§ 21.—(1) This Part applies to—
- (a) proceedings to which Part II applies (appeals to special adjudicator);
- (b) proceedings to which Part III applies (appeals to the Tribunal from special adjudicator);
- (c) (in relation to rules 28–30 only) proceedings to which Part IV applies (appeals from the Tribunal); and
- (d) applications for bail.
§ (2) Rule 18 of the 1984 Rules shall apply to this Part as it applies to Part III of the 1984 Rules.
§ (3) Rules 23, 25–36, 37 (except paragraph (a)), 38, 40–42 and 44–45 of the 1984 Rules (as applied by this Part) shall apply to this Part as they apply to Part IV of the 1984 Rules.
§ (4) In the 1984 Rules applied by paragraphs (2) and (3)—
- (a) references to "adjudicator" (other than the reference in rule 33(1) to the chief adjudicator) shall be taken to be references to a special adjudicator; and
- (b) references to "appellate authority" shall be taken to be references to a special adjudicator or the Tribunal.
§ (5) Rules 22–27 amend the application of the 1984 Rules for the purposes of this Part.
§ Conduct of proceedings at hearings
§ 22. In rule 28 of the 1984 Rules, the words "and after complying where appropriate with the provisions of Rule 1(3)" shall be omitted.
§ Burden of proof
§ 23. In rule 31 of the 1984 Rules, the reference in paragraphs (1) and (2) to "the Act" shall be taken to be a reference to this Act.
§ Hearing of appeal in absence of appellant or other party
§ 24. In rule 34 of the 1984 Rules—
- (a) the reference in paragraph (2) to rule 24 (of the 1984 Rules) shall be taken to be a reference to rules 6(2) and 10(2) of these Rules; and
- (b) paragraph (5) (a) shall be omitted.
§ Summary determination of appeals
§ 25. In rule 35 of the 1984 Rules, the reference in paragraph (1) to "previous proceedings" shall be treated as including proceedings under this Act.
§ Performance of functions of Tribunal
§ 26. In rule 42 of the 1984 Rules—
- (a) sub-paragraph (c) (i) shall be omitted; and
- (b) the reference in sub-paragraph (c) (ii) to rule 21(1) shall be taken to be a reference to rule 17(3) of these Rules.
§ Notices etc
§ 27. In rule 44(1) of the 1984 Rules, paragraph (d) shall be omitted.
§ Deemed grant of application
§ 28. Where a special adjudicator or the Tribunal fails to determine any application for leave under these Rules within the time prescribed, the application shall be deemed to have been granted.
§ Extension of time limit
§ 29. Where a special adjudicator or the Tribunal is required under these Rules to determine an appeal or to provide notification of the determination (and the reasons therefor) within a time prescribed, the special adjudicator or, as the case may be, the Tribunal may if necessary extend the time so prescribed either to enable it fairly to determine the appeal or (as the case may be) to provide the notification.867
§ 30.—(1) Subject to paragraph (2), any notice or other document that is sent or served under these Rules shall be deemed to have been received—
- (a) where the notice or other document is sent by post, on the second day after which it was sent; and
- (b) in any other case, on the day on which the notice or other document was served.
§ (2) Where a notice or other document is sent by post to a special adjudicator or to the Tribunal, it shall be deemed to have been received on the day on which it was actually received by the special adjudicator or, as the case may be, the Tribunal.
§ (3) Where under these Rules, an act is to be done not later than a specified period after any event, the period shall be calculated from the expiry of the day on which the event occurred.
§ (4) Where the time provided by these Rules by which any act must be done expires on a Saturday, Sunday or a bank holiday, Christmas Day or Good Friday, the act shall be done in time if done on the next working day.
§ (5) Where, apart from this paragraph, the period in question being a period of 10 days or less would include a Saturday, Sunday or bank holiday, Christmas Day or Good Friday, that day shall be excluded.
§ The noble Lord said: Amendment No. 90 introduces a new schedule to the Bill which, to the best of our ability and the best of the knowledge made available to us, comprises the procedure rules which the noble and learned Lord the Lord Chancellor would in due course present to the House for approval. I shall not go into the drafting issues of the procedure rules and the question of what is the most up-to-date version because this is a matter which the noble Earl, Lord Ferrers, will recognise that I shall have to pursue with him individually rather than in Committee. However, if we take it as the basis for discussion that the rules as printed on the Marshalled List are, to the best of our ability, a representation of the draft rules which the Government propose to introduce when the Bill achieves Royal Assent, that gives us the basis for discussion.
§ We introduce this lengthy amendment and the amendments to it, which are put down in the name of the noble Lord, Lord Bonham-Carter, because it is our view, as it was with the draft immigration rules, that no proper consideration of the issues raised by the Asylum and Immigration Appeals Bill can be carried out without a consideration of the details of the provisions which unfortunately are not enshrined in primary legislation. The Government propose that the detailed application of the provisions should be, in the one case, in draft immigration rules which will be a House of Commons paper and therefore, as I understand it, could be prayed against, and, in terms of the procedure rules, a statutory instrument laid by the noble and learned Lord the Lord Chancellor.
§ Our objections to this part of the Bill can be adequately expressed only in terms of our objections to the procedure rules. Without wishing to intrude on the amendments which the noble Lord, Lord Bonham-Carter, will move, I suggest in broad terms the ways in which we believe the procedure rules that we have tabled for discussion are inadequate.868
§ First and most importantly, we are deeply unhappy about the time-scales laid down for appeals. The draft rules give the appellant notice of appeal within 10 days of receiving notice of a refusal decision. They require that the adjudicator serve notice of time, date and place of hearing within five days of the receipt of notice of appeal. They require that the hearing be determined within 40 days of the receipt of notice of appeal. However, there is also provision in the procedure rules for special provision to be made in the appeals procedure for those whose claims are certified by the Secretary of State as being without foundation. There is provision in Schedule 2 for the definition of what is considered to be without foundation. If that is provided for, a two-day time limit is given to lodge an appeal for those who make applications on entry to the UK—that is, port applicants—and where the Home Office chooses to serve a refusal notice personally on the applicant. There is no specific reference to applications being held to be without foundation or to applicants being in detention. It then provides one day for the adjudicator to serve notice of time, date and place of hearing in cases certified as groundless, and eight days for determination of appeal in cases certified as groundless.
§ In Committee in another place there appeared to be some indication that the two-day limit would apply only to cases deemed to be without foundation and to persons held in detention. That is not what the rules say. The rules are wider in their application. The Home Office briefing note supplied as an appendix to the Immigration Rules does not say that.
§ What we have set down in the new schedule, and what is in the amendments to it set down by the noble Lord, Lord Bonham-Carter, should not be taken to indicate that we are not in favour of a tighter time schedule. Of course we are. One of the prime elements in asylum cases must be that justice is reached quickly because, in the classic phrase, delay itself is a form of denial. A reasonable time must be allowed for the avoidance of lengthy and unnecessary delays. It must provide sufficient time for the case to be properly put and carefully determined, especially in matters which relate to life, liberty and fundamental human rights. If the time limits are mandatory, they must be realistic and enforceable.
§ It is our contention that the procedure rules proposed here do not meet those requirements and that the amendments which the noble Lord, Lord Bonham-Carter, will move are necessary to correct the inadequacy of the rules. I commend the amendment to the Committee, subject to the amendments which will be moved by the noble Lord.
Lord Bonham-Carter moved, as an amendment to Amendment No. 90, Amendment No. 91:
In paragraph 5(1), line 2, leave out ("10 days") and insert ("14 days").
