Nationality and Borders Bill — House of Lords, 2022-02-03
Topic: Immigration
Sally Rachel Hamwee (Liberal Democrats, Centre to centre-left): My Lords, I have put my name to the proposal that Clauses 22 and 23 should not stand part of the Bill. When I first saw the term "expedited appeals", my antennae twitched. It sounds such a benign and helpful term but then so did "detained fast track"—the accelerated process for considering asylum claims introduced in 2002, involving detention immediately after the asylum screening interview, which was followed shortly by the substantive interview, with a decision the following day and two days to appeal. The High Court found that the DFT, as operated, carried "an unacceptably high risk of unfairness" to vulnerable or potentially vulnerable applicants, and to that extent it found it to be unlawful, and the Home Office eventually suspended it. Expedited appeals are not the same but some of the issues are really quite similar As we have been discussing, the Bill of course provides for priority removal notices to be served on anyone liable for removal or deportation; we have discussed the cut-off date for the provision of evidence. However, it does not set out the factors that may lead to a PRN being issued. That is left solely to Home Office guidance. I support what the noble Lord, Lord Coaker, just said about needing to see guidance—but only so far because guidance, by definition, can be changed and although we may be reassured in February 2022, come February 2025 things might look quite different, with the same Government or another Government producing rather different guidance Listening to the previous debate, I was concerned that for an appropriate date to be set, the Home Office needs to know whether somebody is vulnerable, but it will know that only after the event of the notice. I understand the difficulty of trying to start without a starting point, which is the point that the Minister was making. Without a date, you cannot look further, but the extension of that is important. I found it quite difficult to follow all that. I am mentioning it now because it is part and parcel of the same issue and certainly Hansard will require careful reading The PRN will remain in force until 12 months after the cut-off date or exhaustion of appeal rights. We have talked about whether or not there is a principle. Clause 22 provides for an expedited appeal route for appellants who have been served a PRN and have made a claim on or after the cut-off date but while the PRN is still in force. In that circumstance, the Secretary of State may "certify"—an interesting term in itself—that any right of appeal against a Home Office refusal will be to the Upper Tribunal instead of the First-tier Tribunal. The Secretary of State can also certify that she or he is satisfied that there are good reasons for making the claim on or after the date. I cannot think of an alternative to what is probably an inappropriate term about being judge and jury in your own case, but I think noble Lords will understand what I mean The result of an appeal being certified is that one tier of appeal—the First-tier Tribunal—is lost. Under the Bill, the rules must provide for expedited appeals in the Upper Tribunal to be determined more quickly than an ordinary appeal in the First-tier Tribunal and allow for the Upper Tribunal to make an order that the expedited appeals process may—I stress "may"—not apply "if it is satisfied that is the only way to secure that justice is done in the case of a particular expedited appeal" When someone is subject to the expedited process, Clause 23 provides that any other appeals they may have, for instance "in respect of protection and human rights claims … deprivation of citizenship … EU citizens’ rights" and so on, are dealt with as a related expedited appeal Ousting the jurisdiction of the Court of Appeal, and so prohibiting an appeal from a first-instance decision, is clearly a significant matter. It would give no one the right of appeal to the Court of Appeal and, necessarily, not to the Supreme Court afterwards either. As we have discussed, the appeals concerned involve international protection rights, human rights, European Union and EEA citizens’ rights and the deprivation of citizenship, all areas where the UK has bound itself to abide by international agreements. For such a fundamental right as the right not to be sent back to a country where one is at risk of persecution to be excluded from an onward appeal to the Court of Appeal—even if the decision of the Upper Tribunal contains an error of law or a breach of natural justice—is extraordinary. This is not a criticism of the Upper Tribunal in any way; it is just not how things should be done. Removing Clauses 22 and 23 would leave the existing appeals structure in place How will one challenge Upper Tribunal decisions if these clauses stand? My noble friend made a caveat about the use of "constitutionality" but I think that it applies here, as well as on the impact on the rule of law. The Constitution Committee of your Lordships’ House said in its report: "The House may wish to consider the effect of clause 23 on the functioning of the appeals process and consequently on access to justice." That is quite strong stuff for a Lords committee.