Examination of Witnesses (Questions 40-59)
13 JANUARY 2004
HIS HONOUR
JUDGE HENRY
HODGE OBE, RT
HON LORD
NEWTON OF
BRAINTREE OBE AND
MR CHARLES
BLAKE
Q40 Dr Whitehead: Could I turn to the
question of proceedings and the immigration appeals. Mr Blake,
the Council of Immigration Judges suggested that appeals might
become rather more inquisitorial rather than adversarial. Indeed,
Judge Hodge, you suggested something along those lines earlier
on in your comments. What are the grounds on which you suggest
that?
Mr Blake: I was beginning to deal
with this a few questions ago. As I said in relation to asylum
appeals, we are required by the common law to give anxious scrutiny,
sometimes the most anxious scrutiny, to the appeal. We do not
see how that can really be done in a system where the Home Office,
as has been said, often do not turn up, and where the initial
decisions are rather poor, and where we are constrained by a number
of, in our view, somewhat artificial rules as to how we can then
conduct the proceedings. We are told not to "descend into
the arena", whatever that means. It seems to us that, as
long as we are fair, it does not really matter whether adversarial
or inquisitorial. All adjudication in tribunals and the courts
tend at one time or another to partake of both systems. I am sure
Judge Hodge would agree that when he sits in the county court
and he has a number of litigants in person, as one often does,
a very different approach has to be adopted for them, than one
where three QCs turn up on either side. What we would like to
see—and it is difficult to formulate it, and it requires
discussion and agreement, and I am not too dogmatic about this,
and we already have but is difficult to do in the present system
very fully—is the right of adjudicators to, firstly, make
detailed case management directions about individual cases, saying
precisely what we would like to see in front of us at a hearing.
It seems to me that will become a premium under the new system
if it goes through. Secondly, that adjudicators should be freer
than they are to ask their own questions. I am not sure about
"direct their own lines of inquiry" because that puts
the premium on skills and knowledge about particular countries
and types of immigrant or asylum-seekers that adjudicators may
not fully or readily possess. If the system could be freed of
some of the restrictions under which adjudicators at present have
to operate—this inability, so-called, to descend into the
arena—I think the new system would get a much fairer win.
Q41 Dr Whitehead: You wondered whether
Judge Hodge might agree—I wonder if he does agree?
His Honour Judge Hodge: They are
called the Surrenden Guidelines after the name of a case, and
that says that the judge should not descend into the arena. It
comes from the expectation that there will be two sides, each
represented, each able to raise any important issues. A sensible
judge, and we have got plenty of them, will obviously tease out
some additional issues which are not perhaps properly covered.
One of the very standard grounds of appeal is that the adjudicator
interfered too much in the cross-examination and asked too many
questions and so on and so on. Sometimes that kind of application
for permission to appeal is granted. It is quite a difficult task
to formulate a different rule, and it is quite a difficult training
task to make sure that you do not get a completely inquisitorial
person sitting in judgment who behaves like a French judge does.
The first question in criminal cases in a French court, as you
probably know, is: "What crimes have you committed before?"
We do not want that. It is going to be part of our discussions,
I suspect, over the next months as to how far we can go in relaxing
this quite tight rule. There have been a couple of relaxations
from cases in the Immigration Appeal Tribunal recently. I would
want us to be doing it carefully and advisedly.
Q42 Dr Whitehead: To what extent would
that then create a model which effectively ran against most of
the principles of British law? Would it create an anomalous series
of circumstances?
His Honour Judge Hodge: It could
do if it went a long way. If, as a result of the changes in the
legal services funding system, the numbers of unrepresented appellants
goes up, the judiciary, in order to be fair, is almost certainly
going to have to get involved in a greater way than it does at
the moment in teasing out the issues, investigating lines of inquiry.
Yes, that may be a bit different from the criminal courts; but,
no, as Lord Newton will tell you, it is not dissimilar to what
goes on in quite a lot of the tribunals which he has oversight
of..
Lord Newton of Braintree: Since
Henry has made that mention, I think the Council would be really
quite supportive of some easement (begging the question as to
how far and in what form) towards what we would call, and the
Leggatt Report called, an enabling approach, rather than getting
involved in this adversarial/inquisitorial business. It was certainly
the case in the Leggatt Report on the world of tribunals as a
whole that he saw that as quite an important ingredient in maintaining
the distinction between tribunals and courts; and in creating
a situation in which more people (and there was some argument
about just how many) could go to tribunals without the need for
armies of representatives. Some people thought that was a bit
over-ambitious to suppose that nobody did, but that is not an
argument I want to get into now. The basic proposition that tribunals
should adopt a more enabling approach is consistent with the thrust
of the Leggatt Report, and certainly consistent with what the
Council on Tribunals would wish to see.
