Evidence submitted by the Council on Tribunals
(AIA 13)
COMMITTEE ON
THE LORD
CHANCELLOR'S
DEPARTMENT ASYLUM
AND IMMIGRATION
APPEALS
1. This memorandum by the Council on Tribunals
is submitted to the Committee on the Lord Chancellor's Department
to assist the Committee's inquiry into the immigration and asylum
appeals process.
2. The Council was set up by the Tribunals
and Inquiries Act 1958 and now operates under the Tribunals and
Inquiries Act 1992. The Council's main statutory function is to
keep under review the constitution and working of the tribunals
under its supervision and, from time to time, to report on them.
Included among the 80 or so tribunal systems under the Council's
general supervision are the immigration adjudicators, the Immigration
Appeal Tribunal, the asylum support adjudicators and the Immigration
Services Tribunal (but not the Special Immigration Appeals Commission).
3. The Council must be consulted before
procedural rules are made for any tribunal under its supervision.
The Council must make an Annual Report to the Lord Chancellor
and the Scottish Ministers, which is laid before Parliament and
the Scottish Parliament. Over the past 10 years, with four major
Acts of Parliament dealing with asylum and immigration appeals
(1993, 1996, 1999, 2002) and several sets of procedural rules
associated with them, the topic has featured prominently in the
Council's Annual Reports (in particular 1992-93, pp 33-36; 1994-5,
pp 14-18; 1995-96, pp 29-32; 1998-99, pp 9-15; 1999-2000, pp 39-41;
2000-01, pp 19-20; 2001-02, pp 28-31: the Council will supply
extracts if desired).
4. Each year the Council carries out a programme
of visits to tribunal hearings. In the last year all the tribunal
systems under the Council's supervision that operate in the field
of asylum and immigration have been visited, some of them several
times. The Council also maintains regular links with the tribunal
judiciary and administration. Council members' impression from
visits is that hearings are generally well conducted and that
the quality of adjudication is high. Training provision also seems
to be good. However, the Council retains some significant concerns
about the fairness of the system as a whole which are reflected
in the comments below.
5. The paragraphs below comment on the matters
to which the Committee is paying particular regard.
THE EXTENT
TO WHICH
RECENT REFORMS
HAVE PRODUCED
ANY SIGNIFICANT
EFFICIENCY SAVINGS
AND/OR
IMPROVED THE
QUALITY OF
THE APPEALS
PROCESS
6. In the field of asylum and immigration
the picture can change very rapidly and it is not always easy
to gauge the effect of recent reforms. However, in the Council's
view the following have been conducive to the efficiency and,
possibly in the case of the second and third bullet points, to
the quality of the appeals process:
— appointment of additional judiciary;
— improvement in quality of representation;
— improvement in quality of interpreters;
— separate buildings for adjudicators
and the IAT; and
— use of technology, eg video link.
THE COSTS
TO PUBLIC
FUNDS OF
SUPPORTING NEW
APPEALS STRUCTURES,
SUCH AS
THE ASYLUM
SUPPORT ADJUDICATORS,
AND OF
SUPPORTING THE
EXTENSION OF
LEGAL AID
7. During the preparation of the legislation
leading to the Immigration and Asylum Act 1999, the Council questioned
the need for a separate adjudication system for asylum support
appeals. The Council thought that there could be considerable
advantages in incorporating the new appeals into an existing system,
such as that under the Social Security Act 1998. The Council also
thought that the appointment of the adjudicators by the Secretary
of State was not conducive to the perception of the independence
and fairness of the appeals system. The Council expressed the
view that asylum support adjudicators should be qualified lawyers
appointed by the Lord Chancellor. The Council also advocated a
further right of appeal to the High Court on questions of law.
However, the Council has been impressed by the way in which the
asylum support adjudicators have approached their work. The Council
has supported the Chief Asylum Support Adjudicator in her efforts
to obtain improvements to the procedural rules in order to relax
the rigidity of time limits and enhance case management powers.
8. The Council supported the extension of
legal aid in asylum and immigration cases. In the Council's view,
good quality advice and representation (not necessarily provided
by lawyers) makes an important contribution to the fair and efficient
disposal of cases.
THE EXTENT
TO WHICH
THE IMMIGRATION
APPELLATE AUTHORITIES
COULD BE
MADE MORE
EFFICIENT, WITHOUT
SACRIFICING FAIRNESS
9. The Council's view is that better quality
decision making at first instance, speedier and better preparation
of appeal papers by the Home Office, and the presence of a well-briefed
Home Office Presenting Officer at every hearing, would all increase
the efficiency of the IAA and enhance fairness at the same time.
On a number of recent visits the Council has been aware of the
difficulties caused for adjudicators, the IAT and appellants by
either the absence of the HOPO or the late delivery of appeal
papers by the Home Office.
10. The Council believes that there may
be scope for shorter determinations by adjudicators.
