Evidence submitted by Citizens Advice
(AIA 5)
COMMITTEE ON
THE LORD
CHANCELLOR'S
DEPARTMENT INQUIRY
INTO ASYLUM
AND IMMIGRATION
APPEALS— SUBMISSION
1. Introduction
1.1 This paper represents the submission
by Citizens Advice to the inquiry by the Committee on the Lord
Chancellor's Department into Asylum and Immigration Appeals, announced
on 28 February 2003.
1.2 Citizens Advice is the co-ordinating
body for the 530 Citizens Advice Bureaux (CABx) in England, Wales
and Northern Ireland. [1]In
2002-03, these CABx dealt with a total of some 60,000 asylum and
immigration advice enquiries. Currently, at least 24 CABx hold
a contract in immigration with the Legal Services Commission and/or
are registered at Level 3 with the Office of the Immigration Services
Commissioner (OISC), and are thus able to offer advice, assistance
and representation in relation to asylum and/or immigration appeals.
1.3 In this submission, we address the following
issues: delay in the determination of appeals; the administration
of the appeal process; family visitor appeals; and the availability
of good quality legal advice and representation.
2. Delay in the determination of appeals
2.1 Despite the very substantial increases
in the resources of the Immigration Appellate Authority (IAA)
in recent years, CABx continue to report instances of long delay
in the determination of both asylum and immigration appeals. However,
it is clear that responsibility for most if not all of the delay
in such cases lies not with the IAA, but with the appeals section
of the Home Office's Immigration & Nationality Directorate
(IND).
2.2 Before an asylum or immigration appeal
can be listed for hearing by the IAA, the appeals support section
of IND must first prepare and issue the "appeal bundle"
(also known as the "Home Office bundle") to both the
IAA and the appellant. This contains all the documents that have
been considered by IND in making the decision that is being appealed,
as well as the notice of and reasons for that decision, the appellant's
notice of appeal, and the grounds of appeal. CABx report many
instances of inordinate delay in the issuing of the appeal bundle
by IND, with a delay of 12 months or more not uncommon. For example:
Cardiff CAB reports acting for an Iranian
man in his appeal against a refusal of asylum. The appellant lodged
his appeal on 4 April 2001, but the appeals support section of
IND has not yet issued the appeal bundle and, accordingly, the
appeal has not yet been listed for hearing by the IAA. The bureau
further reports acting in three other asylum appeals, lodged in
September 2001, November 2001 and January 2002 respectively, where
the appeals support section of IND has not yet issued the appeal
bundle and, accordingly, the appeal has not yet been listed for
hearing.
Walthamstow CAB reports acting for an
Algerian man in his appeal against a refusal of asylum. The appellant
lodged his appeal on 25 May 2001, but the appeals support section
of IND did not issue the appeal bundle until 16 December 2002.
The appeal was heard—and allowed—by an IAA adjudicator
on 3 March 2003. [2]
The Oxfordshire Immigration & Nationality
Project of Citizens Advice reports acting for a Trinidadian
woman in her appeal against a refusal of her application for indefinite
leave to remain on the basis of marriage. The appellant lodged
her appeal on 6 June 2000, but the appeals support section of
IND has not yet issued the appeal bundle and, accordingly, the
appeal has not yet been listed for hearing by the IAA.
2.3 We note that the Court Service's target
for the timeliness of asylum appeal decisions is described in
terms of elapsed time from receipt by the IAA of the appeal bundle
from the appeals support section of IND, rather than from the
lodging of the appeal by the appellant. For example, 39% of asylum
appeals received in the period April to September 2002 were determined
within 17 weeks (the Court Service's target being 65%).[3]On
the basis of the evidence from CABx such as that cited above,
we would suggest that the Government's regular reporting of performance
against this target (in the quarterly asylum statistics published
by the Home Office) fails to give a full and accurate picture
of the timeliness of the asylum appeal process as a whole. We
note that, according to a recent parliamentary answer, the average
length of time between the lodging and hearing of the 19,343 substantive
asylum appeals heard by the IAA during the period 1 October to
31 December 2002 was 34.1 weeks. [4]
2.4 The Government has recently set a SR2002
Public Service Agreement for the Home Office and the Lord Chancellor's
Department of fully resolving (ie including final resolution of
any appeal to the IAA) a proportion (yet to be determined) of
asylum claims within six months. [5]On
the basis of the above evidence, we would suggest that, currently,
the proportion of substantive asylum claims that go to appeal
that are fully resolved within six months is extremely small.