Q43 Dr Whitehead: This anticipates a
couple of clarifying thoughts I wanted to put to you. You have
mentioned, Lord Newton, that the possibility would then arise
that appellants' representatives might not be quite so important;
that a number of appellants could then proceed without representatives.
What about the Presenting Officers from the Home Office? We have
heard that often there are not any; would the Home Office not
be tempted to dispense with them entirely?
Lord Newton of Braintree: Can
I just make one preliminary point, lest it be thought that I was
strongly advocating this. The enabling approach I have just outlined
and the minimisation of the need for representation was something
that was argued quite strongly by Andrew Leggatt in his report.
It was a point on which the Council on Tribunals was notably cautious.
We felt, and continue to feel, that there are many more cases
where people are going to need some assistance—not necessarily
by lawyers—than that report itself acknowledged. I would
not want there to be any misunderstanding that I was, as it were,
urging a move down the line of limiting representation. On the
point you have actually raised, in a way it is one that ought
perhaps to be asked of the Home Office. The last time I was here
(which I have to say seems like only yesterday but was some months
ago) we spoke at some length about Home Office Presenting Officers,
and I was joining in the conventional view that it is a pity they
do not turn up more often. I would personally not anticipate that
a move down the line you have suggested would lead the Home Office
in that direction because of the powerful interest they have in
ensuring that their case is properly heard and presented at the
adjudicators' hearing, as it is at present. The only person who
could answer that is not me. I would be very disturbed if they
were to take that line. One other supplementary point I would
just make: of course in many cases where at least at present a
Home Office Presenting Officer does not turn up, the Tribunal
is almost bound to pursue a more enabling approach than would
otherwise be the case, because one party is unrepresented—in
this case the Home Office. To some extent, therefore, I think
it would be fair to say the Tribunal necessarily has to adopt
another way of eliciting the facts.
His Honour Judge Hodge: And they
get appealed when they do!
Dr Whitehead: It is rather similar to
a Radio 4 debate where one of the people being interviewed does
not actually turn up, and the interviewer has to take the part
of the interviewee on occasions.
Peter Bottomley: Nobody mention the Hattersley
case!
Q44 Dr Whitehead: That is a common practice,
I would guess?
Lord Newton of Braintree: That
is really for Henry and perhaps Mr Blake to say. It seems to me,
almost as a matter of logic, if in a dispute of this kind one
party is not represented, a Tribunal judge who wishes to be fair
is going to have to take some unusual steps (or steps that would
not be required if both parties were represented) to ensure there
is a fair balance of the presentation on both sides. Is that a
fair way to put it?
His Honour Judge Hodge: I think
that is fair. Particularly if you read the papers carefully beforehand
and the issue is clearly whether the appellant is to be believed
or not, you may want to ask two or three questions which help
you in your decision about his or her truthfulness. You will almost
certainly get a letter from somebody, but I think about 30% of
our cases do not have Presenting Officers in them, and in some
areas it is higher. I know there has been a particular difficulty
at Hatton Cross, one of our big hearing centres, where they have
had a small number of staff in the Presenting Officers' Unit there.
The presence or absence of a Home Office Presenting Officer is
not an unusual issue for us.
Mr Blake: I think it also relates
back to the issue I raised earlier about case management. If the
Home Office are not going to turn up, or cannot turn up, whatever,
and we cannot immediately solve that, as I said, there will be
a premium on the new single-tier Tribunal (if that is what we
end up with) making directions to both parties, saying to the
Home Office, "What do you mean by this, in this letter? What
do you mean by that?" We often have medical experts in our
tribunals reporting on people's alleged injuries, scars and wounds,
and we have yet to move to anything approaching the system of
single joint experts that obtained under the civil procedure rules
and the Woolf reforms. There may or may not be arguments for or
against that in immigration; but that may be something worth considering.
One rarely gets, in my experience, a considered view from the
Home Office about the strength or weakness of the medical report.
You may get it at a hearing if there is a Presenting Officer,
but if there is not you probably will not get one at all. I think
that is another area where we could improve the quality of case
preparation. It is not easy to do and it will require careful
discussion and negotiation as Judge Hodge has said, but I think
it is worth doing.
