Note submitted by the Immigration Law
Practitioners' Association
EXTRACT FROM A LETTER TO THE CLERK OF THE
COMMITTEE
Thank you for your letter asking ILPA to send
a brief submission to the Committee with possible questions it
might use in an evidence session with Mike O'Brien MP, on 12 May.
In this response, ILPA has concentrated on particular areas of
concern, focusing on detention and on dealing with asylum-seekers
as these are issues of such importance to the individuals concerned.
DETENTION
The report of the Chief Inspector of Prisons
into Campsfield House makes many interesting suggestions. What
are your views on them, in particular that there should be judicial
oversight of decisions on immigration detention, that there should
be statutory duties and obligations on the security staff, and
a Detention Service with new powers created, and that the contract
between the Home Office and Group 4 should be properly regulated?
Recommendations have been made in the past that
detainees should be given written reasons for their detention,
and the Campsfield report recommends this again. Why has this
not yet been implemented?
Can you confirm that detention is not used as
a policy of deterrence? If you cannot, how can you justify doing
so in terms of the international convention the UK has signed
and the forthcoming incorporation of the ECHR into British law?
Please explain the reasons for detention of
people at particular stages of their asylum applications and how
these may change, for example, concentrating on people who are
near the end of their attempts to remain in the UK?
ASYLUM
Tell us more about your plans for reducing the
backlog of asylum applications under consideration at the Home
Office. What are your views on the suggestions in the report Providing
protection from JUSTICE/ILPA/Asylum Rights Campaign, in particular
putting more resources and skilled and knowledgeable staff into
initial decision-making?
How does the Home Office now deal with immigration
applications made by asylum-seekers while the asylum case is under
consideration or under appeal?
GENERAL
When do you expect to publish the results of
any of your policy reviews?
The Committee welcomes the partial disclosure
of some of the internal instructions to Home Office and immigration
staff, by the placing of parts of four volumes of these in the
House of Commons Library, and the promise of putting them on the
Internet. Please tell us when these will be on the Internet and
where they can be accessed, and when the other volumes will be
available in the Library. How will you ensure that changes in
the instructions are also made public and publicised at the time
they come into effect?
Please explain the procedure for instructions
being sent to British posts abroad in dealing with entry clearance
applications. We understand that changed instructions on marriage,
for example, were only produced in January 1998 following a change
in the immigration rules in June 1997. Why is this? How do staff
know of changes and ensure they are interpreting the law correctly?
I hope this is helpful. I also enclose copies
of ILPA's proposals on reform of the immigration appeals system,
and on detention, deportation and removal, both of which Mr O'Brien
has seen. Please do not hesitate to contact me if the Committee
requires further information or clarification.
Andrew Nicol QC
Chair
5 May 1998
PROPOSALS FOR REFORM OF DETENTION, DEPORTATION
AND REMOVAL BY THE IMMIGRATION LAW PRACTITIONERS' ASSOCIATION
The Immigration Law Practitioners' Association
is a professional association of lawyers, advisers, academics
and others interested in the development of immgration law. It
has over 760 members who practise in all areas of immigration,
nationality and refugee law. Many members represent asylum-seekers
who are detained and threatened with deportation or removal, and
others who have breached the immigration laws but have strong
compassionate grounds for remaining, or who are appealing against
deportation or contesting their designation as illegal entrants.
From this experience, ILPA believes that the immigration laws
and practice in relation to forcing people to leave the country
are deeply flawed and urgent action is needed to reform and improve
them. This paper gives a summary of ILPA's concerns and recommendations.
It is one of a series of papers on different aspects of the law.
MINIMUM STANDARDS
IN RELATION
TO DEPORTATION
AND REMOVAL
1. All people threatened with expulsion
from the UK must have the right to appeal, on all aspects of their
case, before being forced to leave the country.
2. All those appealing against expulsion
decisions must have the right to representation at their appeal.
Legal aid must be available for this.
