Written evidence submitted by Anver Jeevanjee,
Member of the Immigration Appeals Tribunal (AIA 39)
PROPOSALS FOR
NEW ASYLUM
& IMMIGRATION LEGISLATION
I refer to your letter on the above subject
and that of Baroness Scotland QC of the 2 May. Accordingly, I
submit my humble comments for your attention.
I have carefully considered the proposals in
the light of my over 20 years experience of serving within the
system of our Immigration and Asylum Appeals. I have also compared
similar operations I have visited in other parts of the world
as well as at our various overseas posts. I have carefully scrutinised
the impact of the new policy on Community and Cultural Diversity
with which I have been actively involved for many more years.
In principle the three tier Tribunal System
in the UK, primarily based on traditional values of ancient Aboriginal
/ Eastern civilisations is in my view the most unique in the world.
Potentially, it has the ability to carry out a thorough review
of decisions and deliver fairer and faster justice to all its
customers. Its community based representatives ought to have the
unbiased expertise to act as jurors in the decision making process.
I now outline hereunder why the current three-tier
system has failed and will continue to fail, irrespective of the
amount of cash injected into it, within the UK culture and why
I believe an efficient single tier could achieve the same result
at a much reduced cost to the taxpayer and less painful to the
genuinely persecuted Asylum seeker—
WE CAN
EASILY RUN
AN EFFICIENT
SYSTEM
1. The number of Asylum applicants in the
UK, are relatively a tiny drop in the ocean, for the world's 4th
largest economy, compared to the rest of the world, particularly
the impoverished nations of Asia or Africa. We should be able
to process such small numbers efficiently, humanely and far more
cost effectively than we do at present. It seems to me that to
keep this debate alive and give it such a high profile may suit
a certain element in the political process of our democracy or
the media. I am also alarmed and deeply concerned at the implied
anti-immigrant and insensitive language used in some of the proposals
and on the home office website. The draconian measures to investigate
appellants' representatives and third country undocumented arrivals
give rise to wider concern.
DIVERSITY ISSUES
2. The situation is further exasperated
in the UK due to our very many endemic isms; namely racism, sexism,
ageism, colonialism, fascism to name just a few. In the years
gone by I have internally circulated several papers on the subject;
my paper entitled `Immigration Laws—Are they fair to Black
Britons?' attached at appendix AJ1, is still very relevant today.
Some may believe that things have moved on or improved but others
and I do not believe so. This jurisdiction, unlike the Police,
has moved into a blatantly complacent denial mode, hypocrisy and
has indeed regressed. As a fly on the wall, I painfully witness
it and remain constantly victimised by it, yet as a minority,
there is nothing I can do about it. There is a growing concern
that not only the Police but also every institution on this island
is still heavily affected and the Immigration Appeals Tribunal
is most certainly no exception.
3. I have expressed my deep concerns to
several past Presidents over the years. One recent reply was an
emphatic rejection without investigation. This shows a lack of
diversity awareness and it is deeply worrying. I attach relevant
correspondence at appendix AJ2 in that context. Visible minority
decision makers (privately still referred to as Coloured and other
such derogatory terms.) are severely under-represented and those
very few who serve are expected to conform to the majority thinking.
4. We continue to remain a target, as indeed
we are within the wider community. Any perceived shortcoming by
any person of colour results in the entire community tarred with
the same brush. Stereotyping is common. We are heavily undermined
and marginalized, unless we become what is referred to as coconuts
or yes persons to the majority White. Those who do not conform,
in the interest of Justice, continue to bear the wrath of the
majority.
5. It is the majority who are chosen to
be involved in the recruitment process of new members; thus acting
as gatekeepers. Many are appointed from the `old boy network'
despite Nolan, McPherson etc. They consist of former colonial
and local civil servants, the ranks of the army and other such
institutions where racism still remains rife.
6. Some of the judiciary openly refer negatively,
prior to going into Court, to hear cases concerning Nigerian,
Kurdish, SriLankans, Somalis and other nationalities as being
"deceitful, liars, taking advantage of our soft touch, economic
migrants etc". Undoubtedly such prejudices are reflected
in the final determinations.
