Written evidence submitted by Tooks Court
Chambers (AIA 40)
IND/DCA PAPER ON
NEW LEGISLATIVE
PROPOSALS ON
ASYLUM REFORM
INTRODUCTION
1. Tooks Court is a set with 58 full-time
barristers and fourteen immigration specialists. We are Legal
Services Commission Quality Mark accredited. This response is
made on behalf of the fourteen practitioners.
2. We would make two introductory comments.
First, as will be clear from our detailed remarks, in addition
to opposing most of the proposed changes we have also often found
it difficult to discern what it is the government hopes to achieve
from them. It seems to us that at best the changes will make no
obvious difference; at worst, it will make matters much worse.
We therefore start with a brief plea on behalf of all those practising
in this area that the government is careful not to just legislate
for the sake of legislating, in order to appear to be "doing
something" about asylum. All those involved in trying to
make the system work find it very difficult to cope with major
legislative change every (less than) two years. It does nothing
to improve quality or efficiency.
3. Secondly, and in part related to that,
three weeks is far too short for a consultation of this kind.
We were of course aware of the thrust of the proposed changes
to the appeals system following the ministerial statements earlier
this year and so we have been able to think a little more about
that. Even there, however, and bearing in our mind our other commitments,
the tight timetable has meant that we have not been able to consider
the issues properly and this response is significantly shorter
and less helpful as a result. With regard to the other proposals
we have had no time at all. We note in this context some of the
remarks of the recent Select Committee report on the legal aid
proposals (Immigration and Asylum: The Government's proposed changes
to publicly funded immigration and asylum work (Constitutional
Affairs Committee Fourth Report of Session 2002-3 Vol. 1): "The
DCA has given the impression, during the course of this inquiry,
of considerable confusion . . ."; "original proposals
hurried and not obviously thought through"; "the Home
Secretary's announcement of October 24th appears to have taken
the DCA by surprise . . ." We are concerned that similar
criticisms could be made of these new proposals and we emphasis
what we have previously said in response papers: this is an area
of legal practice beset by problems of volume, complexity and
political sensitivity. It is also, however, one where the consequences
of getting it wrong could not be higher. In our view, this should
make it more important, not less, that significant policy change
is only introduced carefully and following proper thought and
analysis.
ASYLUM AND
IMMIGRATION APPEALS
SYSTEM
4. We are wholly opposed to a single tier
appeal system, and our reasoning is straightforward: the quality
of decision making at adjudicator level is too low and the higher
courts could not cope with the number of applications that would
result were there no longer the equivalent of the Immigration
Appeal Tribunal (IAT) filter.
5. With regard to the quality of the decision
making, we record first the statistics. In the most recent analysis,
Heath et al, Asylum Statistics United Kingdom 2002 (National Statistics,
28 August 2003), it is said that approximately one third of applications
for permission to appeal to the IAT are granted, with only 25%
of those that proceed to a hearing succeeding. This bald assertion,
however, masks a critical point of detail: table 7.2 of that analysis
records that indeed, only 25% of appeals that are heard are allowed
on the day. What it does not acknowledge, however, is that 2,700
of the 5,560 cases were allowed to the extent that they were remitted
back to the adjudicators. Once this point is taken into account,
and the allowed appeals are also factored in, the very significant
result is that the IAT finds that adjudicators got it wrong in
60% of the cases it hears.
6. Two further points should be stressed
here. First, that is not just asylum seekers and those who represent
them who complain about the quality of adjudicator decision making.
34% of allowed appeals were Secretary of State appeals. Second,
the numbers represented by the percentages must be kept in mind.
60% is 3,320 people per year. To that must be added their dependants.
This does not just raise issues in respect of administration (on
which see below), but also highlights the human cost. This is
3,320 people, or a sizeable proportion of 3,320 people, who might
be right to fear return to their countries of origin.
7. These statistics are also supported by
our own experience. This is inevitably anecdotal, but it is also
the only source of information concerning the extent to which
adjudicators get it wrong, which is telling in itself. In our
experience, most adjudicator mistakes can be attributed to the
complexity and fast changing nature of the subject matter, the
fact that many adjudicators are new, and their workload. There
are, however, some very basic errors being made. One of our members
seems regularly to be having to draw adjudicators' attention to
the very well established line of authority that Article 8 of
the ECHR does indeed bite on entry clearance appeals. This is
worrying to say the least, but it is not our greatest concern.
There are, we are sorry to say, a number of adjudicator decisions
that are less easy to explain away. A decision which recently
found its way to McCombe J in Saleh [20031 EWHC 1863 (Admin) is
an example. There, the adjudicator dismissed corroborative witness
evidence on the sole basis that the witnesses were Somali. Her
exact words were: "I do not accept their evidence as corroboration
on this point. I formed the opinion that many Somali nationals
feel the necessity to support their fellow citizens and treated
their evidence in this light." It is, not to put too fine
a point on it, extraordinary for any judge to be expressing themselves
in such terms. This is also not an isolated example. For another
see Mahmood [2002] UKIAT 01819 ("Surely the adjudicator could
not have meant that members of the orthodox and traditional families
do not work for their living or that their evidence cannot be
relied upon . . .")