3. If a settled person is not re-admitted
to the UK after travelling abroad, this should be treated as a
form of deportation and there should be a right of appeal.
4. Persons lawfully residing in the UK for
10 years or more should only be expelled if it is proven that
they breached national security. They must have a right of appeal
in a forum with power to consider all the merits of the case.
5. Persons with strong family ties or long
residence from infancy should not be expelled. Parents of children
who are British citizens (or entitled to register as British citizens)
should not in general be expelled. In addition, parents with care
and/or access should be treated in the same way.
6. The courts should no longer have the
power to recommend deportation in criminal matters, as it amounts
to double punishment. If this power is retained, when deportation
is recommended after conviction for a criminal offence the Bouchereau
test/principles (that deportation should only be contemplated
if the person is likely to reoffend) should be applied.
7. The European Convention on Human Rights
should be incorporated into UK law.
8. The European Social Charter 1961 should
be incorporated into UK law.
9. Detention must be kept to an absolute
minimum and only when removal is imminent, following an unsuccessful
appeal. People must not be detained for more than 48 hours. If
this is not accepted, there must be regular reviews of detention
and the right to apply for bail.
10. All immigration and appellate authorities
must adhere to the letter and the spirit of the UN Convention
Relating to the Status of Refugees and its Protocol, all other
international instruments the UK has signed and all aspects of
Community legislation.
Some of these proposals are self-explanatory,
such as the final statement of principle. The government is beginning
the process to implement some others, such as the incorporation
of the ECHR and the establishment of a Special Immigration Appeals
Commission to hear appeals in cases where national security is
raised. Others may need further explanation. ILPA is in communication
with the Home Office and with Ministers who are currently reviewing
many aspects of immigration and asylum law and practice and we
hope our concerns will be met.
ELABORATION OF
SOME POINTS
All people threatened with expulsion from
the UK must have the right to appeal, on all aspects of their
case, before being forced to leave the country.
The current law
People who are not British citizens and who
do not have the right of abode can be deported if they overstay
their permission to remain or breach other conditions of stay,
if the Home Secretary deems their deportation to be conducive
to the public good, if they are convicted of a criminal offence
and the court recommends deportation, or if they are the spouse
or child under 18 of a person being deported. There is a right
of appeal against the Home Secretary's decision to deport. This
appeal can consider all the facts and merits of the case only
if the person was last given leave to enter more than seven years
before the date of the deportation decisions (although this does
not apply where the decision is based on grounds that deportation
is conducive to the public good). If the person was last given
leave to enter less than seven years before the decision, the
appeal is only on whether the Home Secretary had the power in
law to make the decision and the facts of the case, unless it
was an asylum application, cannot be argued.
People treated as illegal entrants have no right
of appeal against removal while they are in this country, unless
they have claimed asylum or allege that they are not the person
against whom a current deportation order is signed. Illegal entry
includes entering without being examined by an immigration officer,
entering on false documents, or in breach of an extant deportation
order, in deceiving or concealing information from an immigration
officer.
Injustice of the current law
It is wrong and arguably, in some circumstances,
contrary to the provisions of the European Convention on Human
Rights, that people should not be able to contest decsions made
against them on so important a matter as having to leave the country
in which they are living. When the Home Office alleges a person
has entered illegally there is no judicial forum in which this
can be contested, regardless of how long the person has lived
here or however strong family or compassionate reasons there may
be.
ILPA's recommendations
— All people threatened with expulsion
from the UK should have a right of appeal against this, at which
all the facts of the case, and the Home Office's exercise of discretion,
can be considered.
— In deciding a case, the appellate
authorities must balance any public interest in favour of expulsion
against the compassionate circumstances of the case.
All those appealing against expulsion decisions
must have the right to representation at their appeal. Legal aid
must be available for this.
