Evidence submitted by the Legal Action
Group (AIA 25)
INTRODUCTION
The Legal Action Group (LAG) is a national charity
committed to improving access to justice, particularly for the
vulnerable and socially excluded. LAG works with lawyers and advisers
to improve standards and knowledge of social welfare and criminal
law amongst practitioners, by publishing a monthly magazine and
legal handbooks and providing training for lawyers and advisers.
We also comment and campaign extensively on social welfare and
criminal law issues, on administration of justice and on the delivery
of publicly funded legal services. LAG does not represent any
particular interest group: our primary concern is with quality
and access to justice for the users and potential users of legal
services.
LAG welcomes the opportunity of responding to
the Select Committee's enquiry. Our overall concern about the
asylum and immigration appeals system is that many aspects of
the appeals process appear to be driven by the operational needs
of immigration control, which are in turn underpinned by government
immigration policies. Despite the nominal independence of the
Immigration Appellate Authority (IAA), which falls under the wing
of the Lord Chancellor's Department (LCD), it seems that important
features of the appeal system are in reality shaped by the Home
Office rather than the LCD. There are several examples of this:
— One illustration is the long-standing
requirement on the appellant to lodge his or her appeal papers
with the Home Office (or, in the case of a refusal of entry clearance,
with the British post abroad) rather than with the Immigration
Appellate Authority. The rationale behind this practice appears
to be that the decision-maker has an early opportunity to review
the decision under appeal—but, in practice, this rarely
brings about a reversal of the refusal. However, the arrangement
does give the decision-making department a large measure of control
over the appeal process, most importantly over the speed at which
the papers are passed on to the IAA. We recently came to hear
of one case where it took the Home Office three years to do this.
Such delays are not only unfair to appellants—they also
make it very difficult for the IAA to manage its throughput of
cases.
It should be noted that the draft Model Procedure
Rules published for consultation in January 2003 by the Council
on Tribunals envisage all notices of appeal being lodged with
the registrar of the tribunal in question rather than the decision-making
department. We fully support this arrangement and would urge the
Select Committee to recommend that it be adopted for immigration
and asylum appeals without delay. The opportunity for the Home
Office (or the British post abroad) to review its original decision
could easily be preserved within the appeals process—for
example, review could happen immediately after the respondent
receives the notice of appeal from the IAA.
— Another example is the formulation
of the immigration procedure rules; the recent changes in the
rules are a case in point. According to the LCD consultation paper
on the draft version of these rules (January 2003), they are designed
"to provide adjudicators with powers to control proceedings
more effectively, and bring matters to a timely conclusion, in
particular where requests for adjournments are made". The
powers in question emanate from the Nationality, Immigration and
Asylum (NIA) Act 2002, legislation sponsored by the Home Office.
The department's White Paper on immigration, Secure Borders, safe
haven, published in January 2002, was the source of many of the
policy ideas that found their way into the NIA Act. At page 63,
the White Paper states:
"There are far too many appeals which
are adjourned and in many cases we believe requests are made which
are little more than a tactic to delay the outcome and therefore
the removal of failed asylum-seekers. A statutory closure date
to prevent multiple adjournments will be introduced."
Statutory closure dates are now incorporated
into the revised procedure rules (Rule 13).
— Confusion between the appeals process
and the perceived needs of immigration control is also illustrated
by the requirement on the IAA, in cases of failed asylum-seekers,
to forward the adjudicator's determination to the Home Office,
which then serves the determination on the appellant and may take
steps to effect removal without delay. There is no obligation
to inform the asylum-seeker's representative at the same time.
This arrangement has provoked accusations of unfairness; it has
been argued that there is no precedent within the judicial system
for one party in a case to have responsibility for serving the
court's decision on the other party.
