Examination of Witness (Questions 141-159)
3 FEBRUARY 2004
THE HONOURABLE
MR JUSTICE
COLLINS
Q141 Chairman: Sir Andrew, welcome, we
are have lucky to have the benefit of your experience and advice.
Could you start by saying how you think the process of statutory
review currently operates, or in your pretty recent experience
whether it has had a positive effect in reducing delay?
Sir Andrew Collins: It certainly
appears to be working in the sense that it has been dealt with
very speedily. As you know, the application has to be made within
14 days of the refusal by the Tribunal. We deal with it in the
administrative court within a fortnight, usually within a week,
subject obviously to vacation when we have to catch up. They are
running at slightly under the rate of judicial review, if one
looks back a year, and I have some figures which show that in
this last month, January, we allowed some 17% of those that came
through. The figures for December were 13% and for November about
18%, so it is running at that sort of level of cases. We are getting
something in the order of 35 to 40 a week, which gives you some
idea of the numbers.
Q142 Chairman: Are you confident that
cases are receiving sufficient judicial scrutiny?
Sir Andrew Collins: Yes. In fact,
we are giving them longer time than we would other applications
for permission because they are the end of the line, or will be
if they are refused.
Q143 Mr Cunningham: What advantages do
you see in involving the adjudicator at an earlier stage?
Sir Andrew Collins: It is a question
of speed and also a question of saving time and cost. It involves,
or would involve, co-operation from the Home Office. The advantage
would be that the adjudicator would be in on the initial interview
and would be able to take a part in it if he wished. I personally
think it would be advantageous to make the adjudicator's role
a little more inquisitorial than it now is, and if the application
was refused and an appeal against that refusal followed, there
would be no need for any further interview, no need for any further
evidence of the matters that had been covered by the interview,
and the adjudicator incidentally could see that it was fair because,
as you know, nowadays allegations are sometimes made, "I
did not understand what was being put", "The interpreter
did not interpret it properly"this sort of thing so
it would dispose of that, and all that would be needed on an appeal
would be any further evidence, documents or witnesses that the
appellant wanted to call. As I say, it seems to me that, in principle
anyway, this could be dealt with far more speedily than the system
at present allows. If you then had a right of appeal on law only
to an independent tribunal, now the second stage tribunal, it
is pretty close to a one tier, it has all the safeguards and it
also avoids the delays. There is another twist which I think should
be considered as well, I am not suggesting necessarily at the
first stage of appeal but certainly at any later stage, which
is to follow the practice that prevails in relation to criminal
appeals where, as you know, if you want to appeal you have to
get leave of the single judge. If the single judge refuses you
have the right of renewal to the full court but you cannot get
legal aid for that. If you do represent pro bono, however, you
can get legal aid if you succeedthat is to say, it is given
retrospectively. Now some such provision would, I would have thought,
knock out, or tend to knock out, the unmeritorious cases. At present
the system can be tweaked but, as it is operating at the moment,
it really does not create any substantial delay once the statutory
review is there, and although I know that there is opposition
to statutory review on the basis that it is not as full and as
fair as judicial review, nonetheless it does provide a judicial
scrutiny, and the fact we are allowing some 15% on average shows
that it is needed, and it means that at a later stage, if they
try it on, we can say, "Well, you have had all your fair
process", whereas what is now proposed may not be regarded
as fair.
Q144 Ross Cranston: I have to make a
declaration of interest; I am a recorder and barrister.
Sir Andrew Collins: Is that a
declaration of interest? I know you are a barrister!
Q145 Ross Cranston: Could I just ask
you about this involvement of the adjudicator? You do not think
there are any natural justice or conflict of interest problems?
Sir Andrew Collins: Why should
there be? He remains independent and he applies his independent
views if there is an appeal. All it means is that, having been
involved, he has been able to see fair play or to see any problems
in the initial interview.
Q146 Ross Cranston: So the adjudicator
makes the decision
Sir Andrew Collins: No, the Home
Office probably would make the decision.
