Evidence submitted by a Group of London
Immigration Adjudicators (AIA 42)
ASYLUM AND
IMMIGRATION (TREATMENT
OF CLAIMANTS,
ETC) BILL
2003
1. BACKGROUND
1.1. The writers are a self selected group
of Immigration Adjudicators sitting in the Central London Hearing
Centre of the Immigration Appellate Authority at Taylor House,
88 Rosebery Avenue, London EC1R 4QU. It is understood that submissions
have also been made by the Council of Immigration Judges, which
represents the majority of Immigration Adjudicators throughout
the UK.
1.2. Many of the writers have their own
views on many issues raised by the Bill (eg the ouster of jurisdiction
of the High Court provisions of clause 10(7)). They have however
confined these submissions to issues:
(1) upon which, as Immigration Adjudicators,
they have exclusive and unique practical experience; and
(2) which, as Judiciary, they are confident
have no political dimension.
1.3. All immigration and asylum decisions
are accompanied by an explanatory statement or letter giving the
reasons for the refusal by the Secretary of State for the Home
Department (conveniently referred to in this submission as the
Home Office) of the application by an applicant, and therefore
containing the case which, on appeal, he has to meet. Immigration
Adjudicators are therefore uniquely placed to know that:
(1) Too many Home Office decisions are of
indifferent quality, poorly reasoned and inadequately engage with
the evidence of the applicant.
(2) Hence the hearing before an Immigration
Adjudicator, whilst constitutionally an appeal, too often represents
the first reasoned consideration of an appellant's case.
(3) Hearings are conducted in the traditionally
common law adversarial format before what is ostensibly a tribunal
but is for all practical purposes a court. For this reason Immigration
Adjudicators unanimously welcome the Government's ultimate recognition
that their role and responsibilities are those of a judge.
1.4. The writers have three issues of major
concern:
Credibility
| Clause 6 |
| Review | Clause 10(6) |
| Judicial Supervision | Schedule 2, paragraph 21, (n), (v)
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2. CREDIBILITY: CLAUSE
6
2.1. Rule 334 of the Immigration Rules (HC 395/1994)
states that an asylum applicant will be granted asylum if he is
a refugee as defined in the 1951 Refugee Convention, is in the
UK or has arrived at a port of entry and the refusal of asylum
would require him to go to a country in which his life or freedom
would be threatened for a Convention reason. Rule 341 sets out
number of matters which the Home Office will have regard to which
may damage the applicant's credibility.
2.2. The 1951 Refugee Convention, having defined a Refugee
in Article 1, lays down, in Article 33, that no Contracting state
should return a refugee to the frontiers of territories where
his life or freedom would be threatened for a Convention reason.
Article 31 states that no Contracting party shall impose any penalty
on account of their illegal entry or presence on refugees who
come directly from a territory where their life or freedom was
threatened, provided they present themselves without delay and
show good cause for their illegal entry.
2.3. The task of the Adjudicator is therefore clear:
he has to determine whether or not the appellant before him is
a Refugee. To do that he must decide whether or not the core elements
of the asylum claim are credible both with regard to the facts
on which the appellant bases his claim and the likelihood of his
being persecuted on return. To do this the Adjudicator will consider
not only background documents relating to the appellant specifically
but also reports relating to the particular situation in the county
from which he comes as well as assessing the credibility of his
claim. Adjudicators must decide what evidence they accept and
what evidence they find not to be credible and give reasons for
their decision; frequently they accept some parts of the evidence
and not others. They will always have in mind the complexity of
individuals' motives and the political background in the countries
from which they may come, as well as their mode of entry to Britain
and the other factors which are set out in the Refugee Convention
and the Immigration Rules.
2.4. It should go without saying that an Adjudicator
would not give a determination which he did not believe to be
correct—to do so would be to act in bad faith. The prescriptive
nature of clause 6 of the Bill gives the impression that the Immigration
Judge must reach certain conclusions if the appellant has acted
in particular ways. That must surely be wrong. While the rules
may act as an aide memoire, setting out factors which should be
taken into consideration, no provision of an Act should tell a
judge what he must, or must not, find credible.
2.5. It may be that that is not the intention of the
provision; but it is the impression which is given by the clause
as it is at present drafted, and that must cause concern. The
clause adds nothing to the present law and, indeed given that
it is addressed to decision makers at first instance, could lead
to a larger number of incorrect decisions where the initial decision
maker considers that the provisions of the clause mean that when
he considers that the applicant for asylum has taken one of the
steps which are referred to in the clause he must therefore refuse
the application. That would lead to considerable unfairness, and
a large number of unnecessary reviews.
3. REVIEW: CLAUSE
10(6)
3.1. We raise no issue on the decision by the government
to limit appeals to a single tier. We consider only the practicalities
of the proposal, in clause 10(6) of the Bill, introducing a new
proposed section 105A to the Nationality, Immigration and Asylum
Act 2002 ("the 2002 Act").
3.2. The proposed section 105A(1) affords either party
to an appeal a review of a decision by the new intended Asylum
and Immigration Tribunal as of right rather than, as at present,
only with the permission of the existing Immigration Appeal Tribunal.