§ The noble Lord said: I shall speak also to Amendments Nos. 92, 93, 94 and 95. I shall to some extent cover some of the ground covered by the noble Lord, Lord McIntosh. It is necessary to repeat some of the points because they are essential if justice is to be done in the case of those people with whom we are concerned.869
§ Amendment No. 91 extends the time for appeal to 14 days. That is not excessive; it merely gives a little more leeway. Amendment No. 92 removes the two days to appeal provision for those who are applying at a port and upon whom a refusal notice has been served in person. Those time limits jeopardise families, and that is central to the whole process. I cannot believe that there is any difference between the two sides of the Committee on this matter.
§ We are trying to produce a procedure which is fair, which is seen to be fair and which both parties can recognise to be fair. The difficulty is that the Government's proposed measures appear to put speed and so-called efficiency ahead of and at the expense of justice. In that way it is easy to unclog the system. One just cuts out various procedures or speeds them up to the extent that they cannot work effectively. For example, the proposed 48-hour time limit for lodging an appeal is in the opinion of the CAB, which has some experience in these matters, unrealistic. For a person coming to a new country who is in detention, who does not know the law or language and who may not find officialdom reassuring, 48 hours is far too soon to lodge an appeal.
§ We have been over this ground many times in our discussion of the Bill. It is far too short a time to conduct a proper preliminary interview which, for the reason which we have discussed at length earlier in the Bill, people may be very reluctant to undertake and which, even in the best of cases, in the view of CABs may take three or four hours. It is also quite likely to be unsatisfactory given the traumatised state of mind of those who are victims of the situation we are describing.
§ Amendment No. 93 covers ground which we have already dealt with; that is, that the claimant for asylum should be provided with a statement of the facts, the inferences made, the laws which are applicable and an explanatory statement, if necessary, in a language which he can understand. I know that the noble Earl has agreed to that in principle, having pointed out some of the difficulties involved. Therefore, I shall not dwell on that.
§ Amendment No. 94 simply makes it essential that the appellant be entitled to free legal advice at all stages of the proceedings. Our procedure rules make no such provision. It seems absolutely essential that such provision should be written into the legislation and should not depend on assurances given in your Lordships' House or in another place. It is even more important given the powers in paragraph 4 with which the Secretary of State is invested; that is, to certify that a case is without foundation. That is one of the phrases in Schedule 2 which I find most disturbing.
§ The noble Earl, Lord Ferrers, has frequently assured the Committee that legal advice would be available. If that is the case I cannot see why he should have any objection to having it written in, as we suggest. It also relates to the times.
§ Amendment No. 95 is, again, a time-limit matter: leave out "42 days" and insert "12 weeks". This is a question of giving time for the process to be conducted 870 properly, time for the claimant to get proper advice and understand the situation, and of giving proper time to the hearing of an appeal.
§ The argument is the same throughout the amendments. It is one which should be taken seriously. I would point out that one curiosity is that time limits are applied to the process of adjudication but that the Home Office is not subject to time limits; it merely has targets. That seems to be an asymmetry which should be put right. I should like to know why, if claimants for asylum should be so rigidly tied down to time limits, the Home Office should simply be supplied with targets. My experience of Home Office targets is that they are very large indeed.
§ Lord Renton
I wonder whether I might seek the guidance of the Lord Chairman of Committees. Technically speaking, we are at present discussing the amendments moved by the noble Lord, Lord Bonham-Carter, to the new schedule moved by the noble Lord, Lord McIntosh. I wish to argue that the schedule should not be added to the Bill at all and that therefore we need not take up time discussing the amendments of the noble Lord, Lord Bonham-Carter. May I do that or not?
§ The Chairman of Committees (Lord Ampthill)
I think that the noble Lord is mistaken. I have to call Amendment No. 91 as an amendment to No. 90. We have to work through Amendments Nos. 91 to 95, and then we shall be able to deal with Amendment No. 90.
§ 10.30 p.m.
I can understand the anxiety of my noble friend Lord Renton about this because he is right that the rules should not be written into primary legislation. However, again we must follow the curious procedure which we followed the other day. Perhaps my noble friend was not here so I shall remind him of what happened. The noble Lord, Lord McIntosh, tabled an amendment to insert the Immigration Rules into the Bill. The noble Lord, Lord Clinton-Davis, tabled amendments by which they could be altered. The noble Lord, Lord Clinton-Davis, moved his amendments and the noble Lord, Lord McIntosh of Haringey, graciously accepted them, almost as though the Government had nothing to do with it at all. We then had an amended set of rules. Consideration was then given as to whether those rules should be inserted into the Bill and the Committee decided that they should not be. We have the same ritual dance today but the characters have changed. The noble Lord, Lord McIntosh, proposes the new schedule and the noble Lord, Lord Bonham-Carter, has tabled amendments to it. The only difference is that the alliance is slightly wider today.
I hate to say it but the noble Lord, Lord Bonham-Carter, is under a misapprehension. He said that we are trying to unclog the system but by doing so we are cutting out procedures or speeding them up. With regard to the first amendment, the noble Lord is 871 seeking to continue the present system under which an appeal must be lodged within 14 days. There is a misapprehension here. The 14 days of the present system refer to 14 consecutive days. The provision in the proposed paragraph 30(5) makes the 10 days 10 working days rather than 10 calendar days because they exclude Saturdays and Sundays. If the noble Lord looks at it he will see that paragraph 30(5) states:Where, apart from this paragraph, the period in question being a period of 10 days or less would include a Saturday, Sunday or bank holiday, Christmas Day or Good Friday, that day shall be excluded".Under the new rules, the appeal time is more generous because bank holidays, Christmas Day and Good Friday are excluded. If the appeal falls within that time, a person has a longer time in which to appeal.
The second amendment is intended to leave out the provision whereby the period allowed to give notice of appeal is reduced from 10 days to two days in port cases where the Secretary of State has certified that the claim for asylum is without foundation and where notice of the decision against which he is appealing has been served on the applicant in person. That provision must be retained in the interests of speedy resolution of cases where a claim for asylum is without foundation; for example, where the ability to return the applicant to a safe third country may turn on the speed of his removal. That matter is addressed also in Amendment No. 97 in the name of the noble and learned Lord, Lord Ackner. I shall address the need for a short time limit in greater detail when the Committee discusses that amendment.
The Bill gives asylum seekers a right which they never had before. They are now being given a right of appeal while they are in this country. Previously, they were sent away and their only right of redress was an appeal from abroad. The noble Lord, Lord Bonham-Carter, should be encouraged by that.
Amendment No. 95 seeks to double the period allowed for a special adjudicator to determine an appeal. That increase is unnecessary and undesirable. The 42 days which are allowed in the draft procedure rules are adequate for most cases. Where further time is needed—I ask the noble Lord, Lord Bonham-Carter, to look at draft rule 31; that might be draft rule 29 in the version which is cited in Amendment No. 90—that allows a special adjudicator to extend the prescribed time if it is necessary to enable him to determine the appeal fairly. That provides a safeguard for the exceptional case where further time is required. I hope the noble Lord, Lord Bonham-Carter, will agree that on those three amendments it is a case of game, set and match.
§ Lord McIntosh of Haringey
I do not begrudge the Minister his little bit of fun on the procedures we have adopted. I did not begrudge him that on Tuesday either. However, I do not any the less regret the fact that we have proceeded in this way because I believe the core of understanding of the provisions of the Bill depends on an understanding of what the Government actually intend to introduce in the draft immigration rules and what they intend to introduce in the draft procedure rules. The Minister claims that 872 in relation to the amendments which have been tabled to the draft procedure rules he has achieved game, set and match. I suggest he has scored only one hit out of five and even that one hit is pretty dubious.