The present position
Two organisations, the Immigration Advisory
Service and the Refugee Legal Centre, are funded by the Home Office
in order to represent, free of charge, at appeals. Other organisations,
such as law centres and advice centres and community organisations
may do so. There is no regulation of commercial advisers, who
may have no legal qualifications or knowledge. They may advise
and represent people, with no comeback for the damage they do.
There is no limit to the fees they may charge. There is no legal
aid or green form for representing at hearings, so solicitors
and barristers charge for doing so.
The problems
The RLC and IAS are heavily overworked and may
not be able to deal with all the people who want them to take
their cases, or to work in the depth and thoroughness which is
necessary. Many areas do not have law centres or other agencies
which can represent them, forcing them to go to solicitors they
cannot afford and who may not have experience or expertise in
immigration or refugee law. Some consultants and agencies are
incompetent, inefficient or corrupt and seriously prejudice their
clients' cases.
ILPA's recommendations
— Legal aid, or extensions under the
green form scheme, should be available for representation before
adjudicators, special adjudicators and the Tribunal.
— There must be a system of licensing
advisers and consultants to ensure a basic level of competence
before they can act.
— ILPA is continuing to address the
problem of incompetent solicitors. Continuing consultation with
the Government in relation to unscrupulous advisers is essential.
If a settled person is not re-admitted to the
UK after travelling abroad, this should be treated as a form of
deportation and there should be a right of appeal.
The current situation
The immigration rules state that returning residents
should be admitted if they:
— had indefinite leave to enter or
remain in the UK when they last left, and
— they had not been away from the UK
for more than two years; and
— they did not receive assistance from
public funds towards the cost of leaving the UK; and
— they now seek admission for the purpose
of settlement.
People may still be re-admitted after spending
more than two years out of the UK if there are special circumstances.
The rules only mention one instance: "if, for example, he
has lived here for most of his life" but other reasons may
also be considered. Returning residents, even if visa nationals,
do not need visas. But if they do not have them this means, in
common with all others refused entry at the ports, there is no
right of appeal until they have been sent back.
People may be admitted not as returning residents
but as visitors, if the immigration officers do not believe that
they intend to settle. Although they may then apply to the Home
Office to correct the mistake, the immigration rules make no provision
for this. If the Home Office refuses, there may be a right of
appeal but because the application cannot fit into the rules,
the appeal cannot succeed. It is only if they are given leave
to enter as a visitor and they intended all along to enter
the UK as a resident that they can appeal against the initial
refusal to renew their indefinite leave to remain.
The need for change
The situation is clearly unjust. There is a
serious risk that immigration officers may use their discretion
in an unjustified way, or make decisions on the basis of inadequate
information. By the fact of having qualified for settlement in
the past, the person must have substantial ties with the UK, for
such reasons as length of previous residence, presence of close
family here. It is wrong that they can be capriciously refused
entry to the country where they have lived in the past, with no
meaningful right of appeal.
ILPA's recommendations
— the law must be amended to give an
in-country right of appeal, on all the merits of the case, for
people refused entry as returning residents.
— returning residents admitted as visitors
instead of for settlement must have a full right of appeal, on
all the merits of their case, if an in-time application for settlement
is refused.
Persons lawfully residing in the UK for 10 years
or more should only be expelled if it is proven that they have
breached national security. They must have a right of appeal against
expulsion which can consider all the merits of the case.
The current position
Length of residence in itself does not give
people any claim under the rules to remain. Four years in a particular
category, for example work permit holder, retired person of independent
means, allows a person to settle, but others may never gain this
right through residence alone. It is Home Office practice to grant
settlement to people who have lived legally in the UK for 10 years
or more, but this is discretionary and there is little chance
of winning an appeal against refusal.
The need for change
Length of residence means that a person will
have made ties and put down roots in the UK. It is likely that
families will have children born here, who may be entitled to
register as British citizens after living here10 years. All these
connections should be strong grounds against deportation.
ILPA's recommendations
— when people have lived in the UK
for 10 years or more, they should qualify under the immigration
rules for settlement.
