Select Committee on Constitutional Affairs Written Evidence


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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