Evidence submitted by the Immigration
Law Practitioners' Association (AIA 14)
IMMIGRATION LAW
PRACTITIONERS' ASSOCIATION
RESPONSE TO
INQUIRY INTO
ASYLUM AND
IMMIGRATION APPEALS
ILPA RESPONDS TO
THE ISSUES
FOR INQUIRY
AS FOLLOWS:
1. The extent to which recent reforms have
produced any significant efficiency savings and/or improved the
quality of the appeals process:
— As the Committee will be aware, the
new appeals provisions are contained in Part 5 of the Nationality,
Immigration and Asylum Act 2002. Under commencement provisions,
the majority of the new appeals provisions apply to cases where
the primary Home Office/Immigration Service/Entry Clearance Officer's
decision has been made on or after 1 April 2003 [see The Nationality,
Immigration and Asylum Act 2002 (Commencement No 4) Order 2003].
Thus, the new provisions are not effective at the moment: the
Immigration Appellate Authority is still dealing with cases where
the primary decision pre-dates 1 April 2003. Consequently, it
is currently impossible to measure the effectiveness of Part 5
of the 2002 Act.
2. The costs to public funds of supporting
the new appeals structures, such as the Asylum Support Adjudicators,
and of supporting the extension of legal aid:
— ILPA has no expertise on purely budgetary
issues. However, we see absolutely no reason why the new appeals
provisions should increase the costs of an average appeal before
the Immigration Appellate Authority or the Asylum Support Adjudicators.
It is imperative that adjudicators fully understand the new appeals
provisions, so as to reduce the risk that they make legal errors
that need to be corrected on appeal to the Immigration Appeal
Tribunal or on judicial review, which would increase the costs
of an individual case.
3. The extent to which the Immigration Appellate
Authority could be made more efficient, without sacrificing fairness:
— ILPA does not accept that the IAA
provides an inefficient system. We believe that IAA staff work
hard and diligently. In our experience, the majority of cases
are listed and disposed of within a reasonable time of the IAA
being seised of the appeal. Procedure Rules lay down constraints
on an adjudicator's powers to adjourn a case. We believe that
adjudicators ought to be trusted as being able to ensure the expeditious
progress of appeals.
— We are concerned that measures to
increase the IAA's efficiency should turn out in fact to be measures
to promote the speedy removal of asylum seekers from the UK, currently
a burning policy issue. It is not the role of the IAA to promote
or concern itself with removal of asylum seekers from the UK.
The IAA is a judicial body and should exercise judicial independence.
It must not concern itself with policy issues which are the domain
of the executive branch of government.
— We are concerned that the IAA should
not equate efficient proceedings with speedy proceedings. Several
current practices appear to put the emphasis on completion of
appeal proceedings in as short a time as possible. For example:
— Overlisting of cases:
ILPA members regularly appear in immigration courtrooms where
as many as four substantive appeals are listed for hearing in
one day. On the one hand, from the perspective of the IAA, the
listing of large numbers of cases may be the most efficient way
of getting cases through the system. On the other hand, it is
clearly impossible for an adjudicator to hear four appeals and
so cases are regularly adjourned for lack of time. It is a waste
of time and money for an appellant to attend court only for his/her
case to be adjourned for lack of court time. Overlisting represents
a partial and narrow approach to efficiency. It fails to take
account of other factors, such as wasted costs, which are relevant
to the overall efficiency of the appeals system for the public
purse.
— ILPA strongly supports an efficient
appeals system. In particular, it is in the interests of refugees
to have their status determined as expeditiously as possible so
that they can begin the difficult task of integration into our
society. However, efficiency must not be at the expense of fairness.
The Committee will agree that our justice system has traditionally
upheld the highest standards of fairness and justice. Asylum seekers
and other migrants must be seen worthy of the same standards as
any other person in our society.
4. Whether the relevant procedure rules
properly balance fairness and justice with efficiency:
— ILPA has grave concerns that procedure
rules are increasingly a vehicle for speedy disposal of appeals
rather than for fair hearing. We are not saying that the majority
of asylum seekers and other migrants do not at present receive
a fair hearing. We are saying that recent procedure rules appear
to chip away at fairness and justice. Yet, standards of fairness
and justice must be retained by the judiciary, notwithstanding
pressure from the executive branch of government to remove failed
asylum seekers from the UK.
