Examination of Witnesses (Questions 1-19)
13 JANUARY 2004
HIS HONOUR
JUDGE HENRY
HODGE OBE, RT
HON LORD
NEWTON OF
BRAINTREE OBE AND
MR CHARLES
BLAKE
Chairman: We are very glad to have your
help in our inquiry on asylum and immigration appeals which began
of course before the Government brought forward its legislative
proposals for pretty major changes in the system and those changes
will form the future and please feel free to refer to them when
you deal with our questions.
Q1 Ross Cranston: I want to start with
the appellate, the second tier, and can I ask in general terms
what is the purpose of the second tier and, in particular, is
it simply to correct errors of law or has it got a function beyond
that?
His Honour Judge Hodge: Currently
you mean?
Q2 Ross Cranston: In general and, in
theory, given the Leggatt Committee's recommendations about tribunals,
what is it actually there for?
His Honour Judge Hodge: Well,
at present we have within the Immigration Appellate Authority
this two-tier system and until the 2002 Act the second tier was
able to look at both fact and law in relation to the appeals at
adjudicator level. From the 2002 Act, it has been limited to areas
of law. Whether that has made a huge difference or not is currently
unclear, but when you look at the numbers of cases that go through,
something like about a half historically of decisions by adjudicators
are subject to permission to appeal applications to the current
second tier. In about a third of those, those permissions are
granted and of that group of cases, about half either are remitted
or allowed and it has become very "of jurisdiction"
in the sense that hardly anybody ever accepts any decision made
by the system, which is presumably where the Government is coming
from, I do not know, in relation to trying to cut down the tiers.
Q3 Ross Cranston: I do not know whether,
Lord Newton, you have a wider perspective on this.
Lord Newton of Braintree: I think
I would probably rest on the proposition of the Leggatt Report
which, as you will be well aware, I am sure, recommended a two-tier
system of all tribunals generally and the introduction of a second
tier in those areas where it did not exist, and saw it, I think,
as contributing to what it described as, I think I have got the
words right, coherence in the development of the law and promoting
consistency effectively at its own level and in the first-tier
tribunals. Now, that is a fairly high level of generality, but
traditionally I think that has been seen as the function of a
second tier.
Q4 Ross Cranston: And would you say it
is always necessary then, a second tier?
Lord Newton of Braintree: I am
saying that Sir Andrew Leggatt, in his report Tribunals for
Users, which was what sparked off the current proposals for
creating a unified tribunal service, suggested that there was
a need for a second tier of one kind or another across the board.
It already exists of course with quite a number of tribunals,
like the Office for Social Security Commissioners, for example.
Q5 Ross Cranston: But I guess Judge Hodge
has raised the issue, and correct me if I am wrong, that you do
not necessarily need this second tier in this area. Is that the
implication maybe?
Lord Newton of Braintree: Well,
that is clearly the Government's view for various reasons.
Q6 Ross Cranston: That is what we are
testing here.
Lord Newton of Braintree: But
also, I think, one needs to take into account the fact that there
is an ingredient in the current proposals for what is described
as a single tier with a special review mechanism at which it can
be looked at, but the Department for Constitutional Affairs does
not much like this terminology, as I discovered on one occasion
when talking to them, but you are almost creating a two-tier system
within a single system and it is not quite the same as the one
we have at present.
Q7 Ross Cranston: I was going to come
on to that, having an appeal mechanism within the one Tribunal,
and I guess in principle there is no objection to that. In the
common-law world in smaller jurisdictions they do not necessarily
have a court of appeal, but they will constitute the appellate
court from the existing judges and simply have a full bench of
three or five or whatever, so there is no objection in principle,
but what practitioners have said to me is that it is necessary
to have a broad appellate system to provide that sort of consistency
and so on that Leggatt was talking about.
Lord Newton of Braintree: Well,
that certainly has historically been the view of the Council on
Tribunals and it was Sir Andrew Leggatt's view and those are just
matters of record really.
His Honour Judge Hodge: No final
decision has been made about how, as Lord Newton says, this Tribunal
within the tribunal system is going to work, but it will certainly
have a role in laying down guideline cases which the fact-finders
and deciders or judges doing the first hearings will have to follow,
so there will be lots of mirrors to the position that currently
exists.
Q8 Ross Cranston: Has any thought been
given to whether they would be special adjudicators constituting
the appellate body or would they be the more experienced ones
or how would that actually operate to give this coherence, competence
and guideline law-making capacity?
