Examination of Witnesses (Questions 80-99)
20 JANUARY 2004
THE HONOURABLE
MR JUSTICE
OUSELEY, MISS
KATE ESHUN
AND MR
NARESH KUMAR
Q80 Ross Cranston: It was an open-ended
question.
Sir Duncan Ouseley: It could meet
with a whole range of answers, which I think in principle it is
rather difficult to give. The Government is entitled to bring
forward a policy of that sort.
Q81 Ross Cranston: I am sorry, could
I just interrupt and explain that of course the bill is in standing
committee, amendments have been made and we will be reporting,
and it may be that we could take up specific points.
Sir Duncan Ouseley: I think I
would like, for present purposes, just to address two points.
One is to remind everybody that, whatever may be the genesis of
this in relation to asylum, this is going to cover asylum and
immigration and entry clearance; so it is not just a single tier
for asylum cases, it is all immigration decisions. The second
feature of a single tier is the emphasis that it places on getting
things right first time. Whether it is a matter of legislation
or not—and in many ways part of the problem is that it will
not be a matter of legislation—it is the improvements that
are necessary to the way in which the Home Office decision-making
process is carried out. I do not think from the discussions I
have had that there is any illusion on the Government's part but
that that process needs to be improved, but it needs to be improved
and in place and be certain to be in place throughout the operation
of the tribunal. I said two—I am miscounting. The third
point which is very important is that, if the tribunal is going
to retain or obtain public confidence, it does need to have a
means, generated by aggrieved parties, of looking again at its
own decisions: a more senior judge within it, looking at what
are said to be errors—and there is a whole range of errors
that are capable of being committed which you cannot pick up in
any other way, and it is the most efficient way of dealing with
it. So there is no doubt that there is a provision in the bill
for it but it might be regarded as something which needs to be
focused on by members very carefully to be sure that those who
have a genuine point about the decision have a means of having
that properly and fairly addressed. The response may be: Well,
that is equivalent of an appeal. An appeal may be a very effective
way of dealing with those points, but, even in a single tier,
you need to have some system whereby those decisions can be reviewed.
I think the third point at which I would look is the ouster clause.
I have at the back of my—
Q82 Chairman: We are going to come on
to that. Having noted that it is one of your three points, I wonder
if I could ask you to clarify one of the points you make, because
it is of some interest to the Committee that the decisions in
these matters should not be wholly determined by the exigencies
of asylum applications, given the implications they have for all
those applicants for straightforward immigration or visits who
do not get involved with the asylum aspect at all but make applications
in their home country to visit or join family here. In what respects
do we need to have particular regard to that side of the work
in devising the procedures and refining what the Government have
on offer?
Sir Duncan Ouseley: The success
rate in entry clearance officers' appeals is actually rather high,
both adjudicator and to the tribunal. The justification for dealing
with those who are out of the country and wanting to come in quickly
in a way which has been devised to deal with asylum cases might
be seen rather rough justice. On the other hand, a speeding up
of the process is what most of those who are applying for visitor
visas actually want: the time that things take is actually a crucial
matter for them. The reason I raise the point is that people think
this is just about asylum. The genesis may be asylum but the impact
is far wider, and so the merits or otherwise have to be judged
against the whole context of the matters we deal with. That is
the reason I want to raise it. But the people who are at the greatest
risk but also, it might be said, stand to benefit in other respects,
are out-of-country appeals (in which the larger number are visitor
visas), and they have been subject to very considerable delays
in the system, I am afraid. Of course I should make the point
that the point that the Home Office is itself a regular appellant—more
regular than it used to be. People always look at this as: the
appellant is the same as a refused asylum seeker. The Home Office
appeals adjudicator decisions—not to the same proportion,
but it does regularly appeal. It is responsible for about 10%
of the appeals, so it too has—and if it does not, it perhaps
ought to have—a considerable interest in there being some
means of removing some egregious error. Now that the principle
has been accepted into the bill, the question is whether it has
really been devised in perhaps too tight a way to be as effective
as it ought to be.
Q83 Keith Vaz: Before I turn to judicial
review, may I ask you about a point you made to Mr Cranston, which
is the way in which the Home Office presents their cases. You
are aware that one-third of presentation officers do not turn
up to cases. Have you heard that statistic before?
Sir Duncan Ouseley: Yes. I think
it is even higher than one-third of the cases before adjudicators
which are dealt with in the absence of a Home Office representative.
Q84 Keith Vaz: What figures do you have
for that?
Sir Duncan Ouseley: Nearer 40%.
