Evidence submitted by JUSTICE (AIA 17A)
SUPPLEMENTARY SUBMISSION
INTRODUCTION
1. JUSTICE is an independent all-party law
reform and human rights organisation. It is the British section
of the International Commission of Jurists.
2. We welcome the Committee's call for further
evidence following the publication of the Asylum and Immigration
(Treatment of Claimants, etc) Bill. As the Committee will be aware,
clause 10 of the Bill contains not only far-reaching measures
in respect of asylum and immigration appeals but raises also wider
constitutional issues. We have argued against the provisions contained
in clause 10 of the Bill in our briefing for Commons Second Reading.[110]
Below we set out for the Committee's benefit our position on clause
10 of the Bill as detailed in our briefing.
CLAUSE 10 SUMMARY
3. Clause 10 merges the current two tiers
of asylum appeal into a single tribunal, renamed Asylum and Immigration
Tribunal ("AIT"), and provides for the exclusivity and
finality of decisions made by the new Tribunal by abolishing all
existing rights of appeal to, and judicial or statutory review
by, the higher courts. It explicitly forbids challenge on the
grounds of lack of jurisdiction, irregularity, error of law, breach
of natural justice or any other matter.[111]
The clause also seeks to protect decisions by the Home Secretary
in connection with a person's removal from any judicial scrutiny.[112]
4. A review of a decision made by the IAT,
on grounds limited to serious points of law, can be conducted
by the Tribunal itself if requested to do so by a party to the
appeal.[113]
Such a review can only be carried out once and will be by reference
to written submissions only.
5. A new procedure empowers the President
of the AIT to refer points of law to the Court of Appeal.[114]
However the Court cannot make a decision on the point—it
can only give its opinion to the AIT. No appeal to the House of
Lords is available from an opinion given by the Court of Appeal
under these provisions.
ABOLITION OF
THE CURRENT
TWO-TIER
SYSTEM
6. The Home Office and Department for Constitutional
Affairs have claimed that reforms to the asylum appeals process
are necessary to stop failed asylum seekers abusing the current
appeals system and thereby delaying their removal.[115]
7. In our view, most instances of delay
in the asylum process are the result of Home Office inefficiency.
In particular these are due to:
— Significant delays in decision-making:
despite some recent improvements, there continue to be a large
number of asylum claims involving significant delay between
initial claim and interview, and between interview and decision
by the Secretary of State.[116]
— High error rate: the significant
rate of error in Home Office refusal letters continues to be a
fruitful basis for legal challenge. No amount of tinkering with
the appellate system, whether removing a second tier of appeals
or access to judicial review, can remedy this basic source of
error.[117]
Home Office standards have been repeatedly criticised, most notably
by the Council on Tribunals in its evidence to this Committee's
current inquiry. The Council identified the need for "better
quality decision making at first instance" as one factor
that would improve both the efficiency and fairness of the current
asylum appeals system.[118]
— Failure to remove as a matter of
policy: large numbers of asylum seekers are simply not removed
as a matter of Home Office policy despite having exhausted their
appeals, and despite the fact that the Home Office has substantial
powers under existing legislation to effect their removal. This
is either because there exists no safe, practicable route for
their return (eg Somalia or Iraq), or because the Home Office
is otherwise unwilling to enforce removal (eg Zimbabwe).
— Failure to attend adjudicator hearings:
at present, the Home Office is not represented in approximately
30% of first-tier cases because it does not send a Presenting
Officer to attend the hearing. The absence of proper Home Office
representation in adversarial proceedings places an inevitably
greater strain on the second-tier proceedings, the Immigration
Appeal Tribunal.[119]
Over 10% of applications for leave to appeal are made by the Home
Office itself against first-tier decisions allowing asylum or
human rights claims. It is difficult to reconcile this figure
with the apparent view of the Home Office that only first-tier
review is needed in order to reach correct outcomes.
8. In addition, we do not agree that the
present two-tier appeals system provides incentives to spin out
the process and delay removal. On the contrary, it is our view
that the existing second-tier works effectively and performs an
essential role. This is borne out by the fact that:
— Access to the Immigration Appeals
Tribunal (IAT) is by means of a leave procedure: this means that
the IAT will only grant permission to appeal if there is a reasonable
argument relating to the quality of the first-tier decision. In
cases where there is no obvious defect, and where it is apparent
the claimant is seeking merely to delay eventual removal, the
IAT will summarily refuse permission within a matter of days.
— Statistics show that the IAT retains
value: at present, up to 1 in 3 applications for leave to appeal
are being granted. The relatively high rate of successful leave
applications suggests that review by the IAT is necessary to monitor
the effectiveness of first-tier decision-making (a lower rate
of successful leave applications would suggest less need for a
second tier).
