Examination of Witnesses (Questions 260-279)
10 FEBRUARY 2004
MR DAVID
LAMMY MP AND
MR JOHN
SCAMPION CBE
Q260 Keith Vaz: Who is driving this whole
process? Your Department is supposed to ensure that there is proper
justice and fairness, you are not part of the system which tries
to shove these appeals into a sausage machine. Is it the Home
Office that is driving this? Nine out of ten cases that came to
your Department that you dealt with were asylum cases, visitor
appeals were kept very much to the back. Did you make representations
about this? Have you said to the Home Office that this is unfair?
Mr Lammy: We have got a joint
supervisory board so we are very much working in tandem.
Q261 Keith Vaz: When did it last meet?
Mr Lammy: I think there is a meeting
coming up but the joint supervisory board met just before Christmas.
Q262 Keith Vaz: Is that where you would
say to Home Office Ministers, "Hang on, this is a bad show.
We need to be fair with regard to the cases that come to us"?
Mr Lammy: I have not had occasion
to say, "Hang on, this is a bad show" to Beverley Hughes.
We are working together. Clearly the Home Office is looking closely
at policy, looking closely across the piece, attempting to drive
up quality conscious of speed and we are conscious of the same
things as they knock on into our appellate system in this area.
Q263 Keith Vaz: So your Department has
made no representations to the Home Office about either the flow
of cases coming into the Immigration Tribunal, nor the backlog,
nor the fact that nine out of ten were asylum cases and, therefore,
visitors' cases are kept right at the back? Personally your Department
has made no representations?
Mr Lammy: We are in constant dialogue
about seeing the numbers come down, and they are, about working
on the backlog, seeing it come down, and it is, about preparing
to see more immigrations vis a vis the asylum immigration
case mix, and that work is happening. We are in constant dialogue,
representations are constantly going back and forth but it is
a close working relationship.
Q264 Keith Vaz: You are an assiduous
constituency MP and you have a large immigration caseload. One
of the problems that I and other Members find is the fact that
when we write to your Department asking whether or not files have
arrived from the posts abroad, we are told that the files have
not arrived, the clerk to the tribunal tells us to write to the
Foreign Office or the Home Office but when we write to the Home
Office they say that the file is with the Foreign Office and even
though you have a joint board there seems to be no joined-up thinking
as far as the practical implications of these cases are concerned.
Have you ever considered a common reference number that would
start with the application in the post, that would go through
to the entry clearance officer down to the Home Office appeals
section and into your Department rather than the three appeal
reference numbers that we have at the moment? Have you ever considered
that? Would you consider that?
Mr Lammy: Yes, I think we would
consider it but we have to set priorities and work through, as
you will understand. I suspect from talking to you, Keith, that
your experience in Leicester is very much at the immigration end;
mine in my constituency is asylum and immigration. We have just
introduced a unique file number and that was part of our consultation
the last time I was with you talking about the Legal Aid implications,
talking about having a unique file number. We have been able to
do that in that area on asylum. We are clear that asylum has been
our priority because asylum was where there were some very, very
significant problems.
Q265 Keith Vaz: You have a common reference
number for asylum cases at the moment?
Mr Lammy: No, we are introducing
a unique file number.
Q266 Keith Vaz: Do you know when that
will be?
Mr Lammy: That should be shortly
after April. We had to start somewhere. Of course we will continue
to have discussions but we have always said that asylum is our
priority because that was what we were hearing from our constituents.
Q267 Keith Vaz: Minister, if you could
let us have a note on those figures that would be very helpful.
Mr Lammy: Of course[1].
Q268 Mrs Cryer: Minister, for family
visitor appeals to be worthwhile they need to be heard fairly
quickly for all the reasons I am sure you are aware of. Certainly
in my case with my constituents there have been a couple of occasions
when two people have died before their mothers, I think it was,
were able to get over to see them. Frequently it is about weddings
and it is about the birth of children, family celebrations. If
these appeals are going to be worthwhile they have got to be held
quickly otherwise the occasion is gone, the person is dead. What
are you and your Department doing to speed up these appeals?
