Select Committee on Constitutional Affairs Second Report

9 Immigration appeals

100. Discussion of the future of the Immigration Appellate structure has been dominated by concern about the treatment of asylum cases. These are by no means the only types of case to be affected. The proposals in the Bill will affect other sorts of immigration appeal. These include appeals against the decisions of Entry Clearance Officers (ECOs) in British posts around the world, such as appeals against refusals of applications for entry clearance as visitors, students, for family reunion and for various categories of worker. There are also appeals against various types of immigration refusals by the Home Office to extend leave to remain of those already in the UK.

101. All these appeals are heard in the UK by the Immigration Appellate Authority (IAA). In entry clearance cases Notice of Appeal is lodged with the post abroad for transmission once the appeal papers have been prepared by the ECO to the Home Office and thence to the IAA. In in-country cases, Notice of Appeal is lodged directly with the Home Office where the appeal papers are prepared before the case is passed to the IAA.

102. In oral evidence we were informed of concerns about the way the new Bill will impact upon immigration appeals. Mr Justice Collins stated that:

"…This new Bill is designed with asylum cases in mind, but of course it covers all the other ones… families who want to visit their families here, or marriage cases, or whatever are finding themselves kept out for longer than they should be in certain cases and, of course, they will suffer from these proposals as well.[87]

The structure of non-asylum appeals

103. Before 1993, all rejected applicants for entry clearance as visitors had a right of appeal to the IAA. However, in 1993 legislation withdrew that right of appeal. In 1999, a right of appeal was reinstated but only for those visitors who wished to visit a family member in the UK.[88]

104. Family visitor appeals have been a continuing issue of concern over the last decade and the system has been subject to successive and controversial reforms. The issue was a matter of interest to the Committee, which visited India and Turkey between 2-8 November 2003 and examined the procedures at British posts abroad in detail.

105. Visitors to the United Kingdom who are visa nationals are obliged to obtain entry clearance from a British Embassy, High Commission or consulate before travelling to the United Kingdom. The applicant has to be outside the UK at the time that he applies. The Immigration Rules provide that:

• Applicants must be generally seeking entry for a period of not more than six months, and confirm that they intend to leave at the end of their visit;
• Whilst they are in the UK they cannot take up employment, paid or unpaid; and
• They must be able to maintain and accommodate themselves and any dependants without working or recourse to public funds and can meet the costs of their onward journey.

106. Even if a visitor fulfils these criteria, they may be refused entry for various other reasons, for example where they have been convicted of an offence which if committed in the UK would be punishable by a sentence of more than 12 months' imprisonment or if the immigration authorities believe that refusal is justified on the grounds that the person's admission is "not conducive to the public good". The ECO at post assesses the application and decides whether or not to issue a visa. The intentions of the applicant are paramount and the ECO does not usually have the benefit of meeting the sponsor.

107. The Entry Clearance Manager (ECM) is expected to review all visa refusals within 24 hours of the refusal. This includes applications to visit a family member. The ECM may decide to ask the ECO to overturn their decision to refuse the visa. If so, the applicant will be contacted and a visa issued. If not, the refusal stands. The committee heard in evidence that the numbers of decisions overturned by ECMs is very low. In India we learnt that the ECM review was often regarded as a "rubber stamp". This process could, however, deal with some cases effectively without delay or expensive appeals. We recommend that UKvisas give further consideration to developing its use.

108. Family Visitor Appeals can be lodged by individuals refused entry clearance to visit a family relative in the United Kingdom. The Immigration and Asylum Act 1999 restored appeal rights for family visitors. Although the new appeal right was initially subject to a fee, the Home Secretary subsequently abolished that requirement, on the basis that it was "not working and because of administrative incompetence".[89] The time limit for appealing is 28 days and the notice of appeal has to be lodged at the British post which made the decision.

109. The ECO will prepare an appeal bundle, containing the justification for the decision and relevant supporting documents. The Committee heard concerns about delays in processing these papers at posts abroad. Once prepared, the papers are forwarded to the Home Office in London. After this, following some checks, they are transmitted to the IAA for listing for hearing. Several ECOs told us in India and Turkey that it was frustrating to have an appeal allowed against their decision solely—it seemed—because the Home Office Presenting Officer did not appear at the appeal.

110. It was suggested in evidence that the growing backlog of immigration appeals, including visitor appeals, can be blamed on the fact that the Home Office is in charge of selecting which cases are brought forward to the IAA for hearing.[90] Until recently the Home Office has been selecting asylum cases, in an attempt to reduce the high-profile asylum backlog. As a result there have been very considerable delays in the listing of entry clearance and other immigration appeals. Many appellants in immigration matters, including family visit appellants abroad, have been waiting months or even years for their appeals unaware that the queuing system has been weighted heavily against them. We discovered that the delays, once appeals reached the IAA, were rather short. It is ironic in a system where appellants are accused of delaying tactics that in immigration appeals the main cause of delay has been the Government.

