Evidence submitted by The Honourable Mr
Justice Ouseley, President, Immigration Appeal Tribunal (AIA
3A)
CONSTITUTIONAL AFFAIRS
COMMITTEE: ASYLUM
& IMMIGRATION BILL
You will have seen the short submission which
I made before the announcement of the single tier proposal and
the later longer submission from AMIAT which deals with the Tribunal's
operation. I enclose as an update of our views on the new Bill,
our representations to the IND Legislation Unit (Annex A).
We do not regard these as private or confidential, nor this letter.
You will see that we regard the question of
whether there should be one or two tiers as a matter of policy
for the Government, and would not wish to be drawn into a debate
on its merits, or its merits compared with the present system.
We have made some comments on other aspects to which you refer.
However, we would add two points in relation
to the new Bill. First, it is essential for the fair and effective
hearing and disposal of asylum appeals, not just that the Home
Office interview and decision be thorough and fair, but also that
the appellant have legal assistance and advice in the preparation
and presentation of his case. The evidence needs to be coherent
and orderly, potential witnesses or documentary support identified
and the whole case needs to be placed in the legal context for
both asylum and immigration cases. The latter are often the more
complex legally. The proposed Tribunal's task of getting decisions
right first time would need the parties' material to be presented
to it fully and coherently. In particular, the real issues for
decisions would need to be identified and addressed. This would
necessitate proper legal advice and representation for both parties,
by whatever mechanism it is delivered.
The ouster clause is not specifically referred
to in our submissions. It is plainly a politically very controversial
provision. What is not, I believe, genuinely controversial is
that so extensive an ouster clause is without precedent: it seeks
to oust the High Court's supervisory role not just over decisions
of a lower Tribunal, even those made unfairly or without jurisdiction;
it also seeks to oust the High Court's control over the legality
of certain executive acts and decisions, and to do so in an area
where life and liberty may be at stake. Such an ouster clause
is unprecedented because, and again this is not controversial,
the United Kingdom's conventional constitutional framework, albeit
unwritten, is predicated on the allocation of different but equally
necessary functions to Parliament, the Courts and the executive.
To the Courts is allocated the necessary task of reviewing the
lawfulness of the decisions of lower Tribunals and the lawfulness
of the executive's acts and decisions. An unwritten constitution
only works on the basis of an acceptance by each component of
the differing and important roles of the others. The ouster clause
is inconsistent with those constitutional conventions. As a matter
of constitutional principle, higher judicial oversight of lower
Tribunals and even more so of executive decisions should be retained.
However, the precise form of judicial oversight
can vary from area to area. In asylum and immigration, the system
of statutory review, newly devised in the 2002 Nationality, Immigration
and Asylum Act and only in effect for a few months, represents
the current system of review tailored to that area; an application
dealt with on the papers without oral argument and with finality
on dismissal of the application. Applications run at about 25-30
per week currently and are dealt with by the Administrative Court
generally within a week. There is at present an overlap with Judicial
Review for older cases and this is a more time-consuming process
than Statutory Review. But the justification for this unprecedented
ouster clause has not been tested against any long-run experience
of Statutory Review as an expeditious, paper-based system of judicial
oversight.
Sir Duncan Ouseley
President
Immigration Appeal Tribunal
19 December2003
Annex A
NEW LEGISLATIVE
PROPOSALS ON
ASYLUM REFORM:
RESPONSE OF
THE IMMIGRATION
APPEAL TRIBUNAL
INTRODUCTION
1. In responding to the Ministers' letter,
we wish to make it clear that we do not seek to persuade the Government
either to abolish or to retain any features of the present decision
and appellate system. We have only two concerns. The first is
that whatever decision is made as to the future of the system,
it should be made on a basis of proper and accurate evidence.
The second is that a change in the system should not create unrealistic
expectations as to the speed or quality of judicial output. The
comments which we make are derived from our judicial experience
of the systems as they operate at present and our expertise in
the areas of law which they involve. We aim solely to inform and
to assist the process of the development of policy which is now
being undertaken by the Government.
2. As members of the judiciary we have a
prime concern not to enter the political arena. That is why we
have begun this response in the way that we have. But we share
other difficulties with all other respondents. The first of these
difficulties is the obvious one that it is hard to make a detailed
response to proposals expressed at such a level of generality.