2.5 In this context, we further note that,
between 1 January 2000 and 31 December 2002, a total of 170,055
asylum appeals were lodged with the asylum support section of
IND, but only 140,965 appeals were forwarded to the IAA. During
the same period, the IAA disposed of 127,215 of appeals. [6]In
other words, over this three-year period the backlog of unheard
asylum appeals grew by 42,840, less the (unreported) number of
appeals conceded by IND without ever being forwarded to the IAA.
We would suggest that the quarterly asylum statistics published
by the Home Office should include figures for the number of appeals
so conceded by IND, as well as for the timeliness of the issuing
of appeal bundles (a period that is currently not included in
either the "2" or the "4" of the Government's
"2 + 4" formula—that is, two months for the initial
decision on the asylum claim by IND, and four months for the determination
of any appeal by the IAA).
3. Administration of the appeals process
3.1 In general, CABx report satisfaction
with the administration of the appeals process by the IAA. However,
CABx report some frustration at the frequency with which the IAA
adjourns appeals on its own account, whilst adopting an increasingly
negative approach to requests for adjournments by CAB and other
representatives. This causes particular problems for CABx and
other small advice providers, as they usually employ only one
immigration specialist qualified to provide representation at
appeal hearings and are thus less able than larger advice providers
to "juggle" their caseload. And some CABx report having
experienced problems with the over use of the "floating list"
system. For example:
Oxford CAB reports acting for a Zimbabwean
man in his appeal against a refusal of asylum. The appeal was
on the "floating list" on 26 March 2003, and the CAB
representative, the appellant and a witness attended from 9.30
am to 3.20 pm, when the appeal was adjourned without having been
heard. On 2 April, the CAB representative received notice from
the IAA that the appeal had been re-listed for 11 April, but when
the CAB representative attended on that day (together with the
appellant and witness) he found that the appeal was again only
on the "floating list". The CAB representative lodged
a protest with IAA officials at the hearing centre, and the appeal
was heard at 3.30 pm on 11 April.
3.2 Moreover, CABx report considerable dissatisfaction
with the administration of the appeals process by the appeals
support section of the Home Office IND. In particular, CABx report
many instances of a failure on the part of IND to record (and
act upon) a change in the appellant's address and/or legal representative
during the period prior to the issuing of the appeal bundle, leading
to the appeal bundle being sent to the old address and the appeal
being listed and heard by the IAA without the appellant and representative
ever being informed. In most such cases, this requires an otherwise
unnecessary further appeal to the Immigration Appeal Tribunal
(IAT) to secure a re-hearing of the original appeal by an adjudicator.
Walthamstow CAB reports acting for a
young Jamaican woman in her appeal, lodged in February 2001 by
a previous representative, against a refusal of her application
for indefinite leave to remain. In August 2001 the appellant attended
the IND public enquiry office in Croydon to inform IND of her
change of address, and subsequently IND wrote to her at this new
address on several occasions. In March 2002 the CAB began to act
for the appellant, and the CAB wrote to inform IND of this change
of representative, and also to amend the grounds of appeal. In
November 2002 the appellant's MP wrote to IND to complain at the
continuing delay in the issuing of the appeal bundle; this letter
also contained the appellant's address.
