Examination of Witnesses (Questions 122-140)
20 JANUARY 2004
MR LAURIE
FRANSMAN QC, ALISON
STANLEY, NICK
OAKESHOTT, MR
STEPHEN IRWIN
QC AND MR
NICHOLAS BLAKE
QC
Q122 Chairman: Mr Oakeshott, Miss Stanley,
Mr Fransman and Mr Blake, it would help us this morning if you
would identify which organisation you are each from, because you
have a dazzling array of organisations. Can we take it round the
table?
Nick Oakeshott: I work for the
Refugee Legal Centre.
Alison Stanley: I am representing
the Law Society this morning.
Mr Fransman: I am representing
ILPA, which is the Immigration Law Practitioners' Association.
Nicholas Blake: I am here on behalf
of the Bar Council. The Chairman of the Bar is sitting just behind
me. I have also put in a memorandum from my own chambers, so I
can speak to that as well. It is all the same issue.
Q123 Chairman: Does the Chairman want
to join you at the table? We are glad to welcome the new Chairman.
Stephen Irwin: Thank you very
much.
Q124 Chairman: You have written to us
to indicate that there is one issue in particular that you might
want to comment on, perhaps in strong terms. You will have heard
the evidence we were taking earlier about abuse of the appeals
system and, indeed, how you define that. Do you have methods that
you could suggest that would reduce the possibility of the abuse
while continuing to meet the needs of the genuine asylum seekers?
Nicholas Blake: Can I just make
some general comments about that? Yes. I think one method is to
give the judiciary, who are reviewing these cases, the power to
indicate, in their opinion, that this is not merely a failed case,
this is an abusive case. I do not know if the Committee is aware
that the Court of Appeal gave very strong guidelines on 19th December,
when dismissing renewed applications for judicial review in six
cases, I think called "The Six Nepalese Cases", not
just for the Court of Appeal but for administrative court judges—and
I am sure it can operate at all levels of the appeal system as
well—to say that if you know that something is not merely
a failed case but a case which could not have ever had any prospects
of legitimate success, you could say that, and by saying that
it helps everyone else on the system to know that that is likely
to be the case. You may need a review of that in case someone
is applying eccentric criteria of abuse, but one knows that, and
that can serve a proper purpose in focusing effort and intellectual
resources upon the really arguable cases. Equally, I would absolutely
support what you have just heard this morning that Home Office
decision-making (a) must be quicker in coming to a conclusion
to put cases into the system and (b) it is absolutely common ground
with all those who practice in the system that, if there is a
failure, there ought to be a removal. There is no point in investing
the intellectual effort of any of those of us here, who largely
appear for claimants but not exclusively, if it makes no difference
at the end of the system. That is the position. It should be realised
that, I think, something like 20% of all asylum claims are being
determined in countries where they always do not remove. So that
is a question. Maybe they cannot remove, in which case they should
not be putting them into the appeal system in the first place.
Mr Fransman: Certainly as far
as the Immigration Law Practioners' Association is concerned,
the question of abuse is a question of whether the delay is justified.
As we see it from our perspective as practitioners, it is not
within the appeal system that this delay occurs, it is before
the case reaches the appeal system and after the case leaves the
appeal system. This is such a self-evident truth to us that we
find it extraordinary that the matter is being debated.
Alison Stanley: Could I just add?
Obviously I agree with what my colleagues have said, but on the
issue of delay, there is not really delay once a case gets into
the appeal system, because once it is into the appeal system there
is tight timetable. It is what happens before that can cause delay
and certainly what happens at the end of the process when people
are left, if they are refused, effectively in limbo.
Nick Oakeshott: I do not have
anything to add to that.
Mr Soley: My apologies, first of all.