The Minister pointed out that in paragraph 5(1) of the draft procedure rules the 14 days which existed in the past, which was a calendar period, is now 10 days excluding Saturdays, Sundays, Bank Holidays and some other days. If that was the intention of the Government why on earth did they not say so? They could perfectly well have avoided a change. They could perfectly well have stuck to the existing rules. No one would have noticed and no difficulty would have been caused. If the noble Lord, Lord Bonham-Carter, wishes to withdraw that amendment I shall be quite content for him to do that. I do not think anything would be lost by it, but on the other amendment—
Is the noble Lord, Lord McIntosh, suggesting that the noble Lord, Lord Bonham-Carter, should withdraw an amendment which gives the applicant a longer period for appeal?
§ Lord McIntosh of Haringey
It was the Minister himself who suggested that 14 days under the amendment, as defined in paragraph 5(1), is a shorter period than the 10 days which is already provided. Therefore, I do not think that question arises. As regards the other amendments of the noble Lord, Lord Bonham-Carter, they are, of course, concerned with the special appeal procedures for claims without foundation. When I read that part of the Bill, in Schedule 2, I immediately put quotation marks around the phrase "without foundation" because the only definition of "without foundation" is the opinion of the Secretary of State.
Similarly, in Schedule 2 paragraph 4(3) (b) the words "frivolous or vexatious" appear. There are no quotation marks around that phrase but of course it is equally subject to the interpretation of the Secretary of State. I am well aware that there have been occasions when the courts have been called upon to decide what is without foundation and what is frivolous and vexatious, but I do not think the Government wish to pursue the issue of court decisions about the Secretary of State's decisions. We are then into the area of judicial review. I remind the Committee that the present situation is that with the bad drafting of legislation that we have and the bad thinking of Government behind it judicial reviews have increased to such an extent that the delay before judicial review is achieved is approximately 18 months.
I suggest it behoves the Government to try to be precise about their wording and not to leave it to the risk of judicial review before the intention of Government can be understood as they present legislation. This seems to me a classic example of an accelerated procedure for cases which are claimed to be without foundation when there is no other definition of "without foundation" other than that the Secretary of State thinks that it is without foundation.
I suggest to the Committee that the amendments of the noble Lord, Lord Bonham-Carter, which remove the provisions for an accelerated special appeal 873 procedure, are entirely justified and that the procedure rules would be better without those provisions. If the noble Lord moves those amendments I am prepared to accept them as improvements to Amendment No. 90.
§ Lord Bonham-Carter
I listened with interest to what the noble Earl said. I welcome the right of appeal in this country. It would be ungenerous not to say that it is unquestionably an improvement. However, when he used the phrase "Game, set and match" my thoughts went back to the last time it was used. The events which have occurred since then seem to make it a dangerous claim for anyone of his political stripe to make at this juncture.
Most of the points which the noble Earl made were dealt with extremely effectively by the noble Lord, Lord McIntosh, and I shall not go over that ground again, except to say that I share with the noble Lord the gravest reservations about the use of the phrase "without foundation". It simply means "in the opinion of the Secretary of State". It is a dangerous phrase to introduce into our procedures in this context and requires clarification.
I had not intended to press the amendments at this stage but, as the noble Lord, Lord McIntosh, is happy to accept them, I am happy to accept his acceptance. I beg leave to withdraw the amendment.
Amendment to Amendment No. 90, by leave, withdrawn.
§ Lord Bonham-Carter moved, as an amendment to Amendment No. 90, Amendment No. 92.
In paragraph 5, leave out sub-paragraph (2).
§ On Question, amendment to Amendment No. 90 agreed to.
Lord Bonham-Carter moved, as an amendment to Amendment No. 90, Amendment No. 93:
In paragraph 5, at end of sub-paragraph (5) insert ("and shall produce a written statement of the facts relating to the decision or action appealed against and the reason therefor.").
§ On Question, amendment to Amendment No. 90 agreed to.
Lord Bonham-Carter moved, as an amendment to Amendment No. 90, Amendment No. 94:
In paragraph 5 at end of sub-paragraph (5) insert:
("() The appellant shall be entitled to free legal advice under the legal advice and assistance scheme at all stages of these proceedings.").
§ On Question, amendment to Amendment No. 90 agreed to.
Lord Bonham-Carter moved, as an amendment to Amendment No. 90, Amendment No. 95:
In paragraph 9, line 2, leave out ("42 days") and insert ("12 weeks").
§ On Question, amendment to Amendment No. 90 agreed to.
§ On Question, Whether Amendment No. 90, as amended, be agreed to.
§ Lord Renton
This proposed new schedule is headed "Procedure Rules". We have dozens of tribunals of an administrative, quasi-judicial kind in addition to the courts themselves. Each of those bodies has its own rules of procedure, none of which is contained in Acts 874 of Parliament. The rules of the High Court and the Court of Appeal, which are called the Judges' Rules, are approved by the Lord Chancellor after a committee of judges appointed by him has advised him upon them. Indeed, those judges have the right to vote on them. It is unthinkable that those purely procedural and administrative matters should be contained in primary legislation. If this became a precedent the statute book would be cluttered up with dozens of similar schedules, and quite wrongly so. It is not the job of Parliament to deal with procedural and administrative matters.
No points of substance arise within these rules. They are rules for the conduct of appeals to special adjudicators and appeals from the tribunal. The nearest that we get to anyone's particular rights are of a familiar kind; namely, the time that needs to be given before various appeals are lodged before various events occur. But that is not a matter for Parliament. In any event, a number of those purely procedural rules of court and of tribunals are contained in statutory instruments which can be tabled and prayed against.
I hope that the noble Lord, Lord McIntosh, will not try to add the provision to the Bill. It would be wrong in principle and, quite frankly, that is not the job of Parliament.
§ 10.45 p.m.
§ Lord McIntosh of Haringey
I am glad that the noble Lord is back on top form. Certainly his understanding of the niceties of subsidiary legislation has never been better deployed. I think he goes a little far when he states that it would be wrong in principle for those rules to be included in primary legislation. On reflection, he might agree with me that what is included in rules which may be laid before Parliament, statutory instruments (such as these procedure rules), schedules to Bills, and clauses in Bills, is a matter of judgment. Certain aspects of the procedure rules are included in Schedule 2 to the Bill and require further primary legislation in order to be amended.
I do not dissent from his general judgment that procedure rules ought not to be included in legislation. I do not intend to press the amendment to a Division. However, the opportunity to consider in Parliament the detailed way in which the Government propose to implement what is otherwise only outline legislation is valuable. I do not regret having provided that opportunity by tabling Amendment No. 90 as a new schedule to the Bill. I am happy to give way in order to hear what the Minister has to say on the issue before I make up my mind what to do.
The noble Lord, Lord McIntosh, is absolutely right to decide that he does not wish to press the amendment. My noble friend Lord Renton is quite right to say that it would be wrong in practice to have such rules in primary legislation because it could be so inflexible. The correct place for them is secondary legislation.
However, the noble Lord was justified in using the procedure which enables the rules to be discussed. My noble and learned friend the Lord Chancellor 875 produced draft rules for discussion. He will obviously wish to take note of what has been said. The noble Lord, Lord McIntosh, has used the opportunity today to discuss them. That is perfectly justified, but I am glad that he has decided, as I understand it, to withdraw the amendment.
§ Lord Renton
Perhaps I may comment on one point that the noble Lord, Lord McIntosh, made. He stated that the second schedule deals with rules of procedure. It does not. It amends the 1971 Act, which gives powers to make rules of procedure. That is rather different.
§ Lord McIntosh of Haringey
That is entirely correct. I agree with the noble Lord on that point. I do not believe that there is any difference between us, although if we both had been Members of the committee on delegated legislation we could no doubt have had lengthy academic arguments on the point.