7. Objectively, such a system cannot do
justice to the 99% of claimants who are not from the majority
background. The Immigration Appeals Tribunal itself needs to be
and must be seen to be credible before it can be deemed to be
fit to judge the credibility of its customers.
8. Regrettably, I see nothing in the current
proposals that would enhance the poor image of the Tribunal or
the Appellate system in general, within the Ethnic or indeed the
wider community.
FOCUS ON
LAWYERS
9. In addition the problems arise because,
unlike other countries, our system employs too many narrowly focused
white middle class male lawyers who undermine other independent
culturally aware persons with a wider and pragmatic view of the
world around them. Some lawyers appear to be programmed only to
sit with those others who hold the same anti-immigrant and pro-home
office stance, almost like being Immigration Officers themselves.
I enclose at appendix AJ3 an example of blatant and persistent
flouting of the system in which I have been personally victimised
with the blessing of the authorities. On the contrary, this person
is highly honoured for his "insupportable behaviour"
and "foolishness"etc. He is often invited to train new
recruits entering this jurisdiction; thus being allowed to perpetuate
such "foolish behaviour" (see the recent undercover
investigation of police training by the BBC)
FAILURES BY
OUR OVERSEAS
VISA SECTION
10. Over the years, I have visited similar
jurisdictions in the USA, Canada, New Zealand, Australia, Japan,
Switzerland, India, Mauritius, Srilanka, Pakistan etc. I also
network with several judges in many countries, under the auspices
of the IARLJ. I have observed with considerable dismay, at the
manner of processing visa applications in many of our overseas
visa offices.
11. The prevalence of standard and stereotyped
templates used in our visa outposts to refuse simple family visits,
a spouse or student application often without foundation, cultural
awareness or transparency is disturbing. Consequently, appellants
are forced to undergo the painful process of appeals and further
delays. Although many appeals eventually succeed, subject to them
being judged by a knowledgeable Tribunal, it is still very much
of a lottery. Nevertheless, they often become quite pointless
for the victim, be they for attendance at weddings, funerals or
an academic year of our educational establishments.
12. Although the Entry Clearance Officer's
live in those countries, many are reluctant to mingle with or
learn at first hand from the wider population. They are like the
old colonial memsahib's, sahibs or bwana mkubwa's who seldom associated
with their subjects and never got the direct message the populace
were trying to convey. They seem to rely on embassy drivers, interpreters
or other staff in countries with vast variances of cultural diversity.
Reliance on hearsay, 2nd, 3rd, or 4th hand is a recipe for injustice.
Some have surprised me by their lack of knowledge of the operation
of our appellate system or even High Court decisions.
13. I believe that a just, transparent,
compassionate or a common sense approach to Immigration claims
overseas would greatly reduce frivolous Asylum appeals. The intimidating
visa sections, unhelpful attitude of some of our overseas civil
servants merely encourage criminality and cause further distress
for those who have tried to follow the correct procedures, despite
improper local advice, corruption etc. I have seen traffickers
targeting failed applicants to lure them to another route of entry,
presumably leading to a potential asylum claim.
THE BUCK
STOPS HERE—AT
OUR GROSS
MISADMINISTRATION
14. Although the judiciary generally appears
to be biased in favour of the Secretary of State for the reasons
I have expressed above, its maladministration fails to produce
the desired result. The daily saga of lost files, poor preparation
of cases, the non-appearance of Home Office Presenting Officers
before Adjudicators, attempts to re-run cases again before Tribunals
or seek remittals all merely bog the system down even further.
What is needed is a well-run process, not new restrictive laws
that cannot be properly implemented or applied.
15. The Secretary of State for Home Affairs
must be held responsible for its substantial contribution for
his gross incompetence and consequently the frustrations caused
to genuinely persecuted people not only from their own home government
but ours upon arrival here.