8. The need for training has also been acknowledged
by both the Chief Adjudicator and the Council of Immigration Judges
in their written responses to the Select Committee. In our view,
however, with 64,405 cases being determined by adjudicators last
year, which amounts to something in the region of 240 per working
day (not including those that are adjourned), and bearing in mind
again the factual and legal complexities of immigration and asylum
work, there will always be much greater problems with the quality
of decision making in this area than in others. It has also, of
course, been suggested by many including the Chief Adjudicator,
the Select Committee and ourselves that the current legal aid
reforms will decrease the quality of representation before adjudicators
and consequently increase the difficulties which they face.
9. It therefore seems inescapable that some
kind of additional filter is required. We think that the IAT does
the job particularly well and has done for more than thirty years.
Not only does it, on the whole, provide a relatively swift and
inexpensive way of correcting adjudicator mistakes, it also provides
an invaluable source of factual precedents. Cases such as A [2003]
UKIAT 00034 on risk on return to Turkish Kurds limit the issues
and facilitate the disposal of what must be hundreds of similar
cases. The High Court could never, of course, be expected to fulfil
a similar role.
10. The real reason, however, why the IAT
or something like the IAT is required to do the filtering is on
account of the numbers. The IAT is now receiving more than 3,000
applications for permission to appeal per month. That is almost
exactly the same number as the total number of immigration judicial
reviews disposed of by the Administrative Court in a year and
should also be judged alongside the recent practice statement
of Maurice Kay J concerning the problems from having 800 applications
in cases arising out of s.55 of the Nationality, Immigration and
Asylum Act 2002. It is therefore inconceivable that anything like
3,000 additional applications could proceed by way of the High
Court.
11. This, therefore, must be the basis for
the (somewhat vague) promise in the paper that the government
is "looking at ways to restrict access to the higher courts".
It is difficult to respond to that without having any idea how
the government proposes to do it. Nevertheless, it seems to us
that it must be almost impossible. The obvious options are, first,
some form of statutory review along the lines of that introduced
by s.101 of the 2002 Act. The obvious problem with that, however,
is that even 3,000 paper applications per month would be difficult
if not impossible to run through the Administrative Court. More
substantively, however, we think that so restricting the jurisdiction
of the High Court in this human rights/ "anxious scrutiny"
area that concerns, by definition, only foreign nationals would
be open to a challenge on discrimination grounds. Every other
litigant, be they children with special educational needs, persons
before the Mental Health Review Tribunal or professionals with
disciplinary issues enjoys full access to the supervisory jurisdiction
of the Supreme Court. It is difficult to see on what basis separating
out asylum seekers could be justified without inviting a declaration
of incompatibility and/or an application to Strasbourg.
12. This would be all the more true, of
course, if the alternative route were taken, namely the complete
ouster of judicial review. Here, however, the very long line of
authority culminating in Anisminic [1969] 2 AC 147 would apply.
The clearest possible statutory language would be required, and
that would in itself attract rigorous Parliamentary scrutiny.
No doubt the discrimination problems flagged above would feature
highly in the ensuing debate.
13. In conclusion, therefore, we cannot
easily see how the present two tier structure can be replaced.
The quality of adjudicator decision making would have to be radically
improved or the higher courts would quickly become swamped. We
imagine that improving the adjudicator level to that extent would
be as expensive as leaving the system as it is. Attempts to oust
the jurisdiction of the High Court would be difficult and extremely
controversial. Ultimately, even if it succeeded then the 3,000
cases per month would simply proceed to Strasbourg where, it will
be noted, a full factual review is available.
14. It has, of course, been only recently
that judicial review of IAT refusals of permission to appeal has
been removed. That was an unusual jurisdiction, as the Master
of the Rolls observed last year in the context of an application
for judicial review of a Circuit Judge refusal of permission to
appeal: Sivasubramaniam [2002] EWCA Civ 1738. He said this (at
[52]):
"There are, in our judgment, special factors
which fully justify the practice of entertaining applications
for permission to claim judicial review of refusals of leave to
appeal by the [Immigration Appeal] Tribunal. In asylum cases,
and most cases are asylum cases, fundamental human rights are
in play, often including the right to life and the right not to
be subjected to torture. The number of applications for asylum
is enormous, the pressure on the Tribunals immense and the consequences
of error considerable. The most anxious scrutiny of individual
cases is called for and review by a High Court judge is a reasonable,
if not essential, ingredient in that scrutiny."
15. Something that was "reasonable,
if not essential" in respect of refusals after IAT consideration
must become critical without any IAT at all.
UNDOCUMENTED PASSENGERS
16. The problem of undocumented passengers
is one which we have had very little time to consider. Nevertheless,
it seems to us that the government needs to be careful to set
out what it is that it is trying to achieve here, and at what
cost. Specifically, we wonder to what extent the destruction of
documents is a problem at all. An (Observer article dated 26 October
2003 cites a Home Office analysis of 145 cases where 9% of applicants
turned out to be from countries other than those claimed. Such
a small sample must raise questions of reliability and it is also
unclear the role documents played in this in any event.
