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The Countess of Mar: I wish to declare an interest as a member of the Immigration Appeals Tribunal. I do not support the amendments because the measures in force at present and those which are to be included in the Bill will protect the most vulnerable people. They can appeal against the determination of either an adjudicator or, in the case of a tribunal, they can go to judicial review.
There is an enormous amount of time-wasting by people who do not turn up. By "time-wasting" I mean the time of the court, the Home Office and everyone else involved in these cases. Often the people have gone to ground; they have disappeared altogether. If we adjourn a case for a hearing on a further occasion, they still do not put in an appearance. Therefore I do not support the amendment.
Earl Russell: The problem of time-wasting is obviously worrying to anyone who is concerned with the administration of justice. I wonder how much the noble Countess knows about the reasons for individual cases. If people do not turn up, it is quite difficult to find out their reasons for not doing so. That is something of which I have a certain professional knowledge in another context.
In the light of what has been described by Ministers as the "chaotic" system of asylum support, one wonders whether some have difficulty in raising money for travel or experience difficulty over transport. Alternatively, some, because of unsatisfactory accommodation, may have moved on and taken refuge with members of their own community. Perhaps the notices do not reach them. It is still the Government's assumption that first-class post reaches people within two days. In my case, that is clearly in the realms of fantasy, to put it no stronger. Applicants do not turn up for a good many reasons.
Lord Falconer of Thoroton: The noble Earl is making too much of this. This is no more than an enabling power and the matter has to be viewed judicially. If no questions were asked about the reason for a person not being able to attend court, that would not be acceptable. The provisions simply enable the adjudicator to reach conclusions, but there would have to be good reasons for so doing.
Lord Avebury: I dealt with a case recently where an applicant was represented by one of the unsatisfactory practitioners that we are trying to get rid of, who did not pass on to the applicant the date of the hearing before the adjudicator. When the applicant wrote to me, it was common ground that it was the representative's fault. Nevertheless, he lost his chance and was not given another go. It was quite wrong for the appellate authorities to determine the case in the absence of the applicant because of the fault of his representative.
Schedule 4 seems to be extending that practice, so that adjudicators can determine an application whether or not the applicant's absence is his fault. My noble friend Lord Russell gave a number of examples of the reasons for someone not turning up, and I have given another. We have not exhausted the possibilities. We cannot always ascribe the blame for not turning up, as the noble Countess appears to do, to the appellant.
Countess Mar: A great many questions are asked when applicants do not turn up. We telephone the legal representative or, if we have a telephone number for the person concerned, we try to contact the applicant. Protective measures are in force but often the applicant does not turn up--having not contacted his lawyer in weeks or months. There is no point continuing with a case that is never going to be heard.
Perhaps the noble and learned Lord can provide a brief explanation of the position of those who have received inadequate advice, through no fault of their own, or who would have attended the hearing had they known that it was to take place, as opposed to not turning up for their own reasons, as I am sure happens in many cases. Some people know that they should turn up but do not do so and thus abuse the system. However, as to those who do not turn up through no fault of their own, if the Minister can give an explanation of how they can be protected, it will go a long way to assure the Committee.
Lord Falconer of Thoroton: Before I begin my response perhaps I may inform the noble Baroness, Lady Williams, that the consultation paper on the statutory instrument will be available before Report stage.
Amendments Nos. 105 and 106 provide a power in the schedule to the Bill which permits rules to include provisions to allow appeals to be determined without a hearing and for an adjudicator or tribunal to allow or dismiss an appeal without considering its merits, if there has been a failure to comply with the rules or one of the parties has not turned up. It is not an enabling power that requires the dismissal or allowing of an appeal when someone does not turn up or comply with the rules.
It is well known that the appeals system is susceptible to delay. That does not help anyone, least of all those who are keen for their appeals to progress quickly. We have to do everything we can to ensure that the appeal procedures encourage parties to play their part in enabling the matter to proceed properly and without unnecessary delay. Where a party fails to pursue his case, in fairness to others waiting in the queue the adjudicator or the tribunal must be able to bring that appeal to a timely conclusion.
