration appeals, not just asylum cases.
Amendment (a) seeks to add one more layer to the process, by having the appeal from the determination of the tribunal go to the High Court. Cases that involve important points of law would no doubt go from there to the Court of Appeal, so we would have a four-tier system of appeals. The aim of the Bill is to provide an effective way of resolving disputed points of law arising from immigration and asylum appeals without needing to resort to judicial review. It is not a mechanism for drawing out the appeals process as long as possible. The view of the Lord Chancellor is that it is better to allow the appeal to go direct to the Court of Appeal and so to keep delays to a minimum.
There is nothing new in providing an avenue of appeal direct from a tribunal to the Court of Appeal. In general, when a tribunal hears appeals from another body, as the immigration appeal tribunal does, the avenue of appeal is to the Court of Appeal. Examples of such tribunals are the social security commissioners, the employment appeal tribunal and the lands tribunal. An appeal usually lies to the High Court when the tribunal takes decisions at first instance.
Amendment (b) seems to be based on the belief that the purpose of providing the new avenue of appeal is to deprive people of the chance of judicial review; not so. It is true that until now the only way of challenging a decision of the tribunal has been by way of judicial review and that it will now be open to dissatisfied appellants to seek to challenge disputed points of law by the more appropriate remedy of an application for leave to appeal to the relevant court.
To the extent that that remedy is available, the use of judicial review to challenge tribunal determinations is likely to decrease; but when a person seeks judicial review, it is entirely up to the judges to decide whether there is an issue that comes within their jurisdiction or merits leave to move for judicial review. Nothing in the Bill removes the availability of judicial review, nor is that the Government's intention.
Lords amendment No. 15 is an amendment to the long title of the Bill designed to reflect the amendments that have been made during the passage of the Bill. In its original form the long title states that the Bill restricts certain rights of appeal under the 1971 Act. We are now also extending the new avenue of appeal to the Court of Appeal to all determinations by the tribunal under the 1971 Act, and the new wording more accurately reflects the contents of the Bill.

§ Mr. John Fraser (Norwood)
I am grateful to the Minister for telling us something about the amendments, and especially about judicial review. These amendments were slipped into the Bill late and with virtually no debate in another place. We therefore did not have the benefit of a detailed explanation.
61 Our fear is that the amendments are more far-reaching and fundamental than their description in the other place would suggest—they were described as simply an extension of the right of appeal. Our fear remains that the facility of judicial review may in practice be limited by the amendments—in short, that there is a hidden agenda.
When the Bill left the Commons it included an appeal direct to the Court of Appeal in special ajudicator cases —that is to say, cases involving asylum. All other matters were still subject to review and appeal by way of judicial review. We were not happy with the Bill when it left here because we thought that the Court of Appeal pitched the process at the wrong level: it made appeals more extensive and complicated and it meant that cases were sent to a court that is already overworked and short of judges.
In another place and without debate, the arrangement intended for asylum cases was extended to cover all appeals, involving business people, wives, dependants, students and so on. The amendment, which look innocuous enough, may disguise a hidden agenda and reduce the possibilities of judicial review.
The divisional court applies two principles, among others, when it considers giving leave for judicial review. The first concerns whether an application is made within three months of the decision in question. Secondly, the divisional court tends to consider whether there is an existing right of appeal. It tends to refuse leave for judicial review when another avenue is open to someone—for instance, when a case comes before an adjudicator and there is a possibility of appealing to the immigration appeal tribunal, or when an immigration officer has made a decision and there is an appeal to an adjudicator.
In such cases, the divisional court tends to say that the matter is not appropriate for judicial review because other avenues are open. Even if the Government do not intend it, we are concerned that the effect of the amendments may be to cut out these avenues. Hence, to deal with a question of administrative law or impropriety, someone will have to canvass the issues before an adjudicator or the immigration appeal tribunal, but will be able to question them only when they get to the Court of Appeal
I do not want to prolong the debate, but I have one question for the Minister which I shall preface with a preamble. The Bill incorporates the United Nations convention on the status of refugees, and the Government are a signatory to the European convention on human rights. In a new development, the European convention is expressly recited and adhered to in the Maastricht treaty, which the Government shortly propose to sign. My question is important whether appeals go to the Court of Appeal or to judicial review. Do the Government intend our courts to take direct cognisance of the European convention on human rights in deciding the validity of immigration rules, immigration appeal rules and the procedures before immigration appeal authorities?
Secondly, are the Government prepared to have ministerial decisions tested against the human rights criteria? The Government signed the human rights convention and are about to sign another treaty which expressly incorporates the European convention on human rights. Are they prepared to allow our domestic courts, whether the Court of Appeal or a judicial review body, to test what Ministers do and to test immigration rules and appeal rules against those criteria? If they are 62 prepared to do that, how can the convention be applied if, in practice, judicial review is excluded because of the other appeal rights?
If the Minister is absolutely satisfied that there will be no interference whatever in the capacity to opt for judicial review at any stage of the proceedings, I shall be happy to agree to the amendments. However, if there is any risk in practice, whether or not it is a matter of law, or judicial review being curtailed, we would feel unhappy about the amendments.

§ Mr. Charles Wardle
I assure the hon. Gentleman that there is no hidden agenda. The fact that the European convention on human rights is mentioned in the Maastricht treaty will have no relevance to decisions by British courts on the matters that the hon. Gentleman outlined.