I do not disagree with him that it is valuable to have different degrees of flexibility and certainty in legislation; and that to have some matters on the face of the Bill, and others not on the face of the Bill is entirely proper. It is inevitable that the Opposition will always disagree with the Government as to where the line should be drawn. Our purpose in this case was not to conflict with anyone else's view about where the line should be drawn, but to open up the issues for discussion in Committee. We have achieved that ambition. I am grateful to the noble Lord, Lord Bonham Carter, for his assistance in the matter. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
§ Schedule 2 [Appeals to special adjudicator: supplementary]:
§ [Amendment No. 96 not moved.]
Lord Ackner moved Amendment No. 97:
Page 14, line 1, at beginning insert: ("Save that the time limit for giving notice of appeal shall be not less than 10 days following the receipt of the decision on the subject matter of the appeal,").
§ The noble and learned Lord said: In moving this characteristically modest little amendment, I repeat what I said on Second Reading. I enthusiastically welcome the Government's change of heart in agreeing to a proper right of appeal being accorded to asylum seekers. My only sadness is that in making this generous gesture, the Government have in one category of persons annulled the whole purpose of the activity, the subject matter of one's appreciation.
§ The 48-hour provision does two things. It offends one's sense of justice because one does not provide a right to put in a notice of appeal to people who are likely to be in great difficulty with language matters, probably suffering from great trauma and anxiety, in a foreign situation. They have no entitlement, as such, to legal advice or assistance. They may or may not have immediately available the assistance which they can obtain. I understand that people in this category are in detention and are likely to be even more upset and confused as a result of the unusual situation. To provide them with 48 hours in which to put in a notice 876 of appeal, which is to set out the grounds upon which they contend the decision is wrong, I repeat, offends one's sense of justice.
§ However, there is another aspect to this. I fully sympathise with and welcome the Government's endeavours to speed up the machinery so that the valid asylum seeker can establish his claim speedily and those who do not qualify realise that they have failed to qualify without a long drawn-out delay.
§ What is being done here is designed, as I understand it, to speed up the process. It will be counter-productive because the word will soon go around, "You automatically, as a conditioned reflex, enter a notice of appeal. Forty-eight hours is so short that you won't have access to any legal advice that is available; or if you have access, the legal advice will not be capable of being provided on so serious a matter, like a knee-jerk reaction". The result will be that everyone in this category will appeal. With the deepest respect, that seems to me to be a nonsensical activity by the Government.
§ I noticed that the noble Earl's eyebrows went up when I referred to the modesty of the amendment. All I have put in its place is 10 days—not even 10 working days, but 10 days—as being, in my respectful submission, a very abbreviated period to put in a notice of appeal setting out the basis upon which one challenges the decision. I cannot for the life of me see why that modest improvement on the time, from the point of view of the asylum seeker, will wreck the Government's desire to deal with this special category of case with the maximum of reasonable speed. There has been a reference to how that might prejudice the situation of those to whom it will be said that there is a safe third country to which the applicant might be returned. But the answer to that is that the safe third country may, on inquiry, turn out not to be a safe third country for the applicant.
§ I have been provided by Justice with two cases that apparently went to the court. I believe it right that they should be recorded.
§ Mr. Y is a Somali, who came to the United Kingdom via Italy, where he claimed he was prevented by officials from making an asylum claim. The Home Office, without any evidence, argued that that could not be the case, even though there are substantiated cases of breaches of international procedures in European countries, including the United Kingdom itself. The court criticised the Home Office for failing to make inquiries in Italy and ordered that the claim be properly considered.
§ Mr. H, a Vietnamese, was refused asylum in Hong Kong under the rapid screening procedures which have been criticised by Amnesty International and others. When he succeeded in reaching the United Kingdom, the Home Office ordered that he be returned to Hong Kong. The court took the view that there were important issues at stake and ordered the case to be considered. So snap decisions may be very vulnerable and once again that will be another source of applications for judicial review which will merely add to the delay, add to the expense and clutter up a court which is already overburdened with applications of that kind. I beg to move.877
The noble and learned Lord, Lord Ackner, remarked that my eyebrows elevated when he said that he was merely putting down a characteristically modest amendment. If they raised themselves, it was merely because of the modesty of the noble and learned Lord in his description of his own amendment. I recognise the concern that has been expressed about the provision of the draft asylum appeals procedure rules to allow some asylum seekers only two days in which to give notice of appeal. Perhaps I could first make clear the cases which will be subject to the shorter time limit.
There will be three conditions which must be met for the two-day limit to apply. First, the appeal is under Clause 8(1). It is an appeal against a refusal of leave to enter at a port in the United Kingdom. Secondly, the appeal is one in which the Secretary of State has certified that the asylum claim is without foundation. That requirement does not appear in the draft of the procedure rules which was published with the Bill, but I can assure the Committee that it will appear in the final version. Thirdly, the notice of refusal must be served on the applicant in person. In practice, that will mean that the applicant has been detained pending the decision on his application.
The noble and learned Lord, Lord Ackner, said that people will be traumatised and will come in a distressed state. The great majority of cases which fall within those conditions will be cases where the person has arrived from a safe third country to which it is proposed to remove him. Those cases are regarded as without foundation in the terms of paragraph 4 of Schedule 2. They do not raise any issue as to the United Kingdom's obligations under the convention.
I remind the Committee that the obligation in question is not to send a refugee to a country where his life or freedom would be threatened. That would not he so if he was being returned to a safe third country. The issue to be decided in these cases is not whether the applicant is a genuine refugee—in other words, not whether he has a well-founded fear of persecution in his own country—but simply whether, if he is removed to the third country from which he has arrived, that country would deal with him in accordance with the requirements of the Convention. That is generally an issue which can be decided on the basis of what is already known about the laws and practices of that other country.
Therefore, when a person has arrived from a safe third country and has claimed asylum, it is vital that the immigration authorities should be able to deal with that case quickly. The longer a person remains here, the less likely it is that the authorities of the other country will accept him back. There is no hard and fast rule on how soon a person must be returned if he is to be accepted. That will depend not only on the country concerned but also on such factors as the length of time the person has spent there and the strength of his connections there. Certainly, access to the full asylum appeals process which the Bill creates would mean that in virtually every case a person would stay here so long that it would be impossible to get the safe third country to accept him back. That would undermine the internationally accepted 878 principle—and it is internationally accepted—that refugees should seek asylum in the first safe country which they enter. It would make it much more difficult to prevent misuse of the asylum procedures by those who are not refugees.
That is the reason that I consider a short time limit for giving notice of appeal is necessary in those cases. I remind the Committee again that they are cases where the applicant is "without foundation".
The noble and learned Lord expressed anxiety as to whether the two-day period is adequate to seek legal advice. The position is that the asylum seeker will already have been given the opportunity to seek legal advice, either from the refugee centre or from a solicitor, when he first makes his asylum claim. He will have had the opportunity to have assistance in putting his case to the authorities before a decision is reached. The notice will be served on him in person, and we envisage that that will, whenever possible, be done in the presence of his representative so there will be no possibility of the delays and uncertainties which might arise through delivering it by a postal service.
It will be explained to the applicant, if necessary by using an interpreter, why his application is being refused and what is to happen to him. The two-day time limit will begin to run from that moment, and in that time all that he and his adviser need do is to give notice of appeal. In that kind of case there is no question of a representative needing to find evidence to support the substantive asylum claim within the two-day period. The procedural rules permit the initial grounds of appeal which were given in the notice to be amplified, or varied, by the leave of the special adjudicator.