We set out two recent examples where fairness,
or the perception of the IAA's independence, appear to be secondary
to Home Office asylum policy for speedy removal of asylum seekers:
— The Immigration and Asylum Appeals
(Fast Track Procedure) Rules 2003.
The new fast track appeals system came into
effect on 10 April 2003. It applies potentially to all asylum
claimants from a range of countries including Sri Lanka and Turkey.
Fast track claimants will be detained at Harmondsworth. The current
timetable for processing fast track cases is about 19 days from
the claimant's arrival at Harmondsworth to exhaustion of IAA appeal
rights. We wish to make the following comments, concentrating
on the IAA's role in the fast track system, which is governed
by the Fast Track Procedure Rules:
— There was no consultation
on the fast track procedure or on the accompanying procedure rules.
ILPA became aware of the system in piecemeal fashion, so that
we were unable to advise our members about this potentially far-reaching
development. As a major stakeholder, we were surprised not to
be consulted. It is ultimately inefficient for the Government
to fail to keep major stakeholders informed of important developments.
By preventing dissemination of information and by hindering stakeholders'
ability to prepare properly for change, the prospects of a smooth
and efficient change-over to the new scheme are reduced.
— The Immigration and
Asylum Appeals (Fast Track Procedure) Rules were initially very
difficult to access on the internet. At a briefing meeting organised
by the Legal Services Commission on the fast track scheme on 3
April 2003, a representative of the LCD apologised that the route
to the Rules on the internet hindered simple access. He stated
that the LCD would take steps to make the Rules easier to find
on the internet. ILPA believes that the interests of open justice
are not served if procedure rules are introduced at short notice
and even after that are difficult to find on the internet. We
add that the Immigration and Asylum Appeals (Procedure) Rules
2003 were also extremely difficult to find on the internet until
very close before they came into force.
— The only plausible
motivation for having fast track appeals must be to aid the speedy
removal of failed asylum seekers from the UK. The fast track appeals
rules make sense from no other point of view. Aiding the removal
of asylum seekers from the UK is not a legitimate objective of
an independent immigration judiciary. It is constitutionally dubious
for the LCD, which is the guardian of the judiciary, to design
procedures geared towards implementation of the executive's policy
on asylum seekers. It is impossible for the judiciary to appear
even-handed between the parties if the LCD appears to have become
entangled in Home Office policy issues.
— The fast track scheme
appears to have been the result of co-operation between the Home
Office, the LCD and the Legal Services Commission. We suggest
that co-operation of this sort has serious constitutional ramifications,
for the sorts of reasons set out above. It does nothing to promote
the appearance of separation of powers.
— The Legal Services
Commission has set up a duty scheme for solicitors to represent
persons who are processed through the fast track. We understand
that the LSC will contact an approved solicitor directly and allocate
a fast track case to him/her. We have reservations about the propriety
of the LSC, as a funding body, getting involved in allocation
of solicitors to clients.
— The quality of legal
representation is highly likely to suffer under the fast track
scheme. Only two days are allowed for submission of grounds of
appeal to an adjudicator. Giving notice of appeal is a serious
matter and requires care and attention. The hearing must be listed
within a further four days. By that time, a solicitor will be
expected to have all documents for the case, including medical
or other experts' reports and to have found and instructed counsel.
This amounts to a great deal of work. We query whether such work
can be done to the sort of standard which serves clients' interests
and indeed the public interest. We are concerned that experienced
and skilled solicitors and counsel will simply be unable to work
to these sorts of timetables: please see also response to question
five below.
— The countries on the
fast track list do not always yield simple cases. For example,
ILPA members regularly represent both Sri Lankan Tamils and Turkish
Kurds who are victims of torture and who suffer post-traumatic
stress disorder. The added complexities which these cases raise
make us very doubtful that they can receive a just and fair hearing
within the fast track timetable.
— Applications for extension of time
to appeal to an adjudicator: Immigration and Asylum Appeals (Procedure)
Rules 2003 paragraph 10.
Under the new Procedure Rules, an adjudicator
must decide whether to extend time for appealing without an oral
hearing. In determining an application to extend time, an adjudicator
will consider any explanation from the appellant about why notice
of appeal was late. It is doubtful that an adjudicator can properly
assess the credibility of the appellant's account of events without
an oral hearing. We believe that it is unsafe and unfair for a
party to be deprived of an appeal right, without any opportunity
to put his case for extension of time at an oral hearing.
