Examination of Witnesses (Questions 100-119)
20 JANUARY 2004
THE HONOURABLE
MR JUSTICE
OUSELEY, MISS
KATE ESHUN
AND MR
NARESH KUMAR
Q100 Mrs Cryer: Sir Duncan, you actually
said in your submission, ". . . much of the advice and representation
the claimant's side is of poorish quality." We had two other
witnesses and their comments were that the quality of legal representation
was slowly getting better. Would you all agree with that?
Sir Duncan Ouseley: Perhaps I
can ask Miss Eshun to deal with that.
Miss Eshun: The greater majority
of decisions by adjudicators, I would say, is good. There is unfortunately
a number of decisions that need to be corrected.
Q101 Chairman: I think the question was
about the legal representation.
Mrs Cryer: The quality of the legal representation.
Q102 Chairman: Not the adjudicators'
decisions.
Miss Eshun: I am sorry. The quality
of representation is improving but it needs to be improved. We
find that there are a lot of consultants in the system who are
not that good and therefore do not assist the fact-finder in his
work. The quality of Home Office presenting officers is now better
than it used to be. We would like to see issues being brought
out at the very early stage, so that everyone, including the adjudicator
and both representatives, is aware of the issues. Once the issues
are known, the representatives then can deal with the issues.
We find that in many cases the representatives are not dealing
with the issues, they are just putting everything before the adjudicator,
and the adjudicator then has the task himself of understanding
what the issues are. That is where the problem lies at the moment,
in identifying the issues—which most representatives do
not do. I must say that when we have counsel representing appellants,
they do a good job. Those counsel who specialise in immigration,
I must say, are very good at their job and make the task of the
adjudicator much easier than those who are in the system but not
really immigration specialists.
Q103 Mrs Cryer: I would like to ask all
three of you: What else do you believe now can be done to improve
the quality of advice to litigants?
Sir Duncan Ouseley: This does
come down in the end to a question of funding at bottom. It comes
down to whether the better firms of solicitors, counsel and the
relevant charities, particularly the Immigration Advisory Service
and Refugee Legal Centre, have the necessary funding in. There
is no magic way in which people can receive advice, in what may
be factually a complex area, which is competent and directed towards
both serving the interests of the client and doing so in a way
which reflects the obligations which solicitors and counsel owe
as professionals to the adjudicators and tribunals, unless you
have proper funding. In so far as the quality of the adjudicator's
decision, the number of appeals to the tribunal—even more
so in the single tier, where the prospects of correction are inherently
deliberately limited—if you are going to make it work—if
you like, adopting the language, "getting it right first
time"—you need to have a system. The point I make in
the end of my most recent letter: you need to have a system, however
it is done, whereby proper time is given for consultation, advice,
statement preparation and identifying the points. There are—as,
again, we point out—plenty of representatives—regrettably
some solicitors—who are not what they should be. I think
there has been a considerable amount of work undertaken over the
last few years to try to focus on those points, but it cannot
be said that simply cutting down the amount of money available
is going to improve the system. It has to be directed better.
This is not a simple point; it is an extremely complicated area
with many prongs of attack and no simple solution. It is certainly
not a solution simply to say the Legal Aid fund is to be, for
these purposes, open-ended.
Q104 Mr Soley: May I ask all three of
you: Thinking essentially of asylum, do you think the appeal system
at the moment is abused in a significant way? If I may start with
you, Mr Kumar: Do you think there is abuse of the appeal system
by asylum seekers at the moment?
Mr Kumar: In all honesty, I think
it would be wrong to suggest that there is not a degree of abuse
that does happen, but to what extent is very difficult to judge.
There is also the other side to it; that is that, when there are
procedures and systems that are in existence, people will try
to spin and prolong things, in certain cases as long as they can.
But I would go along, that there is certainly a degree of abuse
that is there, but to what extent I think it is difficult to quantify.
Q105 Mr Soley: Would you agree with that,
Miss Eshun?
Miss Eshun: I would agree to a
fair extent, that there is some abuse. I mean, in any system you
will find some abuse in the system, but I would say that it is
not helped by delay in decision-making. There are often cases
that come to us which, say, the application was made in 1992 and
the decision was not taken until 1996. To that extent, you have
the system that was created to cut out the abuse actually promoting
that sort of abuse. It might help to alleviate that sort of abuse,
for, say, families coming together or at different times, if the
applications of all those families could be somehow brought together.