The noble and learned Lord, Lord Ackner, argued that a longer period for giving notice would result in fewer appeals because advisers would persuade their clients not to make hopeless appeals. Of course I bow to the experience of the noble and learned Lord in relation to other judicial proceedings, but I doubt whether a longer period to appeal will result in any noticeable reduction in the number of appeals in this type of case. As I have already indicated, a person who is determined to gain entry into the United Kingdom, regardless of the merits of his claim to asylum, has everything to gain from spinning out the proceedings as long as possible. I suggest that it is unlikely that, whatever advice was given to him by his legal adviser, he would be dissuaded from appealing if that were the only way to delay his departure.
An effective filtering mechanism is required to prevent the new appeals system which we are providing from becoming clogged up with claims which do not involve any real issue regarding the protection of the life and freedom of refugees, but which are claims without foundation. Failure to provide an effective filtering system merely encourages further misuse of the system and messes up the system for the genuine applicant. I hope that the noble and learned Lord will see that the two-day period which we have in the Bill is not nearly as constrictive as he thinks.
§ Lord Ackner
I am bound to say that I do not understand how this can be described as an effective 879 filter system. The whole idea of a filter system is to give time for advice and thought to be applied. Perhaps I may give a simple example. An application has to be made to the court for leave if a person wishes to appeal against the length of a sentence. That is a filter system. Some will get through that filter if there is merit in the appeal. Others will not if the appeal has no merit. That is a filter system. This is not a filter system. This is requiring an immediate reaction to a refusal. There is no filter there at all. As I have indicated, the result will be automatic appeal. As I understand it, the noble Earl seems to accept that because he is not prepared to accept that time for advice might result in fewer appeals. I know not why he takes that view.
Again, to go back to one's experience in the criminal field, legal aid is automatically given after a person is sentenced to imprisonment for the person to be advised as to whether there are any valid grounds of appeal against that sentence and for counsel under legal aid, if he so advises, to settle the grounds for appeal. It acts as an excellent filter system. There are very many cases where, inevitably, a person sent to prison wishes to appeal. He gets the advice, probably, that he is very lucky to have got as little as he did and he had better leave it there. Counsel will not settle in those circumstances grounds of appeal, and that is the end of it. That is an effective filter system.
This is not an effective filter system at all. This is harassing a person who is in a very vulnerable state either to give up or to put in an automatic notice of appeal. It seems to me, with great respect, to be counterproductive and to have been unjustified.
§ Baroness Seear
The Minister said that in the great majority of cases these people will be coming from a safe haven to which they could be sent, but all legal provision is to be much concerned with the minority of cases where people are not in a satisfactory position. The noble Earl leaves entirely on one side what would be the position of that minority. He seems to be happy that, provided the majority are all right, the minority, who by definition are not all right since it is only the majority who are all right, can fend for themselves. The noble Earl once again said that these would be cases where there was no foundation for the claim. But that decision will be made—we have argued this before this evening—by the department. It will be made by the administration and not by a judicial procedure. That is not acceptable to a great many noble Lords.
Finally, the noble Earl has raised the point about which we argued at considerable length at Second Reading. I refer to the idea to which the noble Earl clings all the time that people must be sent back to the country to which they first went when they went into exile if that was a safe haven. As we said on those occasions—it is surely still valid—they may merely have touched down in those countries. And in any case one must continue to challenge the idea that if they go to the country to which pretty well everyone goes at first stop because it is the nearest one, it is entirely acceptable that they should be sent back to that country. That is an extraordinary argument which we cannot possibly accept.
§ Earl Russell
Listening to the exchanges between the noble and learned Lord and the noble Earl, I hear a really classic example of the clash between the judiciary and the Executive. The noble Earl said that we were dealing with cases without foundation. I believe that that must mean cases which appear to the Secretary of State to be without foundation. He said that we were dealing with the return to a safe third country. Again, I believe that that must mean countries which appear to the Secretary of State to be safe.
These are not facts but opinions of one party in a judicial case. In the court the Executive and the other party have to appear equal. That is why it is so important to have a court. It is not acceptable for a litigant to say "I will not appear before the court. Your claim is without foundation". In any subject, that would be regarded as a contempt. If the rule of law is to mean anything, it should be regarded as a contempt in the Executive also.
§ Lord Renton
I would not dare to pretend to express an opinion on one side or the other where a noble friend on the Front Bench and a noble and learned Lord seem unable to agree. If this paragraph were not in the schedule or something like it somewhere, it would mean that a particular person who wished to appeal under Section 8 of the Act and who had other matters on which he wished to appeal in relation to immigration, might have to go through two separate appeal procedures, whereas as a result of paragraph 2 he can have it all done at once by a single adjudicator. That seems to me to be an advantage.
I should like to help the noble Baroness, Lady Seear, in her anxiety if I could. She says that I am always saying that the majority of these people may have come from third countries and she asks about the minority. We have to realise that people who are caught by the two-day rule are those whose applications are without foundation. Rule 4(3) states that the claim is without foundation if, and only if,it does not raise any issue as to the United Kingdom's obligations under the Convention; or it is otherwise frivolous or vexatious".When the person makes his claim for asylum he will have the advice of a solicitor or the refugee legal centre to put his case, which will be considered. If it appears that he has come from a safe third country, under the terms of the United Nations convention a person is obliged to seek refuge in the first country and not to go to another.
The noble Baroness says that that is bad luck and that we might like to take some people. One can only operate a worldwide asylum system if one has international agreements. There is such an agreement. When such a person applies for asylum he will come under the two-day rule only if it is considered that his application is without foundation. From that moment the two days will run, during which time all he has to do is lodge an appeal and say, "I am going to appeal against that decision. In other words, I believe that I have got a right of asylum which is with foundation".
That appeal will be considered by an adjudicator who is a judicial officer appointed by the noble and 881 learned Lord the Lord Chancellor. He is not a member of the Home Office. It would be confirmed by an official from the Home Office only if the adjudicator agrees that there is no further right of appeal. If the adjudicator does not agree, he can remit the case for further consideration. That is the point of the two-day period. During that period one has the right to say, "I want to appeal", and the appeal is then considered by somebody independent.
The noble and learned Lord, Lord Ackner, says that those people will be harassed, but they will not be harassed by the United Kingdom. If they are without foundation, they will have almost certainly come from a safe third country. One must then ask,"Are we under an international obligation to accept such people?" The international obligation is that one is not obliged to accept them. One may wish to do so; one may accept them; but one is not obliged to do so—and if one is not obliged to do so, such people cannot oblige this country to undertake asylum procedures. That is the position.
I think that the noble and learned Lord will realise, on reflection, that although such people are necessarily anxious we in this country have to provide a swift answer -and a swift answer is correct. They will have time to appeal and to have their cases considered. Cases will be considered by an independent adjudicator. I do not think that that is unfair.
§ Lord Ackner
This is clearly an important matter. As we approach midnight, it is farcical to think that there is any real possibility of testing the opinion of the Committee. The noble Earl has spelt out - and I am grateful to him - in detail exactly to what this peremptory requirement is directed, and I should have liked time to think about it. I anticipate that this matter will have to be further considered. Accordingly, I beg leave to withdraw my amendment.
Amendment, by leave, withdrawn.
§ 11.15 p.m.
Lord McIntosh of Haringey moved Amendment No.98:
Page 14, line 7, at end insert:
("(3A) Any special provision made in the rules of procedure under section 22 above pursuant to sub-paragraph (3) above shall include provision for—
- (a) the production of a written statement by the respondent to an appeal of the facts relating to the decision of action appealed against and the reasons therefore;
- (b) the bringing of detained appellants before the appellate authority for the hearing of their appeals;
- (c) procedures for the resolution of any dispute as to the existence or extent of any right of appeal whether conferred by this Act or by Part II of the 1971 Act;
- (d) procedures for the purpose of ensuring that appellants have access to free legal advice and representation throughout appeal proceedings;
- (e) time limits of sufficient length to enable appellants to seek and obtain legal advice before bringing an appeal, to prepare grounds of appeal, to seek evidence in support of the appeal and to prepare adequately for the hearing of the appeal.").