We now turn to the specific points raised by
the Select Committee:
1. THE EXTENT
TO WHICH
RECENT REFORMS
HAVE PRODUCED
ANY SIGNIFICANT
EFFICIENCY SAVINGS
AND/OR
IMPROVED THE
QUALITY OF
THE APPEALS
PROCESS
Expansion in adjudicator numbers
The expansion in the number of immigration adjudicators
appointed by the Lord Chancellor goes some way towards dealing
with the severe pressures currently experienced by the IAA. Although,
without doubt, the training offered to new adjudicators is generally
of high standard, the perception among practitioners is that standards
of adjudication are still of variable quality. It is clearly important
that such discrepancies be ironed out. Inadequate determinations
will be exposed to challenge, which is not an efficient use of
judicial time. Adjudicators sit alone—rather than in panels
of three, as is the case with most first tier tribunals with fact-finding
functions; consequently, it is important that adjudicators have
the skill to make reliable assessments of the facts of the cases
that they hear, some of which may be very complex. We would suggest
that adjudicators might benefit from additional training on fact-handling
techniques.
Adjournments
Generally speaking, the system of standard directions
that has been introduced represents an overall saving in time
for the IAA and both parties to the appeal. Having both the date
of the directions hearing and date of the full hearing fixed in
advance does lend itself to more efficient disposal of appeals.
However, it is very important that this standardisation does not
lead to inflexibility, especially in relation to adjournments.
There is currently enormous pressure on adjudicators not to grant
adjournments after the appellant (or his/her representative) has
said they are ready to proceed, and we understand that adjournments
are closely monitored. This leads to written applications for
adjournments made in advance of the hearing being almost routinely
refused, regardless of the reasons. As a result, representatives
are left with no alternative but to renew applications orally
on the day of the full hearing. If the adjournment is granted,
then everyone has wasted time attending the hearing, having made
preparations to proceed with the matter in case the adjournment
is refused.
Contrary pressures
Above, we expressed concern about the role of
the Home Office in shaping immigration appeal procedures. Generally,
the Home Office gives high priority to efficiency and speed in
disposing of in-country appeals. However, this does not necessarily
suit the department at all times; occasionally, other pressures
may be more important. For example, in March 2003, the Home Office
made a formal request to the Chief Immigration Adjudicator that
there should be a blanket adjournment of all Iraqi appeals for
a period of six weeks—a request that was granted, despite
the fact that many such appellants had waited months for their
appeal to be listed. This raised concerns among many practitioners
that the IAA was not acting impartially, and that it was vulnerable
to pressures from the executive body.
2. THE COSTS
TO PUBLIC
FUNDS OF
SUPPORTING NEW
APPEALS STRUCTURES,
SUCH AS
THE ASYLUM
SUPPORT ADJUDICATORS,
AND OF
SUPPORTING THE
EXTENSION OF
LEGAL AID
On the question of legal aid for appeals to
the Asylum Support Adjudicator (ASA), it should be noted that
advice and assistance for preparation of these appeals is already
available through the Legal Help scheme. However, we believe there
are strong arguments for Controlled Legal Representation (CLR)
to be extended to cover the cost of representation at ASA hearings.
There are serious personal consequences for asylum-seekers who
lose these appeals, in that they face destitution. A large proportion
of appellants speak very limited English, and would find it difficult,
if not impossible, to represent themselves.
Ironically, the only option for those who are
refused asylum support under section 55 of the NIA Act—as
they are outside the scope of the ASA appeal system—is to
make an application for judicial review, for which they can apply
for a full legal aid certificate. This is an inconsistency that
is not easily justified.
3. THE EXTENT
TO WHICH
THE IMMIGRATION
APPELLATE AUTHORITIES
COULD BE
MADE MORE
EFFICIENT, WITHOUT
SACRIFICING FAIRNESS
We have already noted above the false economy
of putting pressure on adjudicators to routinely refuse applications
made "on the papers" for adjournments in advance of
the hearing. This forces representatives to renew applications
orally on the day of the hearing, with all involved having wasted
time. It is very important that adjudicators make sure that they
maintain a commitment to looking at each case on its merits at
all times.
