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UNCORRECTED TRANSCRIPT OF ORAL EVIDENCE To be published as HC -i House of COMMONS MINUTES OF EVIDENCE TAKEN BEFORE CONSTITUTIONAL AFFAIRS committee
Asylum and Immigration Appeals
Tuesday 13 January 2004 HIS HONOUR JUDGE HENRY HODGE OBE, MR CHARLES BLAKE and RT HON LORD NEWTOWN OF BRAINTREE OBE Evidence heard in Public Questions 1 - 65
USE OF THE TRANSCRIPT
Oral Evidence Taken before the Constitutional Affairs Committee on Tuesday 13 January 2004 Members present Mr A J Beith, in the Chair Peter Bottomley Ross Cranston Mrs Ann Cryer Andrew Rosindell Mr Clive Soley Dr Alan Whitehead Keith Vaz ________________ Examination of Witnesses Witnesses: His Honour Judge Henry Hodge OBE, Chief Adjudicator, Immigration Appellate Authority; Rt Hon Lord Newton of Braintree OBE, a Member of the House of Lords, Chairman, Council on Tribunals; and Mr Charles Blake, Council of Immigration Judges, examined. Chairman: We are very glad to have your help in our inquiry on asylum and immigration appeals which began of course before the Government brought forward its legislative proposals for pretty major changes in the system and those changes will form the future and please feel free to refer to them when you deal with our questions. Q1 Ross Cranston: I want to start with the appellate, the second tier, and can I ask in general terms what is the purpose of the second tier and, in particular, is it simply to correct errors of law or has it got a function beyond that? His Honour Judge Hodge: Currently you mean? Q2 Ross Cranston: In general and, in theory, given the Leggatt Committee's recommendations about tribunals, what is it actually there for? His Honour Judge Hodge: Well, at present we have within the Immigration Appellate Authority this two-tier system and until the 2002 Act the second tier was able to look at both fact and law in relation to the appeals at adjudicator level. From the 2002 Act, it has been limited to areas of law. Whether that has made a huge difference or not is currently unclear, but when you look at the numbers of cases that go through, something like about a half historically of decisions by adjudicators are subject to permission to appeal applications to the current second tier. In about a third of those, those permissions are granted and of that group of cases, about half either are remitted or allowed and it has become very 'of jurisdiction' in the sense that hardly anybody ever accepts any decision made by the system, which is presumably where the Government is coming from, I do not know, in relation to trying to cut down the tiers. Q3 Ross Cranston: I do not know whether, Lord Newton, you have a wider perspective on this. Lord Newton of Braintree: I think I would probably rest on the proposition of the Leggatt Report which, as you will be well aware, I am sure, recommended a two-tier system of all tribunals generally and the introduction of a second tier in those areas where it did not exist, and saw it, I think, as contributing to what it described as, I think I have got the words right, coherence in the development of the law and promoting consistency effectively at its own level and in the first-tier tribunals. Now, that is a fairly high level of generality, but traditionally I think that has been seen as the function of a second tier. Q4 Ross Cranston: And would you say it is always necessary then, a second tier? Lord Newton of Braintree: I am saying that Sir Andrew Leggatt, in his report Tribunals for Users, which was what sparked off the current proposals for creating a unified tribunal service, suggested that there was a need for a second tier of one kind or another across the board. It already exists of course with quite a number of tribunals, like the Office for Social Security Commissioners, for example. Q5 Ross Cranston: But I guess Judge Hodge has raised the issue, and correct me if I am wrong, that you do not necessarily need this second tier in this area. Is that the implication maybe? Lord Newton of Braintree: Well, that is clearly the Government's view for various reasons. Q6 Ross Cranston: That is what we are testing here. Lord Newton of Braintree: But also, I think, one needs to take into account the fact that there is an ingredient in the current proposals for what is described as a single tier with a special review mechanism at which it can be looked at, but the Department for Constitutional Affairs does not much like this terminology, as I discovered on one occasion when talking to them, but you are almost creating a two-tier system within a single system and it is not quite the same as the one we have at present. Q7 Ross Cranston: I was going to come on to that, having one mechanism within the one Tribunal, and I guess in principle there is no objection to that. In the common-law world in smaller jurisdictions they do not necessarily have a court of appeal, but they will constitute the appellate court from the existing judges and simply have a full bench of three or five or whatever, so there is no objection in principle, but what practitioners have said to me is that it is necessary to have a broad appellate system to provide that sort of consistency and so on that Leggatt was talking about. Lord Newton of Braintree: Well, that certainly has historically been the view of the Council on Tribunals and it was Sir Andrew Leggatt's view and those are just matters of record really. His Honour Judge Hodge: No final decision has been made about how, as Lord Newton says, this Tribunal within the tribunal system is going to work, but it will certainly have a role in laying down guideline cases which the fact-finders and deciders or judges doing the first hearings will have to follow, so there will be lots of mirrors to the position that currently exists. Q8 Ross Cranston: Has any thought been given to whether they would be special adjudicators constituting the appellate body or would they be the more experienced ones or how would that actually operate to give this coherence, competence and guideline law-making capacity? His Honour Judge Hodge: Two groups of judicial officers are going to come within the ambit of the new Tribunal, a smallish group, who are the current vice presidents, who number about 30 full-time judges and are the judiciary in the Immigration Appeal Tribunal, and there are about 160/170 adjudicators who are coming into the system, and there are part-time members of both of those tiers. I think the expectation is that the role of the review body within the single-tier Tribunal will largely have to be "personed" by the people who are currently vice presidents, although one proposal is that they may sit in panel or consider cases in panels and it might be sensible to have somebody from the adjudicator tier in the panel of three. Mr Blake: Can I just add two short points to that, Mr Cranston. I think the Committee may want to be aware that in one sense we already have something approaching a single tier because a number of part-time chairmen, not vice presidents because they are full-time, but chairmen of the Tribunal are existing adjudicators who might hear cases as adjudicators for, say, three days in one week and then might go off to the Tribunal to hear four appeals on that day, clearly not for themselves, but from other adjudicators, so to that extent we have already moved some way towards that. The second point, and I think you were perhaps suggesting this, is that the function of the second tier may properly be said to be two-fold: firstly, to correct errors in individual cases just as that is the function of any appellate court, "Did the procedure go wrong and are the findings of fact justified by the evidence?", and that sort of thing; and, secondly, what I might call 'issue litigation', "What is the present state of knowledge about the circumstances in Ruritania?", say, and "How should such cases be dealt with?" At the moment the Tribunal has brought out, because we represent people who sit on the Tribunal as well, a number of decisions which are reported, dealing with very much that topic, issues about conditions in Turkey, Sri Lanka, anywhere you can think of. Q9 Ross Cranston: Would they be picked up under the proposals as matters of law? Mr Blake: Well, that is not very easy to say. I think Judge Hodge may prefer to answer that. It rather depends, as Judge Hodge was indicating, on how precisely that system works. The new President will have the power to refer on a case-by-case basis, I think, but rather sparingly, I suspect, cases to the Court of Appeal that raise important matters of issue on a sort of referential basis, which is something we have not seen before in our public law in this country. Q10 Ross Cranston: I do not know whether you want to supplement that. His Honour Judge Hodge: Guideline cases on countries will almost certainly be a regular feature, I would think, of the group doing the reviews. One thing you can do is you can select out cases and say, "There has been a new problem in Ruritania; there has been a revolution and lots of people are coming here to claim asylum. Let's have a look at the background country information and give guidance to the mainstream judiciary", and we will take seven or eight cases and look at all the features and do it that way. That makes sense and the tribunals, as Charles Blake says, do that kind of thing already. Q11 Ross Cranston: Finally, could I ask the converse of what I have been putting so far, which is whether you can see any disadvantages? It is quite helpful for Mr Blake to say that the system in a way is moving towards this, but are there any disadvantages from collapsing the appellate system into this one Tribunal? His Honour Judge Hodge: Well, what the administration, the Government and many commentators are very concerned about is speed and one advantage of having a truncated appeal system is that it gets cases through quickly. From the other side, from the appellant's side, speed may mean that it is difficult to do full and proper preparation and collect extra evidence, so that could certainly be seen as a disadvantage by cutting down the size, as it were, of the Tribunal. Lord Newton of Braintree: I think one point I would want to make and the Council would want to make is that the grounds on which the review may go anywhere, so to speak, are really very restricted indeed and, as we all know, any right of a further appeal is either very restricted in the terms that have just been mentioned or is sought to be cut off altogether by