Evidence submitted by Migration Watch
(AIA 1A)
SUPPLEMENTARY SUBMISSION
1. My original submissions to the Committee
were prepared in March 2003. In view of the lapse of time and
developments in the interim I wish to put in these further submissions.
As before, these submissions are made to the Committee under the
auspices of Migration Watch.
ABOLITION OF
THE IMMIGRATION
APPEAL TRIBUNAL
2. The main recommendation in my original
submissions was that the Immigration Appeal Tribunal should be
abolished. I am very pleased to read that the government has announced
its intentions of doing just that by a Bill to be introduced early
in the next session. I recommended also that following abolition
appeals should lie from the adjudicator to the Court of Appeal
with leave and on a point of law only, if it is felt that any
further appeal is needed. There is an appropriate precedent for
this in the provision made for appeals from County Courts to go
direct to the Court of Appeal. It is fair to say that the outcome
of an immigration appeal is of at least comparable importance
to that of a case in the County Court. The County Court may deal
with eg divorce, but by comparison it will often rest with an
adjudicator to decide whether a spouse abroad is to be given entry
clearance to enable him or her to join the other spouse already
settled in the United Kingdom. As regards the possibility of dispensing
with further appeals, I remind the Committee that there was until
the coming into force of the appeals provisions of the 2002 Act
on 1 April 2003 a category of certified asylum appeals. The Home
Office would certify e.g. that the claim was manifestly fraudulent
and that there was no evidence of reasonable likelihood that the
appellant had been tortured in his country of origin, the latter
being an essential requirement of any certified appeal. If the
adjudicator agreed with the certificate there was no appeal against
his decision to the Immigration Appeal Tribunal or beyond. There
was always the remedy of judicial review available if the appellant
was able to show that the adjudicator had failed to comply with
relevant legal requirements, but I am not aware that such applications
enjoyed a high rate of success.
3. If the Tribunal is to be abolished some
guidance may need to be given to be adjudicators about the continuing
status of its decisions up to the time of abolition. The extent
to which Tribunal decisions were binding on adjudicators has never
been clarified by statute. The Tribunal itself did not help matters
by giving differing decisions on the same subject from different
divisions. Latterly the former President, Mr Justice Collins,
introduced the system of starring particular decisions delivered
by divisions of the Tribunal consisting of a legally qualified
chairman and two legally qualified members, which were to be taken
by adjudicators as binding authority on previously unsettled points
of law, such as the extent to which an adjudicator could properly
question an appellant during a hearing of his appeal if no Home
Office Presenting Officer was present and therefore there was
no one to cross examine the appellant. I am not aware that this
system had any basis other than the directions given by the President
on the significance of starred decisions. If it is thought that
the matter is not free from doubt then it would be as well to
incorporate in the statute a statement that no decision of the
Tribunal is to be regarded as binding. This will not prevent reference
to those decisions where reference is useful, but they will be
at best persuasive only.
INCREASE IN
PERCENTAGE OF
SUCCESSFUL APPEALS
2. I set out below tables derived from Home
Office figures regarding asylum applications and appeals between
1997 and 2002.
| | 1997
| 1998 | 1999 |
2000 | 2001 | 2002
| Totals | |
| a. | Decisions | 36,000
| 31,600 | 21,300 | 97,500
| 119,000 | 82,700 | 388,100
| |
| b. | Granted asylum | 4,000
| 5,300 | 7,800 | 10,400
| 11,200 | 8,100 | 46,800
| |
| c. | Granted on appeal | 1,200
| 2,300 | 5,300 | 3,300
| 8,200 | 13,900 | 34,200
| |
| d. | Total granted asylum |
5,200 | 7,600 | 13,100
| 13,700 | 19,400 | 22,000
| 81,000 | |
| e. | Percentage of applicants
| 14.4% | 24.1% | 61.5%
| 14.1% | 16.3% | 26.6%
| 20.9% | |
| f. | Granted ELR | 3,000
| 3,900 | 2,500 | 11,400
| 19,800 | 20,000 | 60,600
| |
| g. | Total granted asylum/ELR
| 8,200 | 11,500 | 15,600
| 25,100 | 39,200 | 42,000
| 141,600 | |
| h. | Percentage asylum/ELR |
22.8% | 36.4% | 73.2%
| 25.7% | 32.9% | 50.8%
| 36.5% | |
| i. | No of persons granted
asylum
| 6,760 | 9,880 | 17,030
| 17,810 | 25,220 | 28,600
| 105,300 | |
| j. | Initial rejections | 28,900
| 22,300 | 11,000 | 75,700
| 88,000 | 54,600 | 280,500
| |
| k. | Appeals rec'd by Home
Office
| 21,000 | 14,300 | 6,600