I thought we had moved on to another area, but we had not. The
problem I have is that, as an MP, I see at any point in time 400
current cases from one area of London and I see abuse of people
who I know are not putting forward a genuine asylum claim. The
other side to that, of course, is a really genuine one, and I
struggle to work this out all the time, as I am sure you do. What
troubles me is that at times it is very apparent to me that people
are using the system to delay it. It is that bit which does not
seem to get picked up anywhere, but I am not quite sure why that
is. As one of the previous witnesses said, it is sometimes done
by putting in several applications for different family members
without linking them up, for example. That is just one case.
Ross Cranston: I do not think these are
the sorts of people who see the abuse cases. That is the point.
Q125 Chairman: Let us ask them.
Nicholas Blake: I simply seek
to give assistance in answering that question from my experience,
although I am sure that my colleagues, who are working more at
the coal-face, can add to this. The answer to that lies in the
administration of these claims by the Home Office. They ought
to be able to recognise where there are repeat claims. They ought
to be able to keep information. It may well be that new technology
will enable them to do that better than they have done. If they
are getting a large number of claims from a country which has
no poor human rights record, is a perfect rule of law and has
never given rise to any recognised asylum seeker, then they can
put those claims to the top of their pile, deal with them more
speedily, in a matter of days, and process them quickly. You do
not need a whole process of certification, arbitrary criteria,
which may fall a little unkindly on a particular case in a particular
country, if by administrative development of good resources you
can target cases which you, the Home Office, know, and ought to
know, are clearly weak, unfounded, improper cases. That would
get a great portion, or a certain proportion—what proportion
who will know—of cases out of the system and then you can
leave time for the really troubling cases; and we are dealing
with parts of the world which are really troubling.
Alison Stanley: Could I add that
also the obverse is true, because it is equally easy to identify
those cases where it is very clear that somebody is a refugee
and should be recognised as such, and there is no reason why those
cases could not be fast-tracked and granted to get them out of
the system. That would speed things up a lot. One other issue:
I know the Committee has addressed the issue of public funding
of asylum and immigration cases relatively recently, but certainly
the "sufficient benefit test", which is the test that
has to be applied right at the beginning of granting legal aid
to an applicant, and the subsequent "merits test" when
it goes to appeal, if it is applied properly, will filter out
those cases that are completely unfounded and they would not be
getting legal advice on the state, which must help.
Q126 Mr Soley: I think your suggestion
of fast-tracking some cases is right, and I am very sympathetic
to that. What I do not accept is that a lot of people at the representational
end of it do not see the same problems that I see, as an MP, as
an abuse of the system. I do not understand why that is not picked
up or recognised. I have had clashes with lawyers, solicitors
and others—indeed I think you are aware of some—in
the corporations between myself and the Law Society in trying
to weed out some of these problem practitioners, but it is a problem
to me and I cannot believe that they are not—colluding may
be a rather strong word, but I have to say it—at times colluding.
Alison Stanley: Well, collusion
is a strong word, but again the proposal to introduce accreditation
of publicly funded immigration practitioners will help, because
part of accreditation will obviously be looking at the value of
the case, and if practitioners do not understand that they will
not be accredited. The accreditation scheme is due to be up and
running by April and compulsory by April next year. So it is coming
in on stream.
Q127 Mr Soley: So the accreditation system,
to your mind, is the best way of dealing with the abuse at the
other end of the system, i.e. where representatives might be actually
less than good at their job, let us say, if not colluding?
Alison Stanley: If the representatives
are not good at their job, then they may well not identify when
a case is poor and cannot possibly fail. Those people will be
out of the system, because the accreditation scheme should prevent
them from practising on public funds.