Q45 Dr Whitehead: Do you think that the
new procedures which set time limits for lodging an appeal have
an effect on the Home Office's ability itself to review its own
decisions, and possibly settle cases out of court? Do you think
that corrals the procedures in some way?
Mr Blake: That really raises another
point that, under the present system (and this has been so, ever
since the early 1970s when the system of immigration appeals was
introduced), the notice of appeal has to be served on the Home
Office rather than on the Immigration Appellate Authority. The
Home Office can then decide how long it will take to send the
appeals on to the appellate authorities. That has all been a bit
upset by a case last year that suggests that the authority may
be seized of a case once the notice of appeal has been given,
even though it has not arrived on the authority's desk. Leaving
that difficult point aside, we would like to see a system where
the notice of appeal, for our part, is served on the IAA and it
then has the responsibility of getting the papers from the Home
Office. The argument for serving the notice of appeal on the branch
of the State whose decision is being challenged is that it gives
an opportunity for an internal review. I do not underplay the
importance of that issue. I have yet to see a case where the Home
Office has actually done that. I suppose, by definition, it will
not be a case that comes before an adjudicator. We believe the
numbers where that happens are probably very, very small. Even
though there may be long delays when cases have sat around for
two or three years, I am sorry to say, in some office in Croydon
waiting for them to be sent to the IAA, I am not sure that the
Home Office is actively engaged in reviewing its original decision.
I do not think the time limit is itself an issue there.
Lord Newton of Braintree: The
Council on Tribunals is generally supportive of the notion that
appeals should be made to the appeal body and not to the decision-making
department. I should say that this is an issue that arises in
quite a number of fields. It arises in respect of the Income Tax
Commissioners, and also in the Social Security system. Indeed,
there has been a recent controversy and the Council has made some
comment—and there may also have been some comment by the
local government ombudsman—about exactly this problem in
respect of housing benefit appeals. The local authority were not
getting appeals through to the Tribunal for many weeks or even
months. It is an issue that needs to be addressed across the board,
I think, although I would certainly support what Mr Blake has
said in this context.
His Honour Judge Hodge: Most people
involved in the judicial side of all of this agree with those
two points. I know the judiciary involved in the appeal service
which deals with social security feel much the same, and we certainly
do as well. As Lord Newton says, it is an issue across government.
Lord Newton of Braintree: I should
say, even where one accepts obvious advantages in the department
undertaking the review, if they can immediately see they have
got it wrong then you can avoid the need for this elaborate process.
I personally have yet to be persuaded that it is not entirely
consistent with that to have a situation in which the appeal body
receiving the appeal should notify the department, and there should
then be some mechanism which allows the department a reasonable
period of time to review it if it wishes. However, this is a much
wider issue than immigration and asylum.
Q46 Ross Cranston: I was a bit disturbed
to hear that you do not have single/joint experts. What steps
are being taken in terms of procedures for case management these
days in terms of standard directions and pre-action protocols?
His Honour Judge Hodge: I introduced
a whole series of standard directions and they, on the whole,
work—skeleton arguments and witness statements. We have
cut down the length of hearings by requiring appellants' representatives
to put in witness statements and expecting those to stand as evidence
in chief.
Q47 Ross Cranston: This is not just the
Fast Track?
His Honour Judge Hodge: This is
everywhere. This has been the case for the last two years or so.
We have got all sorts of guidance to representatives about the
bundles and the preparation and so on. Most of that is in place.
There are two things that militate against agreed experts: one
is the speed with which this whole process is supposed to move
as a result of legislation, procedure rules, public pressure and
so on; and the other is that the people who produce experts' reports
are almost invariably the appellants' representatives. I do not
think I have seen an expert's report, outside of country information
reports from the Home Office. It is just not like regular litigation
with two parties, where you all know whether the leg was broken
in a certain way is going to be important in a personal injury
case and each side gets a joint expert—it is not like that.
Q48 Ross Cranston: So we have a single
expert anyhow?
His Honour Judge Hodge: We have
the single expert on one side. If that single expert follows the
proper rules one would hope that they give a wholly balanced view.
Clearly there are criticisms by the Home Office about that.
Q49 Ross Cranston: What about something
comparable to the judicial review pre-action protocol?
His Honour Judge Hodge: We do
not have anything like that. What happens from our perspective
is that the appeal is lodged with the Home Office; we never hear
of it until it arrives at the Immigration Appellate Authority.
