Evidence submitted by the Joint Council
for the Welfare of Immigrants (JCWI)(AIA 12)
COMMITTEE ON
THE LORD
CHANCELLOR'S
DEPARTMENT INQUIRY
ON ASYLUM
AND IMMIGRATION
APPEALS
JCWI is the leading, independent voluntary organisation
working in the field of immigration, asylum and nationality law
and policy. Established in 1967, JCWI provides expert legal advice
and representation, runs training courses for solicitors and other
practitioners, and undertakes research and analysis in all areas
of immigration, asylum and nationality law and policy.
1. THE EXTENT
TO WHICH
RECENT REFORMS
HAVE PRODUCED
ANY SIGNIFICANT
EFFICIENCY SAVINGS
AND/OR
IMPROVED THE
QUALITY OF
THE APPEALS
PROCESS
JCWI is very concerned with the way in which
the appeals system has evolved in recent years. The possibility
of providing a genuine forum for reviewing evidence and bringing
a fresh mind to consider issues with rules and restrictions that
work against exhaustive inquiry into the substantial nature of
the facts. Our recommendation for a simplification of appeal procedures
and a return to its originally envisaged role as a user friendly
forum for appellants and for a more strongly developed culture
of human rights to prevail across the system.
"Reforms" over the past decade have
overhauled the immigration and asylum legal regime on no less
than five occasions (including the incorporation of the European
Convention of Human Rights in domestic law which affects immigration
and asylum law). JCWI is of the opinion that the frequency and
speed by which the legislation has been changed in the past decade
constitute one of the problems in terms of efficiency. There is
a culture within the Home Office to change practice and procedure
if it does not have the immediate desired effect, and the frequent
changes have caused the system to become ineffective, inefficient
and confusing. Legislation when enacted should be given time to
work. Recent reforms in terms of non-asylum and asylum appeals
in general, heralded an over complex system which has proved to
be largely unworkable.
The one stop appeal system, introduced by the
Immigration and Asylum Act 1999 provides appellants with a single
right of appeal and has tended to give such appeals an artificial
character. The working of the "one-stop" system has
confused all involved with it. It has unnecessary repetitions
in its processes requiring disclosure by appellants of all their
grounds for entering or staying in the UK preventing them from
raising grounds late by a system of certificates. Supposedly one
stop appeals were meant to offer appellants a "comprehensive"
right of appeal in which all pertinent issues are dealt with in
order to avoid any sequential appeal rights. However, in practice
this has affected quality decision-making, forcing appellants
to make projections of the future, rather than focusing on the
issues that are in contention at that moment in time.
Another prominent ailment of the current appeal
system is its shift from relative informality to a much more formal
forum, resembling a heavy-weight judicial process, caused by an
over-complex system and its too legalistic approach. The strict
interpretation of the Geneva and Human Rights Conventions, as
well as a complex and ever-evolving body of case law, which now
also includes jurisprudence from jurisdictions outside the UK,
has forced appellants to seek legal advice rather than representing
themselves. Yet, despite best intentions, there has been no marked
improvement in the quality of initial decisions, and the process
is still rife with delay, especially in non-asylum cases. In addition,
there is no guarantee to legal advice and representation, and
legal advice appears to be short in supply (especially in the
regions outside London).
The government has made it very clear in the
past, but even more so recently, that it intends to reduce the
number of asylum claims in the UK by implementing an ever more
restrictive approach to asylum. In order to achieve this goal,
the legislative measures brought into effect have focused on speedy,
rather than just decision-making. The Nationality, Immigration
and Asylum Act 2002 has implemented the most draconian legislation
so far, and devised measures within the appeal system aimed at
the speed of decision-making, but neglecting the important principles
within any legal system of fairness and justice.
Placing speed at the forefront of the appeal
system, has created a situation where the system no longer enjoys
the trust of the public it is meant to serve. If speeding up asylum
applications and appeals was to have the effect of efficiency
savings, then surely the past would have shown that this is an
illogical presumption. The implementation of the one-stop procedure
has not markedly improved the disposal of appeals. The certification
categories in the 1999 Act resulted in many certified decisions
being overturned by an adjudicator, or if upheld, overturned at
judicial review. Speedy decision-making will always be at the
cost of quality decision-making. The initial decision making process
is flawed, which means that an ineffective decision will be at
contention at an appeal hearing, causing undue delay.
