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UNCORRECTED TRANSCRIPT OF ORAL EVIDENCE To be published as HC 211-ii House of COMMONS MINUTES OF EVIDENCE TAKEN BEFORE constitutional affairs committee
Asylum AND immigration appeals
Tuesday 20 January 2004 THE HONOURABLE MR JUSTICE OUSELEY,
MISS KATE ESHUN and MR LAURIE FRANSMAN QC, MS ALISON STANLEY, MR NICK OAKESHOTT and MR NICHOLAS BLAKE QC Evidence heard in Public Questions 66 - 140
USE OF THE TRANSCRIPT
Oral Evidence Taken before the Constitutional Affairs Committee on Tuesday 20 January 2004 Members present Mr A J Beith, in the Chair Peter Bottomley Ross Cranston Mrs Ann Cryer Mr Jim Cunningham Andrew Rosindell Mr Clive Soley Keith Vaz
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Examination of Witnesses
Witnesses: The Honourable Mr Justice Ouseley, President, Immigration Appeal Tribunal, Miss Kate Eshun, Vice-President, and Mr Naresh Kumar, Lay Member, The Association of the Members of the Immigration Appeal Tribunal, examined.
Chairman: Sir Duncan, Miss Eshun, Mr Kumar, welcome. We are very grateful to you for coming to give evidence to us. We recognise that you are members of the judiciary and we fully understand that there may be times when you might feel it inappropriate to answer a question in precisely the terms it is put to you if it affects a matter of government policy. We must first declare any relevant interests that members of the Committee may have Ross Cranston: I am a recorder and barrister. Mrs Cryer: I am on the supplemental list of Bradford magistrates. Keith Vaz: I am a non-practising barrister. My wife holds judicial appointment. Q66 Chairman: Could I start by asking you about the impact of the reforms that went through in 2002 in the Nationality, Immigration and Asylum Act. We have not had very long to work through those reforms. Do you think the 2002 Act has made the asylum and immigration appeals process more efficient? Sir Duncan Ouseley: If one looks at the change that is made in relation to the grounds of appeal, that has reduced the scope for rearguing matters of fact. But the tribunal had always adopted an approach in relation to those issues where it was considering the question of credibility of a claimant, that it would not interfere normally with the reasoned findings of the adjudicator, so the change, whilst seemingly fundamental, was in fact of rather less significance in practice. So far as the changes made in relation to statutory review as opposed to judicial review are concerned, the experience of the administrative court is that the number of cases where statutory review is sought has been comparatively small, but we have not yet seen in the administrative court a long enough time period where only that has been available, to be sure that the administrative court is seeing, if you like, the final figures. Undoubtedly that has removed the scope for a lot of abusive delaying tactics. Under judicial review, you applied on paper; you renewed your application orally; if refused again, you could renew before the Court of Appeal. On statutory review, there is a single application dealt with on paper by the single judge and the decision is not onward appealable. As I understand matters, the number of applications for statutory review is running at the order of 35 or so a month and they are being turned round within a week or so by the administrative courts. That undoubtedly has been an improvement at that end of the appeal process. So far as non-suspensive appeals are concerned, the difficulty there - and I think Judge Hodge touched upon this in the course of his evidence - is the actual presentation of the appeal by the person who has gone abroad. Often because they have had to go abroad, their interest in pursuing the appeal has diminished to nothingness. The circumstances in which appeals can then be pursued are actually quite difficult. If you are seeking to give evidence from abroad and there is no video link, it becomes rather like the entry clearance officers' appeals. But my understanding is that the tribunal has not had a non-suspensive appeal from an adjudicator's decision before it, so my experience of that is that it is a process that has affected a relatively small number of cases. So what you see is a number of changes, all of which from certain perspectives have brought advantages but they are not major changes to the system. Q67 Chairman: Is it too soon to say in some respects? Sir Duncan Ouseley: It is too soon to say, I think, what the long-run effect of those will be. Q68 Chairman: Do you think the availability of a second tier appeal has encouraged people to abuse the system in order to delay or to abscond? Sir Duncan Ouseley: I would have to say that, given the interest in delay which a number of claimants have, there are bound to be cases where the very existence of an appeal structure has meant that it has been abused. But I think it is important to put that in the context of what the immigration and asylum system is dealing with. It is dealing with matters where, in the end, someone's liberty, life and freedom from seriously degrading ill-treatment is at issue. It is dealing with it in an area where it may sometimes be very difficult to know whether somebody is telling the truth or not; it may be very difficult to know whether the circumstances which one is contemplating they are being returned to are ones which really are sufficiently stable for that properly to be done; and there will be large numbers of people who appeal who in fact have proper grounds for appealing. If one tries to measure it in some way, the number of cases determined by the adjudicators last year was of the order of 80,000. Quite a number of those whose appeal is rejected, make applications for leave to appeal to the tribunal, but if one looks at those who do, about one-third receive permission to appeal. That third you cannot say are abusing the system: they are all ones who have been able to demonstrate that they have an arguable point. There may well be those who do not have an arguable point but who may genuinely have thought they had an arguable point and are doing it because they have been advised, perhaps erroneously, but they have nonetheless been advised, that they have an arguable point. So the level at which abuse occurs is not easy to see, but you can be sure, I think, that where someone has been granted leave to appeal you could not say that is an abusive application. If you then look at the two-thirds that have been refused leave to appeal and ask yourself how much time has been taken up by those cases, that is, if you like, the measure of the problem of delay that is contributed to by the existence of a second tier; that is, those who make applications but are refused at the application stage. It takes longer, of course, than we would like, but nonetheless in the scheme of things it is not a very long period. Chairman: Mr Cranston. Q69 Ross Cranston: I want to concentrate on the internal appellant structure, but could I just ask you one question about statutory appeals. You say that they are running about 35 a month. How many are allowed? Sir Duncan Ouseley: I believe it is of the order of 25 %. Q70 Ross Cranston: Thank you. The others may want to come in on this: what about the proposal to remove lay members? Sir Duncan Ouseley: I think Mr Kumar, who is a lay member, might be the person to answer. Mr Kumar: Thank you. Mr Chairman and members, as has been said, this is a very high profile tribunal which looks at the cases of people in whose cases we have to take decisions about their lives. It is essential and of paramount importance where such decisions have to be taken that there is public credibility maintained. To ensure this to happen, I think the balance of the tribunal has to be not