Evidence submitted by the Refugee Legal
Centre (AIA 24)
ASYLUM AND
IMMIGRATION APPEALS
1. The Refugee Legal Centre welcomes the
opportunity to provide submissions to the inquiry by the Committee
on the Lord Chancellor's Department into the asylum and immigration
appeals process. The RLC is an independent charity providing advice
and representation to asylum seekers and those seeking protection
from removal from the UK on human rights grounds. In drafting
this response we have drawn on our considerable casework experience
as one of the largest specialist organisations in this field and
have concentrated on those areas most relevant to our work.
THE EXTENT
TO WHICH
RECENT REFORMS
HAVE PRODUCED
ANY SIGNIFICANT
SAVINGS AND/OR
IMPROVED THE
QUALITY OF
THE APPEALS
PROCESS
2. This year saw the introduction of the
third major piece of legislation affecting asylum and immigration
appeals in the last 10 years. This was not the consolidating legislation
hoped for but added to the increasingly complex and piecemeal
field of asylum and immigration law. The majority of the relevant
provisions of the Nationality, Immigration and Asylum Act 2002
came into force on 01/04/03. Preliminary concerns include:
— The legislation limits effective
access to appeal to the specialist jurisdiction of the IAA which
will have the effect of displacing litigation into the more expensive
and time consuming forum of the High Court. Examples include:
(i) Removing the right to an in country
appeal for those applicants for asylum/human rights protection
whose claims are certified as clearly unfounded.[134]
The only way of trying to assert a right to an in country appeal
in such circumstances is to challenge the certificate in the High
Court;
NIAA 2002, s 83 (iii) The removal of the
right to appeal to an adjudicator against the setting removal
directions on human rights grounds for those who a decision had
previously been made to remove them. High Court challenges will,
once again, result.[135]
— The introduction of non-suspensive
appeals in human rights and asylum cases may prove a costly and
inefficient way of litigating these issues if fair process demands
that, in certain cases the adjudicators in the IAA give appellants
the opportunity of providing oral testimony. Video links to the
country where the appellant has been removed and other expensive
and time-consuming measures will be required in such circumstances.[136]
— The bar on the provision of support
to those asylum applicants who do not claim asylum as soon as
reasonably practicable after their arrival will prevent those
in this position from effective access to their appeal rights
or from accessing legal advice or representation.[137]
For them, the appeal process risks being meaningless.
— The removal of the right to apply
to the High Court for Judicial Review of the IAT's decision to
refuse permission to appeal will adversely affect the quality
of the appeals process. At present such applications are initially
made on paper and can be renewed orally if refused. There are
many examples of such oral renewals succeeding. The withdrawal
of the right to oral renewal through the statutory review procedure
will prejudice applicants and undermine the overall quality of
the appeals process.[138]
3. The Refugee Legal Centre is of the view
that the appeal process would be made both more efficient and
of better quality if the Government concentrated efforts and resources
in improving initial Home Office decision making in asylum applications.
The figures for 2001 show that 19% of first instance adjudicator
asylum appeals were allowed.[139]
In addition, an unspecified number were deemed abandoned as a
result of the appellant being granted leave to enter or remain
or succeeded on further appeal to the IAT. This indicates, without
taking into account the increase in success rates where appellants
are expertly represented, that around one in five in initial decisions
made by the Home Office in asylum applications are incorrect.
This does not imply that four out of five Home Office decisions
are good. Rather they suffer from a reliance on standard paragraphs
bearing little relevance to the facts of the specific case. This
often places the Adjudicator at the appeal as being in the effective
position of being the first decision maker on the case. In our
view if the quality of Home Office decision making in asylum applications
was improved, including fewer erroneous refusals, the appeal process
would greatly benefit. Recent reforms have failed to address this
fundamental cause of inefficiency.
THE EXTENT
TO WHICH
THE RELEVANT
PROCEDURE RULES
PROPERLY BALANCE
FAIRNESS AND
JUSTICE WITH
EFFICIENCY
(a) The Immigration and Asylum Appeals
(Procedure) Rules 2003
4. The rules governing mainstream immigration
and asylum appeals came into force on 1st April 2003. They set
out all matters relating to the conduct of those appeals, both
before Adjudicators and the Tribunal. Whilst we are pleased to
see that the Rules state their continued commitment to the "just,
timely and effective disposal of appeals",[140]it
is striking that there is an increasing focus on the timeliness
of any disposal which may jeopardise the IAA's ability to ensure
that justice in the individual appeal is indeed done. As with
primary immigration and asylum legislation, there have been new
appeals procedure rules every three years. We note with dismay
that with each successive set of rules the focus has shifted towards
the quick disposal of appeals, with an erosion of Adjudicators'
discretion to regulate the conduct of proceedings before them.
Reduced time limits for lodging appeals
5. For example, under the new Rules,[141]
detained clients now have only five days to lodge notice of appeal
against an initial Home Office decision, as against 10 working
days for non-detained individuals. In our experience, detained
clients may experience significant difficulty in finding a representative.