WHETHER THE
RELEVANT PROCEDURE
RULES PROPERLY
BALANCE FAIRNESS
AND JUSTICE
WITH EFFICIENCY
11. As indicated above, the Council has
been consulted on several sets of procedural rules over the past
ten years. Matters that have caused the Council concern include
the extreme shortness of time limits and the limitations on the
right to an oral hearing. On the other hand, the Council has strongly
supported the enhancement of case management powers.
12. The Council was most recently consulted
on the Immigration and Asylum Appeals (Procedure) Rules 2003,
S.I. 2003/652 (the Principal Rules) and the Immigration and Asylum
Appeals (Fast Track Procedure) Rules 2003, S.I. 2003/801.
13. So far as the Principal Rules are concerned,
the Council's comments on the draft rules included the following:
— opposition to the new five day time
limit for detained cases: shortening time limits increases the
risk of injustice; it is unclear that even the very best administrative
arrangements can ensure that all appellants are treated fairly,
as opposed to efficiently; the appellant may well not speak English,
may be wholly unfamiliar with British institutions, and may be
a refugee from state-sponsored violence who has suffered severe
trauma;
— concern about decisions on late appeals
and preliminary issues normally being made without a hearing;
hearings enable points to be properly argued and reduce the risk
of injustice;
— reservations about requirement for
adjudicators to set closure date when a hearing is adjourned;
this is close to fettering judicial discretion;
— surprise at removal of IAT's power
to review a decision refusing leave to appeal; review is a quicker
and cheaper way of putting matters right when a mistake occurs
than an application to the Administrative Court (or Court of Session)
and remittal; and
— opposition to draft provisions on
certificates of no merit: there is the danger of representatives
refusing to represent appellants because of the risk they might
be lying or telling less than the whole truth.
While the Council's comments on these and other
matters prompted changes to the Rules as made (eg a "vexatious
or unreasonable" test for certificates of no merit), the
Council believes that the balance between fairness and justice
on the one hand and efficiency on the other is weighted too much
in favour of efficiency.
14. On the Fast Track Procedure Rules, the
Council's main additional areas of concern are the inherent unfairness
in having different procedures for different cases, the criteria
for selection for the pilot scheme (and presumably for the scheme
itself should it be introduced more generally), and the criteria
to be applied in assessing the success of the pilot. As regards
the very short time limits, the Council is strongly of the view
that two days is far too short a time in which to give notice
of appeal in proper form, with grounds. The Council has sought
assurances that interpreters and independent legal advisers will
always be available. The Rules only came into force on 10 April
2003 and the Council is not yet in a position to judge how well
they are working.
WHETHER THERE
IS SUFFICIENT
AVAILABILITY AND
PROVISION OF
LEGAL ADVICE
AND REPRESENTATION
AND OF
INTERPRETATION FACILITIES
FOR APPELLANTS
IN ASYLUM
AND IMMIGRATION
CASES
15. The Council attaches great importance
to the availability of legal advice and representation (not necessarily
provided by lawyers). As mentioned above, the Council welcomed
the extension of publicly funded support in this area. The Council
also supported the regulatory system introduced by the Immigration
and Asylum Act 1999 and the establishment of the Immigration Services
Tribunal. The Council has gained the impression that standards
of legal advice and representation have been improving. However,
the Council is concerned that instances of poor standards persist,
as is evident from recent decisions of the courts. The Council
is also concerned that provision is somewhat patchy and inclined
to be concentrated in particular geographical areas. The Council
would have serious misgivings about any moves to curtail the availability
of publicly funded advice and representation in the field of asylum
and immigration.
16. So far as interpretation is concerned,
the Council thinks that professional standards have improved.
However, in the Council's view it is an important part of the
interpreter's job to provide interpretation to appellants throughout
the proceedings. It is not simply a matter of interpreting the
evidence of witnesses. Council members continue to observe cases
where interpreters, though present, fail to provide "whispered"
interpretation during the course of argument and submissions.
Occasionally the interpreter is absent at times when evidence
is not being given. The Council has also noted that difficulties
can arise where the language used for interpretation is not the
first language of the appellant.
THE EXTENT
TO WHICH
"NON-SUSPENSIVE"
APPEALS PROVIDE
AN ADEQUATE
RIGHT OF
APPEAL
17. In commenting on the Nationality, Immigration
and Asylum Act 2002, the Council expressed concern about 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. This seemed to the Council to present considerable practical
problems and to be capable of leading to unfairness and injustice.
The Council thought that the requirement to conduct appeals from
abroad would make it more difficult for adjudicators to assess
the evidence of appellants. It would also make it more difficult
for appellants to have face-to-face discussions with their advisers
and to present their cases satisfactorily. Costs would 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. The very low success rate in the few
appeals so far has not allayed the Council's concerns on this
score.
18. On the subject of appeals from abroad,
the Council welcomed the abolition of fees for family visitor
appeals. In commenting on the provisions of the Immigration and
Asylum Act 1999, the Council had expressed concern that charging
a fee for these appeals could make it difficult for some people
to contemplate launching an appeal, even though the fee would
be refundable if the appeal succeeded.
April 2003
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