Select Committee on Constitutional Affairs Written Evidence


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
ReviewClause 10(6)
Judicial SupervisionSchedule 2, paragraph 21, (n), (v)

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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