Our view is that the inescapable logic of fast-track
is that there will also be a "slow-track". Speeding
up the asylum decision-making process will mean that this will
be at cost of other appeals.
JCWI also has concerns about the new statutory
review provisions under the 2002 Act which only allows for appeals
to be considered on the papers. At the moment it is difficult
to assess how this will work out in practice. We are aware that
statutory review applications are not strictly analogous to paper
applications for leave for judicial review because in the latter
case it is possible to renew an application if refused with an
oral hearing and even an appeal to the Court of Appeal. This will
not be possible with the statutory review proceedings. We would
therefore hope that judges will exercise the greatest caution
when considering statutory review cases, and in these circumstances
acknowledge that in cases of reasonable doubt the finding should
be in favour of the appellant. However, if the refusal rate comes
to match that of paper judicial review applications, we would
be concerned that the interests of justice were not being properly
served.
2. THE COSTS
TO PUBLIC
FUNDS OF
SUPPORTING NEW
APPEAL STRUCTURES,
SUCH AS
THE ASYLUM
SUPPORT ADJUDICATORS,
AND OF
SUPPORTING THE
EXTENSION OF
LEGAL AID
JCWI is of the view that the implementation
of new appeal structures and complicating those already in place
has led and will further lead to increased public expense. In
recent years, the Immigration Appellate Authority (IAA) has expanded
its resources to mirror the government's efforts to relieve the
south-east of the "asylum burden". However, resources
for the asylum seekers themselves still seem to be in London and
the south-east in the main: legal representation, interpreters,
medical facilities specific to the needs of asylum seekers as
well as communities. Dispersal has proved at times to be an impracticable
measure for many appellants, who normally have no financial means
and who may rely on attendance of other witnesses, to say nothing
of the great inconvenience experienced by representatives and
interpreters who incur long attendance hours and extensive travel
costs.
Support ought to be based on need, not on whether
someone is the "ideal" (in the eyes of the Home Office)
asylum seeker. There would be no need for asylum support adjudicators
if claims for support were assessed as such. Resources should
be available to where there is a need for them. The fact that
Section 55 decisions are not subject to a hearing renders the
whole system of asylum support adjudicators meaningless and will
simply prompt numerous judicial reviews, impacting on the efficiency
of the Administrative Court.
JCWI welcomes the extension of legal aid to
cover representation at appeals, however, we are concerned that
the merits test is too restrictive, and for that reason many appellants
still find themselves unrepresented.
The government is currently focused on reducing
numbers, disposal and expediency and recent legislation is an
obvious reflection of that focus. As far as JCWI is concerned,
this focus on expediency undermines the interests of justice and
will not be cost effective. Oakington for example, which was set
up to deal with fast track cases, is costing the taxpayer £18,000
per applicant (source: IAS). Many of the Oakington generated cases
were still in the appeals system long after they were supposed
to be disposed of according to Home Office plans. It is likely
that the Home Office's new project at Harmondsworth will also
be a drain on the public purse but without generating the benefits
the Home Office hopes to achieve, ie a quick turnover of appeals.
Due to the restricted time limits to bring a case it is more than
likely that initial decisions will be flawed causing delays at
appeal hearings to sort out the mess.
Non-suspensive appeals from abroad will add
to the expenditure of video links and conferencing.
It should be obvious that to reduce the cost
of the appeal process as a whole would need a simplification of
procedures.
3. THE EXTENT
TO WHICH
THE IMMIGRATION
APPELLATE AUTHORITIES
COULD BE
MADE MORE
EFFICIENT, WITHOUT
SACRIFICING FAIRNESS
JCWI has raised concerns in the past that the
IAA often appeared to enjoy too close a relationship with the
Home Office. The IAA's function is judicial and central to the
notion of a democratic society that separation of powers should
be maintained. The nature of the IAA has certainly become more
complex in recent years. Comparing the IAA with other tribunal
systems, such as the employment tribunals, the IAA does not adjudicate
between two (more or less) equal civil parties, but in all cases
has the state as one of the parties in dispute. Therefore it is
all the more important that the IAA should operate freely as an
arbiter, against clearly defined canons of law, and without favour.
It is our view that the current system is weakened by the Home
Office treating asylum cases in particular as an extension of
the determination process. Certification, "white list"
cases are prime examples. Before such a case even reaches a court
it is predetermined that such cases are (clearly or manifestly)
unfounded, triggering tighter deadlines to make a claim, or an
appeal, with limited appeal rights, or appeal rights that are
"non-suspensive". Such cases are prejudged as bound
to fail, and the IAA therefore has limited scope to adjudicate
merits properly. Public confidence in the system depends upon
its perceived independence.