only right but real, in the sense, and appreciated by all parties. I think lay members have a very crucial and very important role to play in there. Their collective experience, with the knowledge and the support of the communities in which they live and, in certain cases, where they have had experiences abroad, and some in serving on benches, to bring in that experience, I believe, adds to the credibility of the tribunal. Q71 Ross Cranston: Could you give us a few examples, to give us a feeling for it. In terms of cases you have sat in on, has your presence made a difference in terms of the outcome, do you think? Mr Kumar: Yes, I would say. The very crucial and very highly sensitive area where we have to give anxious scrutiny to these cases is the assessment of facts. Where the exercise of human rights and the exercise of broad humility is concerned, I think lay members play a very essential role, and they bring in a type of judgment which is not necessarily particularly legal. That is where I think the value of lay members remains. Q72 Ross Cranston: Is there an official view on the presence or absence of lay members? Sir Duncan Ouseley: In the sense of the tribunals having a view? Q73 Ross Cranston: Yes. Sir Duncan Ouseley: No. The position is that the tribunal as it is presently structured values the contribution which everybody makes to it. Mr Kumar: If I may say, Mr Chairman, I had the privilege in 1999, March, to give evidence to the then select committee which was looking at the issues of not only the Nationality and Immigration Bill as a whole but also the role of lay members. Following that evidence, I received a letter from the Lord Chancellor's Department in June 1999 which I would like to place on record for your perusal and for your consideration during your deliberations, but perhaps I might highlight one or two issues which were very clearly brought out. (Copies distributed) There the acknowledgment was of the value of lay members and their contribution and the very important role that they would play in the future. At that time the Government was firmly of the view and concluded that flexibility is one of the key features in realising its vision and that lay members provide a vital element to that flexibility. The vision they had was, as has been already outlined in this Bill, about dealing swiftly and finally with appeals, which will involve an internationally respected authority in immigration and asylum jurisprudence. I will leave it at that for your consideration. Q74 Ross Cranston: Is anyone proposing, apart from the Government, of course, that lay members be removed? Is there a great body of opinion out there that lay members are leading to delays or adding to the complexity of the process or whatever the arguments might be? Sir Duncan Ouseley: Not that I am aware of. The single tier is not being proposed in order to remove lay members. Consideration I think may have been given, at the time of the bill to which Mr Kumar is referring, as to whether lay members should continue, and, in a sense, one can see an anomaly in an appeal system which focuses on points or errors of law from adjudicators but which has lay members - potentially, on some panels a majority of lay members - involved in the process. But there has not been, so far as I am aware, pressure from, if I may put it this way, users of the tribunal or from the tribunal itself for the removal of lay members. Of course, the more members you have of different qualifications, there is a logistics, an administrative process, to setting up the panels, but that is just something that we have got used to; it is not itself the basis for removal. I think it is also fair to point out that, although we talk of points of law and errors of law, there are errors of law which can arise from the misappraisal of factual evidence, and we do consider carefully country background conditions, where we do try - we try - to achieve consistency in approach. You can argue, the lawyers could argue, whether that is truly a point of law or not, but that is one of the things we do which is not certainly a pure legal area. Q75 Ross Cranston: There is clear authority, is there not - for many, many years - that lack of evidence is an error of law. In that sense, I guess the lay members would still have a role, if it is an evidential issue - or could. Sir Duncan Ouseley: They have a role in the appraisal of the background conditions, certainly. But, if you are sitting as a panel, you participate in everything. You do not say, "That's not an issue for me," although I would expect them to follow the legal member's lead on a point of law. Q76 Ross Cranston: Could I just ask another more specific point about how the new system would operate in terms of producing the consistency which any system ought to produce. There is a system, as I understand it, of having starred decisions which ought to be followed. Will that sort of thing be continued? Sir Duncan Ouseley: Yes, in short. I have no reason to suppose that whoever runs the tribunal, if it comes about, would be able to do it effectively without having some sort of system whereby decisions made in a certain way and indicated sufficiently would become binding on every member of the tribunal, whether starred decisions, which in our jurisdiction are strictly for what might be regarded as pure points of law, or guidance cases, akin to what might be seen as the guideline sentencing cases that the Court of Appeal (Criminal Division) produces, only in our jurisdiction they would be related to, for example, whether it was safe or not to return somebody to a particular country. Q77 Ross Cranston: Could I finally ask an open-ended question of all of you, whether there are particular changes in terms of the appellant mechanisms proposed that you would want to see. Sir Duncan Ouseley: In terms of the changes we would want to see or changes to the current system forgetting the Government's current proposals? Q78 Ross Cranston: No, take the Government's proposals, what changes might you want to see? Sir Duncan Ouseley: To those proposals? Q79 Ross Cranston: To those proposals, yes. Sir Duncan Ouseley: That is very .... There are ... Q80 Ross Cranston: It was an open-ended question. Sir Duncan Ouseley: It could meet with a whole range of answers, which I think in principle it is rather difficult to give. The Government is entitled to bring forward a policy of that sort. Q81 Ross Cranston: I am sorry, could I just interrupt and explain that of course the bill is in standing committee, amendments have been made and we will be reporting, and it may be that we could take up specific points. Sir Duncan Ouseley: I think I would like, for present purposes, just to address two points. One is to remind everybody that, whatever may be the genesis of this in relation to asylum, this is going to cover asylum and immigration and entry clearance; so it is not just a single tier for asylum cases, it is all immigration decisions. The second feature of a single tier is the emphasis that it places on getting things right first time. Whether it is a matter of legislation or not - and in many ways part of the problem is that it will not be a matter of legislation - it is the improvements that are necessary to the way in which the Home Office decision-making process is carried out. I do not think from the discussions I have had that there is any illusion on the Government's part but that that process needs to be improved, but it needs to be improved and in place and be certain to be in place throughout the operation of the tribunal. I said two - I am miscounting. The third point which is very important is that, if the tribunal is going to retain or obtain public confidence, it does need to have a means, generated by aggrieved parties, of looking