§ The noble Lord said: With this amendment we move from the issue of deadlines. I am pleased to hear that the noble and learned Lord, Lord Ackner, has not 882 withdrawn his objections to those provisions even though, rightly, he felt it necessary to withdraw his amendment.
§ We move now to the provision of safeguards in the procedures which are to be laid down under Schedule 2 for inclusion in the procedure rules. Rather than looking at dates, we are now looking at the actual matters which are vital to the effective conduct and determination of any appeal. As the Committee has now recognised, the rules themselves will be made by statutory instrument rather than included on the face of the Bill. Therefore, they will not be capable of amendment by Parliament. So it seems important that we should ensure in advance that Schedule 2 closes as many possibilities of injustice in the drafting of the rules as possible.
In Amendment No. 98, we are inserting the requirement for the inclusion of provision for,
(a) the production of a written statement by the respondent to an appeal of the facts relating to the decision of action appealed against and the reasons therefore".
That is so that the Home Office has to provide a statement which states the evidence, the findings of facts, the inferences made, the applicable law and how it will be applied. This is not required at the moment under the draft procedure rules.
We also seek to provide for,
(b) the bringing of detained appellants before the appellate authority for the hearing of their appeals".
Again, that is not provided for in the draft rules. The amendment will ensure that detained appellants can be present for and able to give evidence at any hearing of their case.
We also seek to provide,
(c) procedures for the resolution of any dispute as to the existence or extent of any right of appeal whether conferred by this Act or by Part II of the 1971 Act".
Again, there is no indication in the draft rules as to whether there is an asylum issue before the adjudicator and therefore whether the more generous procedures in the 1984 appeal procedure rules for the generality of immigration appellants should apply.
Paragraph (d) refers to:
procedures for the purpose of ensuring that appellants have access to free legal advice and representation throughout appeal proceedings".
This is the subject of a number of amendments which will come before the Committee, but there is no duty in the draft procedure rules to ensure the availability of legal advice, free of charge. I understand that the Government intend to provide that; but we think that rules that are in the form of a statutory instrument should contain those provisions.
Paragraph (e)—here we come back to time limits —refers to:
time limits of sufficient length to enable appellants to seek and obtain legal advice before bringing an appeal, to prepare grounds of appeal, to seek evidence in support of the appeal and to prepare adequately for the hearing of the appeal".
These seem to us to be the minimum requirements which should be provided in the statutory instrument if it is expected that Parliament should give approval to it. I beg to move.
§ Lord Renton
The aims of each of the five points mentioned by the noble Lord are laudable aims. The only question is whether they should be contained in 883 primary legislation or, as they would normally be, in rules of court, or not need stating at all because, as a matter of practice in the administration of justice in this country, they are fundamental rules which are always obeyed. For example, it is unthinkable that the respondent should not give a written statement setting out the reasons for his decision in the matter which is being appealed against. It should not happen.
As for bringing the detained appellant before the appellant authority, the appeal should never be heard unless he is there. That is fundamental. I believe that natural justice is the term of art to describe it.
The resolution of a dispute as to the existence or extent of any right of appeal is a matter in which the adjudicator would have to decide whether the rules of court required him to decide.
We then come to legal aid. I stand open to correction—perhaps the noble and learned Lord or my noble friend on the Front Bench will correct me—but my recollection is that eligibility for legal aid —that is what paragraph (d) deals with—has not been included in primary legislation as regards detailed examples, but always in directions issued by the Lord Chancellor or in rules of court. So we do not need that in primary legislation.
As for the time limits of sufficient length to enable appellants to seek and obtain legal advice before bringing an appeal, I am not sure whether that needs to be governed by statute. If not enough time has been given, the special adjudicator would take note of it and grant further time for it to be done.
Although I appreciate the thought which the noble Lords, Lord McIntosh and Lord Bonham-Carter, have given to these points, I respectfully suggest that it is not necessary to put them in the Bill.
§ Lord McIntosh of Haringey
Perhaps it would save time if I say that if the Minister would agree without demur to the speech of the noble Lord, Lord Renton, and agree that all those things are matters of natural justice and would without doubt be included, I could speedily withdraw the amendment.
I am all for dealing with matters expeditiously, but not quite as expeditiously as that. My noble friend Lord Renton is correct that the provision of legal aid is laid out in statutory instruments. The amendment contains five points. The first would require the Home Office, on receipt of an asylum appeal, to produce a written statement explaining why the asylum application was refused. That is the procedure followed when notice of an immigration appeal is given to the Home Office. The requirement for production of an explanatory statement is written into the Immigration (Appeal Procedure) Rules 1984. The procedure will be different in relation to asylum cases. When a non-asylum immigration application is refused, the refusal notice gives only the broad grounds of refusal. An explanatory statement is required to enable the adjudicator to see the full facts leading to the decision.
In asylum cases, when the refusal notice itself is served, the applicant will be given a full statement explaining why his application has been refused. It is 884 not necessary therefore to provide for the preparation of an explanatory statement after the appeal has been lodged, because all the information that would normally go into an explanatory statement will have been given to the applicant at the time his application is refused. It will be included among the documents which the draft rules require the Home Office to send to the adjudicator.
The second point would require provision to be made for the bringing of detained appellants before the appellate authority for the hearing of their appeals. I doubt whether that is necessary: the draft procedure rules give only a very limited discretion to an appellate authority to determine an appeal in the absence of the appellant. Nevertheless, I am sure that my noble and learned friend the Lord Chancellor will look carefully at whether any provision needs to be made in the final version of the procedure rules.
The third item is a procedure for the resolution of any dispute as to the existence or extent of any right of appeal: such a right exists under Rules 8 and 11 of the 1984 procedure rules, which require that if the Home Office entry clearance officer or immigration officer alleges that the person is not entitled to appeal, the appellate authority shall determine that as a preliminary issue. I can confirm that provision for a similar procedure is to be included in the final revision of the asylum procedure rules.
The fourth point concerns access to free legal advice. That is, as I have already said, not an appropriate issue for inclusion in these rules of procedure.
Finally, the amendment would require the procedure rules to provide time limits of sufficient length to enable the appellant to do a number of things. I have already dealt with why we believe that the time limits provided in the procedure rules are adequate to enable to applicant to obtain legal advice and submit his grounds of appeal. It is not clear to me why the amendment would allow the appellant time toprepare adequately for the hearing of the appeal",before he has even given his notice of appeal. That seems a little illogical.
For those reasons I believe that the Bill is better without the amendment.
§ Lord McIntosh of Haringey
I feared that the Minister would not take the simple view of these matters which the noble Lord, Lord Renton, put before the Committee. It was a complex answer. I shall have to consider it. It is not a matter upon which I wish to divide the Committee, and I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendment No. 99 not moved.]
§ The Chairman of Committees
I have to tell the Committee that if Amendment No. 100 is agreed to, I shall be unable to call Amendments Nos. 101 to 106.
§ Lord McIntosh of Haringey
Amendment No. 100 is in my name and the names of the noble Lord, Lord Bonham-Carter, and the noble and learned Lord, Lord Ackner. My present intention is not to move the amendment on the grounds that the noble and learned 885 Lord has already covered the argument on the issue of appeals without foundation fairly adequately. If he agrees, I propose not to move the amendment.
§ Lord Ackner
I kept away from that ground, because I thought that I should be out of order. I should like the amendment moved so that I can raise a point on it.