In what follows we have done our best to envisage what might be
proposed and when we cite individual matters we have to do so
on a basis of pure supposition as to what will in fact be relevant
to any specific proposals. Secondly, nobody yet has any real knowledge
of the operation of the system in existence at present. The proposed
changes will be the third major set of reforms in this issue in
the last few years. The most recent predecessor is the Nationality,
Immigration & Asylum Act 2002. From the point of view of the
judicial process, one of the most important reforms introduced
by that Act is the introduction of a speedy and inexpensive process
of Statutory Review of refusals of permission to appeal to the
Immigration Appeal Tribunal. Because of the way in which the provisions
were brought into effect (by Statutory Instrument under the hand
of a Home Office Minister) the outcome of those reforms is largely
unknown. They apply in general only to cases where the decision
of the adjudicator was after 9th June 2003, and, as a result,
at present there is a mixture of Judicial Review and reviews under
the new statutory process within the system. First indications
of the operation of the new process are encouraging: but nobody
can say any more than that. Even in other areas of recent reform,
the available information is severely limited. The "non-suspensive
appeals" process, under which certain Claimants are removed
from the United Kingdom and can appeal only from abroad, has been
in operation for a whole year. We understand, however, that the
number of individuals who have been removed under these procedures
is still only about, or rather under, 1,000 in total. (To put
that into context, it would appear that the total number of removals
by this system for the year in which it has been in operation
is about the same as the number of cases received by the Immigration
Appeal Tribunal in every week.) The Non-Suspensive Appeals process
has generated a not insignificant number of Judicial Reviews,
to which need to be added the cases where the threat of Judicial
Review has caused the Secretary of State to revoke the certificate
under which claims were assigned to the non-suspensive appeal
process. Similarly, a "super fast track" system has
been in operation for a number of months. The judicial process
has been efficient and very speedy. But the numbers have been
small, and it is very far from clear that, as a whole, this system
has led to an increase in the proportion of unsuccessful claimants
who are speedily removed from the United Kingdom.
3. For the foregoing reasons we make our
observations with judicial caution, but largely in the dark.
ASYLUM AND
IMMIGRATION APPEALS
SYSTEM
4. We naturally share concerns about the
abuse of any judicial system, particularly one in which we are
involved. We also share the desire to have a system which is as
fast and firm and final as possible, provided that fairness and
quality are not compromised. There is in our view no reason at
all to suppose that the present system is either the only system
or the best. If the present members of the Immigration Appeal
Tribunal judiciary are to be a part of the new system, we can
say without reservation that we shall devote ourselves to achieving
those ends.
5. We have to say, however, that we are
surprised to note the justifications for change that are cited
in the proposal. Those justifications are limited to the following:
(a) "a single tier would simplify the appeals system and
reduce the risk of people seeking to play the system by making
unfounded appeals to frustrate the final resolution of their case";
and (b) [the current appeals system] "provides people with
opportunities to abuse the system in order to cause delay or abscond".
6. It may assist thinking about the way forward
if we offer some figures. Because we are in a period of change,
the figures are bound to be approximate but we believe that as
approximations they are entirely accurate.
(i) The Tribunal receives rather under
1,000 applications for permission to appeal in every week.
(ii) Rather over 10% of those applications
are made by the Government. The number of Government applications
has risen in recent years and there is a perception that it is
still rising.
(iii) About 2/3 of applications for permission
to appeal are refused. That so far as the statutory Appellate
process is concerned, is the end of the matter for those cases.
The grant of permission to appeal depends on
a reasonable argument relating to a defect of quality in the adjudicator's
decision. We do not feel able to comment on the motive of the
applicant in cases where there is such a defect, whether the defect
is alleged by the claimant or by the Government. But cases where
there is no defect, and where the claimant is seeking only to
prolong a stay or defer a conclusion, are likely to be dealt with
swiftly and summarily by the refusal of permission to appeal.
Until the introduction of the provisions in the 2002 Act to which
we have already made reference, there might have been Judicial
Review of that refusal—an expensive and time-consuming process
which, for reasons connected to the development of the Judicial
Review jurisdiction, was likely to be conducted without specific
reference to the underlying merits of the case. That risk should,
to all intents and purposes, have now ceased.
7. The time limits are short. A person who
makes an application for permission to appeal to the Tribunal
has to do so within 10 days (or five days if he is in custody).