Mr Lammy: We have moved to ensure
that there is proper provision in different parts of the country.
We have video link-ups within the UK. We have seen that process
speeded up. I think that because we have been able to act on non-suspensive
appeals in terms of countries that we put on the white list that
are making asylum applications, that has also had a benefit for
family visitor visas. We are in constant dialogue with the Foreign
Office about capacity issues and other things within their various
embassies in and around the world. There are a number of things
we have been able to do that have seen some progress. Are there
more things that we might want to do as we begin to look more
intensively at the immigration caseload? Absolutely, and we welcome
what the Select Committee has to say on those issues.
Q269 Mrs Cryer: Do you know what the
average waiting time is?
Mr Lammy: I am afraid I have not
got those figures in front of me at the moment but I can certainly
provide them to you[2]
Disposal at adjudicator tier: 2001-02 Visit Visa
Oral 7 weeks, Visit Visa Paper cases, 2 weeks; 2002-03 Visit Visa
Oral 8.4 weeks, Visit Visa Paper cases 2.6 weeks. Disposal through
both tiers: 2001-02 Visit Visa Oral 8 weeks, Visit Visa Paper
cases, 3.8 weeks; 2002-03 Visit Visa Oral 9.65 weeks, Visit Visa
Paper cases 4.31 weeks.
Mrs Cryer: Thank you.
Q270 Chairman: I think we have got the
clear message that the Committee is very concerned about this
area of family visitor appeals. If we can turn now to the overall
structure of the system. Mr Justice Ouseley in evidence to us
said that the move to statutory review in the 2002 Act has undoubtedly
removed the scope for a lot of abusive delaying tactics. Why are
we now changing that system before there has really been time
to measure its success, and there does seem to be some success?
Mr Lammy: I think there has been
some success. I think it is important to emphasise that statutory
review is essentially about permission, if you like, to appeal
up to the Immigration Appeal Tribunal, it is not about the substantive
issue. I think of the 371 applications that have been heard over
the last six months, only 59 of them have succeeded, so that is
a small number of cases that were going back up to the IAT. We
have taken the view, and this was recommended by the Home Affairs
Select Committee, that we should move to a single tier. In moving
to that single tier, you have then to look at the rest of the
potential layers after that single tier or you run the risk of
simply driving the cases up in that direction. I think that is
why we have reached the determination we have to move to a single
tier and to ensure that quality is working across the whole system,
both in IND and once you get to the new AIT, but to make the determination
that those appeals should stop at some point and we say they should
stop after a review in the single tier.
Q271 Chairman: But what about the Leggatt
report analysis for a unified tribunal service with a two tier
structure? Yet again here was a serious and careful consideration
of the issue which come up with a two tier structure.
Mr Lammy: I think Leggatt was
right but when we look at asylum this is an exceptional area.
One struggles to find other areas of law where there is an incentive
to delay. What we know, and MPs know this from their caseload,
is this is an area in which I am afraid too many applicants have
strung out their cases, strung them out by using the many different
tiers, strung them out by using judicial review in an attempt,
often a groundless attempt, to remain in the country and to avoid
removal. That has gone on in large numbers. If I can just give
you the figures: there were just over 70,000 appeals received
of the IND decision at the adjudicator stage and 58,000 of those
were dismissed. There were 33,000 decisions received at the tribunal
stage and over 18,000 of those were dismissed. In total only 3.6%
of adjudicator decisions were actually overturned. In terms of
the system, people were clearly using our traditional system of
the two layers within the tribunal, of the High Court and sometimes
going up to the Court of Appeal or the House of Lords, to stretch
out the system and that is why we have had to act.
Q272 Chairman: You say to avoid removal,
but surely the truth is they do not get removed anyway. You are
responsible for administering this vastly costly process at the
end of which many of these people do not get removed from this
country.
Mr Lammy: Removals have gone up.
We are now running at about 1,500 a month. They have gone up some
considerable way from the 2,000 they were in 1997. I think Beverley
Hughes is clear that she intends to see that figure rise even
further.
Q273 Mr Dawson: Minister, surely we have
got the major failing of this system at the initial decision level.