Q147 Ross Cranston: Yes, sorry, and then
Sir Andrew Collins: The adjudicator
would, having been involved
Q148 Ross Cranston: Yes, and then there
is the internal review. Now that would be, what, three adjudicators?
Sir Andrew Collins: No, I would
suggest that you do not need a single tier at all. This seems
to me to be a pointless exercise, with respect, because once it
is accepted, as it has been and as it must be, that there needs
to be an internal review and that is a party-led internal review
because you cannot guarantee that things have not gone wrong,
if you look at the percentages it is perfectly plain that, firstly,
the decision-making by the Home Office is not universally goodin
fact, I would suggest it is universally pretty bad although it
has improved a bit
Q149 Ross Cranston: I think we are going
to come on to that.
Sir Andrew Collins: Secondly,
because of the pressures, the adjudicator's determinations are
not universally good. There are some very poor adjudicator's decisions
and that is shown by the fact that in about 30% of cases leave
to appeal is granted by the Tribunal, and do not forget it should
not grant leave to appeal unless persuaded that there is a real
chance of success on the appeal, so when you get to that stage
you realise the need for some sort of review. Now, if you have
a need for a review, what on earth's the point of dismantling
the present system and having that review by a second tier tribunal,
which incidentally is in accordance with the Leggatt proposals
and what they are proposing to do is contrary to that.
Q150 Ross Cranston: So you do argue for
a second appellant level?
Sir Andrew Collins: Yes, largely
because I think this is completely unnecessary and it is not going
to save time or money in the long run.
Q151 Ross Cranston: When you say "it"
is not working
Sir Andrew Collins: The Bill.
Q152 Ross Cranston: The proposal?
Sir Andrew Collins: Yes.
Q153 Ross Cranston: And then I think
you do accept in your submission the fact that if you have that
appellate body, then the referral power is sufficient, is that
right, on to the Court of Appeal?
Sir Andrew Collins: I am not very
happy with it. I personally would be perfectly happy for a slightly
narrower right of appeal to the Court of Appeal than now exists,
perhaps on the basis of a second tier within the usual CPR test,
but I would not quarrel too much with a narrower bar than that.
It does seem to me to be a little absurd, though, that if you
are only going to refer cases which are of the greatest importance
and difficulty you should preclude an appeal to the House of Lords
from the Court of Appeal
Q154 Peter Bottomley: And the "CPR"
test is what, for those of us who are not lawyers?
Sir Andrew Collins: The rules
of court. A second appeal is limited to cases where there is a
point of importance involved.
Q155 Chairman: Does anybody know what
the initials stand for?
Sir Andrew Collins: I have forgotten
but someone behind me will remember!
Q156 Keith Vaz: A third of all presentation
officers, we are told, do not attend the hearings. Is that right?
Sir Andrew Collins: It is very
unwise and it is a major problem
Q157 Keith Vaz: Sorry, is that right,
not wise? The acoustics in here are bad. I know it is unwise but
is that figure right?
Sir Andrew Collins: That I do
not know. I would not be surprised because it is all too often
that there are no presenting officers in appeals, which creates
great difficulties for adjudicators because it is supposed to
be an adversarial process.
Q158 Keith Vaz: How have your adjudicators,
and you yourself as President of the Tribunal, been able to keep
your calm at this constant flouting of respect from the Home Office
to the way in which the appeals are dealt with?
Sir Andrew Collins: We do our
best, or we did our best. I am bound to say that what I used to
do was send copies of what were decisions involving some of the
worst misdeeds of the Home Office to the Home Secretary, but I
gave that up after a time because it did not seem to make any
difference.
Q159 Keith Vaz: So you yourself made
representations to the Home Office about the lack of appearance?
Sir Andrew Collins: Yes, we did
regularly, and one of the major problems, as I say, was, as you
rightly point out, the lack of presenting officers. That is what
has led to quite a lot of appeals by the Home Office because the
adjudicator would allow an appeal quite often wrongly and the
Home Office appeal rate I think was pretty good in the sense that
the Home Office tended only to try to appeal those which did have
a good chance, and that explains why their rate of success is
rather higher than the rate of the would-be immigrant.
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