We think it is unlikely in the extreme that it is that process
which enables those with no colourable ground of appeal to delay
or abscond: certainly it does not enable anyone to delay substantially
the outcome of their case. On the other hand, there are very often
substantial delays between initial claim and interview, and between
interview and decision by the Secretary of State. We understand
that there are still very substantial delays following judicial
rejection of a claim, before the unsuccessful claimant is removed.
Indeed, although removal figures have been historically somewhat
difficult to obtain, it is clear that even now only a small proportion
of unsuccessful claimants are removed. The Tribunal alone refuses
permission to appeal to over 500 claimants a week on average,
so finally determining the appellate processes in their case.
So even this process, without taking into account substantive
appeals to the Tribunal, adjudicator determinations that are not
appealed, and Home Office decisions that are not appealed, generates
over 2,000 removable claimants, plus their families, in each calendar
month. In short, although the abuses referred to in the Ministers'
letter are abuses that genuinely do exist, they are not to any
great extent the product of the present appellate system. We emphasise
that we say this not in an attempt to preserve that system, but
because the way forward must be properly informed.
8. We turn now to our principal concern
as judges: that no unrealistic expectations are engendered by
the current proposal. We have to say that we think that it is
unlikely in the extreme that abolition of a tier of appeal can,
without more, deliver both increases in end-to-end speed and improvements
in the quality of judicial decisions. Under the current system,
cases are dealt with speedy and economically when they come before
adjudicators: that is appropriate because any concerns about quality
can be the subject of review by the Tribunal. That review does
not take place unless it is sought by one party or the other and
(as we have said) the party seeking review will make no progress
unless there is an arguable defect in the adjudicator's determination.
Without a second tier two things are clear. The first is that
the single judge will not be able to rely on any errors of law
or procedure or approach being put right elsewhere. Secondly,
all decisions will need to be liable to intensive review, whether
or not the parties would have sought it, and without any assistance
from the parties indicating alleged defects in the decision. If
quality is to be maintained, speed is certain to suffer. If speed
(that is to say throughput in judicial decisions in the vast majority
of cases) is to be maintained, there will be no opportunity for
the improvements in quality whose necessity arises from the removal
of the possibility of correction of errors by the upper tier.
9. We do not think these difficulties are
insuperable but we emphasise the phrase which we used in paragraph
8 above that because of them the introduction of a single tier
appellate system without more cannot be expected to deliver improvements
in both speed and quality. It may well be suggested that improvements
in training will assist in increasing the quality of decisions
by the single judges. That may well be so, but such a proposal
needs to be seen in the following context. Over the last few years
the provision of training for adjudicators has increased enormously.
A survey conducted on behalf of the Judicial Studies Board nearly
one year ago showed that the budget for training adjudicators
in the year then current was £1,159,660, giving an average
per capita expenditure of £1,864. It is not entirely easy
to make comparisons, because of the difference in balance in various
Tribunals between legal and lay members and between full and part-time
members. We therefore do not seek to draw any direct comparison
with the expenditure on training in other Tribunals. What is clear
is that immigration adjudicators have, in the several years past,
had the benefit of a considerable amount of training. There is
also a developed appraisal system in force for all part-time adjudicators.
It is unlikely that the effect of training can be very greatly
increased: the possibility of further training cannot, we think,
properly be invoked as a panacea for quality defects in decisions
by the single judge. Our own experience does suggest that rationality
and quality in appellate decision making in the Appellate Authority
might well be improved if the Home Office (who make the original
decision) wrote decision letters that were clearer in indicating
issues of contest between the claimant and the Government, and
if a representative of the Home Office always attended hearings
in cases where the Home Office continued to contest the appellant's
claim. So far as the latter point is concerned, we understand
that some 30% of appeals before adjudicators are not attended
by Presenting Officers. We regard the practice revealed by that
figure as entirely unacceptable. We understand also that recent
research commissioned, sponsored and approved by the Home Office
indicates that letters of refusal are rarely at fault in the way
we indicated at the beginning of this paragraph. We are bound
to say that that is not our experience. The implication of the
Home Office's conclusion is that no improvement in letters of
refusal is necessary. We find that rather depressing.
10. If a single tier system is to work it
will be necessary to concentrate effort and funds on preventing
error. But it is a tall order in which judges are responsible
for ensuring the correctness and finality of every decision without
any assistance from the parties and whatever powers are given
to judges by statute they cannot do the impossible.
11. It will of course be necessary to secure
the complete independence of a single tier Tribunal from any link,
actual or perceived, formal or informal, with the Executive who
make the decisions against whom the appeal is brought and who
are a party to every appeal. Exactly how that is secured in terms
of presidency and so on is a matter of policy. There is one particular
feature of the need for independence to which we should draw attention.