Because sometimes we find the husband makes an application and
the wife has made an application in another name and then you
get to the appeal stage and then it is discovered and there has
to be an adjournment in order to bring all these cases together.
If that sort of preparation happened, you would cut out a lot
of the delays and a lot of the abuse that is in the system.
Q106 Mr Soley: That is a common experience
for me in my case load. Sir Duncan, what is your view?
Sir Duncan Ouseley: There plainly
is abuse of the system. Many people look to delay decisions because
their aim is to stay or to stay for as long as they can. The longer
they are able to stay, the greater the prospects that there will
be some beneficial change of circumstances to enable them to make
a further application. There is plenty of evidence of circumstances
in which that arises: the persistence in hopeless cases; the way
in which facts are deployed: no sooner does an appeal come on
for hearing but some new fact is alleged. Sometimes it is a good
point, sometimes it is a bad point, but there is no doubt at all
from the tactics that we see adopted that there is abuse. Beyond
saying it is a completely proper area for concern, quantifying
it is very difficult. Right at the outset I looked at it, if I
can put it this way, from the other end. We can tell, I think
legitimately, from the number of cases where permission is granted
to appeal to the tribunal that you could not say that those are
abusive cases—because somebody has said there is some arguable
merit. There also will be another unknown percentage of cases
where, although the application has been refused, it could not
automatically be regarded as a simple trial. I would hate it to
be thought that 70% therefore, or something slightly under 70%,
are abusive. I think it is, from my point of view, almost impossible
to quantify it, but there is a significant component of abuse,
one way and another, that goes on.
Q107 Mr Soley: Miss Eshun has already
partly answered this, I think, but if I asked you all what single
thing you would do to reduce the likelihood of abuse of asylum
appeals, what would that single thing be?
Sir Duncan Ouseley: I would seek
to speed up the decision-making process in the Home Office and
improve it. Once the decision had been made by the appeal structure,
they should endeavour to act on the result. There is absolutely
no doubt at all that the single biggest problem is an absence
of removals consequent upon decisions being made. I do not think
that it is an easy question at all. There are plenty of difficulties
in the way of removals, particularly of undocumented people, particularly
to countries that do not have the remotest interest in cooperating
in providing documentation. So it is a very serious difficulty,
but it is one that has been known about for years and it is one
that is not glamorous in its solution and requires a long-run,
determined, flexible effort by the relevant government departments.
Some countries may seem to do better, but, as one vice-president
said the other day in discussion—she is from Malaysia—there
is no doubt that if you are coming from a country where your mother
has had to pawn all her jewellery to try to give somebody the
chance of making a go at economic migration into the UK and a
month later he is back, it is a considerable deterrent.
Q108 Mr Soley: You were indicating, I
think, agreement, Mr Kumar, with the comments made.
Mr Kumar: Yes. I think Sir Duncan
has summarised it quite well, and I go along with that and I concur
with it.
Q109 Chairman: It is fairly pointless
to spend all this money on this process, however many tiers it
has, if it does not lead to the carrying out of the decisions
of the appeals process.
Sir Duncan Ouseley: Could I add
one other point in relation to abuse. It is important to understand
that the whole idea of asylum and a provision for appeals in relation
to it is actually to protect people. In order to protect the right
people, of course, we seek to detect those who are not entitled
to it, but the system does not set out as its primary aim to say:
This is a spurious asylum claimant detection device. It is a protection
device.
Q110 Mr Soley: Sir Duncan, if I may put
a question to you—and it follows on from some of the things
you said earlier, that you are satisfied that if the person gets
through to the appeal there is merit in it.. But is there not
an issue here, which is the difference in a way between the legalistic
process and myself, maybe, as a constituency member of parliament
who is making judgments at a different level, where I may be fairly
relaxed about a person being sent back to Poland (of which I had
many cases a few years ago, just before the EU applicant system
came in), whereas I would be very anxious about sending a person
back to a country which does not have the rule of law and is a
failing system. I hope and believe that inevitably such things
might influence you to some degree. My question is, in a sense,
how much of the appeals that you are saying are right are about
fairly narrow issues of law interpretation, where it maybe would
not make much difference to the safety of the person if they were
sent back, because they were being sent back to a country which
enjoyed the rule of law and was stable, as opposed to people you
were just be very worried about sending almost anyone back there.
Sir Duncan Ouseley: Most of the
cases with which we deal, I think it is fair to say, turn on whether
a person would be at risk in the country to which they are returning.