Lord McIntosh of Haringey moved Amendment No. 100:
Page 14, line 12, leave out paragraph 4.
§ The noble Lord said: I am happy to accede to the noble and learned Lord's request. I, the noble Lord, Lord Bonham-Carter, the noble Baroness, Lady Seear, and the noble Earl, Lord Russell, have already referred to appeals which are without foundation. It is clear that the phrase "without foundation" does not mean without foundation, it means what the Secretary of State chooses to call without foundation. The examples which the noble and learned Lord, Lord Ackner, gave in speaking to an earlier amendment are very good examples of that.
§ I suggest to the Committee that every person whose status is under challenge must have that status determined by law and not simply by the diktat of the Secretary of State. The point of asylum procedures is precisely to determine whether a claim is well founded rather than to have this division at the very beginning of the procedures in which the Secretary of State says, "No. I is well founded, No. 2 is not well founded, No. 3 is well founded", and so on. It makes a mockery of all the other protections which you bring into what are accepted as being well founded claims or claims with foundation. Indeed, if it is taken to its logical extreme any claim which has not been determined as being without foundation must have a presumption in favour of being accepted.
§ The purpose of the without foundation provision is the accelerated procedures which we have debated at some length, and I shall not go into that, but both because the issue itself is of some importance and because the noble and learned Lord has more to say on the subject I beg leave to move Amendment No. 100.
§ Lord Ackner
I know that the noble Earl tends from time to time to treat my suggestions as Greek gifts, but I should like to point out to him that this provision taken with the 48-hour provision can prove an embarrassment for the following reason.
As I understand the noble Earl, as matters stand it is only where the Minister operates under paragraph 4(3) that he can abbreviate the time to 48 hours. A 48-hour case necessitates the Minister certifying under that paragraph. I do not take the view that the Minister can say, "I and I alone make the decision as to whether a claim is without foundation. The test is clearly an objective one. For the purpose of this paragraph a claim is without foundation if and only if it does not raise any issue as to the United Kingdom obligations under the convention or it is otherwise frivolous or vexatious". That is not a subjective approach; it is an objective one. It does not say, "For 886 the purpose of this paragraph a claim is without foundation if and only if the Minister thinks it does not raise any issue". The trap that will confront the noble Earl is that there is only jurisdiction under this provision to resort to the 48 hour abbreviation if it is, viewed objectively, a case which does not raise any issue as to the United Kingdom's obligations under the convention or if it is otherwise frivolous or vexatious.
So we can look forward with scant enthusiasm to a person who receives a 48-hour requirement saying, "You have no jurisdiction to impose a 48-hour requirement upon me because, judged objectively, this case does raise an issue as to the United Kingdom's obligations under the convention and, judged objectively, it is not frivolous or vexatious. I am off to the Divisional Court for judicial review to get a declaration to that effect." Therefore, that 48 hours turns into not 48 weeks but probably 48 months. As I say, it is an offering to the noble Earl which I am sure will be thrown back at me but I make it with all humility. This is folly and it is a further indication of counter-productivity arising out of this rush into making decisions with too little thought.
I am most grateful to the noble and learned Lord, Lord Ackner, for giving me a gift of some description. He says, with humility, that this is folly. I hope that it is not folly. I should like to explain to the noble and learned Lord why I believe that he may have misdirected himself. The noble and learned Lord is worried because the Secretary of State may decide that a claim for asylum is without foundation and he claims that the Secretary of State says, "I, and I alone, make that decision."
When a person comes into the country he seeks asylum. As I explained earlier, he will have legal advice as to his asylum rights. Anyone operating on behalf of the Secretary of State must take a decision. In this case the decision which must be made is whether it is a claim without foundation. If it is, it means that it does not raise any issue as to the United Kingdom's obligations under the convention. The officer concerned must take that straightforward decision.
If the gentleman concerned believes that the officer is wrong, he has the right of appeal and the right of appeal in this country. All he has to do is to give notice of the fact within 48 hours that he wishes to appeal. The decision made by the immigration officer is then the subject of an appeal. That appeal is heard by an independent adjudicator. It is only if that independent adjudicator says that the officer was right and that there is no right to asylum that the provisions of the Bill come into operation.
The noble and learned Lord is not quite right to say that the Secretary of State says, "I, and I alone, make the decision." That decision is confirmed by the independent adjudicator.
§ Lord Ackner
I am seeking to suggest to the noble Earl that for the sake of an eight day abbreviation —that is, the difference between two days and the 10 887 days which I have suggested—the Secretary of State has laid himself open to potential cases of judicial review.
I do not say that the Secretary of State can rely on his having honestly expressed a bona fide opinion. As this Bill stands, as I see it, he cannot use the abbreviated procedure unless, judged objectively, there is no issue arising in relation to the United Kingdom's obligations under the convention or the application is otherwise frivolous or vexatious.
Therefore, as soon as the requirement for putting in a notice of appeal within 48 hours is levied upon the individual, he can seek judicial review saying, "The 48 hour abbreviated procedure cannot apply to my case because, viewed objectively, this is not a case which raises no issue. That is a point of law and I ask the Divisional Court to rule upon it".
It is not a question of an appeal against the decision; it is a rejection by the applicant of the abbreviated procedure which he says does not lie in his case because the Minister is wrong in his decision that the case is without foundation. That is why I am saying for a paltry eight days the Minister lays himself open to the prospect of judicial review. If he wants to do so, so be it. I was merely offering a warning as to what is conceivably on the cards.
§ Lord McIntosh of Haringey
I can see that the Minister will reflect on that point, and is already reflecting on it. I do not wish to speed up his reflection but to leave him the entire period between now and another stage to continue his reflections in the light of the noble and learned Lord's comments. Clearly the difference between two days and 10 days—the eight days which the noble and learned Lord refers to—is important if only for the fact that one needs the 10 days to argue a case effectively. The absence of those eight days enables an applicant who feels aggrieved, who takes the view—I use the noble and learned Lord's phrase—viewed objectively, that he has a case which he has not been able to argue effectively, to take the case before a judicial authority.
I hesitate to interrupt the noble Lord but I think he is in error over one point. He said that if one changes the figures from 10 days to two days it will not give the applicant time to have his case considered or put forward fully. That is not so. All he has to do in the two day period is to state he wishes to appeal. Thereafter his case is given the fullest consideration.
§ Lord McIntosh of Haringey
The phrase that I used was "argue effectively" rather than the phrases which the Minister has used, but of course the special appeals procedure only starts with the two days instead of the 10 days. It continues with an accelerated timetable for all of the rest of the stages of the appeal. It is the adoption of the accelerated timetable which denies the appellant the right to argue effectively.
The Minister has been warned by the noble and learned Lord that there is a risk of judicial review. He has been warned —it is no more than that—that the assertion that a case is without foundation depends on 888 the assertion that no contraventions of the 1951 convention arise. However, he has chosen to ignore those warnings. I think he will find that that will come back on him at a later stage, or even after the Bill has been passed. But with that warning I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendments Nos. 101 to 106 not moved.]
Schedule 2 agreed to.
§ Clause 9 [Appeals from Immigration Appeal Tribunal]:
Earl Ferrers moved Amendment No. 40:
Page 7, line 1, leave out from ("Where") to ("the") in line 6.
§ The noble Earl said: In moving Amendment No. 40 I wish to speak also to Amendments Nos. 41, 44 and 46. This group of amendments will extend the new avenue of appeal, which is created by Clause 9, from asylum cases only to all final determinations by the Immigration Appeal Tribunal. It will, I hope, be generally welcomed by the Committee. It means that the opportunity to seek leave to appeal on a point of law to the relevant court will be available both in asylum and other immigration cases. I beg to move.