Witness statements
Another practice that has been introduced to
increase efficiency is that of having witness statements as evidence-in-chief
for the appellant and his/her witnesses. However, this appears
to be accompanied by reluctance on the part of adjudicators to
allow supplementary oral evidence. We do not believe that this
trend is in the interests of justice. There are many reasons why
the statement may need to be supplemented; for example, if it
has been taken through an interpreter, this could have led to
some confusion between the representative and the client which
needs to be resolved at the hearing in order for all the facts
of the case to be clear.
IAA staff
We would also suggest that the quality of IAA
staff could be further improved. Having motivated and well-trained
administrative staff is of great importance in the efficient running
of all tribunals, and this inevitably has resource implications.
There should be an enhancement of terms and conditions for IAA
staff members, sufficient to encourage those who have been recruited
and inducted to remain in the job. It is also important that the
career structure is attractive enough to ensure that experienced
staff members are retained within the service, with appropriate
in-service training provided to develop their skills. With the
promised unified tribunals service, transfers between different
tribunal jurisdictions should be easier to arrange, providing
opportunities for training secondments and career development.
Country bundles
A recent practice direction from the Chief Adjudicator
states that parties can no longer rely on the adjudicator having
judicial notice of information on asylum-seekers' countries of
origin. This changes the previous arrangement, under which information
on certain countries was treated as knowledge common to the parties
and the adjudicator. The practice direction demands substantial
duplication of effort—and thus inefficiency—for those
representing appellants, as they have to reproduce country information
in the appellant's bundle for each and every appeal. This, in
turn, throws further costs on the Legal Services Commission.
Home Office Presenting Officers
We understand that, in a significant number
of cases, presenting officers are not present at hearings before
the adjudicator and that apologies are often sent at very short
notice. This hampers the appeal process, especially from the adjudicator's
point of view. Given that the present appeal structure provides
for an adversarial rather than inquisitorial system, it is important
that the respondent is present when cases are heard.
4. WHETHER THE
RELEVANT PROCEDURE
RULES PROPERLY
BALANCE FAIRNESS
AND JUSTICE
WITH EFFICIENCY
In the introduction to this submission, we noted
the close involvement of the Home Office in the formulation of
the procedure rules, which we believe casts a shadow over the
impartiality of the immigration appeals system.
With regard to the new procedure rules, in force
as from April 2003, we have a number of specific concerns:
— The provision that places an obligation
on the adjudicator to set a closure date for any case for which
an adjournment has been granted seems unduly restrictive and,
in our view, threatens to interfere with judicial discretion.
Adjudicators already have case management powers, backed up by
practice directions, that allow them to regulate the conduct of
appeals—including applications for adjournments. It is important
that they retain discretion to deal with unusual or compassionate
circumstances; for example, in cases of ill health or a delay
that is beyond the control of the parties. As with all judicial
decisions, the interests of justice must remain a central factor.
— The time limit of five working days
to lodge appeals in detained cases is extremely tight, and will
inevitably cause problems for appellants who have problems contacting
their representative—or who do not have a representative
at all. Given the extended and well-documented delays in Home
Office decision-making, the five-day time limit for appealing
also appears very unfair.
— The procedure for fast-track asylum
appeals relating to asylum claims for specified countries allows
only two days for the appellant—who will be detained in
Harmondsworth Detention Centre—to lodge an appeal against
a negative decision. This accelerated procedure has been put in
place at short notice without any consultation with immigration
practitioners. Its viability depends to a large extent on the
success of the pilot duty representation scheme that has been
established by the Legal Services Commission—again at very
short notice. We believe that this untested approach to asylum
appeals should be very closely monitored; it is widely believed
that access to legal advice and representation will be compromised
by the time scales imposed, which is a matter of great concern.