the 'ouster' clause, and we have a number of worries about the way in which the review system works, for example, that it is all to be done on paper without oral hearings, but those are points of relative detail. I think the biggest single potential problem is that it has been very clear from what has been said already, and it is a point the Council made, I think, in its supplementary memorandum to you, that the proposals taken as a whole for the single tier, so-called, are going to put a huge amount of responsibility on the President for the development of the law in a way that is currently more widely shared. Q12 Ross Cranston: Mr Blake, is there a view of the Council of Immigration Judges? Mr Blake: Well, I do not think I need add anything to what Lord Newton and Judge Hodge have said, and this is very much a policy matter for the Government. We can see the point that, absent an ouster clause, it would be difficult to move even further towards a single tier than I was suggesting we had done already because it would allow cases to go onwards. I am not going to discuss the merits of the ouster clause here because that is a matter of policy for the Government and a matter for the higher judiciary in terms of construction and interpretation, but I agree with the points that the last two speakers have made. Q13 Peter Bottomley: I do not want to get involved too much with the detail of the statistics, but I interrupt myself to observe that the proportion of decisions allowed on appeal is higher than the Home Office statistics because they take as their large number those cases withdrawn and remitted anyway. Having said that as a preliminary, if, in the Council on Tribunals' annual report, it is shown that a year or two back the success rate was running at about 25% of the adjudicator level and nearly 30% of the Tribunal level, does this support the case for retaining a second-tier appeal or is there a case for not having it? Lord Newton of Braintree: Well, I suppose that any relatively small success rate, which is true also of a number of other tribunals, could be held up as an example that you did not need so many tribunals. It is a slightly strange line of argument because, after all, the whole process rests fundamentally on the argument that the citizen ought to have a fair right to challenge the administrative decisions and it is normal in most cases that that has been taken, not all, I accept, as having an initial Tribunal hearing and then the right to appeal to another one. That is, if you like, the commonest pattern. I do not think you can build too much on the statistics, is really what I am saying. Q14 Chairman: You implied by what you said that you thought that 29% was a small success rate. Lord Newton of Braintree: Well, it is actually quite a significant success rate. It is higher than with quite a number of tribunals, but I am afraid I have not got in front of me some great table of statistics. His Honour Judge Hodge: The success rate conceals a two-tier success rate system. About half of the cases are remitted back to be reheard and they go around the mill and I regret to say that occasionally they go back around the mill, so in terms of quality control, you have not actually necessarily got a different decision, but you have got an order for a rehearing and it may be that when it is reheard, some other decision is made - who can tell? Q15 Mr Soley: Can I clarify this because I do not actually understand it. Are you actually saying that the rate of appeals, that the statistics given are actually not quite meaningless, but not accurate? His Honour Judge Hodge: No, because I think the statistics show something called the "allowed" or "remitted" and remitted means that there was a mistake in fact or in law until recently, but the Immigration Appeal Tribunal say, "We can't now decide it. It must go back and be reconsidered by an adjudicator", so there is in classic terms a certain amount of churning of those kinds of cases. In a year there were something like 5,000 cases allowed or remitted, this is in 2002, and that will mean that about half of them go back to be reconsidered by the adjudicators and the other half are allowed. Now, "allowed" may mean that a Home Office appeal is allowed or an asylum-seeker or immigration claimant appeal is allowed. Q16 Mr Soley: An awful lot rests on the interpretation of these statistics actually in terms of whether this system is working or not. Is that not right? His Honour Judge Hodge: I think if you have any judicial system where there is an appeal right, it is going to be used and judgments about how well or otherwise the system is working do not necessarily respond to what the decision on the appeal is. I do not think it follows quite like that. What I am most worried about, or not worried about, but what I have been trying to make sure we continue to be sensible and good at at the adjudicating level is producing a decent quality of decision. To do that you have got to have good and sensible adjudicators, and I am pleased to say that they are, and you have got to train them sensibly when they come in, and we have put a lot of time, effort and money into that over the last two or three years and new appointees get a good training, and they are retrained and there is refresher training every year, plus they are kept informed - it is my experience anyway, and I have been involved in quite a lot of judicial areas - about developments in the law by an extremely good system of information exchange coming from what is called our Legal and Research Unit, so our aims to keep our quality high continue all the time. The big challenge, I think, for the judiciary under this new system will be to do that and to make it even better than it currently is. If that happens, then the worries that people have about bad decisions or poor-quality decisions will be ameliorated and the way in which the Government have put in an amendment now which softens the review process where it is now going to be on the basis of a clear error of law will, I think, help in that process. Lord Newton of Braintree: Can I just express my agreement with that and indeed take the opportunity to pay a compliment to some of the work that Henry Hodge has done to improve the working of the asylum adjudicator system because it is true that whether you have the present system, where too much ends up being remitted back to the asylum adjudicators because it was not got right in the first place, or a fortiori within the new system getting that initial decision, getting the quality of the initial appeal decision higher than it historically has been must be an important ingredient. That would be true of both the present system and the proposed change. Mr Blake: I would just add one thing, if I may, to what Judge Hodge and Lord Newton have said. I entirely agree with them. For our part, we would like to see a provision in the current Bill - difficult to draft, I suspect - that would free adjudicators, if that is the right word to use, to become Tribunal members and judges from the trammels of what arguably is an excessively adversarial system. I think it is very difficult to give what the courts have said we must give, and that is acts of scrutiny to asylum appeals - ordinary immigration appeals are slightly different - if we are bound very strictly by adversarial procedures and we cannot adopt a more interventionist mode of procedure. Now, that needs careful discussion and it cannot be done, I fear, in terms of detail around this table today, but during the course of the Bill and perhaps discussions on how, if the Bill passes, the new system will be implemented, we would hope that there would be room for that kind of approach. Q17 Peter Bottomley: The quality of the papers we have had, which we will surely publish with our report, show the kind of thinking, the areas where people have got expertise and their ideas of how things can be made better, and we have to accept that the Government and Parliament have to make rules which both allow people fairness and maintain, bluntly, immigration control. I think we ought to be careful about using the term "success rate" as being only things where some of the decisions have been overturned as success. The fact is that some of the decisions being upheld are a success just as much, if that is right, but the question, I suppose, in front of us in part is that if we had the number of court rooms go up nearly five times in three years from 32 to 150 odd and a significant number of people brought in to preside in them, whether the quality of decision-making remains the same, and we have heard from Judge Hodge and the Chairman about the training which is valuable, but we still have to pay some attention to the numbers. Mr Henry Mitchell has made some suggestions that the workloads put a lot of pressure on adjudicators and there is a difficulty of the Home Office in providing enough people to appear at hearings, which reinforces Charles Blake's' point about the potential value of the person behind the desk being able to ask questions rather than just hear a one-sided argument. How far do those sorts of things influence the outcome of hearings? His Honour Judge Hodge: The presence or absence of a Home Office presenting officer can often be very important indeed. The Home Secretary does not have his case fully put which takes us back to the other issue which relates to quality which is the quality of decision-making by the Home Office. I do not know if you are interested in that, but the better the quality of decision-making by the Home Office, the greater the care they give to the cases before they come to us, the fairer the decision is going to be made in the first instance for or against the person making the claim and the more likely the judiciary are to make a fair decision on the back of the way in which they have handled the case. They may agree or disagree with what the Home Office have decided, but when you do not have anybody presenting the case and you have got an adversarial position, the Home Office are likely to be in some difficulties. Then again the case may be so clear that the lack of a presenting officer in the particular case does not make any difference. What I think I can say, having come into the jurisdiction two and a half years ago, is that good-quality representation by either side makes a very real difference because good-quality preparation and good-quality representation makes as great a difference as I think it does in lots of areas perhaps