However, in late March 2003 the appellant (and
the CAB) discovered that the appeal had been heard and, in the
appellant's absence, dismissed by the IAA on 11 March 2003. The
CAB has since been informed by the IAA that the appeal bundle
was sent to the appellant's original address by the appeals support
section of IND (and also that the bundle contains no mention of
or copies of correspondence from the CAB).
Similarly, Oxford CAB reports acting
for a Kenyan man in his appeal against a refusal of asylum. The
CAB submitted the Notice of Appeal on 9 May 2001 and, in the process,
notified IND of the appellant's change of address and change of
representative. On 9 August 2002 the CAB wrote to IND to notify
it of the appellant's further change of address. However, on 29
September 2002 the CAB discovered that the appeal had been heard
and, in the appellant's absence, dismissed by the IAA on 27 August
2002. The CAB was subsequently informed by the IAA that the appeal
bundle had been sent to the appellant's original address, and
to his previous representative.
On 1 October, the CAB submitted an application
for leave to appeal to the IAT, but on 9 October this was dismissed
for being out of time. On 11 October the CAB submitted further
representations to the IAT, which on 15 January 2003 remitted
the appellant's original appeal back to an adjudicator. On 14
April, the CAB received notice from the IAA that the re-hearing
of the appeal has been listed for 5 August 2003. As the CAB notes
in its report to Citizens Advice, "the client's waiting time
in the asylum process has been greatly extended by IND's failure
to record his change of details, and he has found this extremely
stressful".
3.3 Other problems reported by CABx include
the loss within IND of correspondence and/or original documents
(and even of entire files), and delay in the issuing by IND of
status documentation following a successful appeal to the IAA.
4. Family visitor appeals
4.1 Citizens Advice has repeatedly and 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,
in correspondence with Ministers and officials, and in three short
reports, [7]we
have consistently expressed concern about:
— the quality of entry clearance officers'
decision-making, given an overall success rate on appeal to the
IAA of some 50%;[8]
— 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 %);[9]and
— inordinate delay in the issuing of
some visas following a successful appeal.
4.2 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.
4.3 Furthermore, in oral appeals, but not
in paper-only appeals, the appellant has an opportunity to respond
to and make further submissions in the light of the entry clearance
officer's response to the grounds of appeal. As a result, in paper-only
appeals the entry clearance officer effectively has the "last
word', whereas in oral appeals there is more equality of arms.
4.4 At the same time, we have noted the
substantially lower than forecast number of family visitor appeals.
[10]For
all the available evidence suggests that family visitor visa applicants'
awareness of their appeal rights is not as high as it might be,
especially in some countries (such as China).
4.5 We have also noted, with regret, the
delay in the publication of the final report of the inter-departmental
review of family visitor visa appeals. The review was established
in January 2001 by the then Home Secretary in response to concern—expressed
by Citizens Advice and others—about both the above issues
and the then associated appeal fees (effectively abolished in
May 2002). The inter-departmental review team commissioned research
into the above issues, with a view to informing the team's final
report to Ministers. The review team was to submit this report
by January 2002. In May 2002, the Home Office stated that the
report "is now being finalised", and in August 2002
it indicated that it would be published "by December 2002".
In December 2002, the Lord Chancellor's Department stated that
the report would be published "in the very near future".
However, in late January 2003, the Home Office stated that publication
of the report had been delayed by "unforeseen circumstances".[11]As
of 24 April 2003, the report remains unpublished.
4.6 Most recently, we have expressed our
concern about an apparent hardening of entry clearance officers'
decision-making from about 1 August 2002, especially in India
and at certain other entry clearance posts such as Tehran, and
an associated 40% increase in the number of appeals. [12]
4.7 Our analysis of the monthly statistical
reports of British embassies and High Commissions in 2002 shows
that in New Delhi, for example, the rate of refusal of family
visitor visa applications doubled, from 29% between 1 January
and 31 July, to 59.4% between 1 August and 31 December, despite
a significant decline in the number of visa applications over
the same period. In Tehran, the refusal rate increased nearly
three-fold, from 8.5% to 24.5%, whilst in Nicosia the refusal
rate increased by 1,300%, from 0.8% to 11.2%. Other posts where
the refusal rate increased by more than 100% include Beijing,
Belgrade, Kolcutta (Calcutta), Moscow, and Mumbai (Bombay).