Q85 Keith Vaz: And you accept that the
quality of decision-making by the Home Office does have an effect
on your case load; in other words, more cases would come to the
tribunal because basically they are not dealt with properly at
the Home Office.
Sir Duncan Ouseley: I wonder whether
perhaps Miss Eshun could deal with that. She has had experience
both as an adjudicator and now as vice-president and she will
be able to answer that.
Miss Eshun: Thank you. I was an
adjudicator before I became tribunal vice-president. Just when
I was appointed to the tribunal the level of leave applications
rose dramatically. It was quite obvious that there were cases
in which the decision written by the Home Office was very poor
and, therefore, without the aid of the Home Office presenting
officer at the hearing, the adjudicator was more or less left
in the dark. Without good representation on the part of the appellant,
issues which should have been ironed out right from the beginning
by the first decision-maker (that is, the person who writes the
Home Office refusal letter) were not apparent. Therefore, it became
very, very important that both parties should be represented at
the hearing before the adjudicator. Because adjudicators did not
have the benefit of the Home Office presenting officer, their
decisions were lacking in dealing—
Q86 Keith Vaz: Do they adjourn or do
they dismiss in those circumstances? It leads to greater appeals,
obviously, if they dismiss.
Miss Eshun: There came a time
when adjudicators were allowing appeals because they were frustrated
that the Home Office presenting officer was not there. That generated
a lot of appeals to the tribunal.
Sir Duncan Ouseley: At the tribunal
level it is much more exceptional for the Home Office not to be
represented. It is very unusual.
Q87 Keith Vaz: Presumably, all of you
in the capacities that you hold, which are paid capacities, apart
from Mr Kumar, would have gone abroad and had a look at the process
right at the start: met with clearance officers and looked at
the way in which decisions are made. Have you all done that?
Sir Duncan Ouseley: No, I have
not.
Miss Eshun: I have had the opportunity.
I went to Ghana on one occasion and had the opportunity of going
to the British Embassy in Ghana. I was shown the process right
from the application to the interview stage. I must say that at
that stage they were quite professional in the way they handled
new applications.
Q88 Keith Vaz: Absolutely. Clearly, you
are an independent part of the system, because you will decide
on the final outcome, but, as far as a joined-up approach is concerned,
are there any improvements that can be made in a system that goes
through three government departments that would make the appeal
process more efficient?
Miss Eshun: I think the interviewing
stage can be improved. The interview stage is very, very important,
and you find that not all issues have been covered because, maybe,
due to lack of time or interpreter problems. Then you have the
written decision stage, where you find that a lot of the paragraphs
that have been included in the refusal letter (that is, pro forma
paragraphs) do not bear any relationship to the actual issue in
hand.
Q89 Keith Vaz: Indeed, but that is the
basis of the whole appeal, is it not?
Miss Eshun: That forms the basis,
which then goes to the adjudicator. At that adjudicator stage,
it seems that speed now is of the essence rather than good preparation.
In order to have good preparation, you need time.
Q90 Keith Vaz: Indeed. Would it be helpful
to have a common reference number that begins in the post abroad
and ends up with your tribunal?
Miss Eshun: There is that. There
is a common reference number that runs through the appeal system.
Q91 Keith Vaz: The appeal system, but
not from the time the application is made. You are dealing with
three different agencies, are you not, on the way to appeals?
You go to the post abroad, the Foreign Office; the Home Office
for the appeal centre; and then you go to the immigration tribunal.
Miss Eshun: When you have the
applications generated from abroad, they do not have the common
Home Office reference number, but when you have the appeal, the
application generated here at the Home Office, there is a common
reference. But that is the Home Office reference number.
Q92 Keith Vaz: It is not one of yours.
Miss Eshun: No. It is only when
it comes to the appeal stage that it gets a reference number given
to it.
Q93 Keith Vaz: How will the general restriction
of reviews to paper, except in exceptional circumstances, affect
the conduct of the proceedings?
Sir Duncan Ouseley: This is only
proposed single tier review.
Q94 Keith Vaz: Indeed.
Sir Duncan Ouseley: As I understand,
the bill as it was originally drafted did contemplate that the
reviewing body could send it off for a rehearing which would be
oral. As I understand the latest amendment proposed by the Home
Office, it is that that would cease to be possible but instead
it would be possible to conduct the review, exceptionally, orally.
If I may pick up the point made earlier by Mr Cranston in relation
to the way in which reviews are conducted, a greater degree of
flexibility would be desirable as to how those reviews are conducted.
One does not know the full range of problems to which a case might
give rise. For example, a classic problem—one that does
not happen all that often, but it happens too often to be something
one can ignore—notice of hearing goes to the wrong address.