because the rest of the preparation and presentation is not as good as we would like it to be, so a good presenting officer does a great job. Q18 Chairman: I have got a point on that. Based on our discussions with entry clearance officers, is there not only a frequency of absence of presenting officers from the Home Office, but also quite a lot of instances where the presenting officer clearly has not had the papers for long enough to present the Home Office's case effectively? His Honour Judge Hodge: The presenting officers get their cases at best 48 hours beforehand, unless it is a particular case of particular interest where somebody has highlighted the need to have a particular presenting officer on it, so they are told by our system what is going to be on in 48 hours and they have a set amount of time to do the preparation, which is a shorter time than is given to many of the representatives for the appellant, I suppose, but again if the preparation has been done well by the Home Office beforehand, that means the need for lengthy time doing the actual preparation and representation is reduced. It is sort of which comes first. Q19 Peter Bottomley: I have two last points. We have seen an increase in the proportion of appeals which were allowed or remitted and we have seen a more recent decrease. Has that sort of curve or shading been affected by being out of control and now back under control or is there some other influence? Lord Newton of Braintree: It would be a matter of speculation. I think probably Henry would wish to say that it partly reflects his efforts to improve the quality of decision-making. His Honour Judge Hodge: There are all sorts of guesses you could make and that would be one. The Home Office have put a lot of effort into getting rid of their backlog. As Mr Bottomley has pointed out, we have increased the number of judiciary and the number of hearing rooms and my adjudicators have done, I think, a magnificent job in dealing with the large numbers of cases that are coming through at high pressure and at speed. A lot of the older cases which are appearing from some old Home Office files, which have been sitting there waiting to get through, were more poorly decided than the current ones, and that undoubtedly also will have an effect on the successful appeal rates. The badly prepared, not perhaps as well presented as they might be are more likely to have an adverse result, from the Home Office's perspective. It may be that when you get a new group of judges in doing something, they are a bit more liberal or lenient than they are otherwise, which also may have an effect in the rise and fall of the figures, but there are so many different things. What countries are involved in the Migration Watch, they highlight the fact that in the early 1990s the success rate was very low. This was before we had problems with Afghanistan and Kosovo was not as difficult as it is, and the concept of low may be that they were just doing what the Home Office wanted them to do rather than otherwise. I am not suggesting that is the case, but it is difficult to play around with these stats, although we can do, if you want. Q20 Peter Bottomley: I am always aware of course that it is perfectly permissible to use the expression "Migration Watch", but in our case it has always been good enough to be one of Her Majesty's ambassadors or somebody else has been good enough to be a part of the judicial system, but when one has looked to see what they have actually said and in a way the way anybody has given the answer, it is useful because it talks about dates and places and times and real influences. Is there any way that changes in the efficiency or effectiveness or economy of the judicial system can make much difference without the Home Office being able to help their own staff do better both at the time of entry and in the preparation of cases? His Honour Judge Hodge: Well, that is the point that Charles Blake has made and which floats around within the jurisdiction among the judiciary which is that if we were more inquisitorial rather than very court-based, as you have seen, and adversarial and "Your turn, my turn", if there were more interventionist judiciary, that might be a way forward, but at the moment I am personally sure that the way forward is high-quality decision-making by the Home Office and us getting it right first time on our appeals which means high-quality work that we do too. Q21 Chairman: I must say, my mercifully brief observation of some of these hearings is that they are characterised by significant periods of silence in which the adversarial parties, particularly on the Home Office side, try to work out how to respond to the point they had not thought of. Is that an unfair picture? Mr Blake: No, it happens. Can I just add to that another factor which is that I think many adjudicators are far from persuaded that the Home Office, and it is very easy to criticise this great, largely unreformed Department of State that is the Home Office and one must be fair in doing so, but I am troubled and our members are troubled by the question of whether entry clearance officers abroad and those who prepare decisions on appeals, particularly in asylum, but also in immigration cases largely in Croydon, but other places as well, are given any significant feedback similar to the formal training that Judge Hodge has rightly stressed is given nowadays to adjudicators. We are not sure that that happens. We cannot say we have a very perfect knowledge of the system precisely because we do not really know, but it does not cry out that that is happening. Chairman: That is a point we are looking at and may refer to. Q22 Mr Soley: Can I just clarify how conscious you are of the political importance of the argument about the success rate of appeals. It is seen in public that if an appeal succeeds, that is seen as overturning the other judgment, and I know the subtleties of this, but that is how it is seen. If, therefore, we talk about a quarter to a third of cases being overturned on appeal, that can feed two ends of a very hard argument, one of which says that we are sending people back to torture, death and human rights abuses, the other of which says that this is just a way of stringing out the appeal process in order that someone can stay in this country as an illegal immigrant a bit longer. How much do you think the statistics feed those two arguments in a way that is actually false? Lord Newton of Braintree: I find it very hard to say how far I think they feed the argument in a way that is false. I think that certainly from the Council on Tribunals' point of view the fundamental issue, though I accept the political importance of what you have said, is to ask whether this is a system, or two systems as it is at present, two tiers, which gives people a fair and effective hearing of their dispute with the State. I personally would not actually want to build too much on arguments based on statistics, but of course, as somebody who had a very long political career, I recognise the political point that you are making. His Honour Judge Hodge: Well, I do not want to, but I am going to play around with statistics a bit. I have got in front of me information of a 13-day period in which we heard 85,000 appeals, of which 65,000 were dismissed and 16,000 allowed. Now, 16,000 is around about 20%, so we were allowing about 20%, and then of all the cases, 33,000 permission applications were made, so about a third, just under a third, they try and go after the IAT and of that only about a third of those permission applications are allowed. That only leads to about 10,000 hearings or something like that and of those, about half get allowed or remitted, whatever allowed or remitted means, so I do not think it is fair to say that we are talking about a 20% success rate through the appeal system. We are talking about in fact something around 6 or 7% of cases that are changed from the time they start with us to the time they finish with the Immigration Appeal Tribunal. Now, you can argue about whether that is a good thing or a bad thing. I would have thought it was pretty likely that it would be something along those kinds of lines of figures if that did happen. Within the adjudicator tier, we obviously have some statistics and we are concerned, I am concerned as a sort of judicial manager, about how the whole system is working, but we never look at and never praise, blame or raise with our judiciary issues around the levels of grants or refusals of appeals that they make, so it does not figure in our kind of thinking about how they are doing within their work, either in their mentoring or appraisals or anything like that. We had been concerned about adjournment rates and we have brought those down very significantly over the last two and a half years. It used to be about 30% of cases were adjourned when they came before our adjudicators and it is now down to about 15% and I do not think we can get it very much lower than that because of all sorts of obvious reasons, sickness and people not turning up for one reason or another, so the success/failure issue is much more complicated than the newspapers would have us believe, in my view. Dr Whitehead: I too am puzzling about the significance and veracity of statistics which have been presented to us because the Home Office statistics include in the total return the cases withdrawn, whereas the Council on Tribunals, I note, as it were, withdraws the cases withdrawn before deciding which cases were determined and then produces the cases successful which, as we have understood, are not necessarily cases successful in the way they would understand it from that figure, after withdrawing the cases that have been withdrawn. Therefore, it seems to me that the Home Office statistics suggest the allowed, which again is a different method of describing cases, as being on the low side, whereas the Council on Tribunals puts them on the high side. We have also heard this morning that a much higher proportion than I had anticipated were actually what one might call circular cases, which is cases that go round and come out again roughly in the order that they originally went into the system. Would it be possible, I wonder, bearing in mind what appears to be frankly a very unsatisfactory state of affairs in terms of being able to understand what actually happens, to clarify this matter before this hearing ---- Q23 Chairman: Yes, it might be useful if you gave us a note afterwards just