again at its own decisions: a more senior judge within it, looking at what are said to be errors - and there is a whole range of errors that are capable of being committed which you cannot pick up in any other way, and it is the most efficient way of dealing with it. So there is no doubt that there is a provision in the bill for it but it might be regarded as something which needs to be focused on by members very carefully to be sure that those who have a genuine point about the decision have a means of having that properly and fairly addressed. The response may be: Well, that is equivalent of an appeal. An appeal may be a very effective way of dealing with those points, but, even in a single tier, you need to have some system whereby those decisions can be reviewed. I think the third point at which I would look is the ouster clause. I have at the back of my ---- Q82 Chairman: We are going to come on to that. Having noted that it is one of your three points, I wonder if I could ask you to clarify one of the points you make, because it is of some interest to the Committee that the decisions in these matters should not be wholly determined by the exigencies of asylum applications, given the implications they have for all those applicants for straightforward immigration or visits who do not get involved with the asylum aspect at all but make applications in their home country to visit or join family here. In what respects do we need to have particular regard to that side of the work in devising the procedures and refining what the Government have on offer? Sir Duncan Ouseley: The success rate in entry clearance officers' appeals is actually rather high, both adjudicator and to the tribunal. The justification for dealing with those who are out of the country and wanting to come in quickly in a way which has been devised to deal with asylum cases might be seen rather rough justice. On the other hand, a speeding up of the process is what most of those who are applying for visitor visas actually want: the time that things take is actually a crucial matter for them. The reason I raise the point is that people think this is just about asylum. The genesis may be asylum but the impact is far wider, and so the merits or otherwise have to be judged against the whole context of the matters we deal with. That is the reason I want to raise it. But the people who are at the greatest risk but also, it might be said, stand to benefit in other respects, are out-of-country appeals (in which the larger number are visitor visas), and they have been subject to very considerable delays in the system, I am afraid. Of course I should make the point that the point that the Home Office is itself a regular appellant - more regular than it used to be. People always look at this as: the appellant is the same as a refused asylum seeker. The Home Office appeals adjudicator decisions - not to the same proportion, but it does regularly appeal. It is responsible for about 10% of the appeals, so it too has - and if it does not, it perhaps ought to have - a considerable interest in there being some means of removing some egregious error. Now that the principle has been accepted into the bill, the question is whether it has really been devised in perhaps too tight a way to be as effective as it ought to be. Q83 Keith Vaz: Before I turn to judicial review, may I ask you about a point you made to Mr Cranston, which is the way in which the Home Office presents their cases. You are aware that one-third of presentation officers do not turn up to cases. Have you heard that statistic before? Sir Duncan Ouseley: Yes. I think it is even higher than one-third of the cases before adjudicators which are dealt with in the absence of a Home Office representative. Q84 Keith Vaz: What figures do you have for that? Sir Duncan Ouseley: Nearer 40%. Q85 Keith Vaz: And you accept that the quality of decision-making by the Home Office does have an effect on your case load; in other words, more cases would come to the tribunal because basically they are not dealt with properly at the Home Office. Sir Duncan Ouseley: I wonder whether perhaps Miss Eshun could deal with that. She has had experience both as an adjudicator and now as vice-president and she will be able to answer that. Miss Eshun: Thank you. I was an adjudicator before I became tribunal vice-president. Just when I was appointed to the tribunal the level of leave applications rose dramatically. It was quite obvious that there were cases in which the decision written by the Home Office was very poor and, therefore, without the aid of the Home Office presenting officer at the hearing, the adjudicator was more or less left in the dark. Without good representation on the part of the appellant, issues which should have been ironed out right from the beginning by the first decision-maker (that is, the person who writes the Home Office refusal letter) were not apparent. Therefore, it became very, very important that both parties should be represented at the hearing before the adjudicator. Because adjudicators did not have the benefit of the Home Office presenting officer, their decisions were lacking in dealing ----- Q86 Keith Vaz: Do they adjourn or do they dismiss in those circumstances? It leads to greater appeals, obviously, if they dismiss. Miss Eshun: There came a time when adjudicators were allowing appeals because they were frustrated that the Home Office presenting officer was not there. That generated a lot of appeals to the tribunal. Sir Duncan Ouseley: At the tribunal level it is much more exceptional for the Home Office not to be represented. It is very unusual. Q87 Keith Vaz: Presumably, all of you in the capacities that you hold, which are paid capacities, apart from Mr Kumar, would have gone abroad and had a look at the process right at the start: met with clearance officers and looked at the way in which decisions are made. Have you all done that? Sir Duncan Ouseley: No, I have not. Miss Eshun: I have had the opportunity. I went to Ghana on one occasion and had the opportunity of going to the British Embassy in Ghana. I was shown the process right from the application to the interview stage. I must say that at that stage they were quite professional in the way they handled new applications. Q88 Keith Vaz: Absolutely. Clearly, you are an independent part of the system, because you will decide on the final outcome, but, as far as a joined-up approach is concerned, are there any improvements that can be made in a system that goes through three government departments that would make the appeal process more efficient? Miss Eshun: I think the interviewing stage can be improved. The interview stage is very, very important, and you find that not all issues have been covered because, maybe, due to lack of time or interpreter problems. Then you have the written decision stage, where you find that a lot of the paragraphs that have been included in the refusal letter (that is, pro forma paragraphs) do not bear any relationship to the actual issue in hand. Q89 Keith Vaz: Indeed, but that is the basis of the whole appeal, is it not? Miss Eshun: That forms the basis, which then goes to the adjudicator. At that adjudicator stage, it seems that speed now is of the essence rather than good preparation. In order to have good preparation, you need time. Q90 Keith Vaz: Indeed. Would it be helpful to have a common reference number that begins in the post abroad and ends up with your tribunal? Miss Eshun: There is that. There is a common reference number that runs through the appeal system. Q91 Keith Vaz: The appeal system, but not from the time the application is made. You are dealing with three different agencies, are you not, on the way to appeals? You go to the post abroad, the Foreign Office; the Home Office