| 46,200 | 74,400 | 49,500
| 212,000 | |
| l. | Percentage appealed |
72.7% | 64.1% | 60.0%
| 61.0% | 84.5% | 90.7%
| 75.6% | |
| m. | Appeals determined | 21,100
| 25,300 | 19,500 | 19,400
| 43,415 | 64,405 | 193,120
| |
| n. | Percentage of appeals
allowed
| 5.7% | 9.1% | 27.2%
| 17.0% | 18.9% | 21.6%
| 17.7% | |
| o. | Percentage granted overal
| 22.8% | 33.2% | 56.8%
| 30.4% | 37.9% | 46.9%
| 37.4% | |
| |
| | | |
| | | |
Rows c. and n. show the numbers and percentages of successful
appeals. A percentage increase from 5.7% in 1997 to 21.6% in 2002
is truly alarming and serious questions need to be asked about
the reasons for this almost fourfold increase in the success rate
at the appeal stage. I have seen it suggested that there has been
a deterioration in the quality of decisions taken in the first
instance by Home Office staff and that more appeals are being
allowed as a result, but I do not believe this to be the case.
The submissions made to the Committee by the Council of Immigration
Judges make numerous criticisms of the way asylum decisions are
handled by Home Office staff, particularly the way in which refusal
letters contain standard paragraphs which are often irrelevant
to the case in question. I agree with at least some of the criticisms
made and we are all aware of the problems which the Home Office
has had in eg recruiting and training staff and introducing a
new computer system. Nevertheless, my impression was that in dealing
with asylum applications the IND staff mostly got it right.
3. The best guide I can follow in trying to account for
the increase is my own experience. I became a part time adjudicator
in 1992, began hearing asylum appeals in 1994 and retired from
the appointment at the end of October 2002. I did not keep precise
records of the numbers of asylum appeals I heard during my final
eight years, but my best estimate is that I heard between 500
and 600 during that period. The estimate is based on records I
kept during my last two years and having regard to the predominance
of asylum appeals in adjudicators' total workloads during the
eight year period. I estimate that I allowed no more than 20 appeals
during that time. Most applications for leave to appeal against
my decisions to the Tribunal were refused and most applications
which were successful resulted in a further dismissal of the appeal
by the Tribunal. I estimate that perhaps 10 of my decisions were
reversed by the Tribunal. This produces a success rate of between
5% and 6% out of all the appeals heard by me, which is consistent
with the figure shown for 1997 in the table.
4. Some informed speculation as to the reasons for this
huge increase in the percentage of successful appeals is in order.
I believe that the reasons are to be found in the way the Immigration
appellate authority has responded to the recent rapid rise in
its workload. The total number of adjudicators now stands at around
600, 120 full time and 480 part time. When I became an adjudicator
in 1992 the total number was I think about 200. The numbers may
well have doubled in the past few years. I regret that I do not
have precise figures year by year, but these may have been provided
for the Committee by the Immigration Appellate Authority. I have
highlighted in blue in the table the numbers of asylum appeals
determined year by year, showing a threefold increase from 21,100
in 1997 to 64,400 in 2002. There has had to be a proportionate
increase in the numbers of adjudicators to cope with these numbers.
5. Adjudicators are almost exclusively barristers or
solicitors. In the past people without legal qualifications were
sometimes appointed, but I do not believe that this now happens.
The pool of people from which new adjudicators can be recruited
is accordingly limited and there are grounds for suspecting that
in increasing numbers the IAA may have had to accept lawyers of
lesser intellectual calibre and maturity than hitherto. So far
as full time adjudicators are concerned, the post is now well
paid and private practitioners in the immigration field, many
of them of indifferent quality in my experience, now find it financially
more secure and rewarding to become full time adjudicators than
to attempt to continue to earn a living in private practice. Changes
in the training regime may also be significant. In 1992 when I
started all part time adjudicators began hearing non-asylum appeals
only and had to have gained some experience in that field before
they were allowed to graduate to hearing asylum appeals. This
was for a time recognised by statute in the 1993 Act in that adjudicators
who were authorised to hear such appeals were additionally appointed
special adjudicators. However, this soon became inappropriate
as asylum appeals came to constitute more than 90% of the workload.