refining the statistics in the light of some of the things you have told us this morning. Lord Newton of Braintree: And we will certainly seek to do what we can to contribute to that. I must admit, I had not come along prepared for a long technical argument about the difference between one set of statistics and another, not least because I am sometimes sceptical about some of lessons that are drawn from statistics, and indeed the way in which they produce different figures if presented differently is a real classic of an art that I used to practise! Mr Blake: I have seen the figures in asylum appeals, and I do not know if any of these gentlemen to my right can confirm this, but they show that sometimes 50% of those refused asylum appeal in the first place because if you are looking at overall success rates and outcomes, you have to take into account the number of people who do not appeal and the number of people whose appeals fall away on the way not necessarily by consciously withdrawing the appeal, but just not turning up and never putting in any papers so that one is left with no alternative, but to dismiss the appeal. Then again of course, and I know it is not the subject of this Committee, but it has been the subject of the Home Affairs Committee, is the subject of whether people who do not appeal and drop out of the system are eventually removed, but that is another thorny, political subject which I will not take you into. Q24 Mrs Cryer: Given that we are moving towards a single tier of appeal and that the Bill does not require that the President of the new Tribunal should be a High Court judge as is presently the case with the Immigration Appeal Tribunal presidency, can I ask all of you whether it would undermine the status of the Tribunal if the President was not a senior judicial figure? His Honour Judge Hodge: Can I just say that the Government put down an amendment just recently making it clear that they intend that the President should be a High Court judge or above. Q25 Mrs Cryer: So my question is irrelevant in that respect? His Honour Judge Hodge: Well, it is not irrelevant. It highlights the fact that since the Bill was drafted, they have either changed their mind or responded to somebody, but anyway it is in there. There is a short sheet of amendments which have only very recently gone down which include that and change the review right to being a clear error of law rather than the very restrictive review that is in the Bill, so they are going to get a High Court judge, like it or not. Q26 Mrs Cryer: So you are all happy with that? Lord Newton of Braintree: Well, I have been made much happier by what Henry has said in the last few minutes because all of my instincts were to say, and I am pretty sure the Council on Tribunals, though they have not considered this particular point, would take the view that if, as was implied by your question, it ought to be a High Court judge, but I did not want to upset Henry because I have a very high regard for him. Mr Blake: We all have a high regard for Judge Hodge, if I may say so. Can I just say, Mrs Cryer, that there is nothing in the existing legislation that says, I think I am right, that the President has to be a High Court judge. His Honour Judge Hodge: It does in the 2002 legislation. Mr Blake: Well, then I stand corrected, but I might add that if we do move to the single tier that is envisaged in the Bill as amended and re-amended or not, there will be a high premium placed on what I might call the "managerial skills" of the High Court judge who was appointed. It is not a matter in which High Court judges have traditionally been trained or had to act, but we concede, and Mr Cranston, I am sure, will be familiar with this, that in the administrative court what used to be the Crown Office judicial review, the judicial management has been a great success and it has been throughout, I think it is fair to say, the system of civil litigation since the reforms inaugurated by Lord Woolf, but the new President will have to be as good a manager, I venture to say, as a judicial figure. Lord Newton of Braintree: Could I just add, Chairman, and in a way this picks up a point I made earlier on, leaving aside questions of personality, so to speak, it is clear that quite a large responsibility would rest on the President of the new Tribunal because of the review proposals, and whether you call it a second tier within the system is a purely semantic point, but whatever you call it and however it works, it is going to be a big job to make sure that it works well and fairly, and I think that does point to a High Court judge. Q27 Mrs Cryer: Can I ask all of you whether you have any concerns about the proposal that the majority of appeals will be heard by a single judge? Mr Blake: Can I start off answering that as representing the people who, if that is the position, will have to decide them. In this jurisdiction we have a system really rather dissimilar from all other tribunals, as Lord Newton will confirm, where you often get a lawyer chairman and one or two lay members. The adjudicators at the moment sit entirely on their own. There is provision for a number of adjudicators to be brought together, two or three, but I do not think that has been exercised since Judge Hodge became Chief Adjudicator. It was exercised in a number of important cases about Afghanistan, the people who hijacked the aircraft to Stansted. I think there are mixed feelings about this. Many adjudicators find the task of fact-finding extremely difficult and onerous. We are all trained lawyers but, and this is a matter we have been discussing with Judge Hodge, the training in what I might call fact-handling, and that is a bit of shorthand for a complex array of disciplines and learnings in the law of evidence, training in fact-handling is complicated and difficult and many of us think there is room for a bit more of it. Whether adjudicators would like to sit with one or two other members, I am not so sure. I think it would lengthen the hearings and lengthen the time taken to write decisions because they have to be circulated and that sort of thing, so I think if people come into this jurisdiction, they must expect that they will have to sit for long periods on their own and work things out with perhaps the addition of some training, as I have indicated. Lord Newton of Braintree: Historically the Council on Tribunals has always been very supportive of panels and lay members, but I think it would be fair to say that it has placed rather less weight on this in recent times and I do not think we have sought, though this could go back before my time, but I do not recall us having made a big issue of it in respect of the adjudicators. The point I think I would want to make, however, alongside re-endorsing, as it were, some of the points Henry Hodge made earlier on about the need for good training, support, mentoring and information if you are going to have that situation, is that I would be much more unhappy and I think the Council would be much more unhappy if the reviews were even on the basis proposed, so if it was to go from one single judge to another single judge, I think Henry in his earlier comments indicated that one of the lines of thought is the possibility of a panel and I think I would want to suggest that that probably would be the right way if we are going to have this internal review arrangement. Q28 Chairman: Looking further at that internal review arrangement, you spoke about the grounds for the Government being willing to amend the basis for that, but can you say a little more about it? His Honour Judge Hodge: I think this has been tabled very, very recently, towards the end of last week. The grounds for review are going to be "a request that the Tribunal's decision would have been different, but for a clear error of law by the Tribunal identified in the request for the review". The current Bill says, "mistake of statute" effectively which is really incredibly limited, whereas this says, "a clear error of law identified in the request for the review", which is quite wide. What "a clear error of law" means as opposed to "error of law", Chairman, your guess is as good as mine. Q29 Chairman: Does that redrafting reflect advice you have been given or meet concerns that you have expressed adequately? His Honour Judge Hodge: It would not be fair to say that it has met concerns that I have expressed in relation to that, but there has been a huge amount of concern about the very narrow grounds for review. As Lord Newton said at the beginning, we are really finishing up with an internal review system which has some characteristics of a second tier, and making it wider than it currently is, making it "error of law" is something that those of us who had some consultation role before this happened were always saying was important. The most obvious thing is that it is an error if it is in fact an error of law to ignore completely some crucial fact which you ought to have covered in your decision as a judge and the Bill would not have allowed that to happen within the review process, which would have been a bad hole Q30 Chairman: And are written submissions as a basis adequate? His Honour Judge Hodge: Again they have slightly slackened - no, that is the wrong word ---- Q31 Peter Bottomley: Adjusted? His Honour Judge Hodge: Thank you, Mr Bottomley. The Tribunal or the review panel can in exceptional circumstances hold an oral hearing and one would expect, as we develop this policy as the whole thing goes ahead, that the President and the senior judicial officers and perhaps the procedure rules lay down the types of cases as to when that might be appropriate. What we were talking about earlier, say, you wanted to give guidance on what is happening now in Ruritania, you might say, "We are going to have an oral hearing about that so that we can hear from immigration law practitioners who know about this sort of thing and the Home Office and get a decent rounded decision". Q32 Chairman: Are you at all concerned that even with these adjustments, that reduced scope for correcting errors might lead to a more slipshod approach at the earlier decision-making stage? His Honour Judge Hodge: From my perspective, a great task, and it is almost repeating what I have said before, is to make sure that we get it right and that we are not slipshod. Now, one of the things we are talking about is having, and there is a phrase in the legislation talking about, judges with supervisory roles. We need time to