His Honour Judge Hodge: Two groups
of judicial officers are going to come within the ambit of the
new Tribunal, a smallish group, who are the current vice presidents,
who number about 30 full-time judges and are the judiciary in
the Immigration Appeal Tribunal, and there are about 160/170 adjudicators
who are coming into the system, and there are part-time members
of both of those tiers. I think the expectation is that the role
of the review body within the single-tier Tribunal will largely
have to be "personed" by the people who are currently
vice presidents, although one proposal is that they may sit in
panel or consider cases in panels and it might be sensible to
have somebody from the adjudicator tier in the panel of three.
Mr Blake: Can I just add two short
points to that, Mr Cranston. I think the Committee may want to
be aware that in one sense we already have something approaching
a single tier because a number of part-time chairmen, not vice
presidents because they are full-time, but chairmen of the Tribunal
are existing adjudicators who might hear cases as adjudicators
for, say, three days in one week and then might go off to the
Tribunal to hear four appeals on that day, clearly not for themselves,
but from other adjudicators, so to that extent we have already
moved some way towards that. The second point, and I think you
were perhaps suggesting this, is that the function of the second
tier may properly be said to be two-fold: firstly, to correct
errors in individual cases just as that is the function of any
appellate court, "Did the procedure go wrong and are the
findings of fact justified by the evidence?", and that sort
of thing; and, secondly, what I might call `issue litigation',
"What is the present state of knowledge about the circumstances
in Ruritania?", say, and "How should such cases be dealt
with?" At the moment the Tribunal has brought out, because
we represent people who sit on the Tribunal as well, a number
of decisions which are reported, dealing with very much that topic,
issues about conditions in Turkey, Sri Lanka, anywhere you can
think of.
Q9 Ross Cranston: Would they be picked
up under the proposals as matters of law?
Mr Blake: Well, that is not very
easy to say. I think Judge Hodge may prefer to answer that. It
rather depends, as Judge Hodge was indicating, on how precisely
that system works. The new President will have the power to refer
on a case-by-case basis, I think, but rather sparingly, I suspect,
cases to the Court of Appeal that raise important matters of issue
on a sort of referential basis, which is something we have not
seen before in our public law in this country.
Q10 Ross Cranston: I do not know whether
you want to supplement that.
His Honour Judge Hodge: Guideline
cases on countries will almost certainly be a regular feature,
I would think, of the group doing the reviews. One thing you can
do is you can select out cases and say, "There has been a
new problem in Ruritania; there has been a revolution and lots
of people are coming here to claim asylum. Let's have a look at
the background country information and give guidance to the mainstream
judiciary", and we will take seven or eight cases and look
at all the features and do it that way. That makes sense and the
tribunals, as Charles Blake says, do that kind of thing already.
Q11 Ross Cranston: Finally, could I ask
the converse of what I have been putting so far, which is whether
you can see any disadvantages? It is quite helpful for Mr Blake
to say that the system in a way is moving towards this, but are
there any disadvantages from collapsing the appellate system into
this one Tribunal?
His Honour Judge Hodge: Well,
what the administration, the Government and many commentators
are very concerned about is speed and one advantage of having
a truncated appeal system is that it gets cases through quickly.
From the other side, from the appellant's side, speed may mean
that it is difficult to do full and proper preparation and collect
extra evidence, so that could certainly be seen as a disadvantage
by cutting down the size, as it were, of the Tribunal.
Lord Newton of Braintree: I think
one point I would want to make and the Council would want to make
is that the grounds on which the review may go anywhere, so to
speak, are really very restricted indeed and, as we all know,
any right of a further appeal is either very restricted in the
terms that have just been mentioned or is sought to be cut off
altogether by the "ouster" clause, and we have a number
of worries about the way in which the review system works, for
example, that it is all to be done on paper without oral hearings,
but those are points of relative detail. I think the biggest single
potential problem is that it has been very clear from what has
been said already, and it is a point the Council made, I think,
in its supplementary memorandum to you, that the proposals taken
as a whole for the single tier, so-called, are going to put a
huge amount of responsibility on the President for the development
of the law in a way that is currently more widely shared.
Q12 Ross Cranston: Mr Blake, is there
a view of the Council of Immigration Judges?
Mr Blake: Well, I do not think
I need add anything to what Lord Newton and Judge Hodge have said,
and this is very much a policy matter for the Government. We can
see the point that, absent an ouster clause, it would be difficult
to move even further towards a single tier than I was suggesting
we had done already because it would allow cases to go onwards.
I am not going to discuss the merits of the ouster clause here
because that is a matter of policy for the Government and a matter
for the higher judiciary in terms of construction and interpretation,
but I agree with the points that the last two speakers have made.
Q13 Peter Bottomley: I do not want to
get involved too much with the detail of the statistics, but I
interrupt myself to observe that the proportion of decisions allowed
on appeal is higher than the Home Office statistics because they
take as their large number those cases withdrawn and remitted
anyway. Having said that as a preliminary, if, in the Council
on Tribunals' annual report, it is shown that a year or two back
the success rate was running at about 25% of the adjudicator level
and nearly 30% of the Tribunal level, does this support the case
for retaining a second-tier appeal or is there a case for not
having it?