At present, an appeal is made by serving a notice of appeal on
the relevant Government officer, who has a duty to transmit it
to the Appellate Authority for determination. Intake of cases
to the Appellate Authority is governed by an agreement between
the Chief Adjudicator and the Home Office. Under this agreement,
the Chief Adjudicator fixes the number of cases which can be disposed
of by adjudicators in any month, and the Home Office sends that
number of cases to the Chief adjudicator for determination. A
considerable backlog has built up in recent years, although it
is now beginning to be reduced again. The number currently in
the backlog is irrelevant for present purposes. Three features
of the arrangement are, however, of some importance. The first
is that, without any second tier with the jurisdiction to investigate
any claim of injustice it may be necessary to enquire whether
an arrangement of the sort that has been entered into in the past
without objection is in principle one which should be allowed
at all. The second feature is that, whenever there is a backlog,
the arrangement allows the Home Office to select which cases go
forward for determination by adjudicators. It is well known that
in recent years the Home Office have selected in-country appeals
in asylum and immigration cases to the exclusion of out-of-country
entry clearance cases. As a result, the latter have often had
to wait an unacceptable time. The Appellants in such cases have
their access to the independent adjudicator delayed by the respondent
acting within the terms of the agreement that he has with the
Chief Adjudicator. We do not think that that can be right. On
the other hand—and this is the third feature—it is
the existence of the agreement which has enabled adjudicator throughput
to be so accurately planned in previous years. The Tribunal, which
is genuinely independent of the Executive, and can have no such
agreement, is, in terms of workload, constantly at the mercy of
numbers. The provision for increased numbers can only be reactive.
If the present agreement between the Appellate Authority and the
Home Office is to cease (as, for a single tier to have credibility,
we think it must) then the single tier will itself be one which
is at the mercy of numbers of appellants from time to time and
the neat planning which has been possible in the past will cease
to be possible in the future. That has implications for speed
of decision. Under the present arrangements, backlogs may be built
up amongst cases waiting for Home Office decision, or amongst
cases waiting to be sent to the Appellate Authority. Backlogs
also build up amongst cases waiting for Tribunal hearings. There
is no excuse for any backlogs at adjudicator level and there rarely
are any. Without the agreement, the single tier will immediately
become responsible for the whole of the second of these backlogs.
That will pose acute problems for the management and funding of
the single tier, as well as for the judicial appointments process.
12. The last point we make under this head
is one of importance stretching well beyond the limited field
of immigration and asylum appeals. The proposals in this area
are being carried forward at the same time as the Government promotes,
in its Tribunals for Users project, a unified Tribunal system
with a clearly independent Tribunal judiciary. The original proposals
for that system included a second tier of appeal for all Tribunals—even
those that did not currently have one. We note the assertion that
immigration is different, particularly because it is a field in
which in some cases there is an incentive to delay the making
of a final decision.
13. We must, however, emphasise that in
other cases the consequences of a wrong decision may be disastrous.
We shall work to ensure that no such wrong decision is ever made.
But that has implications for the Tribunal system as a whole.
If a single tier can be made to work in this most sensitive of
areas where the consequences of a wrong decision are so extreme,
it would appear that the current proposals may act as a pilot
for single tier Tribunals in areas such as social security and
possibly even employment. If one tier will work, why waste money
on two?
UNDOCUMENTED PASSENGERS
14. The concern about passengers arriving
without documentation is one which we share: it is a difficulty
in the administration of immigration and asylum claims systems
throughout the world. From the point of view of the administration
of justice, we are glad (and somewhat surprised) to note that
so far as French and Belgian ports are concerned, the arrival
of undocumented passengers is already being prevented. Nevertheless,
we would not dispute the assertion that much more needs to be
done, and we would welcome proposals such as that relating to
the recording of passengers' documents on embarkation at airports
abroad.