The title "special adjudicator" was abolished by the
1999 Act. As I understand it, newly appointed part time adjudicators
are trained only in asylum law and are thrown in at the deep end
as soon as they have completed initial training. From a practical
point of view this change is understandable, as there cannot now
be enough non-asylum appeals to go round. But asylum appeals often
give rise to complex evidence. The adjudicator has to consider
the subjective evidence given by the appellant and assess its
credibility and consistency by reference to other evidence from
the appellant himself or from other sources, including detailed
objective evidence of conditions in the appellant's country of
origin. All this material has to be carefully assessed and relevant
statute and case law have to be taken into account in reaching
conclusions on credibility and on the basic issue of whether or
not the appellant has established a well-founded fear of persecution
for one or other of the reasons listed in the Geneva Convention.
The job requires mature and intellectually able lawyers. It also
requires people who are not too readily swayed by emotional appeals.
Many sad stories are told by appellants, some of them true, but
even if the adjudicator believes a particular story he has to
consider whether it amounts to evidence of persecution. If for
example an appellant has been caught in the cross fire of a civil
war and has suffered the loss of family members or the destruction
of his house, such a calamity does not of itself amount to persecution
within the meaning of the Convention.
6. The view expressed in the previous paragraph is mainly
based on my own subjective impressions, but other contacts which
I have with adjudicators still in office confirm it. I can quote
just one anecdote in my own experience. At Hatton Cross hearing
centre the adjudicators used to meet and talk shop over the lunch
table. On one occasion about two years ago I talked to a recently
appointed woman adjudicator who had finished her initial training
and started to hear asylum appeals. She told me that she had heard
11 appeals and allowed 6. This was an unheard of ratio and all
those of us more experienced adjudicators who heard this expressed
astonishment. In view of the figures quoted above she was clearly
not statistically alone.
7. Another very important factor which without doubt
must have contributed to the greatly increased percentage of successful
appeals is the steps taken by the Chief Adjudicator during 2002
to increase the output of individual adjudicators. He was determined
to increase the disposal rate from 4,000 to 6,000 per month and
brought in outside consultants to determine how best to achieve
this. (We have heard much in the media in recent months about
the pernicious effect of attempts to meet official targets in
relation to the NHS and various other government departments.
The judiciary are obviously not immune to this mania.) So far
as full time adjudicators were concerned, the work pattern was
changed so that instead of sitting on four days a week and taking
a fifth day for writing up determinations they sat on alternate
days but were required to dispose of three instead of two appeals
a day and write up their determinations the following day. For
part time adjudicators there was also a requirement to dispose
of three appeals a day for which there was compensation in an
increase in the daily fee. I had to cope with this regime for
the last few months of my service and found it extremely arduous
and indeed for much of the time impossible. Even to dispose of
two appeals a day if both had to be heard in full on that day
was not always possible. The listing clerks depended on time estimates
given by appellants' representatives which were invariably optimistic.
Two full hearings might take from 10 am to 4 pm, with an hour
for lunch. For the adjudicator that was an exhausting day's work,
as he had to write at a furious pace keeping his own longhand
court record all the time and at the same time paying close attention
to everything being said, controlling the proceedings and giving
rulings as necessary. Full time adjudicators were provided with
laptop computers tpo alleviate the burden of keeping a record,
a luxury denied to the part timers. On occasion I have known one
appeal take a whole day after counsel for the appellant had estimated
two hours for the hearing. In that situation other appeals listed
had to be adjourned unheard. At the time when the new regime was
introduced the regional adjudicator at the Hatton Cross centre
sent round a circular telling us all that if by any chance we
were able to finish our lists early we must take extra cases from
a list of floating appeals. This was not a new instruction, and
we had all complied with it if we were so fortunate as to finish
before lunch. However the new instruction made it clear that it
applied even if we finished as late as 3 pm, which meant that
we were expected in that case to take on a new case which might
then continue until as late as 6 pm—a most unreasonable
requirement. Furthermore, we were told that we must not leave
the building before 3 pm without the regional adjudicator's permission,
in case there were other appeals for us to take. I told the regional
adjudicator that I refused to comply with such objectionable instructions.
I do not believe it is possible to dispose of three full hearings
properly in one day. Still less do I believe that it is possible
to write three carefully considered determinations in one day,
which is what was expected. It is not unreasonable to conclude
that many adjudicators, especially those recently appointed, tried
to cope with the extra workload by taking short cuts and in many
cases by allowing appeals which on more careful and prolonged
consideration ought to have been dismissed.
