HL Deb 07 June 2004 vol 662 cc53-8

Where a person's statutory rights of appeal have been exhausted with respect to an immigration decision, and where that person subsequently makes an application to the Secretary of State for his deportation to be stayed on the grounds that here has been a change of circumstances—

  1. (a) if the Secretary of State decides that there has been no change in circumstances or accepts that there has been a change of circumstances but decides that they do not justify a stay of deportation, the applicant within 10 days of the decision may apply to a High Court judge or a judge of the Court of Session to review the decision;
  2. (b) the review shall be conducted on the papers save in exceptional circumstances;
  3. (c) the decision of the High Court judge or the judge of the Court of Session is Final."

The noble Lord said: My Lords, the reason for introducing the amendment is to try to make the statutory review scheme in the Bill comprehensive in such a way that it excludes the possibility of judicial review. We can only succeed in doing that if the statutory review procedure, throughout all stages of the asylum decision, is considered sufficiently fair for the courts not to exercise their discretion to use the judicial review remedies that our courts have so proudly developed over the past 40 years.

I am trying to confront the following scenario: an asylum seeker has exhausted his statutory rights and is due to be deported. At some stage before his deportation, a new set of circumstances arises, say, in the country to which he is to be deported. There is a regime change. A benign regime is replaced by an autocratic and brutal one. In those circumstances, the asylum seeker, who is about to be deported, communicates with the Home Office. He says, "My decision ought to be reviewed on the grounds that the circumstances of my case have changed since the final tribunal decision was made. The country to which I am to be deported is a country that will, if I go there, treat me at a standard below the standards required by English law".

The Home Office considers such applications. In some cases, it has accepted that there is a change of circumstances and consequently has stayed deportation. But in other circumstances, it has either said that it does not accept that the circumstances have changed or that the circumstances have changed but not sufficiently to stay deportation. If it reaches one of those two latter decisions, the asylum seeker will often seek judicial review. As a consequence, the whole case, including all the issues that were raised during the statutory procedure, is rerun, to everyone's unnecessary expense and, in some cases, to the mental detriment of the asylum seeker.

The amendment seeks to prevent all that by ensuring that where the Home Office decides that there has been no change of circumstances or that there has been a change of circumstances but that it does not believe that they are sufficient, the matter will be reconsidered by a High Court judge. It is not necessary to go back to the tribunal again. The only issue at stake is not the personal circumstances of the asylum seeker, but the factual situation in the country to which he is about to be deported. That can be swiftly, effectively, successfully, credibly and comprehensively dealt with by a High Court judge. There is no reason why his decision ought not to be final.

In my judgment, if that amendment is incorporated in the Bill, it will succeed in achieving de facto what the Government sought, so clumsily, to achieve with their ouster clause; namely, to persuade judges who sit in the administrative courts considering judicial review matters on change of circumstances applications that judicial review is not necessary because an alternative and satisfactory statutory procedure is already in place. I beg to move.

Earl Russell

My Lords, I think that we all feel that it is in the initial stage of the asylum hearing where most of the worst mistakes are made. At the weekend, I was looking at the report compiled on behalf of the Mayor of London on the effects of Section 55 of the 2001 Act. It quoted an official from the Home Office who is used to hearing initial applications, who said, "When I get an application from Afghanistan, I simply repeat one of the standard formulae from the country assessment. When I get tired of doing that, then I repeat a different sentence from the formulae about the country assessment". Afghanistan has seen quite a lot of changes over the past few years. If one is doing that, one is almost bound to be wrong and severely risks being totally irrelevant to the case under consideration.

The number of mistakes that are made in that way is considerable: for example, the assertion that used to be made regularly under President Mobutu of Zaire. Under President Mobutu, opposition parties were allowed to flourish freely: well, so President Mobutu said. But President Mobutu is not granted and was never granted infallibility and it is not compulsory to believe him. One must question those assessments. One must question the picture of the country.

I also very much took the point made by the noble Lord, Lord Kingsland, about the drafting of a statute in such a way that it does not leave an opening for people to say those wonderful words of judicial construction: namely, Parliament cannot possibly have intended that. I think that the noble Lord would be wrong to suggest—as he sounded as if he might be doing at one stage, but he probably was not—that this is only a development of the past 40 years.