15. The absence of documentation poses three
particular difficulties which are shared by the judicial and the
administrative processes. First, a person who arrives without
documents may be able to assert a false nationality. This is crucial
in the case of claimants to refugee status, because such status
has to be determined by reference to the individual claimant's
nationality. Much energy is devoted to deciding whether undocumented
Pushtu speakers are of Pakistani or Afghan nationality, similar
difficulties arise with Kenyans who claim to be Somali; Nigerians
may claim to be Liberian, and it is sometimes stated that the
majority of undocumented Tamils claiming to be from Sri Lanka
are in fact from Southern Indian. Secondly, the absence of a passport
may make it difficult to establish the claimant's history, particularly
where that history is said to involve a fear of persecution. Further,
it may make it difficult to establish how old the claimant is
and what his family relationships are. These are all matters which
have an impact on the credibility of his claim and the way it
is treated. Thirdly, the absence of documentation may make it
difficult to remove the claimant if his claim is unsuccessful.
He may genuinely come from a country which resists the return
of undocumented nationals; if his country of nationality is itself
doubtful, it may be difficult to return him anywhere.
16. These difficulties are all well known;
all of them operate in favour of spurious claims; all of them
are no doubt exploited by spurious claimants and their agents.
It is, however, always necessary to remember that some claimants
are not spurious and the purpose of the system is primarily to
protect the real claimants, not primarily to detect the spurious
ones.
17. The Government's proposals are under
two heads: first, a formal requirement to take lack of documentation
into account when assessing credibility, and secondly, the introduction
of criminal offences.
18. So far as concerns the first of these, we
have to say that we do not entirely understand it. An adjudicator
(or the Tribunal) must, in assessing credibility, take into account
all available material. To do otherwise would be to err in law.
A claimant who appears not to be telling the truth about his journey
may well not be believed when he embarks on more controversial
and difficult areas of his account.
19. We assume that the proposal is to introduce
a formal requirement that the credibility of a person arriving
without documents should be doubted. In a broad sense, that would,
as we have explained, add nothing to the present situation so
far as the determination of the claim is concerned. We do, however,
envisage a difficulty arising subsequently. A formal or obligatory
rejection of the claimant's credibility in these circumstances
would run the risk of destroying any possibility of his removal
from the United Kingdom. This is because his assertion of nationality
could not be relied upon. As a result, we would urge caution in
adopting anything other than (if thought appropriate) a statement
of the present procedure.
20. We have considerably more concerns about
the proposals to introduce criminal offences in this area. Article
31 of the Refugee Convention reads as follows:
ARTICLE 31: REFUGEES
UNLAWFULLY IN
THE COUNTRY
OF REFUGE
"The Contracting States shall not impose
penalties, on account of their illegal entry or presence, on refugees
who, coming directly from a territory where their life or freedom
was threatened in the sense of Article 1, enter or are present
in their territory without authorisation, provided they present
themselves without delay to the authorities and show good cause
for their illegal entry or presence.
The Contracting States shall not apply to the
movements of such refugees restrictions other than those which
are necessary and such restrictions shall only be applied until
their status in the country is regularised or they obtain admission
into another country. The Contracting States shall allow such
refugees a reasonable period and all the necessary facilities
to obtain admission into another country."
21. Suppose a person comes directly from
an overseas country and presents himself at Heathrow without documents
and claims asylum. As we understand it, the illegality of his
position at that point lies solely in his lack of documents. The
impact of Article 31 is this: if he is a refugee, he cannot be
penalised for the lack of documents. (If he is not a refugee,
of course, neither Article 31 nor any other part of the Convention
protects or applies to him.) It follows that in the case of an
offence of arriving without documents, there would either have
to be a "refugee defence", or proceedings could not
be commenced until after refugee status determination was concluded.
The first option would pose considerable difficulties for formulation,
relating in particular to the standard (and perhaps the burden)
of proof. The second option raises difficulties which would also
arise in relation to the second offence, that of "failing
to co-operate with re-documentation". These are broadly speaking
difficulties of policy. We appreciate that (unlike the meaning
and operation of Article 31) this is not a matter which we can
claim to be within our expertise, but we are nevertheless entitled
to express our puzzlement. If the individual in question is not
a refugee, he should normally be removed. As we understand it,
the proposal is that if he arrived undocumented, or if he resists
re-documentation, he should be charged with a criminal offence
and, no doubt, if convicted will be penalised. What form is the
penalty to take? No indication is given in the proposal. It seems
highly unlikely that fines will be enforceable or that community
penalties will be appropriate. On the other hand, an immediate
sentence of imprisonment may seem rather extreme for these offences.
We do understand that the possibility of imprisonment will enable
detention in circumstances where an unremovable unsuccessful claimant's
detention would otherwise contravene Article 3 of the European
Convention on Human Rights. But unless the legislation is to be
drafted in such a way that an immediate sentence of imprisonment
is the only available penalty, the sentencing court would have
to be satisfied that the offence itself was of such a serious
nature that only imprisonment could be justified.