5. WHETHER THERE
IS SUFFICIENT
AVAILABILITY AND
PROVISION OF
BOTH LEGAL
ADVICE AND
REPRESENTATION AND
OF INTERPRETATION
FACILITIES FOR
APPELLANTS IN
IMMIGRATION AND
ASYLUM CASES
There is widespread concern about the availability
of publicly funded legal advice and representation, despite the
efforts made by the Legal Services Commission to "grow"
suppliers in this field by a combination of training, second tier
support and financial incentives. A major problem has been the
effect of dispersing asylum-seekers to parts of the country where
there was previously very limited demand for specialist immigration/asylum
advice and representation. Similar problems will arise for the
Legal Services Commission as and when the Home Office implements
its policy of setting up accommodation centres for asylum-seekers
in rural and semi-rural locations.
There has also been much anecdotal evidence
of contracted private practice firms withdrawing from legal aid
work. Both the Legal Aid Practitioners Group and the Law Society
have published surveys suggesting that up to half of the firms
currently undertaking publicly funded work are considering reducing
this work or withdrawing completely, mainly because of profitability.
The Legal Services Commission is receiving similar information
through its regional offices. Work at Legal Help and Controlled
Legal Representation rates causes particular problems, with many
firms suggesting that they are only able to take it on as a "loss
leader". The administrative burdens of the legal aid contracting
system are also much disliked by practitioners, and are widely
thought to contribute to a reduction in morale within the sector.
In this context, it is unsurprising that a small number of leading
firms that specialise in immigration work have ceased—or
will shortly be ceasing—to operate.
Partly as result of these recent problems, clients
are experiencing increasing difficulties in obtaining advice and
representation for immigration and asylum cases. Evidence of this
has been documented by Citizens' Advice in its submission to the
Select Committee, which we have seen. This shortfall in the supply
of expertise represents a worrying development. However, there
are also some serious concerns about the quality of work carried
out by certain immigration contract holders operating at the "specialist"
level. The Legal Services Commission has put in place measures
to deal with these so-called "category three" providers;
it remains to be seen whether these will have an impact on the
quality of the service provided to clients.
Despite the well-documented problems about the
availability of specialist advice and representation of sufficient
quality, we have heard reports of adjudicators being unsympathetic
to requests for adjournments from unrepresented appellants if
they are thought to have had "enough time" to obtain
representation for their hearing. In the present circumstances,
we do not think this is often an acceptable response; if the supply
of immigration advice deteriorates further, it will become even
less acceptable for adjournments to be refused on these grounds.
6. THE EXTENT
TO WHICH
"NON-SUSPENSIVE"
APPEALS PROVIDE
A RIGHT
OF APPEAL
We are dismayed by the government's introduction
of non-suspensive appeals for asylum-seekers who originate from
a defined list of countries, totalling 17 at present. This turns
the clock back 10 years to the days before legislation provided
for asylum-seekers to have an effective right of appeal. The list
of countries—even as it stands—is contentious, with
the Secretary of State having power to extend the list by secondary
legislation. It is too early to assess the impact of the non-suspensive
appeals process, because few cases have been concluded so far.
However, in an area of law where the credibility of the appellant
is usually the central issue, it is hard to see how the adjudicator
can make a sound assessment of whether he or she is telling the
truth. Assessing the credibility of other out-of-country appellants—for
example, in family reunion cases—at least has the indirect
assistance of oral evidence from sponsoring family members.
Another concern is how appellants who are successful
will be able to return to the UK. It is not clear, for example,
what arrangements will be made by the Foreign Office, and who
will pay the travel expenses.
We would suggest that the Home Office, the LCD
and the IAA undertake to monitor the operation of non-suspensive
appeals to see how these problems are handled, and that the government
be required to produce a one-year review similar to the inter-departmental
assessment of family visitor appeals that was carried out at the
end of 2001 (although, to date, unpublished).
Legal Action Group
April 2003
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