The shortening of the time limit for unrepresented clients in
these circumstances may well result in more late notices of appeal
being lodged with the Home Office. The effect of this will be
adjudicator time spent assessing whether it would be correct to
treat these appeals as having been lodged in time rather than
looking at the substantive merits of the appeal.[142]
Further, in such circumstances, we are not infrequently instructed
by post, due to some detention centres granting limited access
to fax facilities. A five-day deadline renders this method of
instruction impracticable for clients. Moreover, a five-day deadline
means that we will inevitably have to lodge protective appeals
in cases where we may otherwise have advised against such a course
of action, had we had the time to see the client for detailed
advice.
Closure Dates
6. The new Rules provide that where an appeal
has been adjourned once, it must then be heard within the next
six weeks unless "exceptional" circumstances (and the
interests of justice) require more time to be given or both parties
consent.[143]
Whilst we understand the need for appeals to be determined without
undue delay we are concerned that the rule creates an undue fetter
on Adjudicators' discretion to adjourn cases where the interest
of justice require: there may be reasons why an appeal should
be adjourned which fall short of exceptional in the literal sense
of the word, but where the interests of justice and the proper
determination of the appeal nevertheless require an adjournment:
consider the late instruction by the RLC of an individual who
requires a specialist medical or country assessment, or the authentication
of important documents. That this is an exceptional circumstance
is moot—but there is a strong argument that the interests
of justice require the adjournment of the case. In our experience,
Adjudicators do not lightly grant adjournments, but will do so
if justice requires it. In our view, the new rules unduly inhibit
the ability of the Appellate Authority to regulate its own procedure,
at the expense of fairness.
(b) The new fast-track pilot for the
consideration of asylum claims and appeals at Harmondsworth Removal
Centre: The Immigration and Asylum Appeals (Fast Track Procedure)
Rules 2003
7. A fast-track pilot was announced in a
press release placed on the IND's website on 18 March. There was
no prior consultation. The pilot began in mid-April.
8. The aim of the pilot is to process the
initial application and any subsequent appeals as quickly as possible.
It is envisaged that those subject to the procedure will be detained
throughout the process. The process applies to those who claim
asylum at Heathrow, Gatwick or Stansted and who are nationals
of countries who would be processed at Oakington Reception Centre
(excluding those countries from whom claims are presumed to be
clearly unfounded and are therefore likely to be removed before
any appeal against an adverse decision is heard). This includes
such refugee producing countries as China and Sri Lanka. Legal
representation is provided by a duty solicitor scheme organised
by the Legal Services Commission.
9. A chronology of the envisioned process
is:
| Day 1 | Applicant claims asylum and is detained
Time for interview with legal representative
|
| Day 2 | Full asylum interview with the Immigration Service
|
| Day 3 | Decision on asylum application (most probably refusal)
|
| Day 5 | Deadline for lodging appeal
|
| Day 8/9 | Appeal heard by adjudicator
|
| Day 10/11 | Promulgation of determination by adjudicator
|
| Day 12/13 | Deadline for lodging application for permission to appeal to the IAT, including request for an oral hearing, written submissions and notice of any application to submit further evidence not before the adjudicator
|
| Day 13/14 | Respondent must serve indicate if they would like an oral hearing, and file written submissions, respondent's notice and notice of any application to submit further evidence not before the adjudicator
|
| Day 14/15 | IAT determines permission application
|
| Day 16/17 | IAT hearing, if granted, listed
|
| Day 17/18 | IAT promulgates determination
|
| Day 19/20 | Deadline for lodging application for permission to appeal to the Court of Appeal
|
| Day 20/21 | Deadline for IAT's determination of application for leave to appeal.
|
| |
10. The RLC has considerable legal and managerial experience
representing clients in an expedited process from our work at
the Oakington Reception Centre. The RLC's concerns in respect
of the Harmondsworth Pilot include:
— The time limits within which the initial applications
and subsequent appeals will be processed sacrifice fairness and
justice at the expense of efficiency because:
(i) The time limits for putting forward the applicant's
case pre-decision are too short. The Oakington fast track process,
with the benefit of on site legal representation, allows three
days after arrival before the applicant is interviewed and a further
two days for the submission of evidence in support of the claim.