Of course that does not apply to what one might regard as pure
immigration cases where the issue of visas is a clear one, but
in asylum the points of law are comparatively few. There may be
big points of law, but most of the time in asylum or human rights
cases you are asking yourself: Is what has been said to us by
the claimant true? Is there a real risk to this person on return?
If there is a real risk, then they do not go back. Focusing on
the real risk in the country of return is probably the major part
of the tribunal's work. So, of course, you are right, there is
a different approach for the most part as between Poland and Zimbabwe
but not necessarily if you were Roma.
Q111 Mr Soley: Except, of course, one
could make the argument, and I would make it, that you will not
get reform in those countries any more than you would have done
here on issues like gay rights and Roma, unless in fact change
came from within a country that enjoyed the rule of law. So you
get caught up in a political argument, do you not?
Sir Duncan Ouseley: That is not
an argument that we would accept as a reason for returning somebody.
In a long-term basis, you may be right, that you will not get
reform unless you have those who are victims there, but that is
not the line we take. If you are going to be persecuted, if you
are at real risk of ill-treatment, nobody would be sent back on
the grounds that they would contribute to a reform process.
Q112 Mr Soley: But the difference between
a Roma being sent back to Poland, where there were relatively
few deaths . . . There were problems all right but there was not
the sort of abuse you would have had if you had been sent back
to the Democratic Republic of Congo, for example.
Sir Duncan Ouseley: No. But each
case is still an individual one.
Q113 Keith Vaz: Would it help or hinder
the process if any part of the appeal system was relocated abroad?
I am not talking about the Maldives; I am talking about one of
our big posts like New Delhi and Mumbai which generate a lot of
appeals. If you had one of the hearings there, would that help
or hinder the system?
Sir Duncan Ouseley: I do not think
it would help at all. It is actually far more valuable that we
have what I would describe as a collegiate structure where the
vice-presidents are able to talk things through and discuss them
amongst themselves. If you had an outpost in Mumbai, you would
have one person there and you would have that person's Mumbai
l aw. They get very close to it.
Q114 Keith Vaz: What about at the adjudicator
level? I accept that at a higher level it is important to have
chats about these things, but . . .
Sir Duncan Ouseley: I suspect
it does not make a huge difference. Miss Eshun might have a different
perspective on that.
Q115 Chairman: What if you sent either
adjudicators or a full hearing out for a month to do some appeals?
You would not lose the collegiate nature if you did that.
Q116 Keith Vaz: A large circuit!
Sir Duncan Ouseley: Part of me
is tempted to say, "What a very good idea. Can we have a
list of countries to which we can go?" The argument for it
would be far more at the adjudicator level because they are the
ones who are primarily looking at factual evidence, and in ECO
cases take the evidence from the sponsor, who is in the country,
and only have the statement from the appellant who is seeking
to come in. So there may be a case for it there at adjudicator
level. But I suspect that if that were proposed it would meet
a resource argument pretty quickly.
Q117 Ross Cranston: Apart from the constitutional
arguments, one of the arguments against the ouster clause is the
practical one, namely that we simply do not know enough about
how statutory review is operating. You have said it is early days.
I am just wondering, before we report, which might be in three
weeks' time or something like that, would you have enough information,
do you think, to put in a supplementary note about the operation
of statutory review?
Sir Duncan Ouseley: Yes, I can
do—and in discussion with Mr Justice Collins, who is the
lead judge. But the figures that I have provided in the letter
came from him and I updated with him yesterday. He said that,
for last week, 35 or so reviews with a 25% success rate is about
right.
Q118 Keith Vaz: That would give us some
feeling about the complexity of those that are allowed, in terms
of the use of judicial resources or delayed or whatever.
Sir Duncan Ouseley: They would
all tend to be, if I can put it this way, marginal decisions.
They are going to be cases where the vice-president, who is experienced
in the area, has effectively said, "No, there is not an arguable
point" and the judge is doing no more than saying, "There
is an arguable point." He is not saying it will succeed;
he is just saying, "you are wrong in saying there is no arguable
point." It may very well be no complexity in it at all.
Q119 Keith Vaz: I think it would be quite
useful to know what happened after that.
Sir Duncan Ouseley: Yes. Well,
they then come back to us and we try to list them quickly and
deal with them. But you want to know in terms of how many of those
that are the subject of statutory review then achieve a different
result when it comes to the tribunal.
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