The Judicial Review and Courts Bill, introduced to parliament today (21/07/2021), will equip judges with the tools to give more tailored solutions in judicial review cases. It will also create a better balance between the rights of citizens to challenge executive decisions through judicial review and the need for effective government.

These measures will allow the courts to delay the time it takes for their orders to come into force, allowing parties time to prepare. They will also reduce the impact on third parties who have relied on a power that the courts deem unlawful.

It will also remove the inefficient ‘Cart’ judicial reviews which can create unnecessary delay including in immigration and asylum cases and introduce a range of steps to improve court processes.

This follows a thorough examination of trends in judicial review undertaken by the expert Independent Review of Administrative Law. The Government then launched a public consultation on a range of proposals, which informed this Bill.

Lord Chancellor, Robert Buckland QC MP, said:

The Government has pledged to ensure that the courts are not open to abuse and delay. Today we are delivering on that commitment.

We are giving judges the powers they need to ensure the Government is held to account, while tackling those who seek to frustrate the court process.

This legislation will empower judges to modify quashing orders by introducing two changes, to be used at the discretion of individual judges:

• Suspending the effects of a quashing order – this means that a judge can delay the point at which a government action will be overturned. This will improve the public policy making process by, for example, allowing time for a Department to consult on the best way to replace an administrative regime, rather than creating a rush to do it immediately.
• Limiting or removing the retrospective effect of quashing orders – meaning judges can determine the Government’s action unlawful, without invalidating any prior actions. For example, if a Judicial Review judgment found that an employment regulation which gave workers healthcare was found unlawful, it would jeopardise their access to a particular form of healthcare under current law. The new laws mean that a judge can ensure that continuing access to that healthcare was lawful even though the regulation had been ruled unlawful.

The so-called ‘Cart’ judgment will be reversed as part of this Bill to prevent parties who have already been refused permission to appeal by both the First-tier and Upper Tribunal from trying a third time through a judicial review in the High Court.

Research found that these claims – which are the most numerous judicial review cases – have a success rate of only around 3% compared to a 40-50% success rate for all other cases. This is estimated to cost the taxpayer over £300,000 per year, which could be better spent on dealing with outstanding cases that exist in the High Courts.

Many Cart cases arise from immigration and asylum appeals and despite the claim eventually failing it can be used as a delaying tactic to prevent removals.

Notes to editors:

Home Secretary Priti Patel and French Interior Minister Gérald Darmanin today (Tuesday 20 July) signed an agreement to strengthen UK-France joint cooperation to tackle illegal immigration across the Channel.

This follows a rise in dangerous crossings and will see the number of police patrolling French beaches more than double for the second time in a year to prevent illegal migration and stop small boats from departing French beaches.

The agreement comes as the Home Secretary’s New Plan for Immigration is debated in Parliament this week. The Nationality and Borders Bill will address the failures of the current asylum system and the criminal activity behind illegal migration.

The Bill will welcome people through safe and legal routes whilst preventing abuse of the system, cracking down on illegal entry and the criminality associated with it, rather than allowing people to undertake dangerous journeys to the UK as their preferred destination.

Home Secretary Priti Patel said:

The British people have simply had enough of illegal migration and the exploitation of migrants by criminal gangs.

Illegal immigration is driven by serious organised criminals and people smugglers. The public are rightly angry that small boats are arriving on our shores, facilitated by appalling criminal gangs who profit from human misery and put lives at risk.

The government is addressing the challenge of illegal migration for the first time in over two decades through comprehensive reform of our asylum system which will enable us to going after the gangs exploiting people, deter illegal entry into the UK, introduce new and tougher criminal offences for those attempting to enter the UK illegally and strengthen our ability to remove those with no legal right to be in the UK.

With UK support last year, France doubled the number of officers deployed daily on French beaches, improved intelligence sharing and purchased more cutting-edge technology.

This resulted in France preventing twice as many crossings so far this year than in the same period in 2020.

However, as French interceptions increased, organised criminal gangs have changed their tactics, moving further up the French coast, and forcing migrants to take even longer, riskier journeys.

Thanks to support from the UK, the French will be able to respond by posting more security forces further up the coast, installing and utilising the latest surveillance equipment throughout northern France.

The package agreed at the meeting today also includes:

• improving law enforcement deployments along the coast of France, more than doubling resource focused on addressing illegal migration. French officers will patrol wider areas of coastline across the northern coast between Boulogne and Dunkirk, and will expand patrols further north-west around Dieppe
• deploying wide area surveillance technology to improve coverage of the coast of France to prevent crossing attempts, including the use of aerial surveillance
• investment in infrastructure to increase border security at key border crossing points along the Channel coast

Whilst these are important steps, the UK and France agreed that further collaboration would be required to significantly disrupt the ruthless organised crime which underpins the small boats phenomenon as well as any other form of illegal migration towards the UK through France.

Both nations agreed to implement a long-term plan for a ‘smart border’ along the coast and improve existing surveillance technology. New cutting-edge technology will identify where crossings are being attempted, directing French law enforcement officers to those locations, thereby stopping migrants from risking their lives in entering the water.

This is part of the long term strategy in the New Plan for Immigration to help prevent these crossings and tackle illegal immigration. The government is bringing forward new laws in the Nationality & Borders Bill to make it a criminal offence to knowingly arrive in the UK without permission to be here, sending a clear message to migrants thinking about paying people smugglers to make dangerous and illegal journeys to the UK.

Thank you to all members who have spoken in this extremely thorough two day debate.

