Memorandum submitted by the Law Society
(AIA 19)
ASYLUM AND
IMMIGRATION APPEALS
1. THE EXTENT
TO WHICH
RECENT REFORMS
HAVE PRODUCED
ANY SIGNIFICANT
EFFICIENCY SAVINGS
AND/OR
IMPROVED THE
QUALITY OF
THE APPEALS
PROCESS
The Law Society believes that recent reforms
have not improved the quality of the appeals process. We agree
that asylum applications should be dealt with speedily, on their
merits. However, we are concerned that too great an emphasis on
speed and the imposition of rigid targets for hearings and time
constraints on cases are likely to lead to the lack of a fair
hearing in contravention of Article 6 of the ECHR. Appeal procedures,
including requests for adjournments, should be flexible so as
to allow applicants and their representatives' time to prepare
cases properly.
The appeals system is an essential part of the
asylum process not least because, due to the poor quality of Home
Office decision-making in many cases, adjudicators are, in effect,
the first instance decision-making body. The pressure to increase
the throughput of cases is evidenced by the inappropriate use
of standardised paragraphs in Home Office decision letters, which
means that the individual merits of case are not taken into account.
We comment below on the introduction of non-suspensive
appeals and other rule changes (see questions 3 and 5). We are
also particularly concerned about the Government's recent announcement
of a new fast track pilot scheme, the intention of which is to
co-locate all parts of the decisions and appeals process to speedily
process all stages. We are told that the pilot may eventually
be expanded and become mainstream.
The Legal Services Commission has held the briefest
consultation on the provision of legal advice and representation
under the pilot. The intention is to use a duty solicitor scheme
to provide advice. We are yet to see how effective this will be
in practice, but we have concerns about the speed at which the
whole process will be conducted.
Asylum seekers have often suffered traumatic
experiences and some find it difficult to disclose information
about their case as soon as they arrive in a foreign country.
As a result, we have doubts as to whether this process will produce
the most reliable decisions, or ensure the best quality of advice
and representation for applicants.
2. THE COSTS
TO PUBLIC
FUNDS OF
SUPPORTING NEW
APPEALS STRUCTURE,
SUCH AS
THE ASYLUM
SUPPORT ADJUDICATORS,
AND OF
SUPPORTING THE
EXTENSION OF
LEGAL AID
The Law Society supports the provision of early
access to good quality legal advice and representation in the
asylum process. Provision of quality advice and representation
has obvious benefits for asylum applicants, who must often overcome
a number of difficulties, including a language barrier, to convey
their experiences to the Home Office and other authorities. The
role of solicitors is essential to ensure that the determination
of any asylum claim or any asylum support claim is carried out
in a fair and transparent manner in accordance with due process.
There has been recent public concern about increases
in the legal aid budget for immigration and asylum work. We suspect
that one of the reasons for the increase in the legal aid budget
is the introduction of public funding for representation at appeals
before immigration adjudicators and the Immigration Appeal Tribunal.
In a letter to the Law Society in 1999, the Lord Chancellor's
Department also recognised the importance of high quality advice
throughout an asylum case, adding that:
"the non-availability of legal aid for representation
. . . [was] recognised as [a] major barrier preventing more good
quality advisers dealing with asylum applications from the outset".
As a result, public funding for representation
was made available from January 2000. This factor, together with
the increase in appeals being heard by the Immigration Appellate
Authority from 2000 to 2001 goes some way to explaining the increases
in the legal aid budget.
At present there is no legal aid available for
representation on appeals before the Asylum Support Adjudicators.
The Society believes that legal aid should be extended to cover
representation before such appeals, given the seriousness of the
issue for the client. Lack of success at an appeal may render
the applicant destitute. In addition, the Home Office is represented
on these appeals by trained presenting officers, whilst the appellant
is unrepresented, and there is therefore an equality of arms issue.
Furthermore, the Society believes that applicants
should be able to appeal a decision made under section 55 of the
Nationality, Immigration and Asylum Act 2002 to the Asylum Support
Adjudicators.
3. THE EXTENT
TO WHICH
THE IMMIGRATION
APPELLATE AUTHORITIES
COULD BE
MADE MORE
EFFICIENT, WITHOUT
SACRIFICING FAIRNESS
We do think there are some ways in which the
IAA could be made more efficient. For example, there is no judicial
decision maker at the Arnhem Support Centre, which means that
if there is a good reason for an adjournment or some action is
required, it is unlikely to happen due to the lack of an appropriate
decision maker on site.
Also, it is not possible to telephone hearing
centres direct. One of our members has reported a recent case
involving the partner of a refugee who worked with the courts
as an interpreter. No adjudicator or Home Office Presenting Officer
(HOPO) was prepared to deal with the case as they knew the interpreter.
They were unable to call anyone directly to discuss this and the
case was therefore adjourned five times until it was finally transferred
to Salford. The multiple adjournments could have been avoided
if it had been possible to speak to someone directly.
At first hearings, there is no HOPO. There is
therefore no opportunity to negotiate with the other side and
encourage the Home Office to make a decision, thereby dispensing
with the case without having to go to appeal.