Mr Fransman: Might I add that
insofar as the abuse that you might be seeing occurs before the
individuals concerned bring the matters to the appeal system,
that, of course, is not really the focus of what we are concerned
with at the moment, but certainly there is a major Government
initiative to deal with that, with something called the Managed
Migration Policy, by identifying within the class of people that
are currently regarded as abusive claimants those who would be
good economic migrants and ensuring that they come into the country
through the right door. That is going to take time to bed down
and for the message to get across abroad. When it does that may
have an impact on what you see in your surgery. When the matter
does get to the appeal system what we have currently is an effort
for it to be dealt with by an adjudicator at first instance as
quickly as possible. If it is abusive, the adjudicator will throw
it out. When the person comes to an adjudicator with an abusive
claim, hopefully the adjudicator will stop it quickly, throw it
out and that individual will have no prospect of getting leave
to appeal to the tribunal. If the adjudicator system is working
quickly, then that is the quickest way of weeding it out of the
appeal system. What we have in prospect with what is being proposed
in the Bill in a single-tier system is where we have immigration
judges—they were called adjudicators, now they are called
immigration judges—sitting in the tribunal—called
a tribunal but they are sitting on their own—and this time
going much more slowly through the case because they are aware
that there is not a second tier and looking at things much more
anxiously. It seems that there would be more opportunity for delay
and wasting resources by the abuser in that system than there
is in the present system.
Q128 Mr Soley: I dare say. I accept,
incidentally, the separation of immigration from asylum. We should
have done it years ago. We did not and it was a mistake. Having
said that, I could fairly easily give you examples—probably
getting less so now, since we have rattled about a bit on this
issue—where representatives have actually gone for appeals,
telling the client that that will delay the process. That is really
what troubles me: because it is not just done using public funds,
it is done using private funds as well and the person pays for
something which, at the end of the day, they are going to lose.
Nicholas Blake: Could I add to
that comment? Mr Irvine reminds me that both professions are doing
accreditation schemes, both are concerned with improving training
in a specific area and both are working in cooperation with the
Legal Services Commission to improve standards. The Legal Services
Commission, of course, now applies a strict threshold for public
funding. The reasons I have given earlier: judges, adjudicators,
tribunal members, whatever level of the system, can identify something
which really ought not to be before them and they can make public
any observations of that sort. There are effective professional
complaint mechanisms which you can take up if there is a complaint.
There is, of course, the Immigration Commissioner as well, who
has a broad supervisory function as to whether the professions
are dealing well with these matters, and there are, in extreme
cases, of course, wasted costs orders as an elementary measure.
That is cumulatively quite a number of pressures and opportunities
to bring to public attention things which ought not to be going
on so they can be addressed. Those systems, cumulatively or individually,
can work to deal with the aberrant practitioner, which I understand
to be the focus of your questions. What we cannot do is to remove
a system of appeal to deal with a number of cases of abuse of
appeal rights, if there are such, which can be readily dealt with
elsewhere; and professional sanctions are, of course, an important
factor in this case.
Q129 Chairman: Do you have any concerns
about the proposal that the majority of reviews must be heard
by a single judge or about the removal of the lay element in the
process?
Nicholas Blake: I was listening
to the comments this morning. It did strike me that the layman
probably has played a particularly significant role in pure immigration
cases. I am thinking of where knowledge of family life circumstances
in South Asia has played a role. Certainly when I first started
doing immigration appeals, I think in 1974-75, it was about family
reunion from those countries and actually having some understanding
of how families relate, and what was considered a relationship
within the rules and what was not, I think, did provide some important
commonsense, which, of course, is at the heart of the system.
So I think that might be a feature which we might want to consider,
bearing in mind, as I know this Committee is aware, that we are
not just dealing with asylum cases today, we are dealing with
immigration cases, European Union cases and human rights cases,
all of which merge and interlock in different ways. So we are
dealing with a very broad range of socially important and difficult
subjects and commonsense, and the lay element may always be important
in that area.
Q130 Keith Vaz: Can I first declare my
interest. Ms Stanley's firm has acted for me on a matter in the
past. The proposed legislation will allow judicial review in limited
cases, including cases involving bad faith. Is this sufficient?
Nicholas Blake: No.
Q131 Keith Vaz: That is a leading question!