The public expects this House to protect our borders. They expect us to combat the dinghies crossing the English Channel and they expect us to remove those with no right to be here. This Bill will deliver those people’s priorities.

This Bill is fair but firm. Fair to those people in genuine need, but form towards those people seeking to abuse the system.

Firstly, let me reiterate the Government’s commitment to supporting those in genuine need. Of course, we cannot help all 80 million displaced people around the world who may wish to come here, but we will play our part.

Firstly, we are continuing our world-leading Resettlement programme, where, working with the UNHCR we resettle the world’s most vulnerable. We have resettled 25,000 people in the last 6 years, more than any other European country and half of them children. And we will be strengthening this arrangement by immediately granting indefinite leave to remain to those people entering via the resettlement programme. I am concerned by the resettlement outcomes, only 5% are in work after a year, so we are going to do more on integration and we’re going to draw in a wider range of persecuted people. Recognising, for example, that the most persecuted group globally are persecuted Christians.

We’re not just running Europe’s biggest resettlement programme, we are also, as we speak, bringing locally engaged staff in Afghanistan to the United Kingdom and we have opened up a route for BNOs from Hong Kong to come here. And in addition to that 29,000 people have come her over the last 6 years as part of refugee family reunion.

I’m very disappointed that of the 32 local authorities in Scotland, only one, Glasgow, takes dispersed asylum seekers. So if Scotland wants to do more, they have the opportunity to do so. And moreover, when it comes to taking unaccompanied asylum seeking children under the national transfer scheme, of the 600 or so who were transferred last year, Scotland took a very small handful. Those children have over £50,000 a year funding going with them. There are children right now in Dover who need to be looked after so I call on the Scottish Government to put action behind their words and take some of those children on tonight.

So let me be clear. The UK will always play its part for those in genuine need. But we will choose who deserves our help.

Illegal immigration undermines that choice. Instead of the United Kingdom being able to choose the children and families most in need, illegal immigration instead allows those who pay people smugglers, or who are strong, to push their way to the front of the queue.

There is no worse example of that than the small boats crossing the English Channel. Around 80% are young single men who have paid people smugglers to cheat the system. They are not fleeing war. France is not a war zone. Belgium is not a war zone and nor is Germany. These are safe European countries with well-functioning asylum systems. These journeys are dangerous and totally unnecessary, and they push to one side those in greatest need, including women and children.

This Bill contains provisions such that people arriving by small boat and other illegal means will be liable for prosecution and a four year jail term, and people smugglers will face a life sentence. This Bill also gives Border Force the powers they need to make interceptions at sea.

And let me be clear, nothing in this Bill would have made the Kindertransport from the 1930s illegal, that was an authorised and organised programme that would be perfectly legal. Indeed it is analogous to the safe and legal route that we are currently offering locally engaged staff from Afghanistan.

And let me further reassure the House that there is no intention in this Bill to criminalise bona fide rescue operations by the RNLI.

Let me be clear also that nothing in this Bill infringes our international obligations. Article 31 of the Refugee Convention makes it clear that it is permitted to impose penalties where someone has not come directly, I use the word directly, from a place of danger and where they did not have reasonable opportunity to claim asylum somewhere else. But people coming from France are not coming directly from a place of danger, as required by Article 31, and they did have a reasonable chance to claim asylum in France. So these measures are wholly consistent with our international obligations.

Our legal system needs reform. It is open to abuse. People make repeated human rights, asylum and modern slavery claims, often strung out over many years, in an effort to avoid removal. But very often they are later found to be without merit. For example, in 2017, 83% of those last-minute claims raised in detention to frustrate removal were later found to be without merit.

I have seen some terrible examples of murderers and rapists making these claims, without merit, to avoid deportation. And it’s not just me who says that, let me quote what the Lord Chief Justice, Lord Burnett of Maldon, said last October. He said this “Late claims, raised shortly before removal have been endemic, many fanciful or entirely false”. He went on “It is a matter of regret that a minority of lawyers have leant their professional support to vexatious representations and abusive late legal challenges.” The Lord Chief Justice of England and Wales is saying in those remarks that change is needed.

This Bill also has measures on age assessment. We are the only European country not to use scientific age assessments. Recent evaluations in Kent concerning 92 people claiming to be children later found that around half in fact were not. There are very obvious and serious safeguarding issues if men that are 23 years old successfully pretend to be under 18 and then get house or are educate 16-year-old girls and we cannot tolerate that.

On modern slavery, this Bill will make sure we identify genuine victims of modern slavery but also avoid unmeritorious claims designed to delay removal or deportation. Where someone is a genuine victim we will make sure they are properly looked after. This policy will make clear for the first time in legislation that confirmed victims with recovery needs stemming from their exploitation will be entitled to a grant of leave where that is necessary to assist them in their recovery or indeed to assist in a prosecution. We hope that by encouraging people to being their claims up front in one go that asylum claims, modern slavery and human rights matters will be able to be identified early and properly but we avoid some of the abuse we have unfortunately seen all too often.

Some members raised questions of detention, claiming it was indefinite. That is of course not the case, we don’t have indefinite detention. 75% of people spend less than a month in detention prior to removal and we have the Hardial Singh case law principles which mean you cannot be detained if there is no prospect of removal. There are frequent opportunities to apply for immigration bail in addition to the protections afforded by Article 5 of the ECHR.

In relation to the Dubs amendment, we prefer to prioritise not people who are in safe European countries but people who are in dangerous places.

The public expect us to look after those in genuine need. We will do so. But the public also expects us to protect our borders from illegal immigration and promptly remove those with no right to be here. This Bill delivers those objectives.