do this and we need space, but we might be able to do better case management of the cases than we do at the present to make sure that the relevant case is getting in front of relevant judges, improve the discussion-making, and if we can reduce the pressure of work also, enhance the training, make sure that appraisal and mentoring systems work well and allow the judiciary to deal with, say, two cases a day as opposed to the three or four that they deal with at present, then I think there is a good chance that we will do an even better job than I think we are doing at the moment Q33 Andrew Rosindell: Could I ask whether you support the Government's proposal to exclude the supervisory jurisdiction of the higher courts? Lord Newton of Braintree: Well, the Council on Tribunals of course has submitted a supplementary memorandum to you which I am sure you will have had a chance, or at least I hope you have had a chance to look at. Chairman: Mr Rosindell has only just joined us, so he probably has not. Q34 Andrew Rosindell: Yes, this is my first meeting Lord Newton of Braintree: Well, in a nutshell, the Council has made clear that it is very unhappy, and I think the phrase used in the memorandum is that it is entirely wrong, that decisions of tribunals should be immune from further legal challenge. Such immunity must be detrimental to the maintenance of judicial standards in tribunals, and that is the view that the Council has committed to paper to you and I do not think I want to elaborate it particularly, but our members do feel quite strongly about that. His Honour Judge Hodge: The Chairman will know that there was a memorandum exchange between Sir Hayden Philips and the Lord Chief Justice, Lord Bingham, when he was in that job, about judges giving evidence to select committees and one of the things we do not do is comment on absolutely key bits of policy, so I am quiet on this subject. All I say is that if the ouster clause, as it is known in the trade, if I may call us that, if that is the result of your deliberations and the Legislature passes it, it puts an even greater premium on us getting it right and us doing a good job and we need good resources so that we can do it properly. Mr Blake: I respectfully agree with my learned Chief Adjudicator and especially what he said about not commenting on policy matters. It is not quite as narrow as that because there is a provision for the President, as I was saying earlier in answer to Mr Cranston, to refer key issues to the Court of Appeal. I am not quite sure how that will work, but it is there. Could I just add something, really going back to the last question, which is that Judge Hodge drew attention to the powers in the Bill to make procedure rules, conferring on members of the new Tribunal responsibility for, and the key word is, "supervising" other members and staff, but staff is a managerial one. For our part, we are a little concerned about the word "supervising"; it suggests that one judicial officer could indicate, tell or direct, to put it at its worst or lowest, highest, I do not know, some other judicial officer how to decide a particular case. I am sure that is not intended, but, as it reads, it could cover that. Q35 Andrew Rosindell: Mr Blake, in the written submission of the Council of Immigration Judges, it was suggested that there should be an introduction of a reference procedure. Mr Blake: Yes. Q36 Andrew Rosindell: Could you perhaps tell the Committee what you feel the advantages are of such a procedure and does it, in your view, obviate the need for any further right of appeal of a judicial review? Mr Blake: Well, of course when that memorandum was written, and I think that was back in last March or April, something like that, the Government had not then said that it was going to move to a single tier and certainly no Bill had been published, so that suggestion was really advanced or proposed in the context of the existing two-tier system and it just seemed to us that there might be possibilities of identifying at an early stage, and they would be at a premium under any new system, issues about certain countries or about certain types of appeal, and they do not have to be confined to asylum appeal, but might be referred to the higher courts for a view to be taken just as I think the analogy I had in mind when I wrote that was a reference by a national court in this country to the European Court of Justice in Luxembourg of a legal issue or matter of interpretation, construction or application of a Community law. When we wrote it, we did not have in mind, I think, that it would obviate other forms of appeal and that takes me back to what Judge Hodge said about the ouster clause which is not a matter on which I would wish to comment. Q37 Andrew Rosindell: Finally, could I ask whether you would have preferred to see the implementation of the Government's original proposal to elevate the IAT to the status of a superior court of record? Mr Blake: Well, the reason for doing that and the advantage, if it be an advantage, would be that judicial review cannot lie in the High Court against another branch or body, so it is itself a superior court of record. The High Court cannot judicially review itself, putting it fairly crudely. It would have overcome the problem, if there is a problem. I think, and I may be wrong about this, but I think that may have been advanced in the context of what the Government saw as the large number of challenges to refusal by the existing Tribunal of leave to appeal to itself. It then introduced in the 2002 Act a form of statutory review which does not obviate judicial review, but it simplifies it and cuts it down, and it is done on paper only. As far as I am aware, that is working quite well. I do not know if Judge Hodge has any statistics about the number of cases that have been reviewed, but they go to the High Court on paper. The Tribunal refuses leave of appeal and says there is no point of law, or there is nothing on which you can argue, and the papers go to a High Court judge and very speedily, without oral hearings, whatever one may think of that, the Court deals with them. I gather the statistics (from what I heard from the then supervising judge at a talk he gave to the Administrative Law Bar Association some months ago) were that about 25% of the statutory reviews challenging refusal of leave to appeal were succeeding and the Tribunal was directed to grant leave to appeal. I think that may have been the context in which the Government advanced or canvassed that proposal. That has not been introduced and it is not the way it is dealt with in the Bill. Lord Newton of Braintree: As far as the Council on Tribunals is concerned, because we have been focussing on the proposals that are in front of us at the moment, we have not recently addressed that question, but I would hazard a guess that were the Council to be asked your question its answer would be, "Yes". I should just make it clear that the Council's position about rights of appeal to the courts on points of law is something that it has consistently over the whole of its 40-plus years' existence taken in respect of all its tribunals. Indeed, for the Council, there is an historical irony because the Act that set up the Council on Tribunals also contained provisions which stated, as we said in our memorandum, all then existing statutory provisions purporting to oust the courts' supervisory jurisdiction were deprived of that effect by the Act which set us up. In a way it is part of our history. Q38 Ross Cranston: Are there any other examples of this reference power - the Tribunal being able to refer matters to the Court of Appeal or the High Court? Lord Newton of Braintree: Not that I am immediately aware of. I have a legal adviser within earshot who might be able to jog my memory in a moment or two, but I am not immediately sure. Q39 Ross Cranston: He is not shouting so I suspect the answer is no. Lord Newton of Braintree: No, he does not know of any. His Honour Judge Hodge: I agree and have nothing to add. Mr Blake: I tried to trace this some time ago and I could not find any such provisions. Q40 Dr Whitehead: Could I turn to the question of proceedings and the immigration appeals. Mr Blake, the Council of Immigration Judges suggested that appeals might become rather more inquisitorial rather than adversarial. Indeed, Judge Hodge, you suggested something along those lines earlier on in your comments. What are the grounds on which you suggest that? Mr Blake: I was beginning to deal with this a few questions ago. As I said in relation to asylum appeals, we are required by the common law to give anxious scrutiny, sometimes the most anxious scrutiny, to the appeal. We do not see how that can really be done in a system where the Home Office, as has been said, often do not turn up, and where the initial decisions are rather poor, and where we are constrained by a number of, in our view, somewhat artificial rules as to how we can then conduct the proceedings. We are told not to "descend into the arena", whatever that means. It seems to us that, as long as we are fair, it does not really matter whether adversarial or inquisitorial. All adjudication in tribunals and the courts tend at one time or another to partake of both systems. I am sure Judge Hodge would agree that when he sits in the county court and he has a number of litigants in person, as one often does, a very different approach has to be adopted for them, than one where three QCs turn up on either side. What we would like to see - and it is difficult to formulate it, and it requires discussion and agreement, and I am not too dogmatic about this, and we already have but is difficult to do in the present system very fully - is the right of adjudicators to, firstly, make detailed case management directions about individual cases, saying precisely what we would like to see in front of us at a hearing. It seems to me that will become a premium under the new system if it goes through. Secondly, that adjudicators should be freer than they are to ask their own questions. I am not sure about "direct their own lines of inquiry" because that puts the premium on skills and knowledge about particular countries and types of immigrant or asylum-seekers that adjudicators may not fully or readily possess. If the system could be freed of some of the restrictions under which adjudicators at present have to operate - this inability, so-called, to descend into the arena - I think the new system would get a much fairer