However, that review, to be conducted by reference only to written
submissions rather than by oral hearing, can result in the Asylum
and Immigration Tribunal substituting another decision "only
if satisfied that the decision depended upon an erroneous construction
or application of a provision of an Act" (section 105A(4)).
3.3. In almost all cases, this will be the only basis
for review. The only limited exceptions in which the High Court
is to have jurisdiction relate to reviewing a decision on a certificate
of removal to a safe country; considering whether a member of
the Asylum and Immigration Tribunal has acted in bad faith; and
a reference by the President of the Asylum and Immigration Tribunal
of a point of law. In all other cases, erroneous construction
or application of a statutory provision is an inappropriately
narrow basis for review. Amidst the numerous matters of law and
fact which dictate consideration, especially in asylum appeals,
statute plays a relatively limited role. In the writers' experience,
grounds of appeal rarely invoke misconstruction or misapplication
of statute, and appeals are rarely determined primarily on that
basis.
3.4. Immigration Adjudicators, like courts and tribunals
at all levels, do make errors of law. A contributory factor to
such errors is the considerable and increasing pressure to which
they have been subjected in recent years to determine increasing
numbers of appeals within increasingly compressed time frames.
This is pressure which they are sometimes obliged to resist in
the interests of justice to the parties. In no court or tribunal
jurisdiction are the risks so grave as they are for unsuccessful
asylum seekers. These are, in the language of the 1951 Refugee
Convention, persecution, and in that of the 1950 Human Rights
Convention, deprivation of life and subjection to torture, inhuman
or degrading treatment or punishment. Asylum appellants ought
therefore to have the opportunity to seek correction of errors
of law.
3.5. We therefore suggest that review by the proposed
Asylum and Immigration Tribunal be upon an issue of law. In order
so to confine it, "issue of law" should be defined so
as to exclude:
(1) Issues of fact, save substantial and material errors
of fact going to the core of an appeal (eg substantial failure
to engage with the evidence; findings of fact so unrelated to
the evidence as to be perverse; failure to consider the background
evidence about conditions in the country of intended destination).
This is in fact broadly the present legal position as to what
constitutes an issue of law; but experience requires its articulation
in statute.
(2) Review of the exercise by an Adjudicator of discretion
in, for example, the balancing exercise mandated in clause 364
of the Immigration Rules in deportation appeals, and the proportionality
assessment required in relation to the right to respect for private
and family life under Article 8 of the 1950 Human Rights Convention.
3.6. Review by the Asylum and Immigration Tribunal should
also remain available, as at present, for lack of procedural fairness.
Within so overburdened a jurisdiction, administrative errors (eg
failure to give notice of a hearing, or to do so to the current
address of an asylum seeker, who may have been recently and involuntarily
relocated at short notice by the authorities) are inevitable.
Such errors are unrelated to the determination of Adjudicators,
and the denial of a remedy for them is a denial of natural justice.
3.7. It is arguable that the absence of a basis for review
such as we suggest would represent the absence of:
(1) An effective domestic remedy of oversight of tribunals.
(2) An effective remedy under Article 13 of the 1950
Human Rights Convention, which was not incorporated into the Human
Rights Act 1998 because it was considered that the Act provided
sufficiently effective domestic law remedies.
4. JUDICIAL SUPERVISION:
SCHEDULE 2, PARAGRAPH
21, (N), (V)
4.1. The Bill proposes an insertion into section 106
of the 2002 Act of additional powers for rules to be made for
the supervision of members of the Asylum and Immigration Tribunal
by other members. While the details would be contained in any
rules made pursuant to this proposed power, the prospect that
a judicial office-holder in the same tier might supervise another's
decision offends the principle of judicial independence. The Bill
properly contains provision for review of judicial decisions,
albeit that certain aspects give us concern.
4.2. Adjudicators have an extensive programme of continuing
training. They have on their own initiative established and maintained
an informal but effective system of mentoring for recently appointed
Adjudicators, a service which remains available on an indefinitely
continuing basis. They have accepted and in many cases welcomed
the introduction of an appraisal system. They have shown an appreciation
of the benefits of training, mentoring and appraisal; but supervision
of their decision making process is an altogether different matter.
It would amount to an improper interference with their duty to
administer justice according to the law, without fear or favour,
affection or ill-will. It is our view that the words "other
members and" should be deleted from the proposed section
106 (2) (v).
5. IN CONCLUSION
5.1. The writers are willing to expand upon these submissions
if this would assist; and some are willing to give evidence to
the Parliamentary Select Committee if so requested.
Mr J Azam, Mr D G Bartlett, Miss G A Black, Mr P R Boardman,
Mr M A Clements, Mrs H S Coleman, Mr M E Curzon Lewis, Mrs P H
Drummond Farrall, Ms G Elliman, Miss C Griffith, Mr B P Gulbenkian,
Ms A Harrison, Mrs V A G Horvath, Mr C G Kelsey, Mr J M Lewis,
Mr A L McGeachy, Mr R A McKee, Mr J F McMahon, Mr M Neuberger,
Mr F T W Pinkerton, Ms S Pitt, Mrs K Roopnarine-Davies, Mrs C
A Scott-Baker, Mr P S Shaerf, Miss E Simpson, Mrs P M Skitmore,
Mr G D Thompson, Mr C A Vaudin d'Imecourt, Mrs D Witts
14 January 2004
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