Nicholas Blake: It is, with respect,
nowhere near sufficient. There are really, I suppose, three features
that we wish to bring to the attention of the Committee, if we
have not already done so in the written material. First, there
are things which go wrong where the procedure is fundamentally
flawed. I noticed in the discussion you had last week that there
was a suggestion of a more active role by adjudicators. That has
some value, on the one hand, but the more active the role the
more likely things start to go wrong, because if you do not realise
the first time an issue is alive until the hearing is over or
until you get the decision, then things can go wrong. Judicial
review to prevent unfair procedures and breach of natural justice
is always important to ensure that there are some ground rules
with an incentive to act fairly and to ensure that there is a
fresh opportunity to have a real appeal if you have not had one.
To limit it to bad faith is, frankly, not the issue. It is merely
a technical possibility of review. That is the first point. The
second point is that these are immensely complicated and difficult
cases. The case load is large. I say "immensely complicated
and difficult" in many, many cases. What is a refugee? What
is persecution? What is protection? These are issues which are
being teased out even today. They are not all settled, it is not
all cut and dried, and it is just being applied. There has to
be recourse to the higher courts, and to a range of higher courts,
in order for these issues to be reflected upon, for developments
to be taken into account and for greater opportunity for reflection
and wisdom to occur. What happens in a judicial review is completely
different in atmosphere from what happens in a pressurised hearing
before an adjudicator dealing with three cases a day. You cannot
possibly know what the authorities are. In judicial review, you
almost certainly will get high quality representation or better
quality representation, you will get a more experienced judge
with a broader frame of reference and you will get assistance
at that level. The third factor is that it is really unhealthy
for a single individual, or a small group of individuals, to be
the determinative authority of what the law is, what fairness
is and how those factors are to be applied without any opportunity
for someone to say, "We do not like the way you are going."
The whole merger of individual decisions to be reviewed through
the discipline of an independent higher court system is very important.
If you look at this jurisdiction, it is particularly vulnerable
to political pressure. We all know it is a controversial area,
more cases ought to go through and we need to speed up the decision-making,
and we do not like the volume of cases, but for that to be excluded
from higher court review is really very damaging to our—
Chairman: I think it might be helpful
if Mr Cranston came in here, because he was going to ask about
the written submission possibility.
Q132 Ross Cranston: I am not sure where
we are! I was going to ask about the collapsing of the system
into one tribunal, but in relation to judicial review, I think
I really would like to come in after Mr Vaz on the statutory review
point, because I do not see a difference between statutory review
and judicial review. If you had the system of statutory review
which is there now, there is no real difference between that and
judicial review?
Nicholas Blake: The statutory
review, of course, is focusing upon refusals of leave to appeal
to the tribunal from adjudicators. That is what it is essentially
doing at the moment. It certainly does it quickly, it is certainly
coming up with the same kind of success rates at 25% and it is
performing a valuable function, demonstrating that the judiciary
can respond to these needs as required. What, of course, you do
not get is the oral hearing. Of course there are plenty of cases
with oral propriety to tell you about, or cases where we are told,
"Your case is wrong", we get leave from the court at
an oral hearing, and, we win the case. Indeed, many statutory
reviews, I would be certain, are conceded by the Home Office because
once you have had an exposure to the point and to the flaw in
the reasoning process, many of these cases do not go back for
re-litigation.
Q133 Ross Cranston: In other words, you
are saying that written submissions are not sufficient?
Nicholas Blake: It is not always
sufficient, no. It may be in a certain number of cases, but you
cannot exclude the real possibility of oral submissions focusing
minds. Sometimes the way a point is put suddenly opens one's eyes
to something which had not previously been seen. Obviously if
you prepare your written submissions well, there is a good chance
that that will achieve the result; but because of pressure, time,
the way it is read, perhaps just the approach of the particular
tribunal, oral submissions have always added something in our
collective experience.
Q134 Keith Vaz: Can I ask Mr Fransman,
Ms Stanley and Mr Oakeshott whether they regard the ouster clause
as the most draconian ouster clause ever seen in Parliamentary
legislative practice? Before they answer, can I tell them that
that statement was made by Mr Blake.