4.8 Our analysis also shows a strong correlation
between the increase in these posts' visa refusal rate and the
increase in the number of appeals lodged there. For example, in
Mumbai (Bombay), where the visa refusal rate doubled after 1 August
(from 16% to 33%), the number of appeals lodged also doubled after
1 September, from a monthly average of 49 appeals to a monthly
average of 100.
4.9 We conclude 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.
[13]
4.10 The Government has responded to these
concerns by suggesting that there is no link between the evident
increase in the rate of refusal of visa applications (which it
does not deny) and the increase in the number of appeals. It has
suggested that the latter is due to an increase in family visitor
visa applicants' awareness of their appeal rights, and that the
former is at least partly due to the move away from use of the
pre-assessment procedure (also known as the pre-sift), under which
those applying to the larger posts who did not meet the Immigration
Rules or have the necessary documentation with them were advised
not to apply, or to re-apply later.
4.11 However, there is no direct evidence
that visa applicants' awareness of their appeal rights has increased
since 1 September 2002, and Ministers have confirmed that there
were no governmental initiatives in 2002 aimed at increasing such
awareness. [14]In
any case, one would not expect a general increase in such awareness
to lead to such sudden and substantial increases in the number
of appeals lodged. Rather, one would expect to see steady growth.
4.12 As for the move away from the pre-assessment
procedure, we understand that this procedural change was implemented
gradually during the latter part of 2002 and the early part of
2003. For example, Ministers have confirmed that use of the pre-assessment
procedure ceased at Dhaka only in January 2003, at Mumbai (Bombay)
in February 2003, and at Nicosia in March 2003. [15]Accordingly,
this procedural change does not explain the very marked increase
in the refusal rates of these (and other) posts from about 1 August
2002.
4.13 In rejecting our suggestion that the
decision-making of entry clearance officers at these posts has
hardened since about 1 August 2002, the Government has also noted
that there has been no increase in the overall success rate on
appeal in recent months. However, this lack of an increase in
the overall success rate does not by itself deny a hardening of
decision-making at the posts identified above. For, if the success
rate of appeals lodged at these posts is lower than the average—an
issue that we (and other organisations) asked the review team
to examine in 2001—then a hardening of decision-making at
these posts would not necessarily feed through to an increase
in the overall success rate on appeal, as it could be partly or
fully cancelled out by an increase in the proportion of all appeals
that were lodged at these posts.
4.14 Indeed, due to the substantial increase
in the number of appeals lodged at posts in, for example, South
Asia region (excluding Pakistan) from 1 September 2002, the proportion
of all appeals that were lodged in the region rose from 21.5%
between 1 January and 31 July, to 32.0% between 1 August and 31
December. So if the success rate of appeals lodged in South Asia
(excluding Pakistan) [16]is
lower than the average, and there is anecdotal evidence to suggest
that it is, then the overall success rate on appeal would not
necessarily increase—and might well decrease. [17]
4.15 Finally, we note that the IAA is now
not meeting its timeliness target for the determination of oral
family visitor appeals. According to the discussion paper issued
by the inter-departmental review team in October 2001, the IAA
has "operational aims for disposing of family visitor appeals"
of three weeks in the case of paper-only appeals, and six weeks
in the case of oral appeals. For, as the Government itself has
noted, an appeal against a refusal of a visa to attend a family
event such as a wedding or funeral needs to be heard promptly
if it is to serve any useful purpose. In late 2001, the IAA was
"meeting its aim for paper appeals with ease" but was
"slightly missing them [sic] for oral appeals".[18]However,
since then the average age of oral appeals determined by the IAA
has risen steadily, from 6.7 weeks in March 2002, to 8.0 weeks
in June 2002, to 8.8 weeks in September 2002, and to 9.4 weeks
in January 2003. [19]The
reasons for this decline in performance remain unclear.