One can take this back right through the centuries; for example, to the Dissolution of Chantries in 1549. It had a proviso which had the effect of providing that when the King bought chantry land he had to do feudal homage to one of his subjects. The court concluded there that Parliament could not possibly have intended that that should happen. On that occasion, I think that the court was right.

My favourite example of Parliament not intending something was the Bologna ordinance, which laid down the death penalty for shedding blood in the piazza. One of the judges went to the barber in the piazza, who cut the judge in the course of shaving him. He was put on trial under the statute. The court ruled that that was contrary to the intention of the statute and that the barber was innocent.

Time spent here on getting the drafting of the statute right is likely to be time better spent than we realise. It will save a great deal of time later.

Lord Donaldson of Lymington

My Lords, I support the amendment. Once the stage of a deportation order has been reached, everything has been looked at in due order and in proper circumstances. But if there is a fundamental change in circumstances thereafter, it is idle to say, "Well, that has been decided by the earlier proceedings". By definition, the circumstances did not then exist. The intention, as set out by the noble Lord, Lord Kingsland, might almost have been made by him from the Front Bench since it admirably meets the intention so often reiterated by the Government that we must stop these endless appeals and judicial reviews. I do not think that they ever were endless, but that is beside the point.

The amendment does that very neatly. The only improvement that I should like is a pure drafting matter, which is a point raised by the noble and learned Lord, Lord Mackay, at an earlier stage. Paragraph (b) of Amendment No. 52A states that, the review shall be conducted on the papers save in exceptional circumstances". I would like to know who will decide about the exceptional circumstances, but I assume it is the tribunal and the High Court judge hearing the quasi-judicial review application. But, obviously, it would enable the Government to make an application to the court that they may also be heard, and there might well be a cause for it. If the issue is whether there has been a sufficient change in the regime of the place where the deportee is to be sent, his evidence on the matter may be, not unnaturally, extremely one-sided. I would not want to see a repetition of the situation not many months ago when the Home Secretary complained bitterly that he did not seem to be able to appeal. I hope that the Home Secretary would be given every opportunity to have his say in these circumstances, but even his say will not take very long. So the Government's main objective will be met as will the interests of justice.

Lord Filkin

My Lords, in the specific example that the noble Lord, Lord Kingsland, gave for why he believed that this amendment was desirable, he talked about circumstances which, while not likely to be commonplace, are certainly possible—that is, a regime change in a country from one which was basically benign and no real threat to the life and liberty of the asylum seeker to one which was hostile in general and posed a real and specific threat to the applicant. That is not commonplace but it is possible.

However, in that situation there is a relatively straightforward way that the applicant or their solicitor would signal to the Home Office that they wish to apply for asylum because the circumstances had changed suddenly and significantly, affecting their liberty. In that circumstance the Home Office would make a decision about whether it was a new application for asylum, and, if so, consider whether it met the tests and should be accepted.

If the Home Office, through IND, came to the conclusion either that it was not a change of circumstances, or that the change of circumstances did not justify granting asylum, then the applicant would have a right of redress on judicial review, as the noble Lord, Lord Kingsland, signalled.

While I respect that the noble Lord is genuinely seeking to persist in this—no doubt that is the case—in these particular cases judicial review is a more flexible remedy than a statutory right of appeal. Under the proposal, a person would have 10 days to apply, but, if a person applies with judicial review at the last moment, they are required to apply within three days. The amendment would make it harder to remove when there was not a meritorious case. There is also no means to stop the person reapplying again and again for the appeal to the High Court, or else a person would go to judicial review as there was not adequate remedy.

I turn to some of the drafting points where this amendment is not appropriate. We do not believe it will be an effective solution or one that is necessary because a process for dealing with new representations made after appeal rights have been exhausted already exists, as I have summarised. The 2002 Act built on the one-stop appeal process first introduced in the Immigration and Asylum Act 1999. The Act provides for one application, one decision and one appeal. This has broadly been a success. For example, an asylum seeker who makes a claim is required to provide all their reasons for wishing to remain in the country. If their appeal is dismissed, or they decide not to make such an appeal, but then later make new representations, those representations will be considered under paragraph 346 of the immigration rules to decide whether they constitute a fresh claim.

