Evidence submitted by Migration Watch
(AIA 1C)
SUPPLEMENTARY SUBMISSION
1. My previous submissions made on behalf
of Migration Watch are contained in papers already sent to the
Committee on 12 March, 29 September and 12 December 2003. However,
the developments during the Committee stage of the Bill and the
publication this week of the report by the Home Affairs Committee
make it necessary to bring my submissions up to date before my
appearance before this Committee on 3 February.
2. A general point which I would like to
make is that, having regard to the details of the witnesses appearing
before the Committee on the subject of appeals, it is apparent
that Migration Watch is the only body representing the general
public interest in the subject. All other witnesses represent
government departments or agencies on the one hand or organisations
catering for the interests of asylum and immigration appellants
on the other. Government departments and agencies do of course
make informed and helpful comments but are necessarily inhibited
from criticising matters of government policy such as the ouster
of jurisdiction clause. Even Mr Charles Blake, representing the
Council of Immigration Judges, properly considered himself as
a serving adjudicator to be similarly inhibited. The comments
of the organisations are inevitably biased towards the interests
of their clients. I hope that the Committee will give due weight
to this factor in considering our evidence.
3. In my paper of 12 December I commented
on Clause 10 of the Bill and made clear my opposition to the power
of the new Tribunal to review its own decisions. I am very pleased
to see that as a result of government amendments being passed
by the Committee the power of the Tribunal on review to remit
a case back to a first tier immigration judge. On review the Tribunal
must now either uphold the decision or substitute another decision.
This is certainly a step in the right direction, but I remain
opposed to the power of review. I have previously made the point
that no leave is required to request a review, which will inevitably
mean that in most cases such a request will be made. The appellant
will gain more time and will have nothing to lose. Another amendment
made permits the Tribunal to hold an oral hearing if "the
exceptional nature of the case makes it impossible properly to
determine the review without an oral hearing." I can well
imagine that the exceptional will become the norm.
4. My understanding is that the power of
review will be exercised by Senior Immigration Judges, recruited
from present legally qualified Chairmen of the IAT. I have expressed
my views in previous papers on the calibre of members of the IAT.
See paragraphs 15-21 of my paper of March 2003 and paragraph 3
of my paper of December 2003. It is certainly not in the public
interest that the final decision in asylum and immigration cases
should rest with people of this calibre and with no redress against
their decisions by way of appeal or judicial review.
5. In public debate relating to the reform
of the appeals process the emphasis has been on the need to make
sure that we do not in error return genuine refugees to countries
where they face persecution. I could not disagree with that, though
my view is that the danger of that happening has been, is and
will remain virtually non-existent. I have not so far seen any
attention drawn to the very important need to ensure that the
public interest in asylum appeals is protected. This means that
we should be satisfied that the application and appeals systems
are properly administered and robust enough to make sure that
applicants for asylum who have submitted false evidence or who
for other reasons are not legally entitled to asylum have their
applications/appeals rejected. In my paper of 29 September 1993
I have drawn attention to the increase in the rate of successful
asylum appeals between 1997 and 2002 from 5.7% to 21.6% and put
forward reasons why I believe this has happened. I have suggested
that in many cases asylum appeals may well have been wrongly allowed.
It is clear from recent parliamentary debates on this issue and
from references in the media that there is an automatic assumption
that the reason for the increase is a serious deterioration in
the quality of initial decision making by Home Office staff. I
refer in particular to paragraph 143 of the report of the Home
Affairs Committee. This paragraph refers to the "disturbing
rise in the number of initial decisions successfully appealed
against from 4% in 1994 to 22% in 2002" and concludes that
"the pressure to speed up the process and increase throughput
may have led to an erosion in the quality of some initial decision
making". To some lawyers and judges it may seem flattering
that there should be an implicit assumption that an appeals process
operated by legally qualified people cannot be wrong, but I hope
I have said enough previously to show that this is a dangerous
assumption to make. It is most unfortunate that there is a division
of labour between the Home Affairs and Constitutional Affairs
Committees, reflecting departmental responsibilities, which means
that the former is not obliged to consider the quality of the
appeals process. I am not saying that the initial decision making
process is perfect, and the report of the Home Affairs Committee
has highlighted a number of serious deficiencies, but it is equally
wrong to assume that the appeals process is perfect, and in my
view it has become seriously imperfect in recent years, for reasons
already given.
6. The Home Office has a right of appeal
against an adverse decision in the same way as an asylum applicant,
but in practice has been apathetic about appealing. Appeals before
both adjudicators and the IAT have mostly been conducted by Home
Office Presenting Officers (HOPOs), civil servants who are not
legally qualified. In the parliamentary debates there has been
much well deserved criticism of the Home Office for its failure
to provide HOPOs or other representatives at 30% or more of hearings
before adjudicators. In the past the Home Office used sometimes
to resort to instructing counsel when it was short of HOPOs, but
it no longer does so on grounds of cost. If this state of affairs
continues under the new regime—and there is no good reason
to expect that it will change—there will be a continuing
failure to have the public interest in the outcome of asylum appeals
adequately represented.
7. For all these reasons I continue to be
strongly opposed to the power of review and to be in favour of
a right of appeal direct to the Court of Appeal from the decision
of the immigration judge. I can best summarise my own recommendations
by showing what their effect would be on the Bill.
In Clause 10, page 10, omit subsection (6).
[Subsection (6) contains a new section 105A for the 2002 Act,
setting out the Tribunal's powers of review.]
In Clause 10, page 10, subsection (7) there
is a new section 108A for the 2002 Act entitled "Exclusivity
and finality of Tribunal's jurisdiction". The title of this
should be changed to "Appeal from Tribunal". The revised
text of section 108A should then read;
108A Appeal from Tribunal
(1) Where the Asylum and Immigration Appeal
Tribunal determines an appeal under sections 82 or 83 a party
to the appeal may bring a further appeal on a point of law:
(a)
where the original decision of the Tribunal was made
in Scotland, to the Court of Session, or
(2) An appeal under this section may be
brought only with the permission of:
(b)
if the Tribunal refuses permission, the court referred
to in subsection (1)(a) or (1) (b).
(3) Save as provided in subsections (1)
and (2) no court shall have any supervisory or other jurisdiction
(whether statutory or inherent) in relation to the Tribunal.
(4) Save as provided in subsections (1)
and (2) no court may entertain proceedings for questioning (whether
by way of appeal or otherwise):
(a)
any determination, decision or other action of the
Tribunal,
[Rest of new subsection (4) as per wording of subsection
(2) on pages 10 and 11.]
(5) Save as provided in subsections (1)
and (2), subsections (3) and (4) . . .
[Rest of new subsection (5) as per wording of subsection
(3) on page 11. New subsections (6), (7) and (8) as per wording
of subsections (4), (5) and (6) on page 11.]
Harry Mitchell QC
27 January 2004
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