for the appeal centre; and then you go to the immigration tribunal. Miss Eshun: When you have the applications generated from abroad, they do not have the common Home Office reference number, but when you have the appeal, the application generated here at the Home Office, there is a common reference. But that is the Home Office reference number. Q92 Keith Vaz: It is not one of yours. Miss Eshun: No. It is only when it comes to the appeal stage that it gets a reference number given to it. Q93 Keith Vaz: How will the general restriction of reviews to paper, except in exceptional circumstances, affect the conduct of the proceedings? Sir Duncan Ouseley: This is only proposed single tier review. Q94 Keith Vaz: Indeed. Sir Duncan Ouseley: As I understand, the bill as it was originally drafted did contemplate that the reviewing body could send it off for a rehearing which would be oral. As I understand the latest amendment proposed by the Home Office, it is that that would cease to be possible but instead it would be possible to conduct the review, exceptionally, orally. If I may pick up the point made earlier by Mr Cranston in relation to the way in which reviews are conducted, a greater degree of flexibility would be desirable as to how those reviews are conducted. One does not know the full range of problems to which a case might give rise. For example, a classic problem - one that does not happen all that often, but it happens too often to be something one can ignore - notice of hearing goes to the wrong address. It may be that it was an administrative error or it may be that the relevant person has not kept the address properly notified, but the hearing has taken place without the person knowing the hearing was going to take place. If you are going to have a review system, that person really needs to have the appeal heard, so the legislation really ought to permit that to happen rather than effectively an appeal on paper. If somebody has made a complete Horlicks of the appraisal of fact, you have got to have some means whereby that could be dealt with properly. Q95 Keith Vaz: Sir Duncan, you believe that the inability to make oral submissions will disadvantage appellants. Sir Duncan Ouseley: The inability to do so is capable of working injustice, yes. Q96 Keith Vaz: Could I ask about the effect of the subsequent restriction on Legal Aid. The package that is currently on offer to people, the reduction in Legal Aid, for example, in conjunction with the written submissions, do you think that will have an effect on the way in which these cases are reviewed? Sir Duncan Ouseley: Plainly. Q97 Keith Vaz: You have said, Sir Duncan, that some form of "higher judicial oversight of lower Tribunals ... should be retained" as a matter of constitutional principle. Is the proposed change, whereby only the president would have the right to refer a restricted type of case, and judicial review would be restricted because of that, sufficient to protect the appellants? Sir Duncan Ouseley: My comment in relation to retaining judicial oversight really relates to clause 10, the ouster clause. The provisions for reference to the Court of Appeal and no onward transmission to the House of Lords are in a sense less troubling than the ouster in relation to any form of review. The difference between a reference to the Court of Appeal as opposed to an appeal to the Court of Appeal is in some ways, it seems to me, a matter of taste. The ability of the president to pass the issue up, or the deputy president, again seems to me not a matter of real concern if you look at it internally. The question is: Should the Court of Appeal have the opportunity of saying, "You are wrong. We want to look at this point ourselves." It is, I think, unusual for the Court of Appeal to be unable to look at a decision and say, "You are wrong to think you are right. You are wrong to think you are clearly right. You are wrong to think this is a point of no interest to us." It is unusual. There are bound to be cases where the president or deputy president refuses to allow reference, where the Court of Appeal, if asked whether they would have wanted the point to go to them if an appellant had asked, would have said yes. That is bound to happen. It is, I think, for the Government to reason why, as a matter of policy, that degree of restriction is appropriate. Q98 Keith Vaz: Do you think the Government has done enough to justify this? Sir Duncan Ouseley: I think that is getting into dangerous water. I think the notes of warning that we put down in our representations are important. The bill is focusing really on one aspect of the overall appeal system. It is dangerous for it to be assumed that that part on which it is focusing is a significant contributor to delay, or that removing the current two bodies and replacing it with one other is necessarily going to achieve a significant improvement in speed or do so at an acceptable price in terms of quality. Thereafter, it is a matter for Parliament to weigh those issues. But I think it is dangerous to assume that merely removing a tier is necessarily going to bring about a real speed improvement in the overall process, and it is dangerous, if one is looking at quality, to assume that the same quality - with all its flaws that there are - can be achieved within a single tier. For example, it might be in a single tier that adjudicators who currently work under, I would have said, almost an intolerable workload - but it is certainly a very heavy workload - might require a very great deal more time to consider and write and check their decisions. Q99 Keith Vaz: Finally, do you think you have enough adjudicators? Are there enough there to deal with the cases? Sir Duncan Ouseley: I am not sure I can talk about the adjudicator numbers. The adjudicator numbers have been very substantially increased. The problem that the tribunal has had - and I do not think there is any dispute about this - is that the number of vice-presidents, lay members and part-time legal chairmen, and, indeed, court rooms, was not increased fast enough and to the right number at the time when the adjudicators were increased in number. Our work is dependent upon the adjudicators output. If you increased rapidly the number of adjudicators - as was done - the consequence was you in fact needed a doubling and more of the vice-presidents, lay members, part-time members to accommodate the workload that was then coming downstream. That did not happen. Although we now have the vice-presidents more or less in place, we are only just beginning to train the lay members and we have only just had the part-time members appointed. The process has been very, very long and in fact predicated on numbers that have proved to be too low. So, even if we were up to speed and had been up to speed in terms of numbers at the beginning of last year, we still would not have had quite enough to keep our head in the same relationship to the water level that we had. Keith Vaz: Thank you. Q100 Mrs Cryer: Sir Duncan, you actually said in your submission, "... much of the advice and representation the claimant's side is of poorish quality." We had two other witnesses and their comments were that the quality of legal representation was slowly getting better. Would you all agree with that? Sir Duncan Ouseley: Perhaps I can ask Miss Eshun to deal with that. Miss Eshun: The greater majority of decisions by adjudicators, I would say, is good. There is unfortunately a number of decisions that need to be corrected. Q101 Chairman: I think the question was about the legal representation. Mrs Cryer: The quality of the legal representation. Q102 Chairman: Not the adjudicators' decisions. Miss Eshun: I am sorry. The quality of representation is improving but it needs to be improved. We find that