Lord Newton of Braintree: Well,
I suppose that any relatively small success rate, which is true
also of a number of other tribunals, could be held up as an example
that you did not need so many tribunals. It is a slightly strange
line of argument because, after all, the whole process rests fundamentally
on the argument that the citizen ought to have a fair right to
challenge the administrative decisions and it is normal in most
cases that that has been taken, not all, I accept, as having an
initial Tribunal hearing and then the right to appeal to another
one. That is, if you like, the commonest pattern. I do not think
you can build too much on the statistics, is really what I am
saying.
Q14 Chairman: You implied by what you
said that you thought that 29% was a small success rate.
Lord Newton of Braintree: Well,
it is actually quite a significant success rate. It is higher
than with quite a number of tribunals, but I am afraid I have
not got in front of me some great table of statistics.
His Honour Judge Hodge: The success
rate conceals a two-tier success rate system. About half of the
cases are remitted back to be reheard and they go around the mill
and I regret to say that occasionally they go back around the
mill, so in terms of quality control, you have not actually necessarily
got a different decision, but you have got an order for a rehearing
and it may be that when it is reheard, some other decision is
made—who can tell?
Q15 Mr Soley: Can I clarify this because
I do not actually understand it. Are you actually saying that
the rate of appeals, that the statistics given are actually not
quite meaningless, but not accurate?
His Honour Judge Hodge: No, because
I think the statistics show something called the "allowed"
or "remitted" and remitted means that there was a mistake
in fact or in law until recently, but the Immigration Appeal Tribunal
say, "We can't now decide it. It must go back and be reconsidered
by an adjudicator", so there is in classic terms a certain
amount of churning of those kinds of cases. In a year there were
something like 5,000 cases allowed or remitted, this is in 2002,
and that will mean that about half of them go back to be reconsidered
by the adjudicators and the other half are allowed. Now, "allowed"
may mean that a Home Office appeal is allowed or an asylum-seeker
or immigration claimant appeal is allowed.
Q16 Mr Soley: An awful lot rests on the
interpretation of these statistics actually in terms of whether
this system is working or not. Is that not right?
His Honour Judge Hodge: I think
if you have any judicial system where there is an appeal right,
it is going to be used and judgments about how well or otherwise
the system is working do not necessarily respond to what the decision
on the appeal is. I do not think it follows quite like that. What
I am most worried about, or not worried about, but what I have
been trying to make sure we continue to be sensible and good at
at the adjudicating level is producing a decent quality of decision.
To do that you have got to have good and sensible adjudicators,
and I am pleased to say that they are, and you have got to train
them sensibly when they come in, and we have put a lot of time,
effort and money into that over the last two or three years and
new appointees get a good training, and they are retrained and
there is refresher training every year, plus they are kept informed—it
is my experience anyway, and I have been involved in quite a lot
of judicial areas—about developments in the law by an extremely
good system of information exchange coming from what is called
our Legal and Research Unit, so our aims to keep our quality high
continue all the time. The big challenge, I think, for the judiciary
under this new system will be to do that and to make it even better
than it currently is. If that happens, then the worries that people
have about bad decisions or poor-quality decisions will be ameliorated
and the way in which the Government have put in an amendment now
which softens the review process where it is now going to be on
the basis of a clear error of law will, I think, help in that
process.
Lord Newton of Braintree: Can
I just express my agreement with that and indeed take the opportunity
to pay a compliment to some of the work that Henry Hodge has done
to improve the working of the asylum adjudicator system because
it is true that whether you have the present system, where too
much ends up being remitted back to the asylum adjudicators because
it was not got right in the first place, or a fortiori
within the new system getting that initial decision, getting the
quality of the initial appeal decision higher than it historically
has been must be an important ingredient. That would be true of
both the present system and the proposed change.
Mr Blake: I would just add one
thing, if I may, to what Judge Hodge and Lord Newton have said.
I entirely agree with them. For our part, we would like to see
a provision in the current Bill—difficult to draft, I suspect—that
would free adjudicators, if that is the right word to use, to
become Tribunal members and judges from the trammels of what arguably
is an excessively adversarial system. I think it is very difficult
to give what the courts have said we must give, and that is acts
of scrutiny to asylum appeals—ordinary immigration appeals
are slightly different—if we are bound very strictly by
adversarial procedures and we cannot adopt a more interventionist
mode of procedure. Now, that needs careful discussion and it cannot
be done, I fear, in terms of detail around this table today, but
during the course of the Bill and perhaps discussions on how,
if the Bill passes, the new system will be implemented, we would
hope that there would be room for that kind of approach.
