Evidence submitted by the Immigration
Advisory Service (AIA 11)
IAS RESPONSE TO
LORD CHANCELLORS
DEPARTMENT COMMITTEE
INQUIRY INTO
IMMIGRATION AND
ASYLUM APPEALS
IAS is the leading charity giving a free legal
advice and representation service to immigrants and asylum seekers.
IAS was created in 1993 out of the former United Kingdom Immigrants
Advisory Service (UKIAS: established in 1970) as an independent
organisation publicly funded under the 1971 Immigration Act to
provide free advice and representation to persons with rights
of appeal against refusal of their applications. Together with
UKIAS, therefore, IAS has over 30 years' experience of helping
those facing immigration and asylum difficulties. IAS employs
more than 300 staff working at 16 offices in the UK and one in
Sylhet, Bangladesh.
1. THE EXTENT
TO WHICH
RECENT REFORMS
HAVE PRODUCED
ANY SIGNIFICANT
EFFICIENCY SAVINGS
AND/OR
IMPROVED THE
QUALITY OF
THE APPEALS
PROCESS
"Recent reforms" is a problematic
phrase in the context of immigration and asylum appeals. In many
fields, the wholesale overhaul of the system attempted in the
Immigration and Asylum Act 1999 and brought into force in mid-2000
would be considered "recent" and that a period of two
or three years was necessary before its impact could be assessed
with any accuracy or insight. However, the Nationality, Immigration
and Asylum Act 2002 entirely repealed the appeals section of the
1999 Act, Part IV, and has introduced a new regime of appeals.
The statutory changes introduced by the 2002 Act have been accompanied
by new procedural rules implementing the Act and regulating how
the appeals system operates in practice, [44]substantially
amended Immigration Rules, [45]new
Notices regulations, [46]a
new fast-track procedure at Harmondsworth Detention Centre and
major new Practice Directions, [47]all
in the last month
As was the case with the short-lived 1999 Act
appeals regime, IAS expects that major revisions in procedure
and process will be introduced on an ad hoc basis during what
we expect will be the short-lived currency of the 2002 Act appeals
regime. This is already evidenced by the major revisions of the
Act while it was still before Parliament and by the Harmondsworth
pilot project, which is not specifically catered for in the Act,
the Immigration Rules or the Procedure Rules. If the Harmondsworth
pilot is judged by the Home Office to be a success, it is likely
to be expanded at Harmondsworth and introduced at other detention
centres, yet there is no specific provision for it in the "recent
reforms". It is therefore reasonable to assume that no forethought
has been applied to how this scheme will interact with other aspects
of the appeals process.
IAS is firmly of the view that the Home Office
has failed to adopt an integrated, planned approach to immigration
and asylum issues. The Home Office has proved itself incapable
of imposing a coherent plan or policy in this field. Instead,
it has been reduced to reacting to events. This "tinkering
tendency" can be attributed in part to plain poor management
and the absence of a sense of strategic direction. The political
imperative to introduce new reforms and initiatives in order to
satisfy the media and the public that something is being done
to remedy the lack of credibility in the asylum system has also,
no doubt, been an important factor.
In this constantly evolving environment of permanent
revolution, it is difficult to assess the effect of reforms, either
individually or collectively. The basic problems in the past were
that the Home Office took far too long to make an initial decision
and then, if the claimant was refused asylum, there was also an
enormous delay between lodging the appeal and the listing of the
appeal by the Immigration Appellate Authority. Both of these problems
have been addressed to a significant degree, the latter perhaps
more successfully than the former. The solution was in fact simple:
to recruit more adjudicators and increase the number of available
hearing rooms. There continue to be unacceptable delays and maladministration
within the Casework Support Unit of the Immigration and Nationality
Directorate, which is responsible for care-taking files between
the initial decision and listing for appeal.
IAS has noticed no improvement at the appeals
stage either in the quality of decision-making or in efficiency.