there are a lot of consultants in the system who are not that good and therefore do not assist the fact-finder in his work. The quality of Home Office presenting officers is now better than it used to be. We would like to see issues being brought out at the very early stage, so that everyone, including the adjudicator and both representatives, is aware of the issues. Once the issues are known, the representatives then can deal with the issues. We find that in many cases the representatives are not dealing with the issues, they are just putting everything before the adjudicator, and the adjudicator then has the task himself of understanding what the issues are. That is where the problem lies at the moment, in identifying the issues - which most representatives do not do. I must say that when we have counsel representing appellants, they do a good job. Those counsel who specialise in immigration, I must say, are very good at their job and make the task of the adjudicator much easier than those who are in the system but not really immigration specialists. Q103 Mrs Cryer: I would like to ask all three of you: What else do you believe now can be done to improve the quality of advice to litigants? Sir Duncan Ouseley: This does come down in the end to a question of funding at bottom. It comes down to whether the better firms of solicitors, counsel and the relevant characters, particularly the Immigration Advisory Service and Refugee Legal Centre, have the necessary funding in. There is no magic way in which people can receive advice, in what may be factually a complex area, which is competent and directed towards both serving the interests of the client and doing so in a way which reflects the obligations which solicitors and counsel owe as professionals to the adjudicators and tribunals, unless you have proper funding. In so far as the quality of the adjudicator's decision, the number of appeals to the tribunal - even more so in the single tier, where the prospects of correction are inherently deliberately limited - if you are going to make it work - if you like, adopting the language, "getting it right first time" - you need to have a system. The point I make in the end of my most recent letter: you need to have a system, however it is done, whereby proper time is given for consultation, advice, statement preparation and identifying the points. There are - as, again, we point out - plenty of representatives - regrettably some solicitors - who are not what they should be. I think there has been a considerable amount of work undertaken over the last few years to try to focus on those points, but it cannot be said that simply cutting down the amount of money available is going to improve the system. It has to be directed better. This is not a simple point; it is an extremely complicated area with many prongs of attack and no simple solution. It is certainly not a solution simply to say the Legal Aid fund is to be, for these purposes, open-ended. Q104 Mr Soley: May I ask all three of you: Thinking essentially of asylum, do you think the appeal system at the moment is abused in a significant way? If I may start with you, Mr Kumar: Do you think there is abuse of the appeal system by asylum seekers at the moment? Mr Kumar: In all honesty, I think it would be wrong to suggest that there is not a degree of abuse that does happen, but to what extent is very difficult to judge. There is also the other side to it; that is that, when there are procedures and systems that are in existence, people will try to spin and prolong things, in certain cases as long as they can. But I would go along, that there is certainly a degree of abuse that is there, but to what extent I think it is difficult to quantify. Q105 Mr Soley: Would you agree with that, Miss Eshun? Miss Eshun: I would agree to a fair extent, that there is some abuse. I mean, in any system you will find some abuse in the system, but I would say that it is not helped by delay in decision-making. There are often cases that come to us which, say, the application was made in 1992 and the decision was not taken until 1996. To that extent, you have the system that was created to cut out the abuse actually promoting that sort of abuse. It might help to alleviate that sort of abuse, for, say, families coming together or at different times, if the applications of all those families could be somehow brought together. Because sometimes we find the husband makes an application and the wife has made an application in another name and then you get to the appeal stage and then it is discovered and there has to be an adjournment in order to bring all these cases together. If that sort of preparation happened, you would cut out a lot of the delays and a lot of the abuse that is in the system. Q106 Mr Soley: That is a common experience for me in my case load. Sir Duncan, what is your view? Sir Duncan Ouseley: There plainly is abuse of the system. Many people look to delay decisions because their aim is to stay or to stay for as long as they can. The longer they are able to stay, the greater the prospects that there will be some beneficial change of circumstances to enable them to make a further application. There is plenty of evidence of circumstances in which that arises: the persistence in hopeless cases; the way in which facts are deployed: no sooner does an appeal come on for hearing but some new fact is alleged. Sometimes it is a good point, sometimes it is a bad point, but there is no doubt at all from the tactics that we see adopted that there is abuse. Beyond saying it is a completely proper area for concern, quantifying it is very difficult. Right at the outset I looked at it, if I can put it this way, from the other end. We can tell, I think legitimately, from the number of cases where permission is granted to appeal to the tribunal that you could not say that those are abusive cases - because somebody has said there is some arguable merit. There also will be another unknown percentage of cases where, although the application has been refused, it could not automatically be regarded as a simple trial. I would hate it to be thought that 70% therefore, or something slightly under 70%, are abusive. I think it is, from my point of view, almost impossible to quantify it, but there is a significant component of abuse, one way and another, that goes on. Q107 Mr Soley: Miss Eshun has already partly answered this, I think, but if I asked you all what single thing you would do to reduce the likelihood of abuse of asylum appeals, what would that single thing be? Sir Duncan Ouseley: I would seek to speed up the decision-making process in the Home Office and improve it. Once the decision had been made by the appeal structure, they should endeavour to act on the result. There is absolutely no doubt at all that the single biggest problem is an absence of removals consequent upon decisions being made. I do not think that it is an easy question at all. There are plenty of difficulties in the way of removals, particularly of undocumented people, particularly to countries that do not have the remotest interest in cooperating in providing documentation. So it is a very serious difficulty, but it is one that has been known about for years and it is one that is not glamorous in its solution and requires a long-run, determined, flexible effort by the relevant government departments. Some countries may seem to do better, but, as one vice-president said the other day in discussion - she is from Malaysia - there is no doubt that if you are coming from a country where your mother has had to pawn all her jewellery to try to give somebody the chance of making a go at economic migration into the UK and a month later he is back, it is a considerable deterrent. Q108 Mr Soley: You were indicating, I