The general institutionalised attitude toward
asylum seekers and immigrants ought to change. The official rhetoric
focuses on "bogus", "abusive", "economic
migrants" and the ethos and training of Home Office staff
seem to work toward exclusion. There is a pervasive culture of
disbelief within the system and little respect for the trauma
and fear surrounding asylum seekers. This makes it all the more
necessary for adequate legal representation from the outset. The
extreme focus on credibility and the culture of disbelief slows
down the appeal process. The Immigration and Nationality Directorate
ought to focus, as should the IAA in instances, on fundamental
issues, not peripheral detail.
Poor quality decision making is prominent throughout
the system. This is caused by the sheer volume of cases, produced
by backlogs in both Home Office and IAA, delays, and rise in applications.
To a great extent this is a matter for the Home Office, however
is a feature too of the IAA. Initial decision making should be
improved, and would be if all applicants were in fact represented
from the outset of the asylum procedure. JCWI believes that applicants
should be accompanied by a legal representative at interviews
(that is if they are able to instruct one prior). It is now upon
the appellant to make a claim as soon as they arrive in the country,
when they do they may be detained, dispersed to areas outside
London, or required to report for interview in a matter of days.
This prevents applicants from access to legal advice, leading
to the majority of applicants being unrepresented. When lawyers
do accompany their clients to interviews, they are prevented from
actual contributions to the process. There must be an acknowledgement
on the part of the Home Office and the Immigration Service, as
there is on the part of the police, that the role of a good adviser
is to assist all parties by intervening where necessary and directing
the course of the interview where appropriate.
4. WHETHER THE
RELEVANT PROCEDURE
RULES PROPERLY
BALANCE FAIRNESS
AND JUSTICE
WITH EFFICIENCY
The relevant procedure rules have sought to
extend the procedures that focus on the disposal of asylum and
non-asylum appeals rather than on serving the interests of justice.
The recent Immigration and Asylum (Procedure) Rules 2003 is a
prime example of this notion. This has made the IAA inflexible.
We are particularly concerned that the recent 2003 Procedure Rules
include a statutory "closure date" by which an appeal
has to be heard without the possibility of any adjournments after
this date has passed. This not only prevents justice, but it fails
to take into account that it is frequently not due to the appellant
or his/her representative that there is delay. From our experience,
the Home Office has been known to ignore directions, to fail to
provide a presenting officer at hearing, or to ignore issues that
were brought to their attention prior to any appeal taking place.
We are of the view that adjournments always should be given if
it serves justice. To completely bar adjournments undermines this
principle.
In addition adjudicators should use their powers
to sanction the Home Office more often in case of non-compliance.
The 2003 Procedure Rules also introduce a reduced
time limit to appeal in detained cases. Just because a person
is detained, this does not automatically mean that the merits
of the claim warrant a tighter deadline. Detained people already
face obstacles in obtaining competent legal advice and representation.
The tightened deadline will exacerbate this problem.
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
There is no guarantee of legal representations
and many find themselves without at non-asylum and asylum appeals.
Over-complicated procedures effectively prohibit a person from
representing themselves.
People who are detained find it even more difficult
to access competent legal advice, yet they are subject to even
tighter deadlines. Many lawyers are reluctant to represent those
in detention because of the added travel and attendance costs,
the stricter time scales, and the presumption that if someone
is detained their case may lack in merit.
The implementation of accelerated procedures
has a detrimental effect on issues such as access to quality legal
advice and decision-making. Having tightened the legal aid merits
test, this will only make matters worse.
Legal advice and interpreting services are still
mainly London-based. Approximately 30% of asylum cases have representation
emanating from London. The regions have received increased resources
for the Home Office and IAA but are unable to keep up with advice
services in response to increased demand.
In terms of interpreting services it is known
that both the IAA and the Home Office have to work with a limited
pool of interpreters, especially in the regions, resulting in
the same interpreters who work for the Home Office appearing in
appeal hearings and vice versa. This does not serve justice!