— people who have lived here lawfully
for 10 years or more should only be deported if it can be proved
that they are a threat to national security. They must have full
rights of appeal against the decision.
Persons with strong family ties or long residence
from infancy should not be expelled. Parents of children who are
British citizens (or entitled to register as British citizens)
should not in general be expelled. In addition, parents with care
and/or access should be treated in the same way.
The current law
The current law gives no rights to remain for
family reasons. Because allowing people to stay is always discretionary,
immigration status outweighs family ties. Thus people who are
married to British citizens or settled people can be refused leave
to remain because the marriage took place after a previous decision
to refuse leave to remain on another basis. Having children born
in or living in the UK gives the parents no rights. By contrast
European Union citizens exercising Treaty rights in the UK are
entitled to have their spouses and children up to the age of 21
join them, even if the spouse has been refused leave to remain
in the UK on another basis.
Children born in the United Kingdom after 1
January 1983, when neither parent is British or settled, are not
born British citizens. They become eligible to register as British
citizens after having resided for 10 years or if a parent is granted
settled status (indefinite leave to remain). But before this,
they have no specific rights in the UK. There is no provision
for unmarried co-habitees unless they are legally unable to marry.
They and partners in same-sex relationships will be considered
only under a restrictive concession to the rules, after they have
been together for at least four years.
Injustice of current law
The Home Office practice is that people who
have lived here for 10 or 14 years should not be expelled. This
long residence concession does not appear to have been drafted
with children in mind, but rather adults. It is unfair to expect
children who have spent, for example, up to five of their early
developmental years in the United Kingdom to sever their ties
and start life again in a foreign country.
Parents should not be denied the right to be
with their British citizen children (or those entitled to register
as British citizens). In addition, parents with care and/or access
should not be denied this. British children should have the right
to have their parents living with them in the United Kingdom.
Many marriage applicants are refused leave to
remain because of the timing of their application (eg because
it is made after the expiry of their permission to stay or after
a decision to refuse leave to remain on another basis). This is
despite Home Office acceptance in many cases that the marriage
or relationship is genuine. It negates the right of British nationals
and those with settled status to a family life of their choice
in the UK.
ILPA's recommendations
The following people should not be expelled
from the UK:
1. People with strong family ties in the
UK.
2. Parents of children who are British citizens
or entitled to register as British citizens.
3. Parents with care and/or access to their
children in the UK.
4. People with long residency since childhood.
5. All people involved in genuine marriages/relationships,
whether heterosexual or same-sex, no matter the timing of their
marriage or the development of their relationship.
The Courts should no longer have the power to
recommend deportation in criminal matters, as it amounts to double
punishment. If this power is retained, when deportation is recommended
after conviction for a criminal offence the Bouchereau test/principles
should be applied.
The current situation
At present, European Union (EU) and non-European
Union (non-EU) nationals may have different principles applied
by the courts to their case, when the court is considering deportation.
EU nationals, who often only have temporary or limited rights
to remain in the UK, are treated more favourably than non-EU nationals,
even if the latter have indefinite leave to remain (permanent
residency) in the UK. EU Directive 64/221 makes it clear that
expulsion, in spite of the free movement rights of European Union
citizens, would have to be "based explicitly on the personal
conduct of the individual concerned", and that "previous
criminal convictions shall not in themselves constitute grounds
for the taking of such measures".
The European Court of Justice stated in the
case of Bouchereau (1978) 1 QB 732 that: "A previous criminal
conviction can only be taken into account insofar as the circumstances
which gave rise to the conviction are evidence of personal conduct
constituting a present threat to the requirement of public policy".
There were held to be two ways in which this threat might exist.
Firstly, if there was "a propensity to act in the same way
in the future"; or secondly, if "past conduct alone
may constitute such a threat".