17. More particularly, however, it is not
clear from the consultation paper whether the government is concerned
about the impact document destruction has at the arrival and subsequent
appeal stage, or whether it is concerned about effecting removals.
Clearly the appeal stage is part of the perceived problem because
the paper raises the prospect of having document destruction weigh
in the balance in the assessment of an appellant's credibility.
At the same time, though, there is also a suggestion that the
problem is at the removals stage.
18. Our view is that criminalising the destruction
or loss of documents is difficult and almost certainly pointless.
It is difficult to do because Article 31 of the 1951 Convention
applies (contracting states not imposing penalties on account
of illegal entry): see Adimi (2000) 3 WLR 434. We think it is
probably pointless because we doubt whether it would stop asylum
seekers doing what their agents tell them to do. The long line
of decisions addressing the same problem in the context of the
old 1993 and 1999 Acts certification regime is worth remembering.
One example is Naguleswaran (1999) (unreported) 3 December where
Elias J observed (at [33]):
"[Treasury Counsel supported] the principle
that a traveller who voluntarily gave his or her passport to a
third party would not have a reasonable explanation for its non-production.
I do not accept that. If the traveller is unsophisticated, bemused,
or otherwise very much in the hands of his agent or travelling
companion, it may be perfectly understandable that he will hand
his documents to such a person. Often that person will be someone
who has assumed some responsibility for the asylum in whom the
asylum seeker may have reposed considerable confidence. They may,
at least to some extent, be in a position of trust towards the
asylum seeker."
19. In R v SSHD [2000] Imm AR 354 Schieman
J (as he then was) took a similarly realistic attitude in a different
context, where the applicants used fraudulent visas in order to
claim asylum in the UK.
20. We can see no reason why the criminal
courts would not take the same view. It follows that many if not
most such prosecutions would fail. The same also applies to the
suggestion that document destruction should be taken into account
by adjudicators assessing credibility in asylum appeals. It is
difficult, given the points made by Elias and Schieman JJ, to
draw an adverse inference in many cases. If there are particular
circumstances that justify it then it is open to the Home Office
to make that point in the reasons for refusal letter or in submissions.
21. With regard to the impact on removals
again, it is difficult to see how criminalising document destruction
or lack of cooperation could help. If removal is pending then
there is a power of detention in any event. What else is proposed
by way of sanction? There is, in the end, nothing that can be
done where persons prefer prison to return to countries of origin.
We hope and expect, however, that there are not many who do.
SAFE THIRD
COUNTRY
22. Again, we are afraid we cannot easily
see what this is designed to achieve. The proposal is "to
legislate so that a person will not be able to challenge their
removal to certain safe third countries on the basis of the way
they will be treated. The designated countries will be those where
we are satisfied that an individual will be neither persecuted
nor subjected to torture or inhuman or degrading treatment or
punishment, nor one which would remove a person in breach of the
principles of the Refugee Convention or the ECHR". We assume
that its intention is to remove third country human rights appeals
on the basis of a white list but it is difficult to see how this
adds much to the existing certification regime and whether it
is necessary in any event. There are not many of these any more,
on appeal or on judicial review.
RESTRICTING FAMILY
SUPPORT
23. This is another proposal that is difficult
to comprehend. First, we are seeing very few section 54 cases
in any event so we wonder the extent to which this is a problem.
Second, if we understand it correctly, the proposal rests on the
premise that there are persons who are in a position to leave
the UK but who have not yet failed to comply with a removal direction
(the latter being covered by the existing s.54). We struggle to
see whether many, if any, persons would realistically fall into
that category but to the extent that there are, "as soon
as it is confirmed that the family is in a position to leave"
seems to us to be so vague as to leave a great deal of room for
challenge by way of judicial review. This cannot be what is intended.
THE OISC
24. Finally, the paper proposes sweeping
powers for the OISC to be able to enter a solicitor's office,
require the production of relevant documents and an explanation
for them, and is also looking at making provision for the Commissioner
to be able to (subject to a warrant) enter an office and seize
material. Further provision for requiring professional bodies
to cooperate with the Commissioner is also proposed.
25. We welcome any steps designed to address
incompetent and fraudulent practitioners but consider that the
existing professional rules and powers of the professional bodies
to intervene in firms are sufficient. These powers are broad,
and effective, and the paper gives no examples of where they have
been insufficient, much less any examples of where the professional
bodies have failed to cooperate with the OISC. Solicitors remain—at
least for the moment—a self-regulating independent profession
and we see no reason for trespassing on that.
Mungo Bovey QC, Judith Farbey, Femi Omere, Yaa
Yeboah, Glen Hodgetts, Rita Sethi, Chris Williams, Hugh Southey,
Navtej Singh Ahluwalia, Martin Soorjoo, Gaenor Bruce, Nick Armstrong,
Rebecca Chapman, Christina Gordon
14 November 2003
|