111. The structure for in-country immigration refusals is broadly similar to the Entry Clearance Officer system, except that appeals are directly to the Home Office. In the case of in-country non-asylum appeals, similar criticisms can be levelled about the way that the appeals system has been weighted in favour of asylum appeals and against other appellants. Since the appeal is suspensive, there is an incentive on the migrant who wishes to delay removal to lodge an appeal. Where an appeal is dismissed by an adjudicator, an application may be made to the IAT for leave to appeal, as with asylum cases.

112. The imposition of Human Rights appeals onto the existing appellate structure has also slowed down the passage of appeals, particularly where there was an extant appeal at the time of coming into force of the Human Rights Act 1998 in October 2000. Matters were complicated by the position taken by the Home Office in the case of Pardeepan[91] which was heard shortly after the coming into force of the Human Rights Act. In this case the Home Office effectively conceded that there would be successive asylum and human rights appeals for those who had received a decision before the coming into force of the Act. This was an own goal, since it created a second round of appeals for a considerable number of migrants.

Family Visitor Appeals

113. During the course of the visit, we learnt that there had been a substantial growth in applications to enter the United Kingdom from India. In 1999, 176,044 applications were made to enter the UK. By 2003, this figure had increased to 270,000, which equated to an increase of 13% per annum. Reasons for this increase were said to include economic development in India, an opening up of air routes and the fact that members of the Indian community in the UK were becoming more successful and increasingly wanted members of their extended family to come and visit them. In conjunction with the increase in applications, there had also been a big leap in the number of refusals for family visit applications in the period August to February 200/03. These peaked at a refusal rate of over 60% in New Delhi between October and December 2002. Following a meeting with Entry Clearance Managers, the Committee was informed that family visit visas were rarely refused if a close family member was involved.

114. An increase appeared to be anticipated by the Department. In answer to questions put by Mr Simon Hughes MP in June 2001, the Parliamentary Secretary (Ms Rosie Winterton MP) indicated that the Immigration Appellate Authority expected to deal with approximately 8,860 family visit visa appeals during 2001-02 and 10,000 cases in 2002-03. Of those cases, it expected that 60% of cases would be hear orally, whilst 40% would be determined on the papers alone. In fact, the Immigration Appellate Authority received 9,856 visitor appeals in 2002-03; 8,825 visitor appeals were decided at the adjudicator tier, of which 44% were oral cases and 56% were paper cases.[92]

115. Citizens Advice concluded that:

"…the 40% increase in the number of family visitor appeals in the five months from 1 September 2002 (compared to the rate of appeals in the preceding eight months) can be largely or wholly attributed to the apparent but as yet unexplained increase (of some 35%, overall) in the rate of refusal of family visitor visa applications in the five months from 1 August 2002, especially at certain posts. And we note that, over a full year, a 40% increase in the rate of family visitor appeals seen in early 2002 represents an additional 2,700 appeals, at an additional cost to the IAA alone of some £830,000".[93]

Universal file number

116. In the course of our visit, we also realised that a universal file number would substantially improve the system for immigration appeals by ensuring that the IAA, Home Office and ECO all knew who was in possession of the case. In oral evidence, the Immigration Advisory service suggested that such a system could be a way to "facilitate good administration," but that this would not in itself resolve delays, since these were inherent in a situation where files moved between so many organisations.[94]

117. We recommend the adoption of a universal file number for each applicant in asylum and immigration cases. This number should be used to trace cases from initial application (both in-country and out of country) to final determination.

Oral or written appeals?

118. During our visit to Mumbai, officials acknowledged that oral appeals were more likely to be successful than written ones (over 70% of oral appeals, as compared to 40% of written appeals were successful). We were also told that since the fees for appeals had been abolished, unsurprisingly there had been a rise in the number of appeals.

119. In evidence to the Committee, Citizens Advice "warmly welcomed the new right of appeal against a refusal of entry clearance to visit family members in the UK, established on 2 October 2000 under s.60 of the Immigration & Asylum Act 1999". However, it went on to express certain concerns about the Immigration process, complaining in particular about:

• the quality of entry clearance officers' decision-making, given an overall success rate on appeal to the IAA of some 50%;[95]
• a marked and deeply worrying—but as yet unexplained—disparity between the success rate at oral hearings (70%) and in those appeals determined on the papers only (40%);[96] and
• inordinate delay in the issuing of some visas following a successful appeal.

It stated that:

"In common with other organisations, we have consistently maintained that an oral hearing offers the best chance of justice in appeals of this kind, where the credibility of both the appellant and his/her UK-based relatives is often at issue. At an oral hearing, the IAA adjudicator can assess the credibility of the appellant's relatives (although not, for obvious reasons, that of the appellant) to a degree that is simply not possible in paper-only appeals. And, of course, in oral appeals the appellant's case may benefit from its oral presentation to the adjudicator by a skilled legal representative".

120. It has been suggested that the differential success rates are caused by the presence of the sponsor at oral appeals, legal representation and that some adjudicators merely give pro forma determinations in paper appeals that just rubber stamp the ECO's decision.