In our experience, the IAA is not swamped with
applications for an extension of time: oral hearings on this issue
do not take up a disproportionate amount of adjudicators' time.
We note that the draft rule contained provision
for an adjudicator to fix a hearing in exceptional cases if the
interests of justice required it. This provision was removed from
the final rule. Yet, adjudicators ought to be trusted to exercise
discretion to fix an oral hearing wisely: there is no reason to
suppose that, if given such a power, adjudicators will exercise
it in a way which slows down the proper consideration of appeals.
Furthermore, determination of the timeliness
of an appeal is a serious and substantial issue. It is not in
the interests of open, public justice for it to be determined
other than by way of an open hearing.
We draw attention to the Council on Tribunals
Model Rules of Procedure for Tribunals, consultative draft, January
2003, rule 29(3):
"The Tribunal may decide the question, and
also dispose of the case, without an oral hearing, but, in each
case only if:
the parties so agree in writing;
the Tribunal has considered any representations made
by them; and
there is no important public interest consideration
that requires a hearing in public".
We also direct attention to the Council on Tribunal's
notes to rule 69 of its draft model rules:
"`Publicity of proceedings' (together with
`knowledge of the essential reasoning underlying the decisions')
was regarded by the Franks Committee as a requirement of openness—one
of the three basic characteristics which tribunals should exhibit
. . . 'Publicity keeps the judge himself while trying under trial':
Bentham.
We submit that costs and administrative convenience
should not prevail over public scrutiny of the administration
of justice. Nor do we see that this rule will assist in the objective
of ensuring that asylum and other applications are processed as
swiftly as possible. It represents an unnecessary interlocutory
stage in the process. Further, the question whether time ought
to be extended should be judged in the context of the merits of
the case. We would recommend the approach adopted in other tribunals,
namely that the question of whether an appeal is in time should
be taken at the main hearing.
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.
— ILPA is concerned about the shortage
of quality legal representation for asylum seekers and migrants,
especially outside London and the south east.
— Many of our members are severely
stretched and run to full capacity almost all the time. They work
long hours, often for comparatively little reward. There is generally
a feeling of crisis about the future.
— We suggest that there are a number
of serious disincentives for solicitors' firms to start up or
expand their immigration departments:
— Constant changes in
immigration law and practice;
— The feeling that the
future of public funding is precarious;
— The administrative
and other complexities of funding by way of Controlled Legal Representation;
— Tight deadlines eg
10 working days to file grounds of appeal to the Immigration Appeal
Tribunal;
— Large amounts of non-billable
work eg researching country information on the internet and preparation
of Bundles;
— Increased workloads
as a consequence of the increasing formality of IAA proceedings,
which are now barely distinguishable from proceedings in the ordinary
courts.
— Our members outside London may experience
difficulties in obtaining a suitable interpreter. There is not
a notable problem in London. We stress the value of solicitors
using professional, qualified interpreters as adding efficiency
to the overall progress of an asylum appeal. Non-professional
interpreters may be unscrupulous, because they are concerned to
make as much money as possible from asylum seekers. Non-professional
interpreters have less skill and make mistakes of interpretation
which are then costly to rectify. Professional interpreters perform
a skilled and valuable job.
6. The extent to which non-suspensive appeals
provide an adequate right of appeal.
— During the passage of the Bill, ILPA
consistently and strongly opposed the introduction of non-suspensive
appeals. We supported the speeches of Lord Lester of Herne Hill
QC, Lord Goodhart QC, Lord Archer of Sandwell QC, Lord Mayhew
of Twisden QC and Lord Judd. We refer the Committee to the speeches
of their Lordships on this issue at Committee, Report and Third
Reading.
— There must be the risk that a person
appealing abroad, from the country of feared persecution, will
be unable to give proper instructions to an English solicitor.
This would prevent an appeal from being prepared as thoroughly
and effectively as in other cases. The practical obstacles are
obvious and serious. The utmost scrutiny should be applied to
Home Office decisions to add to the list of countries that can
yield non-suspensive appeals.
— We suggest that there have so far
been too few non-suspensive appeals for any conclusions to be
drawn about the efficacy of this new regime. There have certainly
been too few appeals to conclude that the risk of refoulement
of refugees is minimal.
ILPA
April 2003
|
