The Government's proposals
35. The new proposals include the following changes:
The Tribunal (clause 11(1))
- There shall be an Asylum and
Immigration Tribunal to replace the existing adjudicators and
the Immigration Appeal Tribunal.
Right of appeal to the Tribunal (clause 11(2),(3))
- Rights of appeal to the new
Tribunal will be the same as the existing rights of appeal to
an adjudicator.
Membership of the Tribunal (schedule 1)
- Members of the new Tribunal
must be legally qualified of seven years standing (although the
Lord Chancellor may appoint someone which in his opinion has "legal
experience" which makes him suitable for appointment).
- The Tribunal will have a President
and one or more Deputies (appointed by the Lord Chancellor from
the membership of the Tribunal).
36. The Government set out its case for a single
tier in the consultation document issued on 27 October 2003:
"The Government is determined, through incremental
change to safeguard the appeals system from misuse and protect
the credibility of the process. The Government is also concerned
to ensure that community relations are not adversely affected
by what may be seen in many quarters as continuing evasion and
exploitation of immigration and asylum controls at significant
cost to the taxpayer.The changes made in the Nationality, Immigration
and Asylum Act 2002 are already showing real improvements in the
appeals process. However, more still needs to be done to improve
the system. That is why we are proposing to move to a single tier
of appeal. Such a change would continue to safeguard the right
of appeal and provide an effective remedy for those whose application
has been refused by IND or an Entry Clearance Officer.
… The current appeals system is still too long
and complicated. It provides people with opportunities to abuse
the system in order to cause delay or abscond. We therefore propose
to replace the current structure with a single appeal to a new
single-tier Tribunal, the Asylum & Immigration Tribunal (AIT),
headed by a President."[32]
37. The Government's reference to "unfounded
appeals" echoes an earlier comment made by Mr Justice Ouseley
in his submission to this inquiry:
"…there is judicial concern about the extent
to which some solicitors or representatives make money from hopeless
cases or those which they mismanage."[33]
38. The Government has already made proposals to
limit the use of public funding and to improve the regulation
of immigration advice in order to address concerns about bad advisers
who milk the system. We examined these proposals in detail in
the last Session.[34]
39. The proposal for a single tier will radically
affect the immigration appeal system and has wide-ranging implications
for the appeal system and the higher courts. The Government has
in the past expressed concern that the Tribunal has not provided
a consistent body of decisions and that it remits too many appeals
back to adjudicators to be reheard, thereby lengthening the appeal
process. Although the Court of Appeal has also criticised the
Tribunal, it has also acknowledged that it provides expert appellate
knowledge.
40. In the explanatory notes published with the Bill
on 27 November 2003, the Government addressed the question of
compliance with human rights legislation. It stated that:
"Clause [11]raises issues under article 13 of
the [European Convention on Human Rights (ECHR)] in relation to
the removal of appeal rights. People may also wish to challenge
whether their substantive Convention rights under articles 3 and
8 will be jeopardised by the absence of a further tier of appellate
rights. However, article 13 does not require the provision of
multiple tiers of appeal. What it requires is access to an independent
national authority with powers to provide effective redress. The
single tier Tribunal will meet this test. It is wholly independent
of the initial decision-making body. The single tier tribunal
will provide an effective remedy as article 13 requires and will
safeguard appellant's Convention rights including those referred
to in articles 3 and 8."[35]
41. In a letter to the Committee, Mr Justice Ouseley,
indicated that in his view:
"… it is unlikely in the extreme that the
abolition of a tier of appeal can, without more, deliver both
increases in end to end speed and improvements in the quality
of judicial decisions."[36]
42. In its memorandum, JUSTICE argued that the IAT
played a vital role in addressing the sources of first tier error.
It pointed out that 16% of appeals determined by the IAT are allowed[37]
and a further 44% of tribunal appeals are remitted back to the
first-tier adjudicators for reconsideration because of errors
of law. Thus, in total 60% of appeals to the IAT result in the
decision of the first-tier being reversed or reconsidered. It
claimed that the abolition of the current second-tier of appeals:
"…will do nothing to address these sources
of first tier error. Instead, the approximately 60% of cases in
which errors occur would simply go uncorrected and unaddressed."[38]
43. Equally, in its submission to the Committee,
ILPA notes that:
"Applications for permission to appeal are also
made by the Home Office if they are of the view that an appeal
has been allowed in error. The Home Office is increasingly appealing
against positive adjudicator decisions. This surely demonstrates
that both parties are of the view that Adjudicators need to be
supervised by a higher court".[39]
This suggests that the Home Office may be hindered
when presenting officers fail to attend and that without a properly
structured appellate system, spurious claimants might be wrongly
granted refugee status.
44. On the available evidence, we believe that the
abolition of a tier of appeal cannot, in the absence of a more
fundamental reform, deliver both increases in "end to end"
speed and improvements in the quality of judicial decisions.
45. We are concerned that the limited system of review
proposed is insufficient to guarantee that an appellant will receive
a just determination of his application.
46. Accordingly, we recommend that the removal of
a formal tier of appeal should not be undertaken until it can
be shown that there has been a significant improvement in initial
decision making and the rise in the number of successful first
tier appeals has been substantially reversed.
27 