The availability of Legal advice and representation

121. Although the appellant is not a resident of England or Wales it may be possible for them to receive Community Legal Service (CLS) funding (previously called legal aid) to assist in bringing an appeal. The appellant is usually the client for these purposes. However, in practice, it is the sponsor who usually receives the advice and attends the appeal due to their residence in England or Wales. The sponsor may also be able to receive limited advice on their own position under CLS funding.

122. There is a financial eligibility test to qualify for CLS funding that bases eligibility on the resources available to the appellant. If the sponsor has made specific resources available to the appellant, probably to fund the visit, these may be taken into account for the purpose of assessing eligibility. The legal service provider approached for advice or representation will calculate whether the appellant qualifies for assistance, using this test. If the sponsor is requesting advice for their own purposes then their resources are assessed for financial eligibility. There is also a "sufficient benefit" merits test.

123. CLS funding is available at two levels: if all that is required is advice on the application then the legal service provider can offer Legal Help. If the appellant wishes to have assistance as to whether to appeal, how to make an appeal, and in actually bringing the appeal then they will require Controlled Legal Representation (CLR). A grant of CLR is subject to passing a means and merits test and a cost benefits test. The legal service provider must believe that the prospects of success of the appeal are more than 50% and that the likely benefits to be gained from the proceedings justify the likely costs. If the merits of the case are unclear or borderline CLR can still be granted but only in the following circumstances:

• the case is of overwhelming importance to the client; or
• the case raises significant human rights issues; or
• the case has significant wider public interest.

124. In a study undertaken by the Home Office[97] it was suggested that the availability of such advice and representation proved relevant, indicating that:

"Stakeholders consider that the ability to have legal representation is an important feature of oral appeals and might explain their higher rate of success. By way of justification, stakeholders point to a previous research study which concluded that the presence or absence of legal representation has a significant impact on the outcome of administrative appeals such as immigration appeals".[98]

125. The research took a small sample of 64 oral appeals. Of those cases 46 proceeded with legal representation, and 18 without. Of the 46 appeals, 82.6% were successful. Of the 18 appeals without legal representation, only 66.7% were allowed. The small sample group must place some questions on the reliability of the information, but nonetheless, it is suggested that the value of legal advice is that a fully prepared case may be presented to the adjudicator, and at the oral hearing, the representative can then draw out the relevant facts and information from the sponsor, and argue in favour of the appellant. The research further suggests that paper appeals overwhelmingly proceed without the appellant or sponsor having first had recourse to legal advice. These statistics, in relation to family visitor appeals, support the contention (raised above) that the removal of oral rights of appeal and restrictions on legal representation would have a negative impact on the success rates of appellants in the asylum and immigration fields generally.

126. We are concerned at the current disparity in success rates between oral appeals and appeals which have been decided only on the basis of the papers in relation to family visitors. This may indicate that there is substantial injustice done to those who decide not to opt for an oral appeal.

127. In order to safeguard the independence of the appeal process, we recommend that notice of appeal should not be lodged with the Home Office, but with the Immigration Appellate Authority.

128. We further recommend that control of bringing forward asylum and immigration cases for hearing should be a matter for the Immigration Appellate Authority, rather than the Home Office.

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87   Q 163 Back

88   "Family Member" is defined by reg. 2(2) of the Immigration Appeals (Family Visitor) (No. 2) Regulations 2000 Back

89   HC Deb, 24 April 2002, cols 356-357 Back

90   Q 250 Back

91   (2000) INLR 447 Back

92   Immigration Appellate Authority Business Plan 2002-03 Back

93   Assumes that 45% of the additional 2,700 appeals would be oral appeals (between 1 October 2002 and 31 March 2003, 46.2% of all appeals were oral appeals). In 2000, the Lord Chancellor's Department stated that the cost to the IAA of an oral family visitor appeal was £500, and that of a paper-only appeal £150 (Statistics provided by Citizens Advice) Back

94   Q 234 Back

95   Between 1 October 2001 and 30 September 2002 (i.e. the second full year of the appeal mechanism's operation), the overall success rate at adjudicator level was 55.2%. Between 1 October 2002 and 31 March 2003, it was 49.9%. (Court Service monthly statistics provided to Citizens Advice) Back

96   Between 1 October 2001 and 30 September 2002, the success rate in appeals determined at an oral hearing was 69.1%, whilst in appeals determined on the papers only it was 40.9%. Between 1 October 2002 and 31 March 2003, the success rate in oral appeals was 64.7%, whilst in appeals determined on the papers only it was 38.7%. (Court Service monthly statistics provided to Citizens Advice) Back

97   Home Office Online Report, Family Visitor Appeals: an evaluation of the decision to appeal and disparities in success rates by appeal types, by Verity Gelthorpe, Robert Thomas, Daniel Howard and Heaven Crawley, June 2003 Back

98   The prior study referred to was H Genn and Y Genn The effectiveness of representation at tribunals, LCD, 1989 Back

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Prepared 1 March 2004