6. THE EXTENT
TO WHICH
"NON-SUSPENSIVE"
APPEALS PROVIDE
AN ADEQUATE
RIGHT OF
APPEAL
JCWI is extremely concerned about the non-suspensive
appeal rights implemented by the 2002 Act. Once again, speed rather
than fairness has been made a priority. To rely on a presumption
of safety in certain asylum cases is a dangerous notion. In-country
appeal rights ought to be an essential safeguard, a court ought
to rule on a removal, based on individual merit to prevent people
being returned to countries where they may be at risk. We are
of the view that all cases in which there is an issue of protection,
should trigger an appeal right from within the UK.
An appeal right from abroad will provide real
obstacles to appellants in terms of legal advice and representation,
even if they do have representation, there will be obstacles in
terms of contact between appellant and lawyer, evidence gathering,
taking statements etc.
A right of appeal from abroad flies in the face
of basic principles of law and human rights, and breaches the
UK's obligations under the 1951 Geneva Convention and the European
Convention of Human Rights.
JCWI'S CONCLUDING
OBSERVATIONS:
— Early access to legal advice will
speed up the process and leads to better quality decision making
from the outset. There should be a guarantee to legal advice from
the outset.
— The current appeal system is not
sufficiently user-friendly and too complex which means that only
expert lawyers, adjudicators and Presenting Officers can deal
with cases substantively. Training on all fronts should be improved.
The quality is too uneven.
— IAA Adjudicators and Tribunal members
should be recruited for their expertise, their understanding of
human rights issues and their cultural awareness. Too many appointments
are of low calibre.
— If the IAA is to function effectively
as a truly independent decision-making body it must have a wider
jurisdiction. It must be able, where appropriate, to review discretion
and to make recommendations that carry more weight.
— The government is wedded to the retention
of fast track (expedited) appeals, at the same time indicating
a desire to speed up the rate of disposal of all appeals. This
is an acknowledgement of failure. The inescapable logic of fast-track
is that there will also be a "slow-track".
— The IAA and the Home Office should
only focus on issues that are in contention at the time, rather
that having to look at issues that may be at play in the future
as and when removal takes place. One stop appeals are too artificial
which detract from the quality of decision making.
— We are convinced that attempts to
speed up the system by curtailing rights of appeal will backfire:
in the past, fast-track appeals could simply leapfrog the IAT
to Judicial Review. The fast-track system should be scrapped as
it is based on, amongst other things, nationality, which is a
deeply discriminatory as well as an inefficient system.
— Fast-tracked applications are prejudged
as bound to fail, and the IAA therefore has limited scope to adjudicate
merits properly.
— If wasteful reliance on the IAA is
to be avoided, opportunities must be made for appellants and representatives
to address issues of concern with the Home Office before a final
decision. Matters in issue ought to be addressed between the parties
before the hearing. Far too much court time is wasted going over
issues that need not be in contention. The problem is that a representative
cannot know whether everything raised remains an issue or whether
certain matters, whether or not specifically addressed in the
Home Office's refusal letter or explanatory statement may be taken
as agreed.
— The role of Home Office Presenting
Officers must be clarified. They must have the authority to concede
points or entire cases, where appropriate.
— The overriding emphasis given by
the Home Office to questions of credibility in turn puts credibility
at the heart of the adjudicator's deliberation and undermines
their judicial function.
— Appeals should not be disposed of
"on the papers" if the principal issue to be resolved
is the Home Office's allegations of an appellant's credibility.
In addition, appellants should have the right to be heard in all
circumstances.
— The nature of the IAA's decision
making should also be clarified in terms of the date on which
matters are considered. Currently, a distinction exists between
asylum and non-asylum appeals. At asylum appeals, the facts in
issue are those at the date of the hearing, whereas in non-asylum
appeals it is at the date of the respondent's decision. The logic
of this distinction is hard to understand. For example, in many
family settlement appeals against entry clearance refusals, the
appeal looks to the future as much as it does in asylum appeals.
In asylum appeals future risk upon return to the country of persecution
is assessed. By the same token, in non-asylum appeals, post decision
facts should be admissible in appropriate cases.
— Adjudicators should make more use
of powers to make directions on both parties, including the Home
Office who is given directions far less and often ignores them.
Adjudicator's must also be given clearer powers and be encouraged
to use them to invoke sanctions against the Home Office for non-compliance
with directions, as they may do against appellants.
— We are of the view that adjournments
always should be given if it serves justice. To completely bar
adjournments will undermine this principle.
— Time limits are too short to permit
justice and must be reviewed. This especially relates to fast
track cases.
Joint Council for the Welfare of Immigrants
April 2003
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