Concerns
77. The provision in the Bill for adding to non-suspensive
appeals does not square with the 1998 statement from the Government:
"The Government considers that the in-country
right of appeal should continue for all asylum cases (except certain
third country cases). Given the nature of the asylum claim a right
of appeal after removal is not an effective remedy. A proposal
to return a person to a country in which he claimed to have a
well-founded fear of persecution without a right of appeal would
almost certainly be inconsistent with our international obligations."[69]
78. In its Annual Report of 2001/02, the Council
on Tribunals stated that the introduction of non-suspensive appeals
was "capable of leading to unfairness and injustice".
The Council highlighted some of the "considerable practical
problems" that may result:
"The requirement to conduct appeals from abroad
will make it more difficult for adjudicators to assess the evidence
of appellants. It will also make it more difficult for appellants
to have face-to-face discussions with their advisers and to present
their cases satisfactorily. Costs will inevitably be greater.
And there could be serious problems with regard to the status
and safety of tribunal users in the countries form which they
are appealing."[70]
These problems are, of course, experienced by applicants
in immigration or family visits applications made in the home
country of the applicants.
79. Mr Justice Richards has also described non-suspensive
(out-of-country) appeals as "plainly a very serious disadvantage
as compared with an in-country appeal."[71]
As many asylum appeals turn on questions of credibility, it is
particularly disadvantageous for the applicant to be absent from
the oral hearing. Research into the relative success rates of
oral as opposed to paper based appeal in family visitor cases
has shown that oral appeals have a higher rate of success, particularly
when the sponsor is available to give oral evidence.[72]
Success rate
80. In its memorandum to this inquiry, the DCA stated:
"As of 17 April 2003, provisional IAA figures
show that 56 out-of-country appeals had been lodged with the IAA.
42 of those have so far been dismissed and one withdrawn. None
has been successful."[73]
81. We recommend that the Government investigate
the fairness of the non-suspensive appeal system, given the extremely
low success rate of appellants' appeals under that system.
82. We note that the 2002 Act makes provision for
an independent monitor of non-suspensive appeals. The appointment
of this person was announced on Wednesday 11 February.[74]
We recommend that the list of countries, from which the Secretary
of State can certify claims as clearly unfounded, should not be
extended until after the independent monitor has been consulted.
65 S 94 Nationality, Immigration and Asylum Act 2002 Back
66
ibid Back
67
Albania, Bulgaria, Serbia and Montenegro, Jamaica, Macedonia,
Moldova, Romania, Bangladesh, Bolivia, Brazil, Ecuador, Sri Lanka,
South Africa and Ukraine have been added to the list under this
provision Back
68
Clause 12 Back
69
Home Office and Lord Chancellor's Department consultation paper,
Review of Appeals, July 1998, para 5.2 Back
70
Council on Tribunals, Annual Report 2001/02, pp 30-31 Back
71
R (Razgar) v Secretary of State for the Home Department [2002]
EWHC Admin 2554 at para 1 Back
72
H. Crawley and others, Family Visitor Appeals: An Evaluation of
the Decision to Appeal and Disparities in Success Rates by Appeal
Type (London, Home Office, 2003) Back
73
Ev 141 Back
74
In a written statement by the Minister for Citizenship and Immigration
(Ms Beverley Hughes), HC Deb, 11 February 2004, col 69WS Back