It is certainly the case that the entire asylum process is more
efficient, but this is attributable to improvements in the Home
Office's processing of initial applications and the speed with
which initial applications reach the appeals stage. The recruitment
of more adjudicators has also resulted in a shorter period between
the lodging of the appeal and the listing of the appeal for hearing.
Once the appeal is underway, however, the various reforms have
had very little impact on how the appeal process operates. This
is because there is little that can be done to alter the process
of a basic asylum appeal, in which evidence must be collected
and presented, witnesses called and in which the interests of
justice will at times require adjournments.
If anything, the "quality" of the
process has deteriorated. There remain a variety of different
methods for processing appeals, including "normal" cases,
Oakington cases, fast-track cases and Harmondsworth fast-track
cases, all of which are subject to radically different procedures.
A system so diverse as this can hardly be called efficient. Rationalisation
is required.
2. THE COSTS
TO PUBLIC
FUNDS OF
SUPPORTING NEW
APPEALS STRUCTURES,
SUCH AS
THE ASYLUM
SUPPORT ADJUDICATORS,
AND OF
SUPPORTING THE
EXTENSION OF
LEGAL AID
IAS is not funded by the Home Office or by the
Legal Services Commission to undertake representation work before
ASAs. However, IAS has noted that the 2002 Act does not permit
an appeal against the refusal of support to an asylum claimant
under the controversial s.55 of the Act. We strongly believe that
this was a mistake. Collins J specifically mentioned the absence
of an appeal system in giving judgment against the Government
in the High Court.
The extension of "legal aid" to include
immigration and asylum representation has been expensive but it
was a progressive step and one for which the Government should
be congratulated. Prior to this, the only publicly-funded immigration
and asylum work was undertaken by IAS and the Refugee Legal Centre
(RLC). The organisations would never have been able to offer representation
on the scale that was needed.
However, IAS is extremely concerned that the
proposed change in funding regime for our organisation and the
introduction of an income eligibility test means the end of publicly-funded
immigration (as opposed to asylum) work. For over 30 years, ever
since the introduction of comprehensive immigration controls in
the Immigration Act 1971, IAS and UKIAS have been funded by the
Government to represent immigrants, potential immigrants and their
families. This will be ended and many immigrants and their families
will no longer be able to turn to us for advice and representation,
despite the ever-growing complexity of immigration law and the
persisting dearth of good quality, reliable immigration advice
in the UK (and outside the UK for potential immigrants). The removal
of the one good source of quality immigration advice and representation
hardly seems compatible with the Government's stated aim of encouraging
controlled and valuable economic migration.
3. THE EXTENT
TO WHICH
THE IMMIGRATION
APPELLATE AUTHORITIES
COULD BE
MADE MORE
EFFICIENT, WITHOUT
SACRIFICING FAIRNESS
The procedural rights of appellants have been
eroded beyond the boundaries consistent with fairness, yet the
Home Office's frequent abuse of the appeal process and failure
to comply with directions given by the IAA continues to go unpenalised.
It is the view of IAS that the administrative and other failings
of the Home Office are almost entirely responsible for delays
not made necessary by the interests of justice. For example:
— Non-attendance by Home Office Presenting
Officers at First Hearings renders them virtually meaningless
and prevents any attempt to resolve outstanding procedural issues
at an early stage, before a full hearing. This causes more serious
delays later in the process.
— The Home Office regularly fails to
send Presenting Officers to attend adjudicator hearings but follows
a consistent policy of appealing decisions of adjudicators to
allow appeals when no Presenting Officer was present. This is
a clear and blatant abuse of process.
The single easiest way to improve efficiency
in the IAA without sacrificing fairness is to force the Home Office
to put its own house in order. For too long the Home Office has
been allowed to blame delay on appellants while its own incompetence
has continued unchecked. Letters are often mislaid or fail to
reach the file, files are only allocated to Presenting Officers
at the last minute and in the mean time "care-taking"
arrangements are inadequate and Presenting Officers are often
sent to court without the correct files. It is a frequent sight
at IAA hearing centres to see Presenting Officers apologising
profusely to adjudicators or to the Tribunal for the failure of
the Home Office to comply with Directions.