UK immigration law
People over 17 who are not British citizens
and do not have the right of abode can be recommended for deportation
if they are convicted of an offence for which the sentence would
include imprisonment. The Home Office then considers the recommendation,
and balances that and the "public interest" in deportation
against any compassionate circumstances of a case. This is a much
lower test for the Secretary of State to meet than the Bouchereau
principles.
The injustice of the present law
The power to recommend deportation means that
a person may receive a double punishment simply because he or
she is not a British citizen. This is clearly discriminatory.
People imprisoned after conviction are often denied parole or
temporary release pending the Home Office's consideration of the
recommendation, which may take several months. If there were no
such recommendations, or if the Home Office considered them during
rather than after sentence, this problem would be avoided.
Although EU nationals have greater freedom of
movement rights, non-EU nationals with indefinite leave to remain
should not be put in a worse position on challenging deportation.
A non-EU national with indefinite leave to remain status may have
more rights than a EU national, in certain respects, including
the right to remain in the UK without time-limit and the right
to claim public funds. The non-EU national's settled status recognises
the length of residency and the attachment the holder of the status
has with the UK. Therefore, that a lower test may be used on considering
whether a decision to deport is correct is unfair.
ILPA's recommendations
— Criminal courts should not have the
power to make recommendations for deportation
— If the power is retained, the Bouchereau
principles must apply to all recommendations and they must be
considered before the end of any custodial sentence
— If detention is prolonged beyond
the sentence, the person should be transferred to an immigration
detention centre, not kept in prison.
Detention must be kept to an absolute minimum
and only when removal is imminent, following an unsuccessful appeal.
People must not be detained for more than 48 hours. If this is
not accepted, there must be regular reviews of detention and the
right to apply for bail.
Detention at present often lasts too long, is
used inappropriately and causes great suffering both to the detainees
and their families and friends. It is particularly distressing
to asylum-seekers who have suffered in their country of origin
when they are detained, often for prolonged periods, on entry
to the UK while their asylum claim is considered. Detention should
not be used at this time, but only, in rare cases, after all appeals
have been unsuccessful and removal is imminent. The principles
of the Bail Act must apply to them, and the practice of demanding
unrealistic amounts of money from sureties must cease, so that
bail is a practical possibility.
December 1997
IMMIGRATION APPEALS SUBMISSION BY THE IMMIGRATION
LAW PRACTITIONERS' ASSOCIATION
1. BASIC CONCEPTS
1.1 The Immigration Law Practitioners' Association
(ILPA) believes that an appeal system should provide a full and
effective right of appeal before a person is removed from the
United Kingdom and when a person is prevented from entering the
United Kingdom. Both removal from the United Kingdom and refusal
of entry to the United Kingdom can be catastrophic for the person
concerned and so the highest standards of decision making are
required. High quality decision making requires an independent
appeals system to revise decisions and to provide guidance.
1.2 The present system does not provide
for appeals by alleged illegal entrants who are to be removed
from the United Kingdom except when they have claimed asylum.
It also fails to provide for appeals by most visitors and returning
residents who have been refused leave to enter the United Kingdom.
Judicial review is the only avenue open to alleged illegal entrants
who seek to raise issues under human rights instruments such as
the European Convention on Human Rights. This is clearly an expensive
and incomplete remedy. ILPA believes that alleged illegal entrants
and all persons seeking to enter the United Kingdom should be
given a full right of appeal. This is in addition to a right of
appeal for all persons being deported.
1.3 If an appeal is to be meaningful, the
grounds of appeal must be wide enough to enable the Appellate
Authority to deal with all matters of concern. As a result the
grounds on which the appeal can be won should be that:
(a) the decision to refuse an extension of
stay was not in accordance with the law and if properly considered
an extension should have been granted;
(b) there is no power in law to order expulsion;
(c) expulsion would result in a violation
of the United Kingdom's international obligations; or
(d) having regard to all relevant matters
including but not limited to the terms of the immigration rules
and existing policies and practices, discretion should have been
exercised differently.