— The IAT plays a vital role in addressing
the sources of first-tier error: while 16% of appeals to the IAT
are currently allowed,[120]
a further 44% of tribunal appeals are remitted back to the first-tier
adjudicators for reconsideration because of errors of law. In
total, about 60% of appeals to the IAT result in the decision
of the first-tier being reversed or reconsidered. This shows a
substantial number of errors that currently occur at the first
tier of appeals—mistakes, we have noted, that occur as a
consequence of the complexity of immigration law, the failure
of the Home Office to attend hearings, and the constant introduction
of fresh immigration rules and legislation. The abolition of the
current second-tier of appeals will do nothing to address these
sources of first-tier error. Instead, the approximately 60% of
cases in which errors currently occur would simply go uncorrected
and unaddressed.[121]
9. Within the proposed single-tier system,
the single AIT judge will not have the benefit of second-tier
review to correct errors of law or procedure. Rather, the Home
Office proposes an internal party-led review of the Tribunal's
decisions, conducted by reference to written submissions only
and restricted to decisions based on an erroneous construction
or application of a provision of an Act—a considerably narrower
ground than the current second-tier appeals on point of law. This
would preclude, for instance, interpretation of immigration rules,
issues of natural justice and procedures fairness.
10. Ironically, the absence of a second
tier would mean that the judges of the proposed single tier AIT
would have to review applications without the benefit of the second-tier's
leave procedure (which currently screens out approximately two
thirds of cases). As such, the amount of time spent by single
AIT judges reviewing internal appeals is likely to be a significant
drain on time and resources.
11. Lastly, we note that the decision to
introduce a single-tier appeal system in the field of asylum and
immigration is wholly at odds with the recommendations of the
Leggatt Report,[122]
a comprehensive review of the tribunal system which called for
a standardised system of administrative tribunals with a unified
second-tier cutting across different subject areas. It is useful
to contrast the hastiness of the Home Office proposals in this
case, as against the careful and measured review conducted by
Sir Andrew Leggatt in this area. It can reasonably be asked why
a two tier appeal system is ever to be considered appropriate
if, in a jurisdiction which deals with large numbers and is daily
concerned with life or death decisions, a single tier is all that
is thought necessary.
REMOVAL OF
THE HIGHER
COURTS' JURISDICTION
12. The attempt to remove the higher courts'
powers to scrutinise decisions of the executive or the IAT is
unprecedented and a matter of great constitutional significance.
The consequence of this provision will be that:
— the long-standing and widespread
constitutional right to the supervisory jurisdiction of the courts
to maintain the quality of inferior tribunals is breached;
— an inferior tribunal will be isolated
from the requirements of natural justice and will effectively
determine the scope of their own jurisdiction—a proposition
that Lord Denning described as "the end of the rule of law;"[123]
— the legality of decision-making by
the executive is subject to review only by tribunals the executive
itself has established, whose procedural rules it dictates, and
whose decisions are unaccountable before any court of law. This
may well prove to be challengeable under the European Convention
of Human Rights.
Our view is that such a wholesale exclusion
of the courts is unprincipled, unjustified and will encourage
second-rate decision-making. It is a totally disproportionate
and unnecessary response to the failures perceived by the Government
in the current working of its asylum policy.
13. The right of access to the courts is
effectively a fundamental constitutional right and has been so
regarded throughout the common law world and beyond.[124]
The courts have indicated since a major 1969 decision of the House
of Lords[125]that
they will interpret any statutory provision seeking to prevent
access to courts in the strictest terms possible. Senior judges
are particularly likely to oppose any attempt to deprive them
of their supervisory role in asylum cases where the consequences
of error can be literally fatal. Furthermore, higher courts have
a significant role in determining points of law as guidance in
its application by the lower judiciary: it is often through the
higher courts that protection principles and the finer points
of refugee law are authoritatively articulated.
14. The Secretary of State has declared
the Bill as compatible with the Human Rights Act. We question
this. The key requirement of any tribunal under the Convention
is that it should be "independent and impartial." Clause
10 removes judicial supervision of the tribunal and provides no
redress to an applicant who alleges that it has acted unlawfully.
The effect is that a tribunal could come to a completely outrageous
decision, unwarranted by the facts, and would effectively be unchallengeable.
The implication of the Government's position is that it is not
concerned that such a decision would be contrary to its interests
but this clause will bind all parties. Neither the Government
nor the applicant will be able to challenge a totally erroneous
decision by way of judicial review. In addition, removing the
ability of the courts to review the decisions of inferior tribunals
would prevent them from providing a remedy for breaches of the
Convention by inferior Tribunals, contrary to Article 13.
15. While some failed asylum seekers undoubtedly
rely on the courts to frustrate removal, current High Court procedures
have been shown to be very effective in stopping such dilatory
appeals at the outset.[126]
The two-stage leave procedure introduced by the Bowman Report
has meant that permission is required in order to proceed to full
judicial review. Applications for permission are dealt with in
the first instance on the papers. This allows the High Court to
screen out those applications that are without merit swiftly and
efficiently.
16. As such, there is no evidence to show
that the higher courts in general have been overrun by baseless
asylum claims. Instead, the current volume of asylum decisions
reflects (i) the complexity of current immigration law; ii) the
appropriate degree of scrutiny that the courts must give to cases
that involve fundamental human rights; and (iii) the constant
flow of fresh immigration measures, each of which must be interpreted
and applied by the courts.