5. The availability of legal advice and representation
5.1 In common with other organisations,
Citizens Advice has consistently expressed its concern at the
shortage of good quality legal advice and representation in immigration
and asylum matters, especially in some of the NASS-designated
asylum dispersal areas. [20]Despite
a number of welcome initiatives on the part of the Legal Services
Commission aimed at increasing the number of immigration contract
holders, many CABx continue to report severe problems in finding
good quality local advice providers to whom they can refer asylum
seekers and immigration applicants for specialist advice and representation.
In some areas, there are simply no such providers, whilst in others
the existing providers have no spare capacity to take on new cases.
Rochdale CAB reports being approached
in June 2002 by a Congolese woman who had recently been dispersed
to Rochdale by NASS, and needing advice and representation in
her appeal against a refusal of asylum. The CAB—which is
unable to offer such advice itself—contacted 15 firms of
solicitors in the region listed in the LSC directory as providing
immigration advice, but none was able to take on the client's
case.
Leeds City Centre CAB reports being approached
in January 2003 by a Kosovan man who had recently been dispersed
to Leeds by NASS, and needing advice and representation in his
appeal against a refusal of asylum. The CAB—which is unable
to offer such advice itself—contacted five firms of solicitors
in the region listed in the LSC directory as providing immigration
advice, but none was able to take on the client's case.
Wolverhampton CAB reports being approached
in February 2003 by a Kosovan man needing advice and representation
in his appeal against a refusal of asylum. The CAB—which
is unable to offer such advice itself—contacted 12 firms
of solicitors in the region listed in the LSC directory as providing
immigration advice, but none was able to take on the client's
case.
Halesowen CAB reports being approached
in February 2003 by an Albanian man needing advice and representation
in his appeal against a refusal of asylum. The CAB—which
is unable to offer such advice itself—contacted 21 firms
of solicitors in the region listed in the LSC directory as providing
immigration advice, but none was able to take on the client's
case.
6. Concluding remarks
6.1 The asylum and immigration appeals system
has benefited from substantial increases in the human and other
resources of the IAA in recent years. However, these advances
have, to a considerable extent, been offset by serious and seemingly
systemic failings in the performance of the appeals support section
of the Home Office IND. At the same time, the appeals caseload
of the IAA appears to have been increased by poor decision-making
on the part of entry clearance officers in relation to family
visitor visa applications.
6.2 We believe that the Government needs
to take a more holistic (or "joined up") and user focused
approach to policy design and implementation in this area, as
well as to the monitoring of performance and the allocation of
resources. Most importantly, in our view, the Government needs
to set and monitor a meaningful timeliness target for the preparation
of appeal bundles by the Home Office IND, and to allocate resources
to ensure compliance with that target. Currently, the Government's
reporting of performance against its "2 + 4" formula
for the resolution of asylum claims (two months for the initial
decision on the asylum claim by IND and four months for the determination
of any appeal by the IAA) fails to reflect the often lengthy period
between the lodging of the appeal by the appellant and the issuing
of the appeal bundle by IND, as this period is included in neither
the "2" nor the "4".
6.3 We also believe that the Government
needs to finalise and publish, as a matter of urgency, the final
report of the inter-departmental review of family visitor appeals.