Mr Fransman: Mr Blake sitting
next to me, or Mr Blake who previously gave evidence to the Committee?
I was opening my mouth to answer the same question that you put
before about the sufficiency of bad faith as the only recourse
on judicial review, and that really ties into the question that
you are talking about now. I note that the bad faith point as
it appears in the Bill is now to be read together with the proposed
amendment, which narrows the focus even more. It says, "The
court may only consider whether a member of the tribunal has acted
in bad faith if the court is satisfied that there is significant
evidence of bad faith on the basis of dishonesty, corruption or
bias." So it is even more focused. I imagine that someone
was concerned that lawyers might get in there with some argument
unless it was narrowed even more. Narrowed or not narrowed, limiting
judicial review to bad faith is nowhere near sufficient, as Mr
Blake has said, and the ouster clause in respect of judicial review
is not only draconian—it is not just draconian (to direct
myself at your most recent question, Mr Vaz). To me "draconian"
suggests an extremely harsh measure but within the sphere of the
rule of law. I would call this—and I am not alone, by any
means, in calling it this—an abomination. It is a constitutional
abomination to deprive of judicial scrutiny in this area, to deprive
immigration decisions of judicial scrutiny in this way. So we
would most certainly endorse Mr Blake's words . . . and go further.
Alison Stanley: Again we would
endorse Mr Blake's words. It is a general principle of English
law that the High Court exercises supervisory jurisdiction through
either judicial review or statutory review of administrative decisions
of tribunals. In this particular area of law, which is highly
complex, fast-moving, dealing, as Mr Blake has said, with issues
of immigration law, asylum law, EU law, human rights law—so
it is a very complex area dealing with individuals' lives—it
has to be said that adjudicators do not always get it right, so
it is essential that there remains a High Court supervisory function.
Nick Oakeshott: We too would endorse
Mr Blake's words. In our written evidence to the Committee we
have enclosed an opinion from one of the leading Treasury juniors,
Michael Fordham, and in his view the proposed ouster is arguably
unconstitutional because it conflicts with the rule of law, the
idea that judges will supervise the Executive in its decision-making.
We also have concerns about whether the ouster would conflict
with the UK's obligations under the European Convention of Human
Rights. In addition to that—and this is to endorse Alison
Stanley's last comments—we have particular concerns that
in this area, which involves the right to life, the right to be
free from torture or inhuman or degrading treatment or punishment,
it would seem to us to be odd to remove the scrutiny of the higher
courts in those cases, because in our view they are the most fundamental
of cases that the court should consider.
Q135 Keith Vaz: Finally can I ask you
this? After a person has gone through the appeal process, all
the various tiers that we have at the moment, all they have available
is judicial review. I, and others on this Committee, have large
immigration case loads. What we find is that solicitors take up
cases, they exhaust legal aid. They may or may not go privately
to a solicitor, but on a Friday evening through the fax comes
an application for judicial review by the solicitor concerned.
Do you not understand the reasons why the Government might want
to limit judicial review. Is it not just an attempt to keep a
case going which has no merits?
Nicholas Blake: No, and there
must be some repository of trust in the courts to dismiss claims
which are precisely that. The reason why you get a judicial review
at 6 o'clock on a Friday evening is because you have been told
half an hour before hand. That is when the immigration officer
wants to remove your client, often because the Home Office have
not responded to representations may be made by Members of the
House or, indeed, by legal representatives, and that is where
you get this problem. If they do not remove quickly after the
appeal is heard, it may be, three or four years later on, an Iraqi/Kurd
case, or something, has been festering away.
Q136 Keith Vaz: But this may just be
because of bad decision-making at the initial stage. This bad
decision-making has followed through the whole system and it ends
up in the High Court because these cases are not dealt with properly
right at the start. Is that a possibility?