think, agreement, Mr Kumar, with the comments made. Mr Kumar: Yes. I think Sir Duncan has summarised it quite well, and I go along with that and I concur with it. Q109 Chairman: It is fairly pointless to spend all this money on this process, however many tiers it has, if it does not lead to the carrying out of the decisions of the appeals process. Sir Duncan Ouseley: Could I add one other point in relation to abuse. It is important to understand that the whole idea of asylum and a provision for appeals in relation to it is actually to protect people. In order to protect the right people, of course, we seek to detect those who are not entitled to it, but the system does not set out as its primary aim to say: This is a spurious asylum claimant detection device. It is a protection device. Q110 Mr Soley: Sir Duncan, if I may put a question to you - and it follows on from some of the things you said earlier, that you are satisfied that if the person gets through to the appeal there is merit in it.. But is there not an issue here, which is the difference in a way between the legalistic process and myself, maybe, as a constituency member of parliament who is making judgments at a different level, where I may be fairly relaxed about a person being sent back to Poland (of which I had many cases a few years ago, just before the EU applicant system came in), whereas I would be very anxious about sending a person back to a country which does not have the rule of law and is a failing system. I hope and believe that inevitably such things might influence you to some degree. My question is, in a sense, how much of the appeals that you are saying are right are about fairly narrow issues of law interpretation, where it maybe would not make much difference to the safety of the person if they were sent back, because they were being sent back to a country which enjoyed the rule of law and was stable, as opposed to people you were just be very worried about sending almost anyone back there. Sir Duncan Ouseley: Most of the cases with which we deal, I think it is fair to say, turn on whether a person would be at risk in the country to which they are returning. Of course that does not apply to what one might regard as pure immigration cases where the issue of visas is a clear one, but in asylum the points of law are comparatively few. There may be big points of law, but most of the time in asylum or human rights cases you are asking yourself: Is what has been said to us by the claimant true? Is there a real risk to this person on return? If there is a real risk, then they do not go back. Focusing on the real risk in the country of return is probably the major part of the tribunal's work. So, of course, you are right, there is a different approach for the most part as between Poland and Zimbabwe but not necessarily if you were Roma. Q111 Mr Soley: Except, of course, one could make the argument, and I would make it, that you will not get reform in those countries any more than you would have done here on issues like gay rights and Roma, unless in fact change came from within a country that enjoyed the rule of law. So you get caught up in a political argument, do you not? Sir Duncan Ouseley: That is not an argument that we would accept as a reason for returning somebody. In a long-term basis, you may be right, that you will not get reform unless you have those who are victims there, but that is not the line we take. If you are going to be persecuted, if you are at real risk of ill-treatment, nobody would be sent back on the grounds that they would contribute to a reform process. Q112 Mr Soley: But the difference between a Roma being sent back to Poland, where there were relatively few deaths ... There were problems all right but there was not the sort of abuse you would have had if you had been sent back to the Democratic Republic of Congo, for example. Sir Duncan Ouseley: No. But each case is still an individual one. Q113 Keith Vaz: Would it help or hinder the process if any part of the appeal system was relocated abroad? I am not talking about the Maldives; I am talking about one of our big posts like New Delhi and Mumbai which generate a lot of appeals. If you had one of the hearings there, would that help or hinder the system? Sir Duncan Ouseley: I do not think it would help at all. It is actually far more valuable that we have what I would describe as a collegiate structure where the vice-presidents are able to talk things through and discuss them amongst themselves. If you had an outpost in Mumbai, you would have one person there and you would have that person's Mumbai l aw. They get very close to it. Q114 Keith Vaz: What about at the adjudicator level? I accept that at a higher level it is important to have chats about these things, but ... Sir Duncan Ouseley: I suspect it does not make a huge difference. Miss Eshun might have a different perspective on that. Q115 Chairman: What if you sent either adjudicators or a full hearing out for a month to do some appeals? You would not lose the collegiate nature if you did that. Q116 Keith Vaz: A large circuit! Sir Duncan Ouseley: Part of me is tempted to say, "What a very good idea. Can we have a list of countries to which we can go?" The argument for it would be far more at the adjudicator level because they are the ones who are primarily looking at factual evidence, and in ECO cases take the evidence from the sponsor, who is in the country, and only have the statement from the appellant who is seeking to come in. So there may be a case for it there at adjudicator level. But I suspect that if that were proposed it would meet a resource argument pretty quickly. Q117 Ross Cranston: Apart from the constitutional arguments, one of the arguments against the ouster clause is the practical one, namely that we simply do not know enough about how statutory reviewers are operating. You have said it is early days. I am just wondering, before we report, which might be in three weeks' time or something like that, would you have enough information, do you think, to put in a supplementary note about the operation of statutory review? Sir Duncan Ouseley: Yes, I can do - and in discussion with Mr Justice Collins, who is the lead judge. But the figures that I have provided in the letter came from him and I updated with him yesterday. He said that, for last month, 35 or so reviews with a 25% success rate is about right. Q118 Keith Vaz: That would give us some feeling about the complexity of those that are allowed, in terms of the use of judicial resources or delayed or whatever. Sir Duncan Ouseley: They would all tend to be, if I can put it this way, marginal decisions. They are going to be cases where the vice-president, who is experienced in the area, has effectively said, "No, there is not an arguable point" and the judge is doing no more than saying, "There is an arguable point." He is not saying it will succeed; he is just saying, "you are wrong in saying there is no arguable point." It may very well be no complexity in it at all. Q119 Keith Vaz: I think it would be quite useful to know what happened after that. Sir Duncan Ouseley: Yes. Well, they then come back to us and we try to list them quickly and deal with them. But you want to know in terms of how many of those that are the subject of statutory review then achieve a different result when it comes to the tribunal. Q120 Chairman: If the figures are available, it would be interesting for us. Sir Duncan Ouseley: If it is available, it would be interesting. Some of them we lose sight of straight away. We do have a system, if we realise .... Supposing the adjudicator has made a howler, we did not pick it up and the statutory review court says, "This is a howler, you should have picked it up," they do go back virtually automatically - the parties