16. The enormity of irrelevant paper work
generated both by the Home Office, the legally funded Appellants
representatives finding its way into the Tribunal, further slows
the system down. I have never seen such bulky files in any other
jurisdiction in the world, including my recent visit to the Courts
in Pakistan. The danger of such material, often submitted at the
last minute, overshadows consideration of vital issues that appear
to get lost. I have often painfully pondered while sitting in
Court whether there is any point in having a Judiciary when all
we are doing is going through a process where there is little
prospect of Justice being delivered. It all seems so farcical.
Countries that process applications administratively, under the
strict guidelines of their own constitution or domestic law perhaps
do a far better and humane job in addressing persecution than
this appallingly mismanaged and expensive system. The Government
proposes that judicial management be placed in the hands of the
senior judiciary, the very people partly responsible for the present
chaos.
17. As a businessman and a taxpayer, I deplore
the waste of Public Funds in the running of any business by inexperienced
and incompetent legal administrators or managers charged to carry
out these important tasks. The neat and tidy files, properly managed
by professionally qualified staff, one sees in other countries,
with substantially larger number of appeals, should be emulated
here. It is often argued that our large volume of appeals in the
UK is the cause of our inefficiency. I would absolutely disagree.
Lawyers and Doctors do not have a reputation of being good administrators;
yet it is those we have in our system at present and we are recruiting
more of these expensive individuals in our search for a solution!
I despair at the lack of accountability and a gross waste of public
funds when we have to remit cases or adjourn due entirely to the
system's ineptitude.
INDEPENDENT FACT
FINDERS
18. A pre-requisite to advocating a single
Tier System is the recruitment of good Adjudicators, independent
fact finders or researchers or culturally aware jurors to determine
credibility. They would not necessarily have to be expensive lawyers.
In the light of the appalling decisions emanating from legally
qualified Adjudicators, I have read over many years and still
continue to read at the Tribunal, I am convinced that we do not
have the potential for an efficient single tier system in place.
Much as I would prefer a single-tier judiciary, the time to introduce
it must be when our declining standards have been arrested. Unless
the Government has a political motive to do so, it must not put
the cart before the horse. I agree that the system is in utter
chaos at present and has suffered from years of neglect, lack
of foresight and waste of resources. Nevertheless, in my view
a quick fix as planned may be disastrous. A jurisdiction where
one deals with life and death issues ought to be seen to be fair
and fast. In my experience, it is neither fast nor fair at present.
The genuine wider community of all races who are victimised by
it, in one way or the other, will endorse that.
19. The Government is about to embark on
another hasty decision without adequate public consultation at
grass roots level. Undoubtedly, it will greatly endanger our fragile
race relations, particularly in respect of immigration cases.
It is rightly perceived that the Government has double standards
and blatantly practices a colour bar. Whites, even those permanently
settled overseas seemingly receive different treatment despite
the rules, compared with those from the New Commonwealth etc.,
their families or friends.
20. Therefore, the single tier in its proposed
form will be open to the very misuse the Government is trying
to minimise and a subject of ridicule and mockery. Criminals and
Traffickers or Drug dealers are great inventors of loopholes or
seem to have the expertise and financial clout in order to be
able to get around the law. Ordinary victims of the system have
no one to turn to but to these gangsters. Is it the intention
of the Government to drive them to that form of solution?
END OF
JUDICIAL INDEPENDENCE?
21. I am also concerned about the suggestion
that new immigration Judge's will decide cases in close consultation
with the Senior Judiciary whereby the independence of individual
Judges is likely to continue to be undermined. I suspect this
is done in the interest of consistency, but does this policy not
perpetuate the thought process of certain Senior Judges? In the
developing democracies, such control of Judges would be perceived
as executive interference. Does the Government wish the electorate
to accept similar executive interference of the Judiciary as a
way forward? Is this the thin edge of the web leading to all levels
of the judiciary?
Finally, as I am to be compulsorily retired
because of ageism on my 72nd birthday that falls on 23 October
2004, it matters not to me personally whatever the Government
decides to do to with this jurisdiction. Nevertheless, I will
look forward with great interest to a new era if and when it materialises.
I hope my above views expressed with due frankness and commitment
will be taken in the spirit intended for a fair, just, humane,
financially viable and faster process of justice.
Anver Jeevanjee
Member Immigration Appeals Tribunal, London.
16 November 2003
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