Nicholas Blake: There is certainly
some possibility; although I would hope those kinds of problems
are dealt with in the two-tier system that we would want to see
as the solution to those questions. So I would certainly hope
that judicial review is not being used to cure a point which should
have been taken earlier and could have been taken earlier. Although
in the Zimbabwe cases—we are not removing to Zimbabwe at
present, I know that there are real concerns about some of the
appeal decisions made on the basis, "Well we think you probably
will be safe at some stage", and then something else is happening.
There may be situations of real concern where removal is about
to take place, but if it is simply an attempt to prolong the inevitable,
the judge knows that, the Home Office can say that and a fairly
resounding clip round the ear can be given to the errant practitioner.
Let the judge tell that to the professional bodies. Let this kind
of failure come to attention. I do not know whether Mr Irwin wants
to add to your previous question, because there seemed to be a
challenge to it.
Stephen Irwin: The only thing
of which I can be of use is on this point, because I am not speaking
at all as an immigration specialist or someone with special knowledge
of this area. I wonder if I could put it in four stages to you
on the ouster clause. The first is to say that I do not see this
as merely a legalistic point. I would ask the Committee to consider
carefully, although you have a range of lawyers in front of you,
indeed judges, today, that this has constitutional implications
and they are considerable. Secondly, with that in mind, we are
here designing a system, or the Government are being seen to design
a system. There is always a temptation, when you hear people of
the stature of Sir Duncan Ouseley and those who are with him,
to trust the people who are currently in the system. If I may
suggest it, that is not always helpful, because we cannot rely
in the long term on the good will or the quality of the individuals
who are currently there to get it right, or on the hope that we
will always have people of that stature. So we always as lawyers,
although designing these systems, have to cater for the lowest
common denominator at some stage in the future, or for a lower
common denominator; and that troubles me, because what could be
created by this clause is a local legal culture sealed off, to
a considerable extent, from the rest of the legal culture, sealed
off from review, as if under a glass bowl, those people operating,
who would develop a camaraderie, who would develop a common view
and very quickly, however you look at it, have a tendency to think,
"Only we understand this." The Court of Appeal, or any
other mechanism of judicial review, does not really understand
our problems. That can happen terribly quickly. For example, it
is one reason why the practice of sending High Court judges out
on circuit has persisted, so that you do not get within the country
a local legal culture. The glass bowl here, with this set of people
underneath it, would have heat applied. This area generates heat,
and that has an effect, particularly where a smallish group of
people operate on a specialist area under pressure. It can be
very political and it can be very intense on them, and I have
great sympathy for them; but if they do not have the safety valve
of a proper accessible system for judicial review, then I am very
concerned as to what kind of local culture will grow under that
bowl and under that heat, and—the last point—this
has implications far beyond asylum and immigration. If we do this
here, we will see the first, and only really significant, area
where there is a shutting off of legal decision-making from legal
review at a higher level; and there must be a temptation—again
this not a party point; it could be any government—for this
Government or for future governments, under this kind or pressure
or a different kind of pressure, to say, "We will wall this
off then"—judicial review—because it is popular
to do so or because it avoids difficulties. I am sorry if some
of the things that have been written have sounded like Mr Angry.
I am sure we are not trying to meet with that, and we are not
trying to be merely legalistic, but I cannot emphasise to the
Committee too strongly how lawyers and other professionals and
judges, who may not be able to speak directly to you, far beyond
the immediate subject area, feel very strongly indeed about this.
Chairman: Thank you very much for that,
plea, Mr Irwin. There are a couple of Committee members who have
to leave shortly because of a memorial service. Perhaps I should
just explain that. We just have a few more points we would like
to pursue.
Q137 Mrs Cryer: Two of my witnesses earlier,
Charles Blake and Judge Hodge, suggested it might be better if
the judge or adjudicator were able to take a more interventionist
or active approach. Do you all believe that the proceedings in
asylum and immigration appeals should become more inquisitional
rather than adversarial? Also, is there a risk that the Home Office
would dispense altogether with presenting officers if the judge
were able to assume their role of cross-examining the applicant
and the witnesses?