are given a very short period of time in which to say why it should not go back straight away to the adjudicator. So there is a handful that will drop out of the system. Apart from that, I will inquire if we have result-based decisions on statutory review and let you know if I can find it. Q121 Chairman: And maybe the time involved - because that is another argument, of course, that there can be endless delays. Sir Duncan Ouseley: Yes. Chairman: Sir Duncan, Miss Eshun, Mr Kumar, thank you very much indeed for your help this morning. We are very grateful. Witnesses: Mr Laurie Fransman QC, Immigration Law Practitioners' Association, Alison Stanley, Deputy-Chair, Immigration Law Sub-Committee, The Law Society, Nick Oakeshott, Refugee Legal Centre, Mr Stephen Irwin QC, Chairman and Mr Nicholas Blake QC, Law Reform Committee, the Bar Council of England and Wales, examined. Q122 Chairman: Mr Oakeshott, Miss Stanley, Mr Fransman and Mr Blake, it would help us this morning if you would identify which organisation you are each from, because you have a dazzling array of organisations. Can we take it round the table? Nick Oakeshott: I work for the Refugee Legal Centre. Alison Stanley: I am representing the Law Society this morning. Mr Fransman: I am representing ILPA, which is the Immigration Law Practitioners' Association. Nicholas Blake: I am here on behalf of the Bar Council. The Chairman of the Bar is sitting just behind me. I have also put in a memorandum from my own chambers, so I can speak to that as well. It is all the same issue. Q123 Chairman: Does the Chairman want to join you at the table? We are glad to welcome the new Chairman. Stephen Irwin: Thank you very much. Q124 Chairman: You have written to us to indicate that there is one issue in particular that you might want to comment on, perhaps in strong terms. You will have heard the evidence we were taking earlier about abuse of the appeals system and, indeed, how you define that. Do you have methods that you could suggest that would reduce the possibility of the abuse while continuing to meet the needs of the genuine asylum seekers? Nicholas Blake: Can I just make some general comments about that? Yes. I think one method is to give the judiciary, who are reviewing these cases, the power to indicate, in their opinion, that this is not merely a failed case, this is an abusive case. I do not know if the Committee is aware that the Court of Appeal gave very strong guidelines on 19th December, when dismissing renewed applications for judicial review in six cases, I think called "The Six Nepalese Cases", not just for the Court of Appeal but for administrative court judges - and I am sure it can operate at all levels of the appeal system as well - to say that if you know that something is not merely a failed case but a case which could not have ever had any prospects of legitimate success, you could say that, and by saying that it helps everyone else on the system to know that that is likely to be the case. You may need a review of that in case someone is applying eccentric criteria of abuse, but one knows that, and that can serve a proper purpose in focusing effort and intellectual resources upon the really arguable cases. Equally, I would absolutely support what you have just heard this morning that Home Office decision‑making (a) must be quicker in coming to a conclusion to put cases into the system and (b) it is absolutely common ground with all those who practice in the system that, if there is a failure, there ought to be a removal. There is no point in investing the intellectual effort of any of those of us here, who largely appear for claimants but not exclusively, if it makes no difference at the end of the system. That is the position. It should be realised that, I think, something like 20% of all asylum claims are being determined in countries where they always do not remove. So that is a question. Maybe they cannot remove, in which case they should not be putting them into the appeal system in the first place. Mr Fransman: Certainly as far the the Immigration Law Practioners' Association is concerned, the question of abuse is the question of delay, justified delay. As we see it from our perspective as practitioners, it is not within the appeal system that this delay occurs, it is before the case reaches the appeal system and after the case leaves the appeal system. This is such a self‑evident truth to us that we find it extraordinary that the matter is being debated. Alison Stanley: Could I just add? Obviously I agree with what my colleagues have said, but on the issue of delay, there is not really delay once a case gets into the appeal system, because once it is into the appeal system there is tight timetable. It is what happens before that can cause delay and certainly what happens at the end of the process when people are left, if they are refused, effectively in limbo. Nick Oakeshott: I do not have anything to add to that. Mr Soley: My apologies, first of all. I thought we had moved on to another area, but we had not. The problem I have is that, as an MP, I see at any point in time 400 current cases from one area of London and I see abuse of people who I know are not putting forward a genuine asylum claim. The other side to that, of course, is a really genuine one, and I struggle to work this out all the time, as I am sure you do. What troubles me is that at times it is very apparent to me that people are using the system to delay it. It is that bit which does not seem to get picked up anywhere, but I am not quite sure why that is. As one of the previous witnesses said, it is sometimes done by putting in several applications for different family members without linking them up, for example. That is just one case. Ross Cranston: I do not think these are the sorts of people who see the abuse cases. That is the point. Q125 Chairman: Let us ask them. Nicholas Blake: I simply seek to give assistance in answering that question from my experience, although I am sure that my colleagues, who are working more at the coal-face, can add to this. The answer to that lies in the administration of these claims by the Home Office. They ought to be able to recognise where there are repeat claims. They ought to be able to keep information. It may well be that new technology will enable them to do that better than they have done. If they are getting a large number of claims from a country which has no poor human rights record, is a perfect rule of law and has never given rise to any recognised asylum seeker, then they can put those claims to the top of their pile, deal with them more speedily, in a matter of days, and process them quickly. You do not need a whole process of certification, arbitrary criteria, which may fall a little unkindly on a particular case in a particular country, if by administrative development of good resources you can target cases which you, the Home Office, know, and ought to know, are clearly weak, unfounded, improper cases. That would get a great portion, or a certain proportion - what proportion who will know - of cases out of the system and then you can leave time for the really troubling cases; and we are dealing with parts of the world which are really troubling. Alison Stanley: Could I add that also the obverse is true, because it is equally easy to identify those cases where it is very clear that somebody is a refugee and should be recognised as such, and there is no reason why those cases could not be fast‑tracked and granted to get them out of the system. That would speed things up a lot. One other issue: I know the Committee has addressed the issue of public funding of asylum and immigration cases relatively recently, but certainly the "sufficient benefit test", which is the test that has to be applied right at the