8. A continuing problem is the failure of the Home Office
to recruit and retain adequate numbers of Home Office Presenting
Officers (HOPOs) to represent its interests in appeals. In view
of the propensity of the majority of appellants to give evidence
which is untrue, contradictory of previous statements or otherwise
unreliable, it is obviously important that there should be effective
cross-examination to expose these deficiencies. The HOPO undertakes
this and also has the responsibility of producing for the court
relevant evidence on conditions in the appellant's country. He
also makes submissions at the end of the hearing which summarise
the Home Office case. The quality and experience of individual
HOPOs varies, as do those of appellants' representatives, but
even a reasonably competent HOPO is of considerable help to the
adjudicator in identifying the issues in an appeal. A HOPO is
all the more valuable in helping the adjudicator in that he will
usually have had time to prepare his case the previous day, whereas
an adjudicator does not see the relevant file until the morning
of the hearing, when he may have an hour or so to read four or
more bulky case files before starting hearings at 10 am. For a
properly balanced hearing of the appeal the participation of a
HOPO is essential. If, as is so often the case, there is no HOPO
at the hearing, this greatly increases the adjudicator's burdens.
The only assistance he receives in court is one sided, backed
up only by his own previous cursory reading of the file and such
matters as may come to his attention in the course of the hearing.
The Immigration Appeal Tribunal, in the case of Surendran decided
some years ago that in this situation the adjudicator could ask
questions to clarify matters but must not "descend into the
arena". I commented in my original submissions to the Committee
on the difficulties created by the insistence of the Tribunal
that the procedure followed in an appeal hearing must be adversarial
and not inquisitorial and it was and is one of my strong recommendations
that this should change. If there are to be regular and recurrent
shortage of HOPOs it is important that the adjudicator should
not feel inhibited as to the scope of questions he may ask appellants
when there is no Home Office present to cross-examine. An immigration
appeal to determine whether the appellant is entitled or not to
remain in the United Kingdom and enjoy all the social security
and other benefits for himself and his dependants which go with
that entitlement. There is no comparison with civil litigation
in which the judge can hold the ring between the parties and refrain
from participating in the contest between them.
9. As I understand current practice, adjudicators are
presented daily with four asylum appeals and are expected to dispose
of them, even though the system introduced in 2002 expected them
to increase output from two to three appeals daily. If, as is
bound to happen, cases are adjourned for lack of time or for other
reasons, this is recorded and an adjournment record is maintained
for every adjudicator. These statistics are taken into account
in assessing individual judicial performance, a practice which
is not compatible with judicial independence.
10. Immigration and asylum law has become ever more complex
in recent years. There have been major new statutes in 1993, 1996,
1997, 1999 and 2002., each significantly amending its predecessors.
We can expect a new Act of Parliament for the purpose inter
alia of abolishing the Immigration Appeal Tribunal. There
have been major changes in the Immigration Rules, procedure rules
and other subordinate legislation. There has been a steady output
of new decisions by the Immigration Appeal Tribunal, High Court,
Court of Appeal and House of Lords. Immigration adjudicators are
hard pressed to keep themselves up to date and training for this
purpose has become increasingly important. I understand however
that in fact the amount of time devoted to necessary training
has been reduced, as this means taking adjudicators away from
their courtrooms and thus has an adverse effect on the all important
rate of disposal of appeals.
11. In summary, there are major causes for concern about
the dramatic rise in the percentages of successful asylum appeals
which is thought to be attributable to the following factors:
— the increase in the numbers of adjudicators recruited
in recent years and a consequent decline in overall calibre, intellectual
standards and maturity;
— the deliberate increasing of the workload of adjudicators
in order to meet targets and the consequent inordinate pressure
on them;
— the continuing failure of the Home Office to recruit
and retain adequate numbers of HOPOs to staff the courts;
— linked with 3, the continuing insistence by the
Immigration Appeal Tribunal that the procedure followed by adjudicators
must be adversarial and not inquisitorial;
— a decline in the amount of initial and continuing
training of adjudicators.
If there are other explanations I would be interested to
know what they are. If I am right, it means that large numbers
of asylum appellants are having appeals allowed which should be
dismissed and become entitled to remain in the country for long
periods and in many cases permanently. It means also that the
substantial increase recorded in the numbers of asylum appeals
disposed of is in large measure illusory and is detrimental and
not beneficial to the public interest.
Harry Mitchell QC
29 September 2003
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