It may be that it was an administrative error or it may be that
the relevant person has not kept the address properly notified,
but the hearing has taken place without the person knowing the
hearing was going to take place. If you are going to have a review
system, that person really needs to have the appeal heard, so
the legislation really ought to permit that to happen rather than
effectively an appeal on paper. If somebody has made a complete
Horlicks of the appraisal of fact, you have got to have
some means whereby that could be dealt with properly.
Q95 Keith Vaz: Sir Duncan, you believe
that the inability to make oral submissions will disadvantage
appellants.
Sir Duncan Ouseley: The inability
to do so is capable of working injustice, yes.
Q96 Keith Vaz: Could I ask about the
effect of the subsequent restriction on Legal Aid. The package
that is currently on offer to people, the reduction in Legal Aid,
for example, in conjunction with the written submissions, do you
think that will have an effect on the way in which these cases
are reviewed?
Sir Duncan Ouseley: Plainly.
Q97 Keith Vaz: You have said, Sir Duncan,
that some form of "higher judicial oversight of lower Tribunals
. . . should be retained" as a matter of constitutional principle.
Is the proposed change, whereby only the president would have
the right to refer a restricted type of case, and judicial review
would be restricted because of that, sufficient to protect the
appellants?
Sir Duncan Ouseley: My comment
in relation to retaining judicial oversight really relates to
clause 10, the ouster clause. The provisions for reference to
the Court of Appeal and no onward transmission to the House of
Lords are in a sense less troubling than the ouster in relation
to any form of review. The difference between a reference to the
Court of Appeal as opposed to an appeal to the Court of Appeal
is in some ways, it seems to me, a matter of taste. The ability
of the president to pass the issue up, or the deputy president,
again seems to me not a matter of real concern if you look at
it internally. The question is: Should the Court of Appeal have
the opportunity of saying, "You are wrong. We want to look
at this point ourselves." It is, I think, unusual for the
Court of Appeal to be unable to look at a decision and say, "You
are wrong to think you are right. You are wrong to think you are
clearly right. You are wrong to think this is a point of no interest
to us." It is unusual. There are bound to be cases where
the president or deputy president refuses to allow reference,
where the Court of Appeal, if asked whether they would have wanted
the point to go to them if an appellant had asked, would have
said yes. That is bound to happen. It is, I think, for the Government
to reason why, as a matter of policy, that degree of restriction
is appropriate.
Q98 Keith Vaz: Do you think the Government
has done enough to justify this?
Sir Duncan Ouseley: I think that
is getting into dangerous water. I think the notes of warning
that we put down in our representations are important. The bill
is focusing really on one aspect of the overall appeal system.
It is dangerous for it to be assumed that that part on which it
is focusing is a significant contributor to delay, or that removing
the current two bodies and replacing it with one other is necessarily
going to achieve a significant improvement in speed or do so at
an acceptable price in terms of quality. Thereafter, it is a matter
for Parliament to weigh those issues. But I think it is dangerous
to assume that merely removing a tier is necessarily going to
bring about a real speed improvement in the overall process, and
it is dangerous, if one is looking at quality, to assume that
the same quality—with all its flaws that there are—can
be achieved within a single tier. For example, it might be in
a single tier that adjudicators who currently work under, I would
have said, almost an intolerable workload—but it is certainly
a very heavy workload—might require a very great deal more
time to consider and write and check their decisions.
Q99 Keith Vaz: Finally, do you think
you have enough adjudicators? Are there enough there to deal with
the cases?
Sir Duncan Ouseley: I am not sure
I can talk about the adjudicator numbers. The adjudicator numbers
have been very substantially increased. The problem that the tribunal
has had—and I do not think there is any dispute about this—is
that the number of vice-presidents, lay members and part-time
legal chairmen, and, indeed, court rooms, was not increased fast
enough and to the right number at the time when the adjudicators
were increased in number. Our work is dependent upon the adjudicators
output. If you increased rapidly the number of adjudicators—as
was done—the consequence was you in fact needed a doubling
and more of the vice-presidents, lay members, part-time members
to accommodate the workload that was then coming downstream. That
did not happen. Although we now have the vice-presidents more
or less in place, we are only just beginning to train the lay
members and we have only just had the part-time members appointed.
The process has been very, very long and in fact predicated on
numbers that have proved to be too low. So, even if we were up
to speed and had been up to speed in terms of numbers at the beginning
of last year, we still would not have had quite enough to keep
our head in the same relationship to the water level that we had.
Keith Vaz: Thank you.
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