Alison Stanley: Perhaps I could
try to answer that. It is a very interesting idea and certainly
one that has been discussed in our world for some time. The Canadian
model, which you may be aware of, has a similar system. Certainly
there is a very strong argument indeed for taking away initial
decision-making from the Home Office and leaving it to an independent
body, which would be well-informed, one would assume, and would
be able to access all the relevant country information. Indeed,
it might be a cheaper process than our current process. If such
a body made better decisions, there would be fewer appeals. That
is certainly the experience of the Canadian model, where the Canadian
Refugee Board makes initial decisions and relatively few are appealed.
Having said that, it is very important that reasoned decisions
are given and are still subject to appeal, because otherwise it
is one person making a decision; and we have had a very eloquent
explanation of the gold fish bowl effect, especially when heat
is applied. What concerns the Law Society about this is that this
should not be some sort of halfway house. It should not be a mishmash
of the existing system and a new interventionist system. If we
continue to have poor initial Home Office decisions and poorly
prepared appeals because of the lack of public funding, which
one of your earlier witnesses talked about, if we have adjudicators
who are not trained in proper interventionist treatment of appellants,
we may get the worst of all worlds. So although I think it is
a very interesting idea and should certainly be examined, I think
there are pitfalls in it and we need to be careful before moving
into an entirely different system.
Nicholas Blake: May I just add
to that answer, with which I agree, that if there are advantages
in looking at that, it is not the time to do it under this Bill:
because what you would tend to have therefore is the first decision
being taken by the adjudicator because, at last, the real questions
are being asked. There may be advantages to that, but there must
also then be an independent appeal in case the wrong questions
have been asked, if there was no real opportunity to give evidence
to support the answers or, indeed, if something has gone wrong.
That tends to be what happens now. One must remember that some
of these decisions say, "You have no fear of persecution
in Somalia", when you actually come from Sri Lanka—that
kind of thing—or you get other fundamental mistakes, or
just minds not being directed to the case, and then the adjudicator
has a hearing and says, "Oh, you are really about X, Y and
Z, are you", and no-one, of course, has focused upon that.
That is where things can go wrong. If you are going to have an
intensive inquisitorial system, which may be quite good as a system
as a whole, you have to have an appeal from it to make sure that,
standing back, the interrogation was not, as it were, Star Chamber
interrogation, was not oppressive, that you would get a fair opportunity
to ask questions and the real issues being required. That emphasises
the importance of an independent appeal.
Q138 Chairman: Going back to a point
which you made earlier, do I assume from what you said, particularly
what Mr Irwin said, that the earlier proposal of turning the Immigration
Appeals Tribunal into a superior court of record would not have
met the glass bowl arguments, and therefore do you not prefer
it to the retention of the rights of judicial review?
Stephen Irwin: That is right.
Nicholas Blake: Yes. Indeed, there
would be a number of real problems about that, apart from the
flippant one that it is neither superior, nor a court, nor does
its' record justify it; but you would then have to have every
case being determined by a judge of that status, and I am afraid
it is simply not possible to rename and then afford it equal status.
You have to win your spurs in this area, and there are some spurs
to be won.
Q139 Chairman: Is there anything other
than on the judicial review point that could be, as it were, added
onto or refined in the Government's single-tier proposal which
from your stand-point would make it better?
Nicholas Blake: I would think,
trying to think within that framework, certainly the idea of an
advisory opinion at the discretion of the President does not look
right at all. There ought to be a duty, we would suggest, on the
President to at least identify that the determination of the appeal
turns upon a question of construction of the statutes, an international
instrument to a regulation or a rule, and then the President can
either grant leave, him or herself, or with that certificate you
can go off to the Court of Appeal. That is the very minimum to
keep some degree of scrutiny over the President's certification
of what really are or are not questions of procedure. Further,
I think that even the internal review of errors needs to be a
little more opened up so it can be sufficient to say, "I
had a fundamentally unfair hearing. I cannot guarantee you that
I would have been bound to have won if I had a fair hearing, but
since I have not had a hearing at all because a fundamentally
unfair hearing is a nullity, I ought to have a hearing, please."