The decision being served within seven days. We consider the Oakington
procedure to be an already tight time scale. Under the Harmondsworth
process there will frequently be inadequate time to present the
application within time;
(ii) No consideration is given within the process to
allow the applicant to recover from the fatigue or need for acclimatisation
in order to allow them to put forward their application effectively;
(iii) The proposed time standards for the representation
of asylum seekers on which the Legal Services Commission has been
consulting with the not-for-profit sector are wholly inconsistent
with the time representatives will be given under the pilot to
assist their clients to make out a proper claim;
(iv) Initial decision making will risk being even poorer
resulting in unnecessary refusals and appeals. The decision maker
will not benefit from a fully prepared application. For example,
there will not be time for written representations to be made
on behalf of applicants;
(v) The time limits for the preparation and the presentation
of appeals are too short, risking unfairness. Although the RLC
welcomes the power allowing the IAA to transfer appeals outside
of the fast track process, we are concerned that the circumstances
in which such an order will be made will be too limited.[144]
— A critical factor in this process will be the
ability of a legal representative to ensure asylum seekers' interests
are protected. We fear that in too many cases the legal representative's
duty will be to seek to defer a decision until the client has
had a reasonable opportunity to make out his or her case. It may
be necessary to have recourse to the High Court to ensure a decision
is in fact deferred and we believe this will introduce a high
degree of uncertainty into timetables making it difficult for
all parties to manage the process.
THE EXTENT
TO WHICH
"NON-SUSPENSIVE"
APPEALS PROVIDE
AN ADEQUATE
RIGHT OF
APPEAL
11. The 2002 Act brought in fundamental changes to the
procedures governing asylum applications, in particular the access
of individuals to the IAA. In cases certified as "clearly
unfounded"[145]by
the Secretary of State there is no longer an in-country right
of appeal against a refusal of asylum. Individuals must pursue
their appeals from abroad.
12. Our experience of this new system to date has shown
it to be flawed in several material aspects: individuals who are
nationals from the designated countries are sent to the Oakington
Reception Centre where their claims are processed within a very
short timescale of approximately one week. Some, however, are
released from that process where it becomes clear that their applications
are not appropriate for determination within that timescale. They
remain, however, vulnerable to certification and summary removal
in accordance with the provisions of the Act. It is our experience
that insufficient procedural safeguards are in place to ensure
that these individuals have access to legal advice in the event
that they are certified as unfounded. In one such case recently,
an RLC client was detained when complying with reporting requirements
on a Friday morning. He was only served with removal directions
later that day. These were copied to the RLC after 5.00 pm that
afternoon. The client was removed the next day without having
been able to talk to the RLC about the merits of any challenge
to his certification. It was a matter of record that the RLC had
been actively involved in his representation at every stage of
the process. It is quite simply unacceptable that individuals
should be given no meaningful opportunity to contact their legal
advisers when facing imminent removal back to a country where
they fear persecution. We have real concerns that situations like
this will recur unless proper safeguards are put in place.
13. Furthermore we have concerns that out of country
appeals will result in procedural unfairness for our clients.
For example:
— It is proving difficult to maintain contact with
clients once they have been removed in order to take instructions
on the progress of any appeal, even though our experience is with
clients from the well-resourced accession state countries. This
risks rendering any such appeal right meaningless. We are concerned
that this problem will greatly increase as the power in NIAA 2002
section 94 is applied to less developed countries; and
— It is unclear what procedural safeguards the
IAA and Higher Courts will adopt to allow appellants to give oral
evidence in out of country appeals. Asylum claims are often dismissed
on the grounds that they are not believed. Appellants should have
a fair opportunity to show adjudicators that they are telling
the truth through oral evidence in the appropriate case. However,
the very fact of being out of the UK inhibits this to a large
degree.
14. We note with some concern that there is no procedure
of which we are aware which sets out the process by which successful
appellants will be allowed to return to the UK.
RLC
6 May 2003
134
NIAA 2002, s 94 and s 115 (ii) Denying the right to an appeal
to an adjudicator for an asylum applicant who is initially granted
leave to enter for a period of one year or less, but not recognised
as a refugee.<mr136>High Court challenges against grants
of discretionary leave for a period of one year or less may be
brought to secure recognition as a refugee and consequent family
reunion rights. Back
135
NIAA 2002, s 82 effectively overturning the Court of Appeal's
decision in Kariharan [2002] EWCA Civ 1102 Back
136
By analogy see the case of the Ahmadi family, whose removal to
Germany resulted in a lengthy and expensive appeal involving video
links to ensure that their appeal under Immigration and Asylum
Act 1999 s 65 against their removal was fair Back
137
NIAA 2002, s 55 Back
138
NIAA 2002, s 101 Back
139
Asylum Statistics UK 2001-see www.homeoffice.gov.uk/rds/pdfs2/hosb902.pdf Back
140
Immigration and Asylum Appeals (Procedure) Rules 2003, paragraph
4 Back
141
Immigration and Asylum Appeals (Procedure) Rules 2003, paragraph
7 Back
142
Immigration and Asylum Appeals (Procedure) Rules 2003, paragraph
10 Back
143
Immigration and Asylum Appeals (Procedure) Rules 2003, paragraph
13 Back
144
The Immigration and Asylum Appeals (Fast Track Procedure) Rules
2003, paragraph 23 Back
145
Section 115 of the 2002 Act has already brought this provision
into force. For nationals of EU Accession countries, as well
as those designated by further order, there is a presumption that
any human rights or asylum claim is manifestly unfounded, unless
the contrary can be shown. An order coming into effect on 20 March
2003 designates seven additional countries, including Albania
and Jamaica Back
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