17. Any alleged abuse of judicial review
should be controllable by the current requirements of leave, costs
and the legal aid. The ouster of judicial review or appeal from
contentious decisions of the immigration tribunal is an attempt
to prevent the higher courts with their greater experience, resources,
and access to the highest calibre of advocates from developing
and declaring the law in a way amenable to the Home Office. This
raises serious questions because it is implicitly an attack on
the independence of the judiciary. An already overloaded adjudicator
system is to be sole arbiter of difficult questions both of fact
and law at a time when it will be under immense executive pressures
to process cases speedily. The consequence of shoddy decision-making
is unavoidable. This provision, if enacted, is likely to prove
a disaster; will predictably lead to judicial challenge—possibly
to the European Court of Human Rights in Strasbourg; and will
undoubtedly not stand the test of time.
JUSTICE
January 2004
110 Asylum and Immigration (Treatment of Claimants
etc) Bill Clause 10, JUSTICE Briefing for Commons Second Reading,
December 2003 Back
111
New s108A, subsection 3 Back
112
New s108A, subsection 2(e) Back
113
ew s105A Back
114
ew s108B Back
115
See Home Office/DCA statements accompanying the publication of
the new Asylum Bill. Home Secretary, David Blunkett: "New
proposals will significantly reduce the scope for claimants to
string out the appeals system solely to delay removal at the expense
of the taxpayer-with limits on legal aid and a new single tier
of appeal".Secretary of State for Constitutional Affairs,
Lord Falconer: "By introducing the single tier tribunal with
one appeal, and no access to the higher courts apart from very
limited circumstances, we will take a huge step towards stopping
failed asylum seekers who have no chance of success from using
the appeals system to delay the inevitable." Home Office
press notice 326/2003 of 27 November 2003 Back
116
For a recent case commenting on Home Office delay in determining
claims see Shala v SSHD [2003] EWCA Civ 233. A Kosovan
Albanian applied for asylum on arrival in June 1997 yet the Home
Office did not determine his application until July 2001. As the
Court of Appeal noted, the difficulties arose because "the
relevant procedures were designed to take months . . . yet have
in practice . . . taken the Home Office several years" Back
117
For example, the recent report of the Independent Race Monitor
on asylum casework showed concern about cases in which all the
significant factual details given by the claimant are not believed
simply on the assumption of credibility without any other indicated
facts. This does not help adjudicators understanding the issues
of contest between the claimant and the Home Office and places
extra burdens on the adjudication process. See Independent Race
Monitor, Annual Report April 2002-March 2003, para 30 Back
118
Evidence to the Constitutional Affairs Committee inquiry on Asylum
and Immigration Appeals, April 2003. The Council also identified
"speedier and better preparation of appeal paper by the Home
Office, and the presence of well-briefed Home Office Presenting
Officers at every hearing", as likely to increase "the
efficiency of the [Immigration Appellate Authority] and enhance
fairness at the same time" Back
119
See evidence by Mr Justice Ouseley, President of IAT, to the CAC
inquiry, April 2003: "There is a growing trend for the Home
Office to bring appeals in cases where it was not represented
before the adjudicator" Back
120
Hansard, 11 December 2003, Col 592W Back
121
We note in this context the misleading claim made recently by
the Home Office Minister, Beverley Hughes, that only 3% of initial
adjudicators' decisions are overturned by the second-tier tribunal
(Evidence taken before the Home Affairs Committee on Wednesday
19 November 2003, Q860). This figure is obtained by reference
to those who apply for leave to appeal to the Tribunal, rather
than by reference to those whose leave to appeal is granted Back
122
Sir Andrew Leggatt's report on the tribunal system, Tribunals
for Users-One System, One Service, March 2001, Part I, Ch
3, para 3.8. The report made a far-reaching set of recommendations
for the structural reform of tribunals Back
123
R v Medical Appeal Tribunal; Ex parte Gilmore [1957]
1 QB 574 at 586 Back
124
See eg s27(2) of the New Zealand Bill of Rights Act 1990 ("Every
person whose rights, obligations, or interests protected or recognised
by law have been affected by a determination of any tribunal or
other public authority has the right to apply, in accordance with
law, for judicial review of that determination"); Krishnapillai
v. Canada (CA) [2002] 3 FC 74, applying ss 7 and 15
of the Canadian Charter of Rights and Freedoms 1982; Article 34
of the South African Constitution ("right of access to the
courts"); Article 34(3) Constitution of Ireland; the decision
of the US Supreme Court in Bounds v. Smith, 430
US 817, 97 S Ct 1491 52 L Ed 2d 72 (1977) and the judgment of
Chief Justice Marshall in Marbury v Madison (1803):
The very essence of civil liberty certainly consists in the right
of every individual to claim the protection of the laws, whenever
he receives an injury. One of the first duties of government is
to afford that protection. In Great Britain, the King himself
is sued in the respectful form of a petition, and he never fails
to comply with the judgment of his court Back
125
Anisminic [1969] 2 AC 147 Back
126
Data for 2003 show that, to the end of November 2003, 252 were
granted permission out of 1,396 applications to judicially review
a decision of the immigration appellate authority. Hansard,
11 December 2003, Col 592W Back
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