Evidence submitted by Migration Watch
(AIA 1B)
SUPPLEMENTARY SUBMISSION
1. I have already made submissions on this
subject on behalf of Migration Watch in papers sent to the Committee
dated 12 March and 29 September 2003, before the Bill now before
Parliament was published. I am happy to accept the invitation
to make further comments linked to specific Clauses of the Bill.
CLAUSE 10
2. In the first of my papers I strongly
advocated abolition of the Immigration Appeal Tribunal and we
are very pleased to see this intention firmly set out in the Bill.
However, I recommended also that following abolition there should
be a right of appeal with leave from the adjudicator to the Court
of Appeal. I am disappointed to see that the Bill does not include
any such right of appeal and have misgivings about the proposal
in clause 10 that the new Asylum and Immigration Tribunal is to
have power to review its own decisions.
3. Members of the IAT (other than lay members)
are almost all promoted adjudicators, though there has been a
leavening of circuit judges and the present and immediate past
Presidents have been High Court judges. Adjudicators inevitably
vary in degrees of competence and intellectual calibre, the more
so as their numbers have greatly increased in recent years. Those
who are less well favoured in these respects do not increase their
levels of competence or intellectual calibre on promotion to the
IAT. For a detailed account of reasons for dissatisfaction with
the functioning of the IAT, please see paragraphs 15-21 of my
paper of 12 March. My understanding since then has been that considerable
dissatisfaction with the IAT's functioning has been expressed
by High Court and Court of Appeal judges, to whose lot it has
often fallen to consider the IAT's decisions on judicial review
or appeal. I would not expect there to be any opposition from
the judges to abolition, but the power to review its own decisions
is another matter.
4. The Bill is silent as to how the Tribunal's
power to review its own decisions will work. The new Schedule
4 to the 2002 Act, inserted by Schedule 1 of the Bill, gives the
President of the Tribunal full power to regulate its proceedings
by issuing directions, so it will presumably be left to the President
to determine which members of the Tribunal will be appointed to
review the initial decisions of other members. I feel a little
uneasy about the extent of patronage and favouritism which this
arrangement may well facilitate.
5. The new section 105A of the 2002 Act
which is included in Clause 10 allows any party to an appeal to
request a review of an initial decision by the Tribunal. There
is no requirement of leave to secure a review as there is at present
of leave to appeal to the IAT. Admittedly, the new section limits
the conduct of a review to written submissions only, but if it
is open to any party aggrieved by an adverse decision to request
a review, it is to be expected that most such parties will do
so, even though their cases have little or no merit. A disappointed
asylum appellant cannot be deported while he still has an appeal
pending, so his representative will always have an incentive to
take advantage of every possibility of delaying proceedings. The
immigration appellate authorities at both adjudicator and IAT
level have in recent years been swamped by the sheer numbers of
appeals and there must be a serious risk that the new Tribunal
will be in an even worse plight, even though it does not have
to hold oral hearings for the purposes of review.
6. I note with some concern that by the
operation of the new section 105A(3) the Tribunal on review may
inter alia order a rehearing of the appeal. The IAT has
always had an excessive propensity to order rehearings either
by the same or a different adjudicator as an idle way out of the
labour of having to decide the appeal itself. It has not been
unusual up to now for a second or even a third rehearing to be
ordered. This particular mischief appears to be recognised by
new section 105A(6) which prohibits more than one review. The
extent of the problems to which this practice gives rise at present
can be gauged from the following table, published in the House
of Commons Hansard on 11 December 2003 at column 615W in response
to a question:
| 1998 | 1999
| 2000 | 2001 |
2002 | |
| Case decided by adjudicators | 38,117
| 28,600 | 27,134 | 56,813
| 84,259 | |
Number of cases applying for permission to appeal
to the tribunal
| 14,356 | 11,142 | 7,365
| 18,046 | 28,945 |
|
| Number of substantive appeals to the tribunal
| 2,331 | 2,870 | 2,061
| 4,437 | 7,687 |
|
| Number of substantive tribunal appeals decided
| 1,841 | 2,619 | 3,568
| 3,867 | 6,564 |
|
| Percentage of tribunal appeals allowed | Not held
| Not held | Not held | 18%
| 16% | |
| Percentage of tribunal appeals remitted |
Not held | Not held | Not held
| 45% | 44% | |
| | |
| | | |
At 45% and 44% respectively, the percentages for 2001 and
2002 indicate how ready the IAT is to resort to this labour saving
device—saving labour for itself but not for the adjudicators
and adding considerably to the delays and expense of the appellate
system. Let us take the figures shown for 2002 and assume that
the appellate regime now contemplated for the future had been
in force in that year. The table shows that the number of applications
for leave to appeal against adjudicators' decisions was about
34% of the total number of those decisions and that the number
of appeals heard by the tribunal was about 9% of that same total
number. With no need to apply for leave and no need for the appellant's
representative even to consider the chances of a successful application
for leave or the general merits of the case, it can safely be
assumed that there will be a big increase in the number of requests
for review over the number of applications for leave made under
the present system. Suppose that the number of requests is 50%
of the number of first instance decisions, which is probably a
conservative estimate. The new Tribunal would be inundated with
42,000 requests for review, all of which would have to be disposed
of, albeit on written submissions only. This would be a far greater
workload than dealing with 28,945 applications for leave and 7,867
substantive appeals, the present figures. It is true that under
the present system there are oral hearings before the IAT, but
my understanding that such hearings are usually short, only 30
minutes or so each. On past precedent it can safely be assumed
that the new Tribunal will make even more extensive use of its
power to remit than that made by the IAT, simply because of the
huge size of its workload. Assume a modest 60% of appeals remitted.
The table shows that in 2002 44% of 6,564 appeals decided, 2,888,
were remitted and had to be reheard. If the figure now becomes
60% of 42,000 appeals, that means 25, 200 appeals which have to
be heard a second time by adjudicators, taking the total number
of appeals for the year to over 110,000. The new system, if it
had been in force in 2002, would have involved a huge and I suggest
unmanageable increase in workload at both appellate levels.
7. In using the figures for 2002 I accept that the totals
given against the various head cannot be matched 100% against
each other. The first figure, the number of cases decided by adjudicators,
relates only to 2002, but the following figures will most likely
include cases heard by adjudicators in 2001 or earlier. However,
I do not believe that the degree of mismatch militates against
the validity of the conclusions I have drawn from the figures
in the preceding paragraph.
8. It can reasonably be assumed that if the Bill becomes
law in its present form, the IAT will be abolished and its legally
qualified chairmen, most of whom are promoted adjudicators, will
become members of the new Tribunal to whom the President will
assign responsibility for disposing of review applications. If
the consequences of setting up the Tribunal are as dire as I have
suggested, the result will be that the IAT has been reinvented
in even less desirable form than it has at present. Having regard
to this, I strongly repeat our previous recommendation that there
should be an appeal with leave on a point of law only to the Court
of Appeal against the original decision of the adjudicator (or
whatever the new name of this office is to be). There is likely
to be strong opposition from many quarters to the ouster of judicial
review by the new section 108A of the 2002 Act. We are in favour
of this, as resort to judicial review has for years been a much
used device in asylum and immigration appeals and has contributed
to the logjams and delays to which the system overall is prone.
It might well suit the government to offer such a right of appeal
while retaining the ouster clause, as a means of mollifying its
critics.
Harry Mitchell QC
12 December 2003
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