beginning of granting legal aid to an applicant, and the subsequent "merits test" when it goes to appeal, if it is applied properly, will filter out those cases that are completely unfounded and they would not be getting legal advice on the state, which must help. Q126 Mr Soley: I think your suggestion of fast‑tracking some cases is right, and I am very sympathetic to that. What I do not accept is that a lot of people at the representational end of it do not see the same problems that I see, as an MP, as an abuse of the system. I do not understand why that is not picked up or recognised. I have had clashes with lawyers, solicitors and others - indeed I think you are aware of some - in the corporations between myself and the Law Society in trying to weed out some of these problem practitioners, but it is a problem to me and I cannot believe that they are not ‑ colluding may be a rather strong word, but I have to say it - at times colluding. Alison Stanley: Well, collusion is a strong word, but again the proposal to introduce accreditation of publicly funded immigration practitioners will help, because part of accreditation will obviously be looking at the value of the case, and if practitioners do not understand that they will not be accredited. The accreditation scheme is due to be up and running by April and compulsory by April next year. So it is coming in on stream. Q127 Mr Soley: So the accreditation system, to your mind, is the best way of dealing with the abuse at the other end of the system, i.e. where representatives might be actually less than good at their job, let us say, if not colluding? Alison Stanley: If the representatives are not good at their job, then they may well not identify when a case is poor and cannot possibly fail. Those people will be out of the system, because the accreditation scheme should prevent them from practising on public funds. Mr Fransman: Might I add that as far as the abuse that you might be seeing occurs before the individuals concerned bring the matters to the appeal system, that, of course, is not really the focus of what we are concerned with at the moment, but certainly there is a major Government initiative to deal with that, with something called the Managed Migration Policy, by identifying within the class of people that are currently regarded as abusive claimants those who would be good economic migrants and ensuring that they come into the country through the right door. That is going to take time to bed down and for the message to get across abroad. When it does that may have an impact on what you see in your surgery. When the matter does get to the appeal system what we have currently is an effort for it to be dealt with by an adjudicator at first instance as quickly as possible. If it is abusive, the adjudicator will throw it out. When the person comes to an adjudicator with an abusive claim, hopefully the adjudicator will stop it quickly, throw it out and that individual will have no prospect of getting leave to appeal to the tribunal. If the adjudicator system is working quickly, then that is the quickest way of weeding it out of the appeal system. What we have in prospect with what is being proposed in the Bill in a single-tier system is where we have immigration judges ‑ they were called adjudicators, now they are called immigration judges ‑ sitting in the tribunal ‑ called a tribunal but they are sitting on their own ‑ and this time going much more slowly through the case because they are aware that there is not a second tier and looking at things much more anxiously. It seems that there would be more opportunity for delay and wasting resources by the abuser in that system than there is in the present system. Q128 Mr Soley: I dare say. I accept, incidentally, the separation of immigration from asylum. We should have done it years ago. We did not and it was a mistake. Having said that, I could fairly easily give you examples ‑ probably getting less so now, since we have rattled about a bit on this issue ‑ where representatives have actually gone for appeals, telling the client that that will delay the process. That is really what troubles me: because it is not just done using public funds, it is done using private funds as well and the person pays for something which, at the end of the day, they are going to lose. Nicholas Blake: Could I add to that comment? Mr Irvine reminds me that both professions are doing accreditation schemes, both are concerned with improving training in a specific area and both are working in cooperation with the Legal Services Commission to improve standards. The Legal Services Commission, of course, now applies a strict threshold for public funding. The reasons I have given earlier: judges, adjudicators, tribunal members, whatever level of the system, can identify something which really ought not to be before them and they can make public any observations of that sort. There are effective professional complaint mechanisms which you can take up if there is a complaint. There is, of course, the Immigration Commissioner as well, who has a broad supervisory function as to whether the professions are dealing well with these matters, and there are, in extreme cases, of course, wasted costs orders as an elementary measure. That is cumulatively quite a number of pressures and opportunities to bring to public attention things which ought not to be going on so they can be addressed. Those systems, cumulatively or individually, can work to deal with the aberrant practitioner, which I understand to be the focus of your questions. What we cannot do is to remove a system of appeal to deal with a number of cases of abuse of appeal rights, if there are such, which can be readily dealt with elsewhere; and professional sanctions are, of course, an important factor in this case. Q129 Chairman: Do you have any concerns about the proposal that the majority of reviews must be heard by a single judge or about the removal of the lay element in the process? Nicholas Blake: I was listening to the comments this morning. It did strike me that the layman probably has played a particularly significant role in pure immigration cases. I am thinking of where knowledge of family life circumstances in South Asia has played a role. Certainly when I first started doing immigration appeals, I think in 1974/1975, it was about family reunion from those countries and actually having some understanding of how families relate, and what was considered a relationship within the rules and what was not, I think, did provide some important commonsense, which, of course, is at the heart of the system. So I think that might be a feature which we might want to consider, bearing in mind, as I know this Committee is aware, that we are not just dealing with asylum cases today, we are dealing with immigration cases, European Union cases and human rights cases, all of which merge and interlock in different ways. So we are dealing with a very broad range of socially important and difficult subjects and commonsense, and the lay element may always be important in that area. Q130 Keith Vaz: Can I first declare my interest. Ms Stanley's firm has acted for me on a matter in the past. The proposed legislation will allow judicial review in limited cases, including cases involving bad faith. Is this sufficient? Nicholas Blake: No. Q131 Keith Vaz: That is a leading question! Nicholas Blake: It is, with respect, nowhere near sufficient. There are really, I suppose, three features that we wish to bring to the attention of the Committee, if we have not already done so in the written material. First, there are things which go wrong where the procedure is fundamentally flawed. I noticed in the discussion you had last week that there was a suggestion of a more active role by adjudicators. That