We then give it a hearing—a first hearing at three weeks
and a substantive hearing at seven weeks. The first thing we do
is set two dates and give standard directions. We have a case
management which is fairly routine at three weeks, where people
can turn up and raise issues if they want to, but if they do not
and they have filled out the right form it just goes ahead to
the substantive hearing at seven weeks. That is tight in relation
to anything that goes on anywhere in any other main adversarial
court system that we have in this country.
Q50 Chairman: Given the complications
of coordinating cases between government departments, are you
supportive of a common reference number, for example, with three
government departments involved with quite different ways of referring
to each case? Are there any other ways in which the coordination
between the three departments involved could be strengthened?
His Honour Judge Hodge: I have
not been troubled with thinking about that. It is all down to
computers. I think in the IAA, and it is nothing to do with me
except that I have to read it, they are pretty proud about the
fact they have got a robust and efficient computer system which
is not reflected always in other bits of government. If you are
going to use a single reference number you might be moving into
a single computer system and I am not really quite sure about
that.
Q51 Chairman: Can we just look at non-suspensive
appeals. The Council on Tribunals have expressed anxiety about
the position of an applicant outside this country and the possibility
that he or she may be put at a disadvantage by having to conduct
the appeal away from where the decision is being made, and without
being able to appear in person there.
Lord Newton of Braintree: We made
some observations on this at the end of our earlier memorandum
to you on your inquiry last year. I think it could be broadly
summarised that over a long period we have expressed some concerns
about the position in which some people would find themselves
seeking to appeal from abroad. It is not something the Council
on Tribunals is enthusiastic about. Since there are some further
limitations in the present Bill we would be pretty cautious about
those.
Q52 Chairman: And the likely increase
in the number of people who would have to resort to this process?
Lord Newton of Braintree: Indeed.
Q53 Chairman: Much of the discussion
about this is centred on asylum cases, but there is another whole
aspect to it with which the Committee has been concerned, which
is the position of immigration applicants who are, by definition,
in their country of origin in almost all cases, and appear to
be at a disadvantage because they cannot appear in person. In
those cases, where their sponsor can attend the appeal, it appears
that the success record is greater—success in terms of the
applicant. Is this a problem which could be addressed by conducting
appeals in countries from which large numbers of applicants come?
His Honour Judge Hodge: A bit
like sending us to Sangatte!
Q54 Chairman: I know Judge Hodge has
been to India, as some of us have, and looked at the situation
there. That is certainly a course which some people in India recommended
to us as one which would ease the process, and might even assist
the process to which you referred earlier, whereby Entry Clearance
Officers need to know what the process does to the cases they
put forward?
His Honour Judge Hodge: You would
have to replicate, I suppose, in Mumbwa or Delhi, or wherever,
the same system as we have here. Adjudicators there, independent
interpreters there, and court hearing rooms there, and that is
a big public expenditure issue. Obviously it would be better if
people were able to go and present themselves at any kind of hearing
which affects them.
Q55 Mrs Cryer: I am not sure if this
is absolutely relevant, but it could be. It has been suggested
to me in the past few days, when we are hearing appeals in this
country about a young man who is coming in from, say, Pakistan
and we have known all along that the girl does not want him to
come in because she is forced into marriage, that this is a little
bit of protection for her as she has to go to the appeal as the
sponsor. It has been put to me in the past few days it might help
her situation were she able to go to the Tribunal alone and that,
at least for part of that Tribunal, her family could be excluded
because then the truth could be heard. It is not absolutely relevant
to this, but I am tempted to ask you as we have you here.
Mr Blake: I think almost invariably
in such a scenario—and this is one of the favourite scenarios
that are discussed at adjudicators' training centres—
His Honour Judge Hodge: We discuss
exactly this kind of system at a training session.
Mr Blake:— the members of
the family would be excluded, and asked to sit outside and not
crowd the door and listen to what is happening—which is
what has happened in some cases. That is a particular example,
but I think we cope with that fairly robustly.
Q56 Mrs Cryer: So a girl can be heard
alone?
Mr Blake: Yes.
Lord Newton of Braintree: I do
not think I would want to tread into this somewhat deep water
that Mrs Cryer has just raised. On the point you asked originally,
Chairman, about whether it might be a good idea (bearing in mind
concerns that the Council has, for example) about people having
an opportunity to attend an oral hearing as something we think
generally desirable, and might there be a case for holding hearings
abroad, I suppose the answer by definition must be, yes. On the
other hand, one has to recognise that realistically part of the
background of this discussion we are having is concern about the
costs of the system. As Henry Hodge said just now, this would
probably escalate rather than de-escalate the costs. I think it
is unlikely to be a proposition that would find favour. If only
because of my track record as a minister, I can at least understand
why it might not find favour.