§ On Question, amendment agreed to.
§ 11.45 p.m.
Earl Ferrers moved Amendment No. 41:
Page 7, line 7, leave out ("the appeal") and insert ("an appeal brought under Part II of the 1971 Act (including that Part as it applies by virtue of Schedule 2 to this Act)").
§ On Question, amendment agreed to.
Lord McIntosh of Haringey moved Amendment No. 42:
Page 7, line 9, after ("law") insert ("or fact").
§ The noble Lord said: In moving Amendment No. 42, I shall speak also to Amendments Nos. 43 and 45. The amendments follow directly from the amendments just moved by the Government. Those amendments extend the scope of appeals on points of law to immigration as well as asylum cases. In Amendment No. 42 we propose that the scope of appeals should be widened to include questions of fact as well as of law.
§ I am aware that this is a very wide topic which has been very much a matter of public debate in recent weeks. The scope of the activities of the Court of Appeal—the pressures on the Court of Appeal and the types of case which have come before and ought to be before the Court of Appeal —is a very wide subject. In particular reference to this Bill, it seems proper that appeals should include questions of fact as well as questions of law, because the interpretation of fact is all-important in deciding whether a person has a well-founded fear of persecution.
§ At the risk of shortening the proceedings, perhaps I may say that the law on asylum, compared with some other law—and I speak as a non lawyer—is relatively straightforward. We do not like many of its provisions, but our difficulty is not that we do not understand it. The facts in asylum case appeals are of enormous importance, and the facts are very difficult to determine. If it is thought to be, as is normally the 889 case, a question of fact whether a person has a well-founded fear of persecution then an appeal procedure which refers only to questions of law rather than to questions of fact is grossly inadequate for the purpose. The courts must be able to consider the substance of a claim as well as the legal points.
§ Amendment No. 43 would remove the need to apply for leave to appeal to a higher court or tribunal. That has already been removed for the initial appeal because a great deal of opposition was expressed to the need to apply for leave for the initial appeal. It is logical also to remove the requirement to apply for leave to appeal to the higher court. The issues raised in asylum cases are important. They ought to be fully aired.
§ Amendment No. 45 is a purely technical amendment which brings the provision in respect of England and Wales and Northern Ireland in line with that for Scotland. The Court of Session is the Scottish equivalent of the High Court rather than of the Court of Appeal.
§ The purpose of all the amendments is to minimise delay and the misuse of judicial time in High Court appeals so that appeals can be heard effectively at the lower level if necessary. I beg to move.
§ Lord Renton
I should remind the noble Lord that we are now dealing with appeals to the Court of Appeal, although a later amendment suggests that it should be to the High Court. In any event, an appeal on a point of fact would involve a rehearing of the evidence. I do not know whether the noble Lord realised that would be the effect of his amendment.
It should be remembered that the evidence has already been heard by the special adjudicator. It has been considered by the immigration appeal tribunal. We do not ask the Court of Appeal to hold rehearings. There are certain circumstances in which the Court of Appeal can order a rehearing by the court of first instance; but that is not what we are dealing with here.
It may console the noble Lord to know that if the Court of Appeal, having had the facts presented to it as found by the evidence in the court below, comes to the conclusion that the facts do not warrant the decision that was made, whether it was a legal decision or a matter of discretion on the part of the court, the Court of Appeal has power to allow the appeal. But the Court of Appeal simply does not indulge in re-hearings, which is what an appeal on the facts would involve.
Amendment No. 42 gives an avenue of appeal under Clause 9 on issues of fact as well as of law. Issues of fact in asylum cases will have been thoroughly considered no fewer than three times by the time that the tribunal determines an appeal: first, by the Home Office; secondly, by a special adjudicator before whom the appellant will have had the opportunity to give evidence; and, thirdly, by the tribunal itself. Most immigration appeals will have been through a similar process, although in some cases the appeal goes directly to the tribunal rather than first to an adjudicator.
Adjudicators and the tribunal consider questions both of fact and of law. As a matter of general 890 practice, the Court of Appeal does not, as my noble friend Lord Renton said, usually interfere with a tribunal's finding of fact, in particular where such findings turn on which witnesses are to be believed or the weight to be given to particular evidence. We can see no reason to make an exception to this practice in relation to asylum and immigration appeals.
Amendment No. 43 would delete the requirement to obtain leave before bringing an appeal on a point of law to an appropriate court. A leave requirement is routinely provided for in the case of appeals to the Court of Appeal from courts such as the county courts and tribunals such as the Employment Appeal Tribunal. I can see no reason why a particular exception should be made in this case. The absence of a leave requirement would be likely to result in an unacceptably large number of unmeritorious appeals having to be heard by the Court of Appeal, thereby causing significant delays in those courts and consequent hardship for litigants. The requirement for leave is a perfectly reasonable one for which there is ample precedent. If the noble and learned Lord, Lord Ackner, were still present, I am sure that he would agree with that.
The appeals system which the Bill provides for asylum seekers already offers a two-stage appeal—first, to a special adjudicator and then to the tribunal. Clause 9 provides a further right of appeal, with leave, on a point of law to the Court of Appeal.
The noble Lord, Lord McIntosh, said, rather surprisingly, that the purpose of his amendments was to minimise delay. But Amendment No. 45 seeks to add one more layer to the process by having the appeal from the determination of the tribunal go to the High Court. Those cases which involve important points of law would no doubt go from the High Court thereafter to the Court of Appeal also. The aim of Clause 9 is to provide an effective way of resolving disputed points of law which arise from immigration and asylum appeals without the necessity of resorting to judicial review. It is not simply a mechanism for drawing out the appeals process as long as possible. The view of my noble and learned friend the Lord Chancellor is that it is better to allow the appeal to go direct to the Court of Appeal and so keep delays to the minimum. There is nothing new about that. I understand that that is consistent with the way in which appeals arising from tribunals under social security legislation are dealt with.
§ Lord McIntosh of Haringey
If it were not nearly midnight I should be glad to open a general debate on the terms of reference of the Court of Appeal and the restriction on the Court of Appeal to deal with points of law. I believe that recent cases which have achieved a great deal of publicity indicate that what is at present the case, as the noble Lord, Lord Renton, says, may not necessarily be right. However, perhaps we shall find another occasion for that debate.
I hear what the Minister says. I accept that what he says is in accordance with precedent in other types of appeal. But I do not accept that the appeal procedure which he has outlined is necessarily adequate for asylum or indeed immigration appeals. I shall have to 891 consider more carefully the way to present the argument. However, in the meantime I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendment No. 43 not moved.]
Earl Ferrers moved Amendment No. 44:
Page 7, leave out lines 14 to 17 and insert:
- ("(a) if the appeal is from the determination of an adjudicator or special adjudicator and that determination was made in Scotland, the Court of Session; and
- (b) in any other case, the Court of Appeal.").
§ The noble Earl said: I spoke to this amendment with Amendment No. 40. I beg to move.
§ On Question, amendment agreed to.
§ [Amendment No. 45 not moved.]892
Earl Ferrers moved Amendment No. 46:
Page 7, line 21, at end insert:
("() In section 33(4) of the 1971 Act—
- (a) for the words "in the case of an appeal to an adjudicator, the" there shall be substituted "an"; and
- (b) after the words "section 20" there shall be inserted "or section 9 of the Asylum and Immigration Appeals Act 1993".").
§ On Question, amendment agreed to.
§ Clause 9, as amended, agreed to.
I believe that this would be a suitable moment to adjourn proceedings. I beg to move that the House do now resume.
§ Moved accordingly, and, on Question, Motion agreed to.
§ House resumed.
§ House adjourned at four minutes before midnight.