Adversarial or inquisitional procedures?
23. Migration Watch, the Immigration Advisory Service
and the Council of Immigration Judges suggested that the system
for asylum appeals would be improved if conducted under a more
inquisitorial procedure. A non-adversarial system is used in Canada.[19]
24. Migration Watch stated that:
"Although the procedures followed in immigration
and asylum appeals are similar to those followed in civil litigation,
the objective of such appeals is very different. In civil litigation
the court is holding the ring between two parties in dispute and
must obviously stay aloof from active participation, other than
to the extent necessary for a proper understanding. Immigration
appeals are concerned with the rights and duties of individuals
as against the state and the obligations of the United Kingdom
towards foreign nationals who wish to visit, seek asylum or otherwise
spend greater or lesser periods of time in the United Kingdom
and enjoy the same benefits as its citizens and other permanent
residents. The adjudicator should be concerned to make sure that
he elicits the truth in the course of proceedings before him,
so that justice is done to the appellant and if the conclusion
is that the appeal is allowed, with the consequence that the appellant
is allowed to remain on a lawful basis, that conclusion is arrived
at on a proper basis. […] the ruling that proceedings before
adjudicators are adversarial is based wholly on binding decisions
of the Tribunal and is not statutory, so if the change to the
inquisitorial system […] is to be implemented it should be
enacted in statutory form so as to put the matter beyond doubt."[20]
25. Migration Watch also suggested that the adversarial
nature of proceedings places a number of restrictions on adjudicators,
which inhibit the task of 'eliciting the truth'. For example,
the shortage of Home Office presenting officers: "means that
there is no one to cross-examine the appellant, and in view of
the readiness of so many appellants to resort to telling untruths,
that is a serious deficiency." Migration Watch say that,
although "the Tribunal has issued guidelines which allow
adjudicators a little more latitude in asking questions of the
appellant in this situation… an adjudicator so placed is
in an unenviable plight."[21]
26. The Immigration Advisory Service stated:
"IAS advocates the introduction of a less adversarial
system in which resources are 'front-loaded' into the initial
application stage, making appeals less necessary and more credible.
A claim for asylum should trigger an open-minded investigation
into the claim, not the setting out of two opposing views and
selection of one or the other. An examination of the Canadian
model is instructive."[22]
27. The Council of Immigration Judges argued that
whilst case law requires adjudicators to give "anxious scrutiny"
to the cases before them, it is often difficult to do so within
an adversarial system. In its written submission, the Council
recommends a more interventionist role for the adjudicator:
"In asylum law and to some extent in immigration
cases where the appellant is not represented and a relative (usually
a sponsor) appears, the adjudicator cannot give anxious scrutiny
or even decide a non asylum case without taking a more active
approach to the issues. The quality of representation is often
poor on both sides. The Immigration Appeal Tribunal has sought
to constrain the approach of adjudicators in cases where the Home
Office is not represented (an all too common occurrence) to asking
questions for clarification only, seeking the assistance of the
representative for the appellant in asking questions on issues
that trouble the adjudicator and not "descending into the
arena" by conducting such a hearing in an inquisitorial manner.
This is needlessly restrictive. Provided that the adjudicator
is fair the conduct of the hearing should be left to the adjudicator."[23]
The Council of Immigration Judges also indicated
that it would like to see statutory authority for the adoption
of a more 'interventionist procedure' in asylum and immigration
appeals, to allow Tribunal members to adopt a form of procedure
without being unduly restricted to an adversarial approach.[24]
28. This suggestion was taken up in oral evidence
by Charles Blake and His Honour Judge Hodge, the Chief Adjudicator,
who indicated that where Home Office presenting officers were
not present, it might be better if the judge, or adjudicator,
were able to take a more "interventionist or active approach"
than is currently seen in adversarial proceedings. In particular,
it was noted that an adversarial approach is the norm in British
legal proceedings because there is an expectation that there will
be two sides, each represented, which does not always occur in
asylum appeals.[25]
29. Other members of the Judiciary, who were not
in favour of a move away from the traditional adversarial system,
nonetheless indicated that such a move could have a positive impact
where the Home Office presenting officer failed to attend. In
oral evidence, Mr Justice Collins noted that:
"You could make an adjudicator more inquisitorial,
I do not doubt, and that might have advantages, but so long as
you have the Home Office properly represented it should not be
necessary. It is only where you do not have the Home Office represented
that the adjudicator is in real difficulty."[26]
30. If the Home Office remains unable to ensure that
Presenting Officers are present at appeals before the new Asylum
and Immigration Tribunal, the judge in charge of proceedings should
have the discretion to take a more actively inquisitorial approach
in order to ensure that justice is done and that proceedings are
conducted with necessary fairness. Such a change may have to be
implemented by statute to ensure certainty.
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