Q57 Ross Cranston: What about the possibility
of reports by video link?
Lord Newton of Braintree: You
have sparked me off for a moment because, assuming the Bill goes
through, one of the things that will be inherited by the new President
is the fact that the Immigration Appeal Tribunal has been quite
innovative in its use of video links in order to avoid its, in
some cases, quite senior judges having to spend all their time
trailing round the country. I have not attended one myself, but
some of our members have attended video link hearings conducted
by the IAT, as it currently is, and have been really quite impressed
by how well it works. That is a very fair point. There would be
costs. I am a long way from being an expert on the costs of video
link technology, especially from here to India.
His Honour Judge Hodge: I am afraid
I have just had to do a note to my adjudicators about video link
orders, one or two of them have been made. We do not have any
money to fund them. There is no power to make anybody pay the
costs of them. There are not the facilities available in most
of the posts abroad. The time factors are hugely different. The
interpreter issue is a really tricky one. How do you get independent
interpreters? I have said in a rather directive way, which I do
not usually do, that you must not make orders for video linking.
Within the UK because the IAT currently has video link hearings
this may develop, and we may go down the route of having bail
hearings by video link, as they do in some magistrates' and some
crown courts. Taking evidence by interpretation over video links
one is a bit cautious about, but the costs of doing this out of
country are huge. In some areas it costs £1,450 an hour to
have the telephone link. Right at this moment it is not a starter,
I do not think, in terms of public expenditure. It could come
but it is not with us yet.
Q58 Mr Soley: There have been proposals
recently by the Government that they should reduce legal assistance,
or possibly withdraw it altogether. What are your views about
that?
Lord Newton of Braintree: This
is a subject we explored at some length when I was here before
and I do not think there is a huge amount I would have to add
to that, and the subsequent observations in your report on the
subject, except to say that the subsequent proposals published
on 27 November did introduce some greater flexibility which the
Council would certainly welcome.
His Honour Judge Hodge: From a
judicial perspective, what we have said in response to all the
inquiries is that we are concerned that you best achieve fairness
in the current system by having each side properly represented
at our hearings, and that means being able to do reasonable preparation
and reasonable presentation at the hearings. If, as a result of
the changes, that means the numbers of appellants without a representative
gets larger we will, of course, manage because that is what we
do, but it will have knock-on effects in terms of the speed with
which the process takes place. I certainly think when the person
is unrepresented the hearings generally take longer and there
are very practical big problems in our jurisdiction because very
few of the appellants speak English; so everything that has gone
before might have to be translated so you can be sure they understand
what they said in the previous witness statement and what they
said in the previous interview. That could significantly increase
the length of the hearings and adversely impact on the speed with
which the work is done.
Mr Blake: I entirely agree with
Judge Hodge.
Lord Newton of Braintree: So do
I, as I hope I made clear last time. Perhaps I might just make
one point. Where a review takes place in the new system, since
in general that has been softened slightly as we have heard from
Henry this morning, and the hearing will only go on the basis
of written representations for large numbers of people, the need
for assistance with a written representation is significantly
greater than the need for assistance with an oral representation.
Q59 Mr Soley: You mentioned to some extent
the problem of the Home Office representations and the need for
them to improve. What about the representations by private solicitors
on behalf of the individuals?
His Honour Judge Hodge: One of
the dangers in this jurisdiction is that there are lots of vox
pop about why everything happens: "This is unfair, there
are far too many of these. I'm going to give you vox pop
and that's all it is". Since I have been in the jurisdiction
two and a half years, because of the Office of the Immigration
Services Commissioner and because of the work of the Legal Services
Commission I think it is fair to say that the quality of appellants'
representatives has got better. It is not brilliant but it was
very depressing when I first arrived and it has got better. Charles
has been in the field longer, and most of our colleagues will
say it was really terrible back then and it is slowly getting
better.
Mr Blake: Yes, it is slowly getting
better. One can see this in the proliferation of literature. There
are now three or four excellent books prepared solely for immigration
and asylum appeals—how to do it, as well as theoretical
concerns. That means there is a constituency of people out there
who are interested enough to read, study and learn from such books.
I think the standard of representation is undoubtedly getting
better for appellants.
Lord Newton of Braintree: That
is broadly our view and we have been supporting various moves
that have been made to bring about such an improvement.
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