IAS also favours the introduction of a proper
system of pre-hearing case management conferences. First Hearings
have never fulfilled this function as neither the IAA itself,
nor appellants' representatives, nor the Home Office (which no
longer even sends representatives) have taken them sufficiently
seriously or used them as a means to resolve procedural issues
or identify the main contentious issues in an appeal.
4. WHETHER THE
RELEVANT PROCEDURE
RULES PROPERLY
BALANCE FAIRNESS
AND JUSTICE
WITH EFFICIENCY
IAS takes the view that the Home Office has
fallen into the trap of thinking constant structural and legislative
reforms can improve efficiency and quality, forgetting that it
is the quality of decision-making—and therefore of the personnel
involved—that lies at the heart of a credible system. All
to often, the initial decision by the Home Office in an asylum
case is a mere administrative formality and the "appeal"
is where the real assessment of the merits of a case occurs. IAS
and other NGOs have long argued that better initial decision-making
would enhance the credibility of the system and would reduce the
need for costly and time-consuming appeals.
Fairness within the IAA has already been sacrificed.
Clear examples of this include:
— The use of the "clearly unfounded"
certificate to remove an in-country right of appeal. The imposition
of this certificate in any given appeal amounts to a unilateral
decision by one of the parties to the appeal that the other party
cannot fully exercise his or her right of appeal.
— The service of decisions procedures
for claimants with no further right of appeal, by which the IAA
serves the decision on the Home Office only and the Home Office
then serves the decision on the claimant. This procedure displays
blatant bias towards one party and was criticised by Council on
Tribunals on the grounds that "asylum seekers notified in
this way would not have adequate opportunity to take advice (for
example about judicial review) before removal"[48]and
that:
". . . the task of sending decisions of
a tribunal to the parties is eminently one for the tribunal. If
one party is entrusted with sending the decision to the other
party, particularly where the first party represents the State,
there must be a danger of that party being seen as, in effect,
an agent of the tribunal. This is not conducive to perceptions
of openness, fairness and impartiality." [49]
It is also incompatible with Rule 2(2)(c) of
the consultative draft of the Council On Tribunal's Model Rules
of Procedure for Tribunals (January 2003), which states that dealing
with a case fairly and justly includes "ensuring, so far
as is practicable, that the parties are on an equal footing procedurally".[50]IAS
takes the view that this measure is equivalent to serving a determination
allowing an appeal on the appellant and asking him or her to serve
it on the Home Office or the Entry Clearance Officer.
— The new adjournment regime, closure
dates and fast-tracking procedures, which the Council on Tribunal's
said in its 2002 Annual Report were "liable to cause injustice
and lead to more appeals and applications for judicial review".[51]
5. WHETHER THERE
IS SUFFICIENT
AVAILABILITY AND
PROVISION BOTH
OF LEGAL
ADVICE AND
REPRESENTATION AND
OF INTERPRETATION
FACILITIES FOR
APPELLANTS IN
ASYLUM AND
IMMIGRATION CASES
London
The Legal Services Commission takes the view
that there is adequate provision of legal advice and representation
in the London area. Even in London, it is the experience of IAS
that many providers do not have the expertise or experience required
to adequately represent clients or to undertake more complex stages
of the process such as appeals to the Tribunal. The fact that
there are now sufficient providers of legal services does not
mean that those services are of adequate quality. Poor quality
representation not only harms the individual claimants whose cases
may fail as a result, it also leads to significant delays in the
process and to repeat appeals and the abuse of the appeal system.
Outside London
There has always been a problem with providing
legal services outside London in the field of immigration and
asylum. The Government's dispersal policy, under which asylum
claimants are accommodated outside London and the south east,
has led to a significant shortfall in representation. Frequent
changes in government policy, dispersal areas and the concentration
of asylum claimants have meant that it is impossible for providers
of legal services to meet demand. Again, the erratic nature of
government policy has hampered the provision of services to immigrants
and asylum claimants.