1.4 ILPA welcomes the new administration's
commitment to incorporate the European Convention on Human Rights
into United Kingdom domestic law. Incorporation will have a direct
impact on immigration law. ILPA believes that the grounds of appeal
set out above mean that the Immigration Appellate Authority could
provide a forum where alleged violations can be remedied quickly
and at lower cost than by way of judicial review. Without such
a remedy there will be an increase in litigation in the High Court.
Not only is this a more costly remedy but it is also not an effective
way of reviewing the facts of the case.
1.5 The suggested grounds of appeal also
seek to provide a remedy for those who wish to raise general compassionate
factors. A person who wishes to raise compassionate circumstances
would argue that discretion should be exercised differently. For
example, ILPA is concerned that spouses who are the victims of
domestic violence should be able to argue that compassionate factors
mean that they should not be forced to leave the UK even if the
marriage has broken down before they have obtained indefinite
leave to remain. They would argue that the discretion should have
been exercised differently under the provisions of paragraph (d).
1.6 ILPA believes that human rights issues
may arise in all forms of immigration appeals. As a result the
same fair procedure should be adopted for all appeals.
2. LODGING APPEALS
2.1 ILPA has no specific comments on the
time period for lodging an appeal. Our major concern is that the
Appellate Authority should always be given discretion to extend
time periods for appeal. For example, the present asylum appeals
system prevents out of time appeals to the Immigration Appeal
Tribunal. People may lose their rights of appeal because the notice
is stuck in the post. The tribunal should be given discretion
to consider whether an out of time appeal should be allowed. Out
of time appeals are particularly important where the representative
is at fault and/or human rights issues are raised on the appeal.
2.2 Many appellants appear before the Immigration
Appellate Authority unrepresented. In addition the authority needs
to be able to take account of changes in circumstances and issues
that have been overlooked. A proper appeal must consider the situation
at the date of hearing. It is in the public interest that the
appeals process seeks to prevent actions that breach the UK's
international human rights obligations. The appeals process will
be better able to achieve this aim if it considers the situation
at the date of hearing. If this is not the case, the authority
will not be able to consider human rights concerns that have arisen
since the date of decision.
2.3 It is also crucial therefore that procedure
rules do not require specific grounds of appeal. If this is not
the case appellants could lose appeals against decisions that
breach human rights obligations because they have failed to raise
the issue in the grounds of appeal. This is particularly true
of unrepresented appellants. It also allows for a change of circumstances
between lodging and appeal.
3. FROM LODGING
TO APPEAL
3.1 The 1996 Asylum Appeals (Procedure)
Rules allow for the giving of directions in asylum appeals. ILPA
accepts that in principle directions can help to simplify matters.
As a result ILPA supports the giving of directions in immigration
appeals. The real issue is the penalty for failure to comply.
ILPA is concerned that the system provided under the 1996 Rules
is potentially unjust. Appellants can find that their appeal has
been prejudiced by their representative's incompetence.
3.2 ILPA is not in favour of costs being
introduced in asylum appeals. There are insufficient high quality
representatives in the field of immigration and the concept of
costs would prove a significant disincentive. In addition disreputable
representatives might seek to pass on the costs to their clients.
ILPA is in favour of a system of accreditation (see below). As
part of this system of accreditation ILPA would like to see repeated
failure to comply with directions as a ground for removal of accreditation.
3.3 If directions are to be meaningful there
must also be a penalty on the Home Office for failure to comply.
At present the Home Office repeatedly fails to comply with directions
without any sanction. ILPA would suggest that failure to comply
can and should lead to appeals being allowed. A record of defaults
by Home Office Presenting Officers could be maintained with a
view to detecting instances of Presenting Officers who repeatedly
fail to comply with directions. While such failures may be due
to matters beyond the officers' control, they may alternatively
call into question their suitability for this role.
