Examination of Witness (Questions 160-179)
3 FEBRUARY 2004
THE HONOURABLE
MR JUSTICE
COLLINS
Q160 Keith Vaz: And clearly there has
been a backlog that has developed over the years in your Tribunal,
which has nothing to do with the way you have administered it
but is due to the decision taken by the Home Office to send in
more asylum cases than immigration cases?
Sir Andrew Collins: Yes. What
happened was, when I started in 1999, we had a backlog of about
5,000 cases. We were quite lucky because there was a slight lull
and we managed to get rid of that backlog completely within about
two years. It has built up again largely because we did not get
the manpower to cope with the increase in numbers into the adjudicators—I
think they are running at about 5,000 a month coming into the
adjudicators.
Q161 Keith Vaz: Do you have enough adjudicators
at the moment?
Sir Andrew Collins: Again, I am
out of it now—
Q162 Keith Vaz: But when you were last
supremo?
Sir Andrew Collins: I think about
500 now if you include part time and full time. The quality is
not altogether even but that is not surprising and also, to be
fair to them, there is a huge pressure. I may be wrong because
I am a bit out of date but they used to do four cases a day—one
day the hearing, the next day writing up—but as far as the
Tribunal is concerned, when I left, we were getting I think about
700 applications for leave to appeal a week and now it is about
900.
Q163 Keith Vaz: One of the problems I
have experienced as a constituency MP, and I am sure it applies
to people like Mrs Cryer and Mr Cunningham who have big immigration
caseloads, is the lack of connection between the three agencies
involved with an immigration case—the entry clearance officer,
the file going disappearing into the black hole of the appeals
section of the Home Office, we write to yourself or your clerk
and we say, "Where is this case? When is the appeal coming
on?"; you write back and say, "We have not received
the papers, write to the Home Office"; we write to the Home
Office and then the Foreign Office—what can we do about
this endless problem?
Sir Andrew Collins: I agree we
have had problems with this and problems with it in judicial review
too because we find unfortunately that a case is allowed by an
adjudicator and the ECO does nothing and it takes or can take,
and you have no doubt had such cases, a long time to get them
to do something and I have had to threaten peremptory judicial
review orders from time to time to get something done. You have
also put your finger on an important point—that this new
Bill is designed with asylum cases in mind but of course it covers
all the other ones, and families who want to visit their families
here or marriage cases or whatever are finding themselves kept
out for longer than they should be in certain cases and, of course,
they will suffer from the proposals as well.
Q164 Keith Vaz: The Committee under chairmanship
of my colleague, Mr Beith, has gone abroad and had a look at the
posts abroad and the way in which these applications are made
from the start. Would it help if there was a common reference
number that was given at the start that is then followed through
the entire system?
Sir Andrew Collins: I think it
might. The obvious problem at the moment is that the ECO is the
Foreign Office and the Home Office deals with the decision, or
when it gets here it deals with the appeal and so on, and that
can create problems and, frankly, I think there should be a much
more global approach by all the relevant authorities to these
cases. The Home Office and the appellate authorities should liaise
much more closely than perhaps they do, and that is partly why
I am suggesting the involvement of the adjudicator at an early
stage because one of the problems that certainly exists now is
that an appeal is served on the Home Office and they can sit on
it for weeks or months before it is put into the system, and sometimes
they have a motive for doing so. An obvious example is where a
situation in a country is a bit fluid and Kosovo in the past was
a good example of this. When people came from Kosovo before the
NATO takeover, as it were, most of them were refugees. Albanians
were undoubtedly being persecuted by Serbs but if the Home Office
had treated them all as refugees they would have given them indefinite
leave to remain, since it appears for some reason which I have
never understood since, that it is not required by the Convention
to give indefinite leave, so what they did was to sit on the cases
until the situation changed and then of course, when the situation
changed, they were no longer refugees. This they have been doing
quite regularly—and I do not blame them in one sense.
Q165 Keith Vaz: Finally, if we change
the procedure of the Tribunal itself and perhaps dispense with
the presenting officer and get the adjudicator to cross-examine
witnesses, would that help?
Sir Andrew Collins: You could
make an adjudicator more inquisitorial, I do not doubt, and that
might have advantages, but so long as you have the Home Office
properly represented it should not be necessary. It is only where
you do not have the Home Office represented that the adjudicator
is in a real difficulty.
Q166 Keith Vaz: Would that have an impact
on the need for legal advice and representation?
Sir Andrew Collins: I think so.
It is very difficult to substitute the person who has to decide
for the lawyer. You should know that—you do need someone
representing you who can discuss your account with you. The fact
is that the vast majority of would-be asylum seekers are not good
at English: they do need assistance—and they get it, of
course. The whole Oakington system, for example, was said to work
because there is a representative there who is able to assist.
All I am suggesting is that, if you put the adjudicator in there,
you have the appeal effectively starting immediately if there
is a refusal and if there is a desire to appeal, or any grounds
for appeal.