We have got information that 14,000 cases in 2002 were overturned
on appeal. Why do you cite this as one element of a judicial system
in which there is cause for delay on behalf of the people who
are facing that system? Surely this is also a system in which
some of these decisions will be matters of life and death if people
are sent back to countries where they will face torture and repression?
Mr Lammy: Obviously I want to
ensure that anyone who arrives in this country genuinely fleeing
persecution and torture gets a fair hearing and that hearing decides
if that person is entitled to stay in this country. Beverley Hughes,
and I support her in this wish, wants that to happen initially
at the IND stage. I think that there are a number of things that
the Home Office has done to improve quality there. I remember
when I was first an MP in 2000 going down to Croydon, as they
invited you down, and the system there had a huge backlog. They
had just recruited new caseworkers, initial training was sparse
and there were problems. I think that situation has improved dramatically.
They are now sampling the cases, a second pair of eyes with a
second caseworker. They believe there is more work they can do
in terms of external assessment both with the Treasury Solicitors
and with the UNHCR, better country information and they are setting
up a panel of experts to make sure that country information is
currently relevant. There are more things that Beverley has indicated
they want to do at that IND stage, but it has improved. Let us
say that it does not work, that that genuine asylum seeker does
not get his case heard properly at that initial stage, of course
our obligation under the European Convention on Human Rights,
and I speak also as Human Rights Minister, is that you should
have an effective remedy of that initial decision and that effective
remedy should essentially be an independent scrutiny. That is
what we are putting in place in terms of the new AIT. Then we
are going further than that because we are then saying that if
we get it wrong there, if you can establish a clear error of law
that would have overturned that decision you can have a review.
I think that is a pretty thorough system and I know that the judges
that will be in the tribunal want to ensure quality all along
the line, and that will defeat those applicants who will seek
to play out the system in order to avoid removal.
Q274 Mr Dawson: Are you not placing a
lot of emphasis on the ability of IND to get the initial decision
making right? Is it not the case that the Home Affairs Select
Committee only said that they would support a move to a single
tier when there was evidence that that process was getting it
right and you cannot display that evidence at the moment?
Mr Lammy: I think that the Home
Office can. Their targets, their internal target and, indeed,
their external target, are that 80% of their cases sampled are
effective or better, and they are meeting that target. They can
demonstrate that improvement but there are more things that they
want to do. I think that looking to see what they can do with
the UNHCR will be very beneficial and it is right to show that
kind of external validation of the process that they are undertaking
and looking in the fast changing environment that asylum and immigration
is to ensure that their country information is supervised in a
sense by a panel, is moving forward quickly, and looking at what
more training they can provide for their caseworkers is a good
thing. We accept that asylum was an area where there was a rapid
increase in numbers in the mid-1990s onwards and of course we
responded by both recruiting more adjudicators and more caseworkers,
but those people have now been in place for a few years so I think
we are seeing the quality come through.
Q275 Mr Dawson: Do we not have an enormous
problem if we have only got a single tier of appeal? What about
the case of a person with a legitimate case for asylum which has
not been recognised by IND at the first stage, which is not recognised
at the only appeal level? That person has very, very little recourse
now under this proposed system. They can only go on a point of
law. They can only go with the backing of that single tier level
of appeal. Is that safe enough for people who, as I say, are potentially
risking their lives if they are sent back to the countries from
where they came?
Mr Lammy: I understand the concern
and I want to say that we have spent hours thinking about this.
What I need to emphasise is that the new AIT is not the old IAA,
it is not the old adjudicator tier, it is actually collapsing
our senior immigration judges in the old Immigration Appellate
Tribunal with the old IAA. That is the first thing. There are
some who say it is not a single tier, you have got two tiers within
one, but that is not strictly true. I believe that the quality
that will come about from more experienced judges sitting with
less experienced judges, the ability to have a panel from the
outset, which we have not got at the moment, and the ability to
review that decision if there is a clear error of law that would
substantially alter the outcome is going to be more than sufficient
to ensure that genuine asylum seekers get a fair hearing. There
will be better case management, and we cannot do that with two
tiers. There will be better case management with a single tier.