Detention estate
The shortfall in the availability of legal services
is particularly acute for claimants in detention, who are often
left isolated and without legal advice. This point was identified
as a serious concern by HM Inspector of Prisons in her recent
report on the immigration detention estate. IAS has co-operated
with the provision of legal services to those in detention at
Oakington and Harmondsworth and advocates the provision of on-site
advice or funded advice surgeries on a wider scale.
6. THE EXTENT
TO WHICH
"NON-SUSPENSIVE"
APPEALS PROVIDE
AN ADEQUATE
RIGHT OF
APPEAL
IAS is very experienced at presenting appeals
on behalf of clients who reside outside the UK and are unable
to attend the hearing of their appeal. In our view "non-suspensive"
appeals from out of country cannot provide an adequate right of
appeal where the key question in determining the appeal is the
credibility of the claimant, as is the case in many asylum claims.
It is impossible for an adjudicator to form a reliable view on
credibility of an appellant without seeing and hearing the appellant
give evidence, as has been recognised on countless occasions by
the Tribunal.
No parallel can be drawn between entry clearance
appeals and non-suspensive asylum appeals, because most entry
clearance appeals turn either on documentary evidence of income
or similar or on the evidence of the UK sponsor, who can attend
the hearing.
The Council on Tribunals has also stated its
concerns on non-suspensive appeals:
". . . the provisions whereby appeals in
respect of certain certificated asylum and human rights claims
may not be made while the appellant is in the UK seem to us to
present considerable practical problems and to be capable of leading
to unfairness and injustice. The requirement to conduct appeals
from abroad will make it more difficult for adjudicators to assess
the evidence of appellants. It will also make it more difficult
for appellants to have face-to-face discussions with their advisers
and to present their cases satisfactorily. Costs will inevitably
be greater. And there could be serious problems with regard to
the status and safety of tribunal users in the countries from
which they are appealing." [52]
IAS RECOMMENDATIONS
— Improved initial decision making
to give system greater credibility, reduce the need for appeals,
and to focus those appeals that are necessary on the initial decision
and issues raised, rather than having to start from scratch.
— Overhaul of administration and management
of Home Office Presenting Officer Units to reduce delays, enable
appeal hearings to run more smoothly and reduce need for further
appeals to the Tribunal.
— Rationalisation of appeals processes.
— Serious thought should be given to
wholesale reform of the application and appeals process, as opposed
to the piece-meal tinkering normally undertaken by the Home Office.
IAS advocates the introduction of a less adversarial system in
which resources are "front-loaded" into the initial
application stage, making appeals less necessary and more credible.
A claim for asylum should trigger an open-minded investigation
into the claim, not the setting out of two opposing views and
selection of one or the other. An examination of the Canadian
model is instructive.
Immigration Advisory Service
28 April 2003
44 The Immigration and Asylum (Procedure) Rules 2003,
replacing the Immigration and Asylum (Procedure) Rules 2000 Back
45
Statement of Changes to the Immigration Rules HC538. IAS is disappointed
that the proposed re-writing and consolidation of the Immigration
Rules has not taken place, given the opportunity presented by
the introduction of a new Act Back
46
Immigration (Notices) Regulations 2003, replacing the Immigration
and Asylum Appeals (Notices) Regulations 2000 Back
47
On the preparation of trial bundles and the citation of determinations,
both of which make substantial differences to the way in which
cases are prepared and presented Back
48
Council on Tribunals, Annual Report 2001-02, chapter 7, paragraph
5 Back
49
Letter from the Council on Tribunals to the LCD, dated 30 November
2001 Back
50
Available via www.council-on-tribunals.gov.uk Back
51
Council on Tribunals, Annual Report 2001-02, chapter 7, paragraph
75 Back
52
Council on Tribunals, Annual Report 2001-02, chapter 7, paragraph
12 Back
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