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Lord Clinton-Davis: Would the noble Lord indicate when that appeal was heard?

Lord Joffe: I do not have to hand the exact date, but I can confirm that the case was heard recently.

This case and others like it turned on matters of fact. If Clause 89(1) becomes law, appellants whose appeals have been wrongly refused because the adjudicator is incorrect about the facts will be denied the right to appeal. Without further ado they will be returned to

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the countries from which they fled and in which, at best, they will live in fear of persecution, but more likely they will be imprisoned, tortured or even murdered.

Evidence has made it manifestly clear that asylum seekers like Kurdish Turks, who are entitled to asylum, will be denied it under the proposed legislation. I should like to ask the Minister how the Government can possibly justify such an outcome. The amendment would ensure that the tribunal can continue to grant leave to appeal on the ground that the adjudicator has made an error of fact.

I turn now to Amendment No. 207B. First, however, I shall respond more fully to the question put to me by the noble Lord, Lord Clinton-Davies. The appeal for the Turkish Kurd asylum seeker was lodged around two months ago.

Lord Clinton-Davis: I am most grateful to the noble Lord for giving way. This matter is germane to the question I posed earlier when the noble Lord said that there were no such cases, as he understood it.

Lord Joffe: This case is one of a number in respect of which I have been provided with details.

I turn now to Amendment No. 207B, which seeks to retain the right to apply for a judicial review of a decision to refuse leave to appeal to the Immigration Appeal Tribunal. Clause 89 would replace this right with a paper statutory review, with no prospect of any further renewal or appeal. The current position is that in cases where an appeal is refused by an adjudicator the appellant can apply for leave to appeal to the Immigration Appeal Tribunal. If the tribunal refuses to grant leave, the appellant can apply to the High Court for judicial review on the ground that the tribunal has made an error of law.

There is nothing unique to immigration or asylum about the right to apply for judicial review. The right to apply for such a review where an administrative body or a tribunal makes a decision that is wrong in law and there is no right of appeal against that decision has long been considered as a cornerstone of our system of justice. Clause 89 would take away this right from a single group—asylum seekers. It would thus remove an historic safeguard from a vulnerable group which has more to fear than most from legal errors.

Asylum is an area where issues of life and liberty are at stake and it has long been acknowledged that there is a correspondingly high duty to ensure that decisions are subject to the most anxious scrutiny. Indeed, if Clause 89 becomes law, an individual disputing a parking ticket will be afforded greater access to justice than those whose lives and liberty are at stake.

The Government's proposals are all the more disquieting in the light of the recommendations made by Sir Jeffery Bowman, who was commissioned by the Government to undertake a comprehensive review of tribunals and judicial review. These recommendations were set out in his report, Review of the Crown Office, in March 2000. Key empirical findings and recommendations in relation to the judicial review of

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the Immigration Appeal Tribunal were that most claims against the tribunal were successful; that the right to bring them should be preserved; and that the volume of cases would best be addressed by improvements in the tribunal's decision making at leave stage, obviating the need for individual judicial review claims.

Experience has shown—and the Bowman report confirmed—that applications for judicial review which are renewed orally have a high success rate. The Government's proposed statutory review based only on a written submission is not an adequate substitute for judicial review. Consideration of written applications can be a cursory process and go very wrong. A recent example was described by Mr Justice Munby in considering a written application to the tribunal. He said:

    "That the Tribunal should be able to promulgate a written determination refusing leave to appeal to the Tribunal containing such grotesquely egregious errors is absolutely deplorable. It would be deplorable in any judicial context. It is all the more deplorable when the context is one as sensitive and as human rights intensive as the context with which this particular Tribunal is concerned; that is to say, rights of asylum and the potential invasion of the human rights of an asylum seeker who, if he fails to obtain asylum, may be sent back to some place which does not respect those rights. Unhappily, as it will appear in a moment, this is not the first occasion upon which in recent months this court has had to make such complaints about egregious error on the part of this Tribunal".

Indeed, in a sample of 19 cases brought by the Refugee Legal Centre in the period 31st December 2000 to August 2001, where applications for permission to apply for judicial review were refused on the papers, the success rate on renewed oral applications was in excess of 50 per cent. Of the 10 cases in which permission was granted following an oral hearing, at least two of the applicants have since been granted refugee status in the United Kingdom. The remainder are currently within the appeal system. The Public Law Project provides similar statistics relating to a later period.

Not only do we have practitioners' evidence that the chances of success are higher on oral applications, we have also the evidence of experts such as Sir William Wade, who, in his book, Administrative Law, wrote:

    "In practice it seems that the leave requirement often operates erratically. Empirical evidence shows a high success rate for renewed applications, suggesting a high rate of error at the initial stage where the judge makes only a 'quick perusal of the material', as Lord Diplock described it. The degree of arguability may vary widely, and new developments in this expanding branch of the law may be rejected at the outset as unarguable".

Under Clause 89 the decision of a statutory review cannot be appealed to the Court of Appeal. In 1985, when similar attempts were made to legislate to prevent individuals from renewing failed High Court applications for judicial review to the Court of Appeal, these met with fierce resistance from both Parliament and the judiciary. At the Committee stage of the Bill in this House, Lord Denning described the proposal as a "constitutional monstrosity". In the event, the right of renewal to the Court of Appeal was preserved.