Keith Vaz: Can I, for the record, declare
my interest which I should have done at the start of my examination
which is that I am a non-practising barrister and my wife holds
a judicial appointment.
Q167 Mr Soley: I do not have any declarations
of interest other than to declare I have not got any! If I put
to you whether you would prefer the system to be inquisitorial
or adversarial, which would you choose?
Sir Andrew Collins: Probably,
if it had proper representation on both sides, adversarial but
that is because I am a conservative old lawyer, I suppose, and
am used to an adversarial system. Also inquisitorial does mean
that you, I think, on the whole have to have a rather higher standard
of judicial officer dealing with it; you have to ensure that you
have a good one and someone who is going to be accepted, of course,
and trusted by both parties.
Q168 Mr Soley: And is that your main
reason for not wanting an inquisitorial system?
Sir Andrew Collins: Yes. I do
not say I do not "want" it; I can see there could be
advantages in it and I do not have, frankly, very strong views
either way, but if you press me I suspect I come down in favour
of adversarial because that is what I am used to.
Q169 Mr Soley: Yes, but is it because
that is what you are used to or is it because the inquisitorial
system would need a higher calibre of adjudicators?
Sir Andrew Collins: I personally
think it would need a higher calibre and that is what worries
me—that the calibre is not high at the moment, or not universally
high. Of course there are some very good adjudicators, and I recognise
that the problem lies more in pressure than anything else. It
is the same with the Tribunal and that is why I think one needs,
and I always have thought you need, some form of review which
at the moment is statutory, because they do 120 leave applications
a week which is pretty soul destroying, and by the end of the
week you would not be surprised if the odd one goes wrong, would
you?
Q170 Ross Cranston: Could I ask you about
the ouster clause? You make the point in paragraph 7 about the
legal difficulties of this—
Sir Andrew Collins: This was before,
of course, the Bill and before I knew there was an ouster clause
coming.
Q171 Ross Cranston: You have referred
to Anisminic and we could have a seminar about that, and
you mention the interesting point about the judicial review on
removal.
Sir Andrew Collins: Yes. You have
sought to deal with that, have you not?
Q172 Ross Cranston: Well, not us, but
the government has.
Sir Andrew Collins: Yes, the government.
Q173 Ross Cranston: You then make the
third and, I think, convincing argument to lawyers that this is
a point of constitutional principle but could I just ask you about
the practicalities of it? My tentative view is that we have only
just introduced this system of statutory review; why not let it
run for a while and see how it goes?
Sir Andrew Collins: I agree.
Q174 Ross Cranston: The purist lawyer
might say that judicial review is better because we can try again
if we do not win with the first judge; we can have an oral hearing
which we cannot have with a statutory review; but in answer to
the first question from Mr Beith you seemed to be saying that
your assessment is that the statutory review is working well and
you are allowing 15% on average?
Sir Andrew Collins: Yes.
Q175 Ross Cranston: What are the merits
of statutory review vis-a"-vis judicial review?
Sir Andrew Collins: Speed.
Q176 Ross Cranston: Are we doing any
disadvantage to applicants by statutory review as opposed to judicial
review?
Sir Andrew Collins: Yes, in the
sense that if you have the right of oral renewal and then you
can go to the Court of Appeal you may be able to persuade other
judges to grant you permission. You also achieve delay if that
is what you want but, as I say, this was a problem, for example,
which arose in the planning field with enforcement notices because
people were taking ages or trying to spin out the process and
so Parliament introduced a statutory review effectively—"Appeal
to a judge, that is it". I perhaps ought to declare my interest
in that the statutory review was my idea, and the Secretary of
State was concerned that if statutory review was put in everyone
would try it and it would lead to an increase. It has not done
that and I do not think it will do that but, of course, it is
not as good for applicants as a full scale judicial review process.
Q177 Ross Cranston: Having declared the
interest, can we still have your judgment on its operation in
the sense of the question whether you think it has done fundamental
injustices?
Sir Andrew Collins: No—well,
I would say that, wouldn't I, but no, I do not think it has and
I do not think anyone thinks it has. It is there because of the
pressure on the IAT in terms of numbers and it is necessary to
have someone just to reconsider and it appears, as I say, to be
working reasonably. All right, the numbers are small but it amounts
to what, if it is 15% of 40, about seven a week? And do not forget
that this jurisdiction can be life and death. It is all very well
to talk about the problems of asylum and flooding in with bogus
cases but the fact is there are some genuine ones and, if you
make a mistake, you can be costing someone his life.
Q178 Ross Cranston: Mr Justice Ouseley
gave us some figures as well and he promised an additional note
to bring us up to date, and I think he gave us the figure of 35
a week as well?
Sir Andrew Collins: He told me
that he had said 35 a month by mistake but he has corrected the
transcript.
Q179 Ross Cranston: That was my recollection.
Sir Andrew Collins: It is about
35-40.
Ross Cranston: It is more than I thought.
| 