Q17 Peter Bottomley: The quality of the
papers we have had, which we will surely publish with our report,
show the kind of thinking, the areas where people have got expertise
and their ideas of how things can be made better, and we have
to accept that the Government and Parliament have to make rules
which both allow people fairness and maintain, bluntly, immigration
control. I think we ought to be careful about using the term "success
rate" as being only things where some of the decisions have
been overturned as success. The fact is that some of the decisions
being upheld are a success just as much, if that is right, but
the question, I suppose, in front of us in part is that if we
had the number of court rooms go up nearly five times in three
years from 32 to 150 odd and a significant number of people brought
in to preside in them, whether the quality of decision-making
remains the same, and we have heard from Judge Hodge and the Chairman
about the training which is valuable, but we still have to pay
some attention to the numbers. Mr Henry Mitchell has made some
suggestions that the workloads put a lot of pressure on adjudicators
and there is a difficulty of the Home Office in providing enough
people to appear at hearings, which reinforces Charles Blake's
point about the potential value of the person behind the desk
being able to ask questions rather than just hear a one-sided
argument. How far do those sorts of things influence the outcome
of hearings?
His Honour Judge Hodge: The presence
or absence of a Home Office presenting officer can often be very
important indeed. The Home Secretary does not have his case fully
put which takes us back to the other issue which relates to quality
which is the quality of decision-making by the Home Office. I
do not know if you are interested in that, but the better the
quality of decision-making by the Home Office, the greater the
care they give to the cases before they come to us, the fairer
the decision is going to be made in the first instance for or
against the person making the claim and the more likely the judiciary
are to make a fair decision on the back of the way in which they
have handled the case. They may agree or disagree with what the
Home Office have decided, but when you do not have anybody presenting
the case and you have got an adversarial position, the Home Office
are likely to be in some difficulties. Then again the case may
be so clear that the lack of a presenting officer in the particular
case does not make any difference. What I think I can say, having
come into the jurisdiction two and a half years ago, is that good-quality
representation by either side makes a very real difference because
good-quality preparation and good-quality representation makes
as great a difference as I think it does in lots of areas perhaps
because the rest of the preparation and presentation is not as
good as we would like it to be, so a good presenting officer does
a great job.
Q18 Chairman: I have got a point on that.
Based on our discussions with entry clearance officers, is there
not only a frequency of absence of presenting officers from the
Home Office, but also quite a lot of instances where the presenting
officer clearly has not had the papers for long enough to present
the Home Office's case effectively?
His Honour Judge Hodge: The presenting
officers get their cases at best 48 hours beforehand, unless it
is a particular case of particular interest where somebody has
highlighted the need to have a particular presenting officer on
it, so they are told by our system what is going to be on in 48
hours and they have a set amount of time to do the preparation,
which is a shorter time than is given to many of the representatives
for the appellant, I suppose, but again if the preparation has
been done well by the Home Office beforehand, that means the need
for lengthy time doing the actual preparation and representation
is reduced. It is sort of which comes first.
Q19 Peter Bottomley: I have two last
points. We have seen an increase in the proportion of appeals
which were allowed or remitted and we have seen a more recent
decrease. Has that sort of curve or shading been affected by being
out of control and now back under control or is there some other
influence?
Lord Newton of Braintree: It would
be a matter of speculation. I think probably Henry would wish
to say that it partly reflects his efforts to improve the quality
of decision-making.
His Honour Judge Hodge: There
are all sorts of guesses you could make and that would be one.
The Home Office have put a lot of effort into getting rid of their
backlog. As Mr Bottomley has pointed out, we have increased the
number of judiciary and the number of hearing rooms and my adjudicators
have done, I think, a magnificent job in dealing with the large
numbers of cases that are coming through at high pressure and
at speed. A lot of the older cases which are appearing from some
old Home Office files, which have been sitting there waiting to
get through, were more poorly decided than the current ones, and
that undoubtedly also will have an effect on the successful appeal
rates. The badly prepared, not perhaps as well presented as they
might be are more likely to have an adverse result, from the Home
Office's perspective. It may be that when you get a new group
of judges in doing something, they are a bit more liberal or lenient
than they are otherwise, which also may have an effect in the
rise and fall of the figures, but there are so many different
things. What countries are involved in the Migration Watch, they
highlight the fact that in the early 1990s the success rate was
very low. This was before we had problems with Afghanistan and
Kosovo was not as difficult as it is, and the concept of low may
be that they were just doing what the Home Office wanted them
to do rather than otherwise. I am not suggesting that is the case,
but it is difficult to play around with these stats, although
we can do, if you want.
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