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The Court of Appeal will frequently decide complex issues of law, often raising issues of public importance. Thus the Government's proposals will not only deprive immigrants and asylum seekers of yet another essential safeguard, they will also strike a blow to the strong body of refugee law jurisprudence which has developed to date.

The Government's determination to deny asylum seekers the right to a fair hearing is reinforced by their proposals to impose unworkable time limits for an application for a statutory review, which has to be made within 10 days compared with the three months time limit for judicial reviews. It is inevitable that if such an unworkable and draconian time limit is imposed, meritorious claims will either not be brought or will be badly prepared.

It is extraordinary that the Government, having recently appointed an expert committee to examine judicial review, should reject its findings without explanation, disregard the judgments of eminent jurists, ignore statistics which show that most judicial reviews against the Immigration Appeal Tribunal were successful, and seek to deprive one of the most vulnerable groups in our society of access to the courts through a process which has been a cornerstone of our judicial system.

The House of Lords Select Committee on Delegated Powers and Regulatory Reform was puzzled by the argument that if a right of appeal is too popular it should be ended. I suggest that many Members of the Committee will share that puzzlement. In order to throw some light on this issue and to do away with this puzzlement, perhaps the Minister will explain the justification for removing the right to apply for a judicial review.

In conclusion, I cannot put the case better than the Public Law Project, which stated:

    "Everyone has an interest in ensuring that decisions on immigration and asylum cases are sound and sustainable. The government proposals do nothing to achieve that end and everything to remove a fundamental safety net from beneath a group of people who most need it".

I beg to move.

4.45 p.m.

Lord Archer of Sandwell: I support Amendment No. 207B, which has been so persuasively moved by the noble Lord, Lord Joffe. I wish to speak to my Amendments Nos. 208A and 208B. I am grateful to my noble friend Lord Judd and to the right reverend Prelate the Bishop of Derby for adding their names to the amendments.

I say at the outset that my preference is for Amendment No. 207B. My amendment represents a fall-back position if my noble friends cannot find it in their hearts to accept Amendment No. 207B. If, for whatever reasons commend themselves to her, my noble friend Lady Scotland finds it impossible to accept Amendment No. 207B, my amendment would provide a fallback position.

Perhaps we should be clear at the outset that, although the hearing before an adjudicator is technically called an appeal, it is not an appeal from a

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judicial conclusion. It will be the first judicial hearing in the proceedings. So within the judicial system, it will be a decision of first instance. The first appeal about which we are talking is the appeal to the Immigration Appeal Tribunal.

It is, therefore, appropriate that there should be an appeal to the Immigration Appeal Tribunal. As the noble Lord, Lord Joffe, said, under Clause 89 an appeal to the IAT would lie only by leave of that tribunal. But the safeguard should be that a would-be appellant who has been refused leave to appeal may seek judicial review of the decision to refuse leave. That would not entail a state trial. It would be a decision as to whether the Immigration Appeal Tribunal had followed the correct procedure and was within the Wednesbury standard of reasonableness. The clause preserves that right, but provides that the appellant shall have no right to an oral hearing.

The Government's reasoning appears to be, "Oh well, most applications are a waste of time. They're hopeless from the outset. Why overload the system with hopeless arguments?" That reasoning disintegrates on the first breath of logical scrutiny. Even if it were true that most applications were devoid of merit, that would surely render it more important, and not less, to recognise a meritorious application among the dross. But it rests in any event on a factual misconception, as the noble Lord, Lord Joffe, explained.

Among applications for judicial review of IAT decisions at present, it is true that the majority of applications for leave to apply are unsuccessful in the first instance. But of those where the application is renewed and leave is given, two out of three transpire at the hearing to be successful. Refusal of leave is judged to have been flawed. The noble Lord cited a number of examples in that respect. But there is no guarantee that the arguments that the judge found persuasive in any of those cases would have been apparent on the papers alone.

Our procedures across virtually the whole of our legal system are based on oral argument. That is because it has been found by long experience that that is the best and fairest way to clarify the issues and the arguments. It is also usually the most expeditious way. We might have conducted our proceedings in your Lordships' House by exchanging memoranda, but we found by experience that oral debate is more likely to lead to a proper conclusion.

However, what I have sought to do in this amendment is not to open the bidding as high as the noble Lord, Lord Joffe. I suggest a moderate compromise, as I say, by way of a fallback position. I am suggesting that we should leave it to the judge, if he believes that oral argument is necessary to obtain a just result, to say so. Therefore, oral argument would not be inevitably shut out from the outset: that option would be available if the judge, who is best placed in any specific case to know what justice requires, considers it necessary.

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I hope that my noble friend will not find herself in the position of saying, "Even if the judge believes that oral argument is necessary to lead to a just outcome, it will not be made available to him". That would be a monstrous affront to the judiciary, and a flagrant denial of justice. Mine is a modest amendment. If my noble friend resists Amendment No. 207B, I hope that my moderation will at least be duly rewarded.

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