If it is decided that the representations do not constitute a fresh claim, but rather that they are simply further representations on the original claim, the Secretary of State may maintain his original decision, so no new right of appeal arises. However, if the new representations are considered to be a fresh claim, a new decision, as I signalled, would be made by the Secretary of State which would give rise to a new right of appeal unless the case is certified under Section 96 of the 2002 Act. Certification under Section 96 may take place where a new claim relies on facts which should have been raised at an earlier stage. Clearly, that would not be the case in the situation advanced by the noble Lord. Certification prevents a further statutory right of appeal to the appellate authority or the courts, although it would be open to the claimant to bring a judicial review.

So, whether the approach is a fresh claim or simply further representations, the applicant always has a remedy—be it a fresh appeal right or the option of applying for judicial review.

6.15 p.m.

We also have concerns about the effectiveness of the procedure proposed in the amendment. It is flawed in a number of ways. It would not make provision for the other party to appeal to make representations. An ex parte paper review process is not appropriate in this context. Statutory review under Section 101 of the Nationality, Immigration and Asylum Act, and the proposed system of High Court review under new Section 103A, are used as a means of identifying whether an applicant has an arguable case that the decision on their case is wrong.

If the High Court is of the opinion that there is an arguable case to be made, the appeal receives substantive consideration by the tribunal and both sides are given the opportunity to make written and oral representations. However, Amendment No. 52A would require the High Court judge to come to a final substantive decision without the benefit of representations from the other party.

The amendment also leaves the grounds open to challenge the Secretary of State's decision. It does not restrict the ground, for example, to an error of law. The failure to restrict the ground of review would mean that the High Court would be reconsidering errors of fact and law. If matters of fact are permitted in the review, it would therefore risk producing something akin to the original appeal hearing in the tribunal, but one that is one-sided and being decided by an inappropriate court not best placed to test that.

In addition, Amendment No. 52A would rule out the Court of Appeal involvement in the deportation process. The Court of Appeal plays an important role in establishing case law. But these are perhaps more technical points than ones relevant to the central issue raised by the noble Lord, Lord Kingsland. As I sought to address at the beginning, there are remedies available to the applicant, as there should be in the circumstances advanced by the noble Lord. If, despite there being evidence that a regime change had taken place, an IND official still made a judgment that that was not a new application, then the remedy of judicial review is there and we believe that that is appropriate in these circumstances.

Lord Kingsland

My Lords, before the Minister sits down, I would like to express frankly to him my perplexity at his answer. We started the Bill in another place with an ouster clause. The ouster clause sought to oust judicial review from asylum decisions. The Opposition pointed out to the Government another, more satisfactory, way of creating a comprehensive statutory regime which is sufficiently fair to have the effect of ousting judicial review without actually saying it, from the beginning of the process to the end.

Between Second Reading and Committee stage in your Lordships' House, the Government withdrew the ouster clause. We are now told by the Minister that our attempt to create a comprehensive statutory regime, in the absence of an ouster clause, is insufficiently flexible because it does not have the flexibility of judicial review.

So the Government have now shifted from a position which began, in another place, with wanting to oust judicial review altogether. Since then they have travelled all the way across the spectrum to say, now, in your Lordships' House that, in some aspects of the asylum decision-making process, judicial review is preferable to a statutory regime because it is more flexible. All I can say to the Minister is: well, really. Where do the Government think they stand on the issue of judicial review?

It was appropriate for the noble and learned Lord, Lord Donaldson, to raise one technical matter. During his response the Minister in turn raised one or two technical questions about my amendment. I think I had a signal from the noble Earl, leading for the Liberal Democrat Benches, that he would like to reflect further on this issue. In those circumstances, although I wish to bring the amendment back at Third Reading, for the moment I beg leave to withdraw it.

Amendment, by leave, withdrawn.

Lord Kingsland moved Amendment No. 52B: After Clause 14, insert the following new clause—