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Under the special appeal procedure, the Secretary of State can issue a certificate if, having considered the claim, he considers it to be without foundation. The certificate has two effects: first, the applicant has less time in which to give notice of his appeal, and the appeal must be heard quickly; secondly, the appellant cannot seek leave to appeal to the Immigration Appeal Tribunal unless the adjudicator overturns the certificate. Clause 1 does not change the nature of the special appeal procedure, but makes it available in a wider range of cases where the application is considered to be manifestly unfounded.
The effect of Amendment No. 24 to sub-paragraph (6) would be to restore access to the tribunal in almost all certified cases. The tribunal would be excluded only in cases which satisfied the test of being frivolous or vexatious--a criterion which case law has restricted to a very small number of claims, such as those which merely repeat earlier claims or which make no reference to asylum.
Denial of access to the tribunal is an important part of the benefit which the appeal system derives from the accelerated procedure. It reduces the number of applications for leave to appeal which the tribunal is required to consider. It means that the applicant has exhausted his appeal after the adjudication and can be removed immediately, rather than after a further delay
I do not accept the argument that access to the tribunal should always be a possibility as a long-stop safeguard. I remind the Committee of the safeguards that the Bill will leave in place for cases covered by Clause 1. First, asylum claims cannot be certified until after they have been considered substantively in the normal way. All applicants are invited to an interview, and all are given an opportunity to make additional representations afterwards. All claims will still be considered substantively and granted asylum or exceptional leave to remain where warranted. Those refused will still receive a letter setting out the reasons for refusal. And all will still have an appeal to an adjudicator.
Adjudicators are of course experienced members of the legal profession appointed by the Lord Chancellor and wholly independent of the Home Office. Furthermore, if the adjudicator upholds the refusal of asylum but does not agree that the certificate was correctly issued, he can overturn it and thereby restore the appellant's opportunity to seek leave to appeal to the tribunal. This is what would happen, for example, if the adjudicator agreed that the asylum claim was unfounded but did not agree with the Secretary of State's certificate asserting that the claim was manifestly fraudulent.
There seems little point in having an accelerated appeal procedure if we are not even prepared to reduce the normal three-tier system of consideration by the Secretary of State, the adjudicator and the tribunal to a two-tier one. I should also say that Amendment No. 22 is defective. It would require the Secretary of State to certify in advance of the appeal that in his opinion the adjudicator has certified that the claim is frivolous or vexatious. That is obviously nonsensical, since the Secretary of State cannot attest to an appeal determination which has not yet taken place.
It has been argued that most of the tribunal's determinations result in remittal to the adjudicator for a rehearing so that errors can be corrected. It was suggested also that removing access to the tribunal will result in such errors going uncorrected. Concern was expressed that the Bill will result in the loss of the tribunal's role in maintaining the quality of asylum case law. Those concerns are greatly exaggerated. The majority of applications to the tribunal result either in leave to appeal being refused or in the appeal being dismissed after a hearing. A small proportion result in the case being remitted back to an adjudicator, but in our experience the great majority of such remittals result in the refusal of asylum being upheld. Only a tiny proportion result in an appeal being allowed by the tribunal. In those circumstances, I hope the noble Lord will not press the amendment.
Earl Russell: The noble Baroness might with profit look at the judgment of Mr. Justice Hidden last week in the case of ex parte Bostam. I pay tribute to the work done by the special adjudicators but, inevitably, they
I wish to make one other point to the noble Baroness. Before she uses words like "frivolous" and "without foundation" with quite such sublime confidence as she has done today, I would ask her to look over debates in this House in the past few years and at the occasions when she has described arguments from this side of the House as being either without foundation or frivolous and then to ask herself how many of them have subsequently been accepted by Her Majesty's Government.
Baroness Blatch: I take exception to the accusation that the noble Earl has made of me. I was not being light-hearted. The determination as to whether an application is vexatious is not my decision; it is that of the adjudicator. So I hope the noble Earl does not believe I am treating it lightly. I also hope that the noble Earl will agree that vexatious cases should be accelerated. We are saying that, not only for those cases but for those cases that are manifestly unfounded, it is right that an accelerated procedure should be considered.
Earl Russell: I shall willingly and eagerly acquit the noble Baroness of the charge of being light-hearted. I also understood entirely that it was not just her own certainty with which we were dealing. We were dealing with adjudicators. But I do not share the noble Baroness's degree of confidence in every stage of this process. That is where I really would like her to be a little more ready to entertain the possibility that decisions taken within the Home Office machinery may be mistaken. She is very resistant to accepting that possibility--that was all I wish to say--and that is frankly a matter of opinion.
Lord McIntosh of Haringey: I found the Minister's reply fascinating because not once, but several times, she used the phrase "manifestly unfounded" as being the basis on which the provisions of Clause 1 would come into effect, whereas the words "manifestly unfounded" do not occur anywhere in Clause 1. Under the 1993 Act there was provision for fast-track appeals procedures and for the denial of access to the Immigration Appeal Tribunal for claims which were "unfounded". Ministers--I acquit the Minister in this House of the charge--have since then consistently referred to such claims as bogus. I am glad that the noble Baroness does not do that and has never to my knowledge done so. But "manifestly unfounded" is not what the clause says.
Clause 1 speeds up the appeals procedure and denies the special appeals procedure unless the adjudicator allows it. It applies to those cases which fall under sub-paragraph (2)--about the designated list--sub-paragraph (3)--about passport defects--and sub-paragraph (4)--about the fear of persecution. In reading sub-paragraph (4)(b) I now see the words "manifestly unfounded". I apologise to the Minister for that. But it is only one of a wide range of conditions
As I said, Clause 1 speeds up appeals and restricts access to the Immigration Appeal Tribunal. But what is the Immigration Appeal Tribunal for? It is designed to send cases back to the adjudicator for errors to be corrected. As the noble Earl, Lord Russell, said, there have been a significant number of cases in which it has done so and in which the result has been different from that which would have been the case if there had been no Immigration Appeal Tribunal. That proves the worth of the Immigration Appeal Tribunal and it proves to my mind that it is wrong for it to be emasculated in the way that is proposed in Clause 1.
This issue is very close to one which we have considered on a number of amendments and it is not one on which I wish to seek the opinion of the Committee. However, I have to say that the criticism we have been making is not in the form of a wrecking amendment but of a desire to restore an appeal tribunal which was set up by this Government, which we believe serves a useful purpose, and which is being diminished by the Bill as drafted.
Baroness Blatch: I am grateful to the noble Lord for giving way. Perhaps I may put the record straight. Before the noble Lord decides what he is going to do with the amendment, I believe I misled the House in saying that it was the adjudicator who determined the accelerated procedure. It is after substantive consideration that a decision as to whether it should be normal track or fast track is taken and then of course it is for the adjudicator to hear the appeal. But it is nevertheless after substantive consideration of the case.
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