3.4 Pre-hearing reviews to consider appropriate
directions could simplify matters. If pre-hearing reviews are
to work, the Home Office Presenting Officers must be given the
discretion to concede issues. Time spent hearing an appeal can
be substantially reduced if the Home Office is willing to limit
the issues in dispute. For example they might agree that credibility
is not in issue.
3.5 Pre-hearing reviews require clients
to be represented. It is wrong to expect clients who lack legal
training to make difficult decisions regarding directions. For
example, they are unlikely to know what documents should be requested
from the Home Office. Legal Aid is essential for representation
at immigration appeals if pre-hearing reviews are to be effective.
3.6 The present appeals system imposes limits
on the time available for the Immigration Appellate Authority
to consider asylum appeals. These time limits are routinely ignored.
The authority lacks the resources necessary to deal with appeals
promptly. What is needed is a system that can deal effectively
with appeals. By reducing the time spent on appeals by the sensible
use of pre-hearing reviews, it may be possible to ensure compliance
with time limits. This is an example of the way properly funded
and accredited representatives can reduce the overall cost of
the appeals system.
3.7 If an appeal is to be meaningful appellants
must have access to the funds needed to maintain themselves while
waiting for the appeal. ILPA believes that access to benefits
should be restored. There will always be appellants who lack the
skills needed to obtain employment. They will only be able to
pursue their appeal if they have financial assistance from the
state. Clearly the burden on the state can be reduced by allowing
appellants to work and by ensuring a prompt hearing of the appeal.
4. HEARING
4.1 ILPA is aware that the adversarial system
is not universal in other jurisdictions. There have been suggestions
that an inquisitorial system should be adopted for immigration
appeals in the United Kingdom. ILPA believes that it is essential
that any system provides for high quality representation of appellants.
Many appellants lack the skills needed to present their case.
Even if adjudicators are given an inquisitorial role, appellants
will need legal representation so that the adjudicator can be
certain that all points in support of the appeal have been made
and that they have been referred to appropriate legal authorities.
Representatives also provide a check on the way adjudicators use
their powers.
4.2 As already set out above, ILPA believes
that only accredited representatives should appear at appeal hearings.
It is well known that some appellants are represented by persons
who lack the qualifications and skills needed. The requirement
to obtain leave to represent for those who do not have a right
of audience is not an effective protection. An accreditation system
would provide a proper protection.
4.3 The accreditation system must contain
an element of continuing review. Representatives who repeatedly
fall below acceptable standards should be penalised for their
failings. As with failures by Home Office Presenting Officers,
the failure by representatives to comply with directions may be
as a result of matters beyond their control. Client privilege
may make investigation difficult. This is one example of the problems
associated with accreditation. ILPA recognises these difficulties.
ILPA plans to make further submissions on detailed arrangements
for accreditation.
4.4 Although appellants' representatives
are often criticised for failing to achieve acceptable standards,
the Home Office Presenting Officers can on occasion hinder the
appeals process. This is particularly true where they seek to
argue points that have little or no merit. Home Office Presenting
Officers should be given papers earlier so that they can form
their own views on the matters that they intend to rely on at
the appeal hearing. This would also allow appellants' representatives
to approach them to seek agreement on non-contentious points.
4.5 The appeals process will be assisted
by a properly funded and resourced documentation centre producing
standard bundles of reports detailing the human rights conditions
in all major refugee producing countries. The decisions of adjudicators
would be more consistent if they always had access to the same
core materials. Appellants' representatives are often criticised
for producing large bundles. These bundles, however, are essential
when the Home Office makes statements about the situation in a
particular country that fly in the face of all objective evidence.
4.6 The Home Office should also be required
to produce the evidence on which it has relied when coming to
a decision. It is difficult for adjudicators to decide what weight
to attach to a particular finding of fact when they are not shown
the evidence that the Secretary of State has relied on to come
to that finding. The quality of decision making by adjudicators
can only be improved if they have access to this evidence. In
addition justice requires that appellants should be able to respond
to the evidence produced by the Secretary of State.