win. Q41 Dr Whitehead: You wondered whether Judge Hodge might agree - I wonder if he does agree? His Honour Judge Hodge: They are called the Surrenden(?) Guidelines after the name of a case, and that says that the judge should not descend into the arena. It comes from the expectation that there will be two sides, each represented, each able to raise any important issues. A sensible judge, and we have got plenty of them, will obviously tease out some additional issues which are not perhaps properly covered. One of the very standard grounds of appeal is that the adjudicator interfered too much in the cross-examination and asked too many questions and so on and so on. Sometimes that kind of application for permission to appeal is granted. It is quite a difficult task to formulate a different rule, and it is quite a difficult training task to make sure that you do not get a completely inquisitorial person sitting in judgment who behaves like a French judge does. The first question in criminal cases in a French court, as you probably know, is: "What crimes have you committed before?" We do not want that. It is going to be part of our discussions, I suspect, over the next months as to how far we can go in relaxing this quite tight rule. There have been a couple of relaxations from cases in the Immigration Appeal Tribunal recently. I would want us to be doing it carefully and advisedly. Q42 Dr Whitehead: To what extent would that then create a model which effectively ran against most of the principles of British law? Would it create an anomalous series of circumstances? His Honour Judge Hodge: It could do if it went a long way. If, as a result of the changes in the legal services funding system, the numbers of unrepresented appellants goes up, the judiciary, in order to be fair, is almost certainly going to have to get involved in a greater way than it does at the moment in teasing out the issues, investigating lines of inquiry. Yes, that may be a bit different from the criminal courts; but, no, as Lord Newton will tell you, it is not dissimilar to what goes on in quite a lot of the tribunals which he has oversight of.. Lord Newton of Braintree: Since Henry has made that mention, I think the Council would be really quite supportive of some easement (begging the question as to how far and in what form) towards what we would call, and the Leggatt Report called, an enabling approach, rather than getting involved in this adversarial/inquisitorial business. It was certainly the case in the Leggatt Report on the world of tribunals as a whole that he saw that as quite an important ingredient in maintaining the distinction between tribunals and courts; and in creating a situation in which more people (and there was some argument about just how many) could go to tribunals without the need for armies of representatives. Some people thought that was a bit over-ambitious to suppose that nobody did, but that is not an argument I want to get into now. The basic proposition that tribunals should adopt a more enabling approach is consistent with the thrust of the Leggatt Report, and certainly consistent with what the Council on Tribunals would wish to see. Q43 Dr Whitehead: This anticipates a couple of clarifying thoughts I wanted to put to you. You have mentioned, Lord Newton, that the possibility would then arise that appellants' representatives might not be quite so important; that a number of appellants could then proceed without representatives. What about the Presenting Officers from the Home Office? We have heard that often there are not any; would the Home Office not be tempted to dispense with them entirely? Lord Newton of Braintree: Can I just make one preliminary point, lest it be thought that I was strongly advocating this. The enabling approach I have just outlined and the minimisation of the need for representation was something that was argued quite strongly by Andrew Leggatt in his report. It was a point on which the Council on Tribunals was notably cautious. We felt, and continue to feel, that there are many more cases where people are going to need some assistance - not necessarily by lawyers - than that report itself acknowledged. I would not want there to be any misunderstanding that I was, as it were, urging a move down the line of limiting representation. On the point you have actually raised, in a way it is one that ought perhaps to be asked of the Home Office. The last time I was here (which I have to say seems like only yesterday but was some months ago) we spoke at some length about Home Office Presenting Officers, and I was joining in the conventional view that it is a pity they do not turn up more often. I would personally not anticipate that a move down the line you have suggested would lead the Home Office in that direction because of the powerful interest they have in ensuring that their case is properly heard and presented at the adjudicators' hearing, as it is at present. The only person who could answer that is not me. I would be very disturbed if they were to take that line. One other supplementary point I would just make: of course in many cases where at least at present a Home Office Presenting Officer does not turn up, the Tribunal is almost bound to pursue a more enabling approach than would otherwise be the case, because one party is unrepresented - in this case the Home Office. To some extent, therefore, I think it would be fair to say the Tribunal necessarily has to adopt another way of eliciting the facts. His Honour Judge Hodge: And they get appealed when they do! Dr Whitehead: It is rather similar to a Radio 4 debate where one of the people being interviewed does not actually turn up, and the interviewer has to take the part of the interviewee on occasions. Peter Bottomley: Nobody mention the Hattersley case! Q44 Dr Whitehead: That is a common practice, I would guess? Lord Newton of Braintree: That is really for Henry and perhaps Mr Blake to say. It seems to me, almost as a matter of logic, if in a dispute of this kind one party is not represented, a Tribunal judge who wishes to be fair is going to have to take some unusual steps (or steps that would not be required if both parties were represented) to ensure there is a fair balance of the presentation on both sides. Is that a fair way to put it? His Honour Judge Hodge: I think that is fair. Particularly if you read the papers carefully beforehand and the issue is clearly whether the appellant is to be believed or not, you may want to ask two or three questions which help you in your decision about his or her truthfulness. You will almost certainly get a letter from somebody, but I think about 30% of our cases do not have Presenting Officers in them, and in some areas it is higher. I know there has been a particular difficulty at Hatton Cross, one of our big hearing centres, where they have had a small number of staff in the Presenting Officers' Unit there. The presence or absence of a Home Office Presenting Officer is not an unusual issue for us. Mr Blake: I think it also relates back to the issue I raised earlier about case management. If the Home Office are not going to turn up, or cannot turn up, whatever, and we cannot immediately solve that, as I said, there will be a premium on the new single-tier Tribunal (if that is what we end up with) making directions to both parties, saying to the Home Office, "What do you mean by this, in this letter? What do you mean by that?" We often have medical experts in our tribunals reporting on people's alleged injuries, scars and wounds, and we have yet to move to anything approaching the system of single joint experts that obtained under the civil procedure rules and the Woolf reforms. There may or may not be arguments for or against that in immigration; but that may be something worth considering. One rarely gets, in my experience, a considered view from the Home Office about the strength or weakness of the medical report. You may get it at a hearing if there is a Presenting Officer, but if there is not you probably will not get one at all. I think that is another area where we could improve the quality of case preparation. It is not easy to do and it will require careful discussion and negotiation as Judge Hodge has said, but I think it is worth doing. Q45 Dr Whitehead: Do you think that the new procedures which set time limits for lodging an appeal have an effect on the Home Office's ability itself to review its own decisions, and possibly settle cases out of court? Do you think that corrals the procedures in some way? Mr Blake: That really raises another point that, under the present system (and this has been so, ever since the early 1970s when the system of immigration appeals was introduced), the notice of appeal has to be served on the Home Office rather than on the Immigration Appellate Authority. The Home Office can then decide how long it will take to send the appeals on to the appellate authorities. That has all been a bit upset by a case last year that suggests that the authority may be seized of a case once the notice of appeal has been given, even though it has not arrived on the authority's desk. Leaving that difficult point aside, we would like to see a system where the notice of appeal, for our part, is served on the IAA and it then has the responsibility of getting the papers from the Home Office. The argument for serving the notice of appeal on the branch of the State whose decision is being challenged is that it gives an opportunity for an internal review. I do not underplay the importance of that issue. I have yet to see a case where the Home Office has actually done that. I suppose, by definition, it will not be a case that comes before an adjudicator. We believe the numbers where that happens are probably very, very small. Even though there may be long delays when cases have sat around for two or three years, I am sorry to say, in some office in Croydon waiting for them to be sent to the IAA, I am not sure that the Home Office is actively engaged in reviewing its original decision. I do not think the time limit is itself an issue there. Lord Newton of Braintree: The Council on Tribunals is generally supportive of the notion that appeals should be made to the appeal body and not to the decision-making department. I should say that this is an issue that arises in quite a number of fields. It arises in respect of the Income Tax Commissioners, and also in the Social Security system. Indeed, there has been a recent controversy and the Council has made some comment - and there may also have been some comment by the local government ombudsman - about exactly this problem in respect of housing benefit appeals. The Council were not getting through to the Tribunal for many weeks or even months. It is an issue that needs to be addressed across the board, I think, although I would certainly support what Mr Blake has said in this context. His Honour Judge Hodge: Most people involved in the judicial side of all of this agree with those two points. I know the judiciary involved in the appeal service which deals with social security feel much the same, and we certainly do as well. As Lord Newton says, it is an issue across government. Lord Newton of Braintree: I should say, even where one accepts obvious advantages in the department undertaking the review, if they can immediately see they have got it wrong then you can avoid the need for this elaborate process. I personally have yet to be persuaded that it is not entirely consistent with that to have a situation in which the appeal body receiving the appeal should notify the department, and there should then be some mechanism which allows the department a reasonable period of time to review it if it wishes. However, this is a much wider issue than immigration and asylum. Q46 Ross Cranston: I was a bit disturbed to hear that you do not have single/joint experts. What steps are being taken in terms of standard procedures for case management these days in terms of standard directions and pre-action protocols? His Honour Judge Hodge: I introduced a whole series of standard directions and they, on the whole, work - skeleton arguments and witness statements. We have cut down the length of hearings by requiring appellants' representatives to put in witness statements and expecting those to stand as evidence in chief. Q47 Ross Cranston: This is not just the Fast Track? His Honour Judge Hodge: This is everywhere. This has been the case for the last two years or so. We have got all sorts of guidance to representatives about the bundles and the preparation and so on. Most of that is in place. There are two things that militate against agreed experts: one is the speed with which this whole process is supposed to move as a result of legislation, procedure rules, public pressure and so on; and the other is that the people who produce experts' reports are almost invariably the appellants' representatives. I do not think I have seen an expert's report, outside of country information reports from the Home Office. It is just not like regular litigation with two parties, where you all know whether the leg was broken in a certain way is going to be important in a personal injury case and each side gets a joint expert - it is not like that. Q48 Ross Cranston: We have a single expert anyhow? His Honour Judge Hodge: We have the single expert on one side. If that single expert follows the proper rules one would hope that they give a wholly balanced view. Clearly there are criticisms by the Home Office about that. Q49 Ross Cranston: What about something comparable to the judicial review pre-action protocol? His Honour Judge Hodge: We do not have anything like that. What happens from our perspective is that the appeal is lodged with the Home Office; we never hear of it until it arrives at the Immigration Appellate Authority. We then give it a hearing - a first hearing at three weeks and a substantive hearing at seven weeks. The first thing we do is set two dates and give standard directions. We have a case management which is fairly routine at three weeks, where people can turn up and raise issues if they want to, but if they do not and they have filled out the right form it just goes ahead to the substantive hearing at seven weeks. That is tight in relation to anything that goes on anywhere in any other main adversarial court system that we have in this country. Q50 Chairman: Given the complications of coordinating cases between government departments, are you supportive of a common reference number, for example, with three government departments involved with quite different ways of referring to each case? Are there any other ways in which the coordination between the three departments involved could be strengthened? His Honour Judge Hodge: I have not been troubled with thinking about that. It is all down to computers. I think in the IAA, and it is nothing to do with me except that I have to read it, they are pretty proud about the fact they have got a robust and efficient computer system which is not reflected always in other bits of government. If you are going to use a single reference number you might be moving into a single computer system and I am not really quite sure about that. Q51 Chairman: Can we just look at non-suspensive appeals. The Council on Tribunals have expressed anxiety about the position of an applicant outside this country and the possibility that he or she may be put at a disadvantage by having to conduct the appeal away from where the decision is being made, and without being able to appear in person there. Lord Newton of Braintree: We made some observations on this at the end of our earlier memorandum to you on your inquiry last year. I think it could be broadly summarised that over a long period we have expressed some concerns about the position in which some people would find themselves seeking to appeal from abroad. It is not something the Council on Tribunals is enthusiastic about. Since there are some further limitations in the present Bill we would be pretty cautious about those. Q52 Chairman: And the likely increase in the number of people who would have to resort to this process? Lord Newton of Braintree: Indeed. Q53 Chairman: Much of the discussion about this is centred on asylum cases, but there is another whole aspect to it with which the Committee has been concerned, which is the position of immigration applicants who are, by definition, in their country of origin in almost all cases, and appear to be at a disadvantage because they cannot appear in person. In those cases, where their sponsor can attend the appeal, it appears that the success record is greater - success in terms of the applicant. Is this a problem which could be addressed by conducting appeals in countries from which large numbers of applicants come? His Honour Judge Hodge: A bit like sending us to Sangatte! Q54 Chairman: I know Judge Hodge has been to India, as some of us have, and looked at the situation there. That is certainly a course which some people in India recommended to us as one which would ease the process, and might even assist the process to which you referred earlier, whereby Entry Clearance Officers need to know what the process does to the cases they put forward? His Honour Judge Hodge: You would have to replicate, I suppose, in Mumbwa or Delhi, or wherever, the same system as we have here. Adjudicators there, independent interpreters there, and court hearing rooms there, and that is a big public expenditure issue. Obviously it would be better if people were able to go and present themselves at any kind of hearing which affects them. Q55 Mrs Cryer: I am not sure if this is absolutely relevant, but it could be. It has been suggested to me in the past few days, when we are hearing appeals in this country about a young man who is coming in from, say, Pakistan and we have known all along that the girl does not want him to come in because she is forced into marriage, that this is a little bit of protection for her as she has to go to the appeal as the sponsor. It has been put to me in the past few days it might help her situation were she able to go to the Tribunal alone and that, at least for part of that Tribunal, her family could be excluded because then the truth could be heard. It is not absolutely relevant to this, but I am tempted to ask you as we have you here. Mr Blake: I think almost invariably in such a scenario - and this is one of the favourite scenarios that are discussed at adjudicators' training centres ----- His Honour Judge Hodge: We discuss exactly this kind of system at a training session. Mr Blake: ----- the members of the family would be excluded, and asked to sit outside and not crowd the door and listen to what is happening - which is what has happened in some cases. That is a particular example, but I think we cope with that fairly robustly. Q56 Mrs Cryer: So a girl can be heard alone? Mr Blake: Yes. Lord Newton of Braintree: I do not think I would want to tread into this somewhat deep water that Mrs Cryer has just raised. On the point you asked originally, Chairman, about whether it might be a good idea (bearing in mind concerns that the Council has, for example) about people having an opportunity to attend an oral hearing as something we think generally desirable, and might there be a case for holding hearings abroad, I suppose the answer by definition must be, yes. On the other hand, one has to recognise that realistically part of the background of this discussion we are having is concern about the costs of the system. As Henry Hodge said just now, this would probably escalate rather than de-escalate the costs. I think it is unlikely to be a proposition that would find favour. If only because of my track record as a minister, I can at least understand why it might not find favour. Q57 Ross Cranston: What about the possibility of reports by video link? Lord Newton of Braintree: You have sparked me off for a moment because, assuming the Bill goes through, one of the things that will be inherited by the new President is the fact that the Immigration Appeal Tribunal has been quite innovative in its use of video links in order to avoid its, in some cases, quite senior judges having to spend all their time trailing round the country. I have not attended one myself, but some of our members have attended video link hearings conducted by the IAT, as it currently is, and have been really quite impressed by how well it works. That is a very fair point. There would be costs. I am a long way from being an expert on the costs of video link technology, especially from here to India. His Honour Judge Hodge: I am afraid I have just had to do a note to my adjudicators about video link orders, one or two of them have been made. We do not have any money to fund them. There is no power to make anybody pay the costs of them. There are not the facilities available in most of the posts abroad. The time factors are hugely different. The interpreter issue is a really tricky one. How do you get independent interpreters? I