That is not possible under the present regime.
Nick Oakeshott: I would like to
endorse what Mr Blake has said in respect of the need for an oral
hearing on review. It seems to me that, even with the Government's
amendment to allow for an oral hearing on review, that amendment
is far too restrictive as to when such an oral review will be
allowed. That is particularly important in cases where it has
been identified that the original immigration judge made an error
of law in assessing the evidence in the case, because obviously,
in those circumstances, if on review a fair outcome is going to
arrive, then the reviewing judge is going to have to hear that
evidence again in order to come to a proper conclusion on the
facts of the case. So it seems to me that the proposed restriction
on when an oral hearing can occur on a review is far too tight.
Stephen Irwin: Could I add one
idea? I wonder if the Committee could consider that mechanism
applied to Revenue matters. Just imagine what the feeling in the
country would be if all you could do was to seek written representations,
which could be ignored, in a legal culture that was walled off
by a series of judges who only dealt with Revenue matters and
were employed by, or were close to, the Inland Revenue. The Chancellor
would love it, but it would not be good for our politics.
Mr Soley: May I say, I have a lot of
sympathy with the views you are putting, because the difference
is the intensity of the political feeling in society generally.
It is the exact reverse of what it would be with the Inland Revenue.
That is the problem in a sense, because you are quite right in
identifying that that is the risk but it is a difficult political
balance. I am sympathetic to the argument you put, but on the
other side, and one has to come back on this, as a politician
I cannot win the argument in the street on this while there is
serious abuse. I can only lose badly. I say that as someone who
has fought for refugees and fought against racism. I cannot win
this argument unless we deal with abuse. The practitioners at
every level have a duty there, and that does not in any way imperil
the strength of your argument about the appeal system.
Chairman: I take that to be an implied
question which Mr Irwin is entitled to answer.
Q140 Mr Soley: It was.
Stephen Irwin: The two things
that I would say are, firstly, it is precisely where the political
heat comes onto the legal, judicial system. We must maintain it.
Secondly, if the problem is abuse, as an outsider, the process
by which one might handle that is to sit down with all parties—not
in the face of a piece of legislation that we think is fundamentally
wrong in this respect—and say, "What can we collectively
do?" A lot could be done, a lot clearly is being done as
far as I can tell, to improve the quality of decisions earlier,
but it does not seem to me, as an outsider, to be a respectable
answer to Mr Vaz's question, "Why have we got too many judicial
reviews?", to say, "Let us abolish the mechanism for
correcting bad decisions earlier." That is what this is.
It is a mechanism for putting right wrongs that have happened
earlier in the system, and it is really a cosmetic relief of the
pressure to take the corrective mechanism away without curing
the earlier decisions that are wrong. That is what this is about.
Mr Fransman: I want to endorse
that, because it certainly seemed to be disclosed from Mr Vaz's
concern that perhaps what was behind this was that last moment
`phone call to the MP saying, "We are putting in a judicial
review application. The chap is supposed to be on a flight in
20 minutes. Can you, please, do whatever is necessary to make
sure he is not put on that flight?", and to abolish judicial
review in this area because that might be perceived in the individual
case as being an abusive judicial review application. It is absolutely
wrong to abolish judicial review as a response to that perception.
First of all, it can be dealt with very simply by a judge, and
in many of these cases it is necessary to get the permission of
the judge within a matter of hours when an immigration officer
is intent on removing a person. In any event, to deal with abuse
one deals with abuse, one does not abolish such a constitutionally
important remedy as judicial review.
Chairman: Thank you very much, everyone,
for your help this morning.
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