4.7 At present there is inconsistency in
the decision making by the Immigration Appellate Authority. This
may in part be cured by higher quality representation on both
sides and by more documentation being supplied to adjudicators.
There is also a need for greater training for adjudicators. For
example, medical evidence suggests that the victims of torture
may suffer from psychiatric illnesses that mean that they are
unwilling to give details of their case. Training would help adjudicators
to be aware of the medical and cultural reasons that might prevent
a witness giving proper evidence.
4.8 It has been recognised that adjudicators
might wish to specialise in certain areas of the law. The Asylum
and Immigration Appeals Act 1993 provides for the appointment
of Special Adjudicators for asylum cases and a panel of adjudicators
has been established to deal with European matters. Increased
specialisation should improve the quality of decision making by
allowing adjudicators to develop expertise in particular areas.
4.9 Many adjudicators have little or no
experience of immigration law before they are appointed. The quality
of decision making could be improved by experienced practitioners
being encouraged to sit as adjudicators. It may be possible to
waive the requirement for seven years post qualification experience
for experienced immigration practitioners.
4.10 ILPA is concerned by the increasing
use of internal Home Office policies in the field of immigration.
ILPA believes that the immigration Rules should be used to specify
the requirements that a person must satisfy to obtain leave to
enter or remain in the United Kingdom. However, where a policy
has been adopted, the policy should be made available to appellants
and to adjudicators so that appellants can make representations
that address this issue and adjudicators can ensure that the policy
is applied consistently.
5. POST HEARING
5.1 ILPA supports a continuing role for
the Immigration Appeal Tribunal. Adjudicators will make mistakes
and so it is important that there is some remedy open to appellants
who wish to challenge the decision of the adjudicator. The tribunal
provides a low cost and effective remedy in these circumstances.
5.2 Appeals to the Immigration Appeal Tribunal
should cover mistakes of fact as well as mistakes of law. The
significance of the issues raised in the course of immigration
appeals mean that mistakes should always be corrected. At present
there appears to be some confusion as to when leave to appeal
should be granted. It may be possible to obtain greater consistency
by specifying the test. One possible test is that leave should
be granted when it is arguable that:
(a) the determination shows an error of law;
and/or
(b) there is new evidence that could have
led the adjudicator to come to an alternative decision; and/or
(c) the findings of fact contained in the
determination are not supported by the evidence; and/or
(d) the decision is unsafe for some other
reason.
5.3 At present the Immigration Appeal Tribunal
often produces conflicting guidance on matters of law. In addition
it appears bizarre that two lay persons can outvote a lawyer on
a matter of law. In the light of this it may be appropriate for
the Immigration Appeal Tribunal to consider whether the points
raised by the appeal contain matters of law of general importance.
If this is the case, a special tribunal made up of the three leading
legal members of the tribunal would be convened to consider the
case. That process should lead to clear guidance in important
areas of law.
6. GENERAL
6.1 ILPA hopes that the proposals above
will produce a system that is more just and more efficient. Many
of the gains in efficiency will depend on the quality of representation
being improved. Competent representatives will ensure that the
appeal focuses on the central issues. Competent representatives
will ensure compliance with directions.
6.2 Legal Aid is essential if proper representation
is to be available to all appellants. At present the best representatives
are unable to cope with the volume of work. New high quality representatives
will only be encouraged to take on immigration appeals if adequate
funding is available.
6.3 ILPA would not support the introduction
of a merits test for Legal Aid for appeals before an adjudicator.
The human rights issues raised are sufficiently important that
all appellants should be represented. In addition assessing the
merits of a case would be impossible until preparation work had
been completed. ILPA recognises that a merits test may well be
appropriate for cases before the Immigration Appeal Tribunal.
Andrew Nicol QC
Chair of ILPA
7 January 1998
| 