You have got a High Court judge as the President sitting amongst
his fellow judges seeking to lead and manage and ensure that they
are up to speed with the latest country information and all the
other things. That in itself in terms of quality will drive quality
up and I know they are working hard to achieve that. I know from
reading what Henry Hodge had to say to you that he is supportive
of that and believes that they will achieve that. I am confident
that the new arrangements are effectively about ensuring that
we have the specialist tribunals that we want to set up and that
is dealt with in one tier.
Q276 Keith Vaz: You sound like a spokesman
for the Home Office. You have quoted Beverley Hughes several times
in the evidence you have given this morning. Is that not the criticism
of your Department? The fact is that your Department is being
rolled over by the Home Office because of the numbers that they
have to get through on asylum and that is why the second tier
is being abolished, because you cannot guarantee the quality of
judicial decision making if you take away a whole tier of appeal
system, can you, Minister?
Mr Lammy: That is not true. I
am a spokesman for the Government and I am proud to be a part
of the Government. I am proud to work with Beverley Hughes and
the Home Office on what I think is a very, very important national
issue across the board.
Q277 Keith Vaz: You have separate responsibilities.
Mr Lammy: We have separate responsibilities
and if you will permit me, Keith, within DCA, if you want me to
speak in more legalese I can do that. It is essential for any
justice system that we have finality. It is not effective to have
cases going on for a year and a half, two years, three years.
That is the first thing. It is also important that we respond
to what is effectively an abuse of process, and you will be familiar
with an abuse of process, in a proportionate way, so we are balancing
fairness, our human rights obligations and going beyond our human
rights obligations alongside notions of proportionality and seeking
to deal with what is an abuse of process. You cannot have a situation
in which of the 70,000 appeals that are made of IND, 58,000 are
dismissed.
Q278 Keith Vaz: It is interesting that
you only bring the figures that show that there is a so-called
abuse of process but you have no figures on the backlog. One of
the judges who deals with this area, Mr Justice Ouseley, informed
the Committee that there was a growing trend for the Home Office
to bring appeals in cases where it was not represented before
the adjudicator and that this has contributed to delays in the
system. Do you know how many cases are taken to the next stage
by the Home Office when the Home Office just does not appear before
the adjudicator? Do you have any figures on those or is the judge
talking complete rubbish?
Mr Lammy: No. I think that the
Home Office has sought to increase the number of Presenting Officers.
The figures are that since October two-thirds of cases have had
representation by a Presenting Officer. They have just recruited
an extra 65 Presenting Officers and they want to see that number
grow. There are issues around the recruitment of Presenting Officers
and other things because these are effectively people who could
opt to be barristers, solicitors, other things, but want to present
for the Home Office. They have increased the numbers and two-thirds
of cases have representation. I think that must be a good thing.
You know that within our tribunal system it is not essential in
terms of effective justice for the Presenting Officer to be there.
Q279 Keith Vaz: Minister, I am not talking
about the Presenting Officer being there or not being there, I
am talking about a judge who has a lot more experience than you
or I, with the greatest respect, who deals with these cases on
a daily basis who says that the abuse goes the other way, they
do not even turn up to court and they are appealing. It is the
issue of the appeal, not the issue of not turning up to court.
There is a great trend. Are you aware of this trend? Do you have
any figures to give to the Committee on this?
Mr Lammy: Presumably those Home
Office figures are available. I have not got them in front of
me but I can make them available to you[3].
1 Note by Witness: There is currently no backlog
of family visit visas at the adjudicator tier but there have been
processing delays at the application and the appeal stages of
the IAT tier. Work is being put into place to deal with this issue.
The number of visit visa cases within the IAA at the end of December
2003 was 2,376 at the adjudicator tier; 663 at the IAT application
stage and 121 at the substantive IAT appeal stage. Back
2
Note by Witness: The average waiting times for Family Visit
Visa Appeals are as follows: Back
3
Note by Witness: The Home Office do not record this information.
It may be helpful for the Committee to note that an average of
33% Asylum Adjudicator appeals for the 6 months between July 2003
and December 2003 were not represented by the Home Office. Back
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