It would also save court time and enable cases
to move forward fairly when the Home Office representative does
not attend, if the Home Office were required to provide a reply
to the applicant's skeleton argument. Furthermore, if Entry Clearance
Officers at ports abroad were required to produce detailed reasons
for refusal, this may obviate the need for an appeal in some cases.
4. WHETHER THE
RELEVANT PROCEDURE
RULES PROPERLY
BALANCE FAIRNESS
AND JUSTICE
WITH EFFICIENCY
The LCD recently consulted on the draft Immigration
and Asylum Appeals (Procedure) Rules 2003. We have concerns that
changes in these rules aimed at speeding up the appeals process
will have a detrimental impact on the fairness of proceedings.
In particular, we are concerned about the introduction
of a closure date by which the appeal should be determined. There
are very good reasons for multiple adjournments in some cases.
In response to a Parliamentary Question, it was reported that
nearly half of all adjournments were sought either by the Home
Office or for reasons other than at the request of the representative.
[127]To
preclude adjournments in cases where they are warranted runs counter
to due process and may lead to a breach of Article 6 of the ECHR.
We also have concerns about the proposal to
restrict "out of time" appeals. Whether an appeal should
be allowed out of time should be judged in the context of the
merits of the case. We believe that the same approach taken in
other tribunals should be adopted in immigration cases, namely
that the question of whether an appeal is in time should be taken
at the main hearing. Adjudicators must be in a position to use
their discretion with regard to out of time applications in an
unfettered and just manner.
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
The Society remains seriously concerned about
the supply of publicly funded legal advice. Whilst the Legal Services
Commission (LSC) increased the number of immigration contracts
granted between March 2001 and March 2002, [128]the
current legal aid overspend and difficulties caused by a cash
limited budget have recently resulted in the LSC seeking to control
average costs on a supplier by supplier basis through contract
compliance. The contract allows the LSC to reduce matter starts
where the supplier's average costs are increasing by 10% or more.
[129]
The Law Society has been contacted recently
by a number of immigration firms whose matter starts have been
restricted or who have been granted no new matter starts until
April 2003. These firms have been unable to refer clients on,
as there are no other firms in the area who can do the work. We
are concerned that this will mean that many vulnerable people
will be unable to access good quality legal advice.
This problem is likely to be exacerbated by
the speed cases are now being dealt with. The increase in throughput
for the IAA will result in changes to suppliers' caseloads. Preparation
for asylum appeal hearings is necessarily time-consuming and time-pressured.
This is likely to mean that suppliers' capacity to take on new
cases will be reduced.
The removal of support from "in-country"
applicants and others (Ss 54 and 55 of the Nationality, Immigration
and Asylum Act 2002) has also impacted on the ability of the Legal
Services Commission to predict the levels of legal supply that
will be required around the country. In-country asylum applicants
would previously have been dispersed. However, a larger proportion
of these applicants may remain in London and the south-east if
support is not available either because they cannot afford to
move away from London or because they are likely to be dependent
on local communities to support them. This in turn will impact
on the ability of applicants to obtain legal advice.
A number of our members have reported difficulties
in obtaining suitably qualified interpreters. We believe that
the National Register of Public Service Interpreters should be
state owned and funded, and be accessible to all public services,
in order that suitably qualified interpreters are available when
required.
6. THE EXTENT
TO WHICH
"NON-SUSPENSIVE"
APPEALS PROVIDE
AN ADEQUATE
RIGHT OF
APPEAL
The Law Society is concerned that the introduction
of non-suspensive appeals, though improving the speed at which
the Home Office can process claims, does so at the expense of
access to justice and due process.
It is extremely difficult, if not impossible,
for most asylum seekers to appeal from outside the UK, particularly
if they are subject to persecution in the country to which they
have been returned. The difficulty in appealing from abroad has
been recognised by the Court of Appeal in Canbolat v. Secretary
of State for the Home Department (1997) Imm AR 442. Applicants
are very unlikely to be able to obtain access to appropriate legal
advice and representation abroad and the appeal process itself
will be complicated by being carried out from another country.
Furthermore, there is no guarantee that an applicant will be able
to stay in a third country until the appeal is heard.
Those who are not deterred will have their appeal
decided on papers. Experience in other areas, such as family visitor
visa appeals, has shown that oral applications are much more successful
than paper ones. The fact that appellants will not have the benefit
of an oral hearing is of particular concern in light of Refugee
Council statistics. These estimate that 51% of asylum seekers
were successful either at different appeal stages or where the
Home Office overturned its own refusal decision. [130]This
suggests that initial decisions that applications are clearly
unfounded may be made in relation to cases that would be successful
on appeal. The use of non-suspensive paper appeals will reduce
the chance of overturning a poor initial decision.
127 HC Deb, 25 February 2002, col 834W Back
128
Legal Services Commission Annual Report 2001-02 Back
129
Matter starts are the controlled work matters (new cases) that
the supplier may start under the contract. The Schedule to the
contract specifies the number of new matters that the supplier
is authorised to start in each category of law. Asylum and non-asylum
matter starts are set out separately Back
130
Refugee Council Statistics 2001, www.refugeecouncil.org.uk/infocentre/stats004.htm Back
| 