22. Although it is clearly open to the Government
to take a severe view of those arriving without documentation
(provided that they are not refugees) or hindering re-documentation,
the proposal to create criminal offences appears more likely to
delay removal and increase cost than to promote removal and reduce
cost.
SAFE THIRD
COUNTRY
23. The United Kingdom's obligation under
the European Convention on Human Rights is not to do any act which
will expose a person presently within the jurisdiction of the
United Kingdom to a real risk of treatment contrary to Article
3 of the Convention. As we understand it, the right under Article
3 is a right which individuals have separately and are entitled
to assert individually. The mere fact that the United Kingdom
Government thinks (the wording of the letter is "where we
are satisfied") that the individual will not be treated in
breach of his human rights is not, we would have thought, sufficient
to deprive him of them. If section 3 of the Human Rights Act 1998
is to remain in force, no public authority (including Courts and
Tribunals, as well as Government officials) can make, affirm or
allow a decision which breaches the Scheduled human rights. However
good a country's human rights record may be, it is difficult to
see that there could not be scope for an individual to show that
he or she is, individually, at risk. No doubt provisions could
properly be adopted, which would have the effect of preventing
spurious points from being raised in individual cases. We have
grave doubts, however, whether it can be lawful (either under
the Convention or the 1998 Act) to remove the right to invoke
Article 3.
RESTRICTING FAMILY
SUPPORT
24. We have no comments on the proposals
under this head, which fall outside our areas of experience and
expertise.
THE OFFICE
OF THE
IMMIGRATION SERVICES
COMMISSIONER
25. We would warmly welcome any effective proposals
to raise the standard of legal advice and representation in the
immigration and asylum sphere. The difficulty to which the Commissioner
refers in his last annual report arises in part from his dual
role as licensing authority and enforcer: not unreasonably, he
has attempted to bring unlicensed practitioners "within the
fold", rather than turn immediately to the criminal law.
There have been very few prosecutions under Part 5 of the 1999
Act despite what appears to us to be widespread flouting of it.
As the proposals imply, there are also ways in which firms of
solicitors and others can enable practitioners (whether reputable
or not) to escape the Commissioner's surveillance.
26. We are content with the proposal that
the Commissioner should be given greater powers, although we note
that unless he has sufficient staff at a sufficiently high grade
he is unlikely to be able to use them, which will lead to further
frustration. We wonder whether the criminal penalties are sufficiently
high: after all, the operation of an unlicensed practice is the
gateway to frauds on the judicial system and on clients, who themselves
are the victims of what in many cases amounts to an abuse of a
position of informal trust.
27. Much more needs to be done also to supervise
practitioners' conduct which is not unlicensed but is incompetent.
Our own experience is that cases which do often appear to be unmeritorious
are delayed by being incompetently dealt with. The higher courts
appear to be developing a jurisprudence which moves away (in asylum
cases at least) from the principle that a party's representative
acts on his behalf. As a result, we see many cases where the claim
is that time should be extended, or the appeal process should
be started again, or leave to appeal should be granted, solely
because a previous representative (or sometimes the present representative)
failed to do what he should have done, or failed to do it in the
proper time. While the courts regularly allow that type of argument
to succeed, a truly efficient judicial process is impossible.
Further, although it is not a matter specifically for us, we are
concerned at the fact that it appears to be possible to draw public
funding for admittedly incompetent legal work, and for further
public funding to be available, sometimes to the same firm, to
put it right.
28. One difficulty, which is alluded to
in the Government's proposals, is the distribution of supervision
amongst the DPB's as well as the Commissioner. But, in our view,
many of the concerns about practitioners who are not unlicensed
are, in principle, financial concerns. It is too easy to obtain
money either from clients or from community legal services funding
for bad work and for work which fails to promote a speedy conclusion
to a claimant's claim. The only solution to this widespread and
growing problem is likely to be found in a major increase in the
practice of recovery and repayment of fees charged for such work.
29. In brief, we agree that the Commissioner's
powers need to be extended so that he has an effective jurisdiction
over the whole of legal practice insofar as it relates to immigration
and asylum: we do not think such a jurisdiction will be effective
unless there are sufficient powers to order penalties or restitution
as well as those related to authorisation and regulation.
Sir Duncan Ouseley
17 November 2003
|