Only then can issues such as the marked disparity in success rates
between oral and paper-only appeals, and the apparent poor quality
of entry clearance officers' decision-making, be fully examined
and addressed by appropriate reform. It may well be, for example,
that entry clearance officers need to be provided with better
training and operational guidance. We believe that this would
reduce the need for those wishing to visit family members in the
UK to resort to the immigration appeals system. At the same time,
the Government needs to explain the apparent hardening of entry
clearance officer decision-making at certain posts from about
1 August 2002.
Richard Dunstan
Immigration Policy Officer, Citizens Advice
24 April 2003
1 Citizens Advice Bureaux in Scotland belong to a separate
organisation, Citizens Advice Scotland (CAS) Back
2
This client applied for asylum in the UK on 21 July 1998. It
therefore took just over four years and seven months for the authorities
to finally resolve his asylum claim, but of this period less than
three months was taken up by the IAA's hearing and determination
of his appeal against the initial refusal of his asylum claim
by IND Back
3
Asylum Statistics: 4th Quarter 2002, United Kingdom, Home Office,
28 February 2003. The 17-week (ie four-month) period is the "4"
in the Government's "2 + 4" formula Back
4
HC Deb, 4 February 2003, col. 135w Back
5
2002 Spending Review: Public Service Agreements 2003-2006, HM
Treasury, July 2002 (Cm 5571); and SR2002 Public Service Agreement
Technical Notes, Home Office, March 2003 Back
6
Asylum Statistics: 4th Quarter 2002, United Kingdom, Home Office Back
7
Family visitor appeals: the first eight months, July 2001; Family
visitor appeals: the first year, December 2001; and Family visitor
appeals: the second year, November 2002 Back
8
Between 1 October 2001 and 30 September 2002 (ie 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%. Source: Court Service monthly
statistics provided to Citizens Advice Back
9
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%. Source: Court Service monthly statistics provided
to Citizens Advice Back
10
Between 1 October 2001 and 30 September 2002, the IAA received
a total of 6,526 family visitor appeals, against the Government's
original forecast of over 26,000. For further information, see
Family visitor appeals: the second year, Citizens Advice, November
2002 Back
11
HC Deb, 29 January 2003, col. 915w Back
12
Family visitor visa applications: an analysis of entry clearance
officer decision-making in 2002, Citizens Advice, March 2003 Back
13
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 Back
14
HC Deb, 17 March 2003, col. 549w Back
15
HC Deb, 17 March 2003, col. 549w; and 28 March 2003, col. 421w Back
16
In our analysis, figures for the three posts in Pakistan were
excluded from those for South Asia region on account of the three
posts being closed or offering only a very limited visa service
throughout 2002, for security reasons Back
17
For example: assume that, prior to the sudden doubling of the
visa refusal rate at posts in South Asia region, there were 100
appeals per month, 20 of them lodged in South Asia region (the
actual proportion in early 2002). Further assume that the success
rate of appeals lodged in South Asia is 30%, whilst that of appeals
lodged elsewhere is 60%. There would be six successful appeals
lodged in South Asia (20 x 0.3) and 48 successful appeals lodged
elsewhere (80 x 0.6), giving an overall success rate of 54%.
Following the sudden doubling of the visa refusal rate in South
Asia region, assume that the overall number of appeals increases
by 40% (as it did in reality in 2002) to 140, and that the proportion
of all appeals lodged in South Asia increases from 20% to 30%
(as happened in reality in 2002). Assume that the success rate
of appeals lodged in South Asia rises from 30% to 40%, as IAA
adjudicators respond to the hardening of ECO decision-making in
the region. There would then be 16.8 successful appeals lodged
in South Asia (42 x 0.4) and 58.8 successful appeals lodged elsewhere
(98 x 0.6), giving an overall success rate of 54% (75.6 out of
140) - the same as that before the sudden doubling of the visa
refusal rate in South Asia region Back
18
Review of family visitor appeals, Home Office/Lord Chancellor's
Department/Foreign & Commonwealth Office, October 2001 Back
19
Court Service monthly statistics provided to Citizens Advice20
See, for example, Response to Secure borders, Safe haven, Citizens
Advice, March 2002 Back
20
See, for example, Response to Secure borders, Safe haven, Citizens
Advice, March 2002 Back
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