have said in a rather directive way, which I do not usually do, that you must not make orders for video linking. Within the UK because the IAT currently has video link hearings this may develop, and we may go down the route of having bail hearings by video link, as they do in some magistrates' and some crown courts. Taking evidence by interpretation over video links one is a bit cautious about, but the costs of doing this out of country are huge. In some areas it costs £1,450 an hour to have the telephone link. Right at this moment it is not a starter, I do not think, in terms of public expenditure. It could come but it is not with us yet. Q58 Mr Soley: There have been proposals recently by the Government that they should reduce legal assistance, or possibly withdraw it altogether. What are your views about that? Lord Newton of Braintree: This is a subject we explored at some length when I was here before and I do not think there is a huge amount I would have to add to that, and the subsequent observations in your report on the subject, except to say that the subsequent proposals published on 27 November did introduce some greater flexibility which the Council would certainly welcome. His Honour Judge Hodge: From a judicial perspective, what we have said in response to all the inquiries is that we are concerned that you best achieve fairness in the current system by having each side properly represented at our hearings, and that means being able to do reasonable preparation and reasonable presentation at the hearings. If, as a result of the changes, that means the numbers of appellants without a representative gets larger we will, of course, manage because that is what we do, but it will have knock-on effects in terms of the speed with which the process takes place. I certainly think when the person is unrepresented the hearings generally take longer and there are very practical big problems in our jurisdiction because very few of the appellants speak English; so everything that has gone before might have to be translated so you can be sure they understand what they said in the previous witness statement and what they said in the previous interview. That could significantly increase the length of the hearings and adversely impact on the speed with which the work is done. Mr Blake: I entirely agree with Judge Hodge. Lord Newton of Braintree: So do I, as I hope I made clear last time. Perhaps I might just make one point. Where a review takes place in the new system, since in general that has been softened slightly as we have heard from Henry this morning, and the hearing will only go on the basis of written representations for large numbers of people, the need for assistance with a written representation is significantly greater than the need for assistance with an oral representation. Q59 Mr Soley: You mentioned to some extent the problem of the Home Office representations and the need for them to improve. What about the representations by private solicitors on behalf of the individuals? His Honour Judge Hodge: One of the dangers in this jurisdiction is that there are lots of vox pop about why everything happens: "This is unfair, there are far too many of these. I'm going to give you vox pop and that's all it is". Since I have been in the jurisdiction two and a half years, because of the Office of the Immigration Services Commissioner and because of the work of the Legal Services Commission I think it is fair to say that the quality of appellants' representatives has got better. It is not brilliant but it was very depressing when I first arrived and it has got better. Charles has been in the field longer, and most of our colleagues will say it was really terrible back then and it is slowly getting better. Mr Blake: Yes, it is slowly getting better. One can see this in the proliferation of literature. There are now three or four excellent books prepared solely for immigration and asylum appeals - how to do it, as well as theoretical concerns. That means there is a constituency of people out there who are interested enough to read, study and learn from such books. I think the standard of representation is undoubtedly getting better for appellants. Lord Newton of Braintree: That is broadly our view and we have been supporting various moves that have been made to bring about such an improvement. Q60 Mr Soley: The Law Society tell me that they have been making quite major efforts to improve. Do you agree they are making much greater efforts? Lord Newton of Braintree: I think so, yes. Q61 Mr Soley: This is at the heart of the problem in a sense, but obviously all systems make mistakes and I am not asking you to say mistakes are not made, but at the heart of this is a fear that people might be sent back to a violent regime which seriously abuses human rights. How confident are you that that does not happen frequently? His Honour Judge Hodge: This is vox pop again. You will have to get the statistics from the Home Office, but the number of people who are returned (about 11,000-12,000 a year) in relation to the number of people who come in, is a source of much debate by the tabloid press. That is the first question. It is quite difficult to get clear evidence of anybody who has gone back and who has been killed or tortured, although UNHCR will be able to give you one or two case examples and you do hear of them. It is as difficult a question to answer as one might expect it to be because if they really did disappear and nobody heard about them how would we ever know if they have been wrongly sent back? I have always thought that was the trouble with Turkey, who want to come into the EU, that we have not got a better system of checking what happens to people who get sent back to Turkey. It is very difficult to answer the question with any clarity. However, our adjudicators are fantastically conscious of that as a potential issue, and it means they, in my view, bend over backwards to be as fair as they can. They have always got in the back of their mind that something really terrible could happen if they get the decision wrong, which is why we have got to get the quality up and up as we go along. Q62 Mr Soley: I know you take into account the country of origin. As a Member of Parliament who deals with a great number of these I suppose I am relatively relaxed about somebody going back (even if I think they might have a case) to some countries, but I would be very worried about the Democratic Republic of Congo, for example and one or two other countries where the system just does not exist. How much does that influence decision-making? Lord Newton of Braintree: I cannot answer the latter part of the question, but interestingly the country you have just mentioned was one that was the subject of an informal conversation earlier today. His Honour Judge Hodge: A terribly lawless place the Democratic Republic of Congo. Mr Blake: I understand the difficulty, Mr Soley. Adjudicators always try to make findings of fact about the individual and what has happened in the past - not that that is the only finding we have to make because we have to assume they will be sent back today and what will happen. We need to look at the objective circumstances and find facts in the context of those circumstances. It does not, however, relieve us of the obligation of deciding whether this appellant is telling the truth about past experiences, and whether the prognostications as to the present or future is or is not correct. That goes to the nub of decision-making in asylum. It is extremely difficult and I think everyone really does their best, as Judge Hodge says. His Honour Judge Hodge: This is really crude, but if you have not been a target in the past in the country to which you are going to be sent back, and it is not completely lawless, and you say you have and you are not believed - and there is some evidence that people who get returned are not just targeted because they returned - then it is likely in those circumstances that an adverse decision to the appellant's claim will be made. It is very fact-based. Q63 Mr Soley: It must inevitably, from what you are saying, enter very much into an adjudicator's mind if they were sending someone back, say, to the Democratic Republic as opposed to sending someone back to somewhere within the EU to, say, Poland, where you would be more relaxed about them being sent back? His Honour Judge Hodge: I hope it does not actually, because what we should be doing is looking at the evidence about their claim that they were persecuted in their country of origin. You would decide that on the basis of what they tell you, on the basis of the information that comes out in the background information about the country. It might be right that, unless you are a Polish Rom, the chances of being persecuted in Poland would be zilch. It might be right that if you are a Rwandan from a part of the DRC that there is a significantly greater chance of you being persecuted just because you are a Rwandan. You then have to go on from that position and decide is this particular Rwandan who comes from this particular place likely, just because he is a Rwandan, to actually be persecuted by the agents of the state? Q64 Mr Soley: I understand what you are saying, and I certainly am sympathetic to the process that you want to be factually based, but I just do not believe it cannot enter into the equation in quite a big way actually your awareness of where that person will go back to. Despite all the rules and regulations laid out, it must actually be a large factor in minds of the adjudicator, must it not? His Honour Judge Hodge: This is putting me on the spot! Q65 Mr Soley: I think that is what I am supposed to do! His Honour Judge Hodge: I think it is fair to concede, as all of us would, some background factual circumstances might lead to us looking at things with a different degree of care. It is a relevant factor though, on the other side of that equation, that we know some people are never returned to some countries - ever - despite the fact they may have come here and said these various things had happened to them, and our system has said, "No, we don't believe you", but it is impossible to get them back because of the nature of the country. That is another factor you bring into your consideration. As I say, I am very confident my adjudicators bend over backwards to be as fair as they can in all circumstances. Mr Blake: I entirely agree. Chairman: Gentlemen, thank you very much for your assistance this morning. |