The current asylum rules provide part of what is needed to achieve that by giving the adjudicator or the tribunal the power to treat an appeal as abandoned. That is a very necessary power, but in its current form it is open to the possible criticism that it may be used as a surrogate form of striking out, for whatever reason. The Bill therefore improves the position and creates an explicit power to strike out on specified grounds, such as delay or non-compliance, and enables appeals to be treated as abandoned where it is clear that the appellant has indeed done so. The two amendments would remove those better-focused powers. To do so would permit unnecessary delays in a minority of cases and would continue to undermine the speedy service which the majority of appellants have the right to expect.
On the other side of the coin, the striking-out provision will give the power to the appellate authorities to allow an appeal where the other party has failed to attend hearings or to respond to directions. This can work only in favour of appellants, and its removal would dilute our efforts to ensure fair and even-handed treatment for all parties and the speedy resolution of appeals. The rules will explain the procedures in detail and will be drawn up with help from the IAA judiciary before full consultation and discussion with the Council on Tribunals. Further, if the adjudicators or tribunal act in an arbitrary or unreasonable way, an appellant will be able to seek judicial review.
Similar issues arise in regard to Amendment No. 106. The most repeated criticism of the current system is the time that it takes to bring an appeal to a conclusion. It is the parties' responsibility to avail themselves of the appeal system, but the Lord Chancellor will also be looking to the immigration appellate authorities to manage their workload to ensure that, wherever possible, appeals are brought to a final decision within four months. To achieve this aim, the appeals system should manage cases positively and discern between cases which are genuine and those which are not.
The amendment would inhibit the ability to do that. The circumstances in which the power is to be exercised will, however, have to be specified in rules. The power will not be lightly used and appellants will be clearly told when the appellate authority is considering the use of its striking-out power.
The argument advanced against even the giving of this power is that there will be cases where it would be wrong to strike out an appeal on the merits because there was a good reason why the rule was broken or the person did not turn up. As the noble Countess, Lady Mar, said, before any sensible, properly directed tribunal can strike out an action, it must make appropriate inquiries and can strike out only when appropriate.
How is it proposed to address a case where there is the most flagrant breach of the rules by an appellant who knows perfectly well, because he has five of the biggest City firms of solicitors acting on his behalf, that he is able to receive letters, and yet he deliberately ignores that fact in order to string out the process for as long as possible? That is an extreme case, yet, as I understand the arguments being advanced by noble Lords on the Liberal Democrat Benches, there should not even be a power to strike out the claim when appropriate.
What would happen where someone is too lazy, or is unable, to reply to letters and has been given every warning? What teeth does the tribunal have to move cases along? There will be cases of the kind referred to where it would be wrong to strike out because there is a perfectly good reason why the person has not complied with the rules or has not turned up on time. Any sensible court system will be able to deal with those situations, but the power must be available to deal with the abusive case.
I therefore seek to persuade the Committee that the paragraphs in Schedule 4 represent a useful improvement to the existing rules; that their use will be subject to suitable safeguards; and that their removal will make it more difficult to secure effective management of the Immigration Appellate Authority's workload in the interests of all appellants. I cannot support either amendment and ask noble Lords to withdraw them.
Baroness Williams of Crosby: The noble and learned Lord has put a powerful case and I have considerable sympathy with his view that the appeal system should not be one in which time is deliberately wasted. He referred, very fairly I thought, to the importance of striking out a case when it means that it is the end of the road for the appellant and when it may well be that the appellant has good reason for not attending or failing to meet the conditions that were laid upon him.
Does the noble and learned Lord consider that notification should be served not only on the legal representative but also on the appellant--because in some instances it will be the appellant, as in the example given by my noble friend Lord Russell--where the legal representative has failed to carry out his responsibilities and where it is very important for the appellant to know what the consequences will be unless he or she can advance the reasons for failure to attend?
I should like to cite one example that is known to me of an appellant who was simply unaware of his obligation to attend an appeal because his legal representative had failed to so inform him. That is why we should like to see a situation where both the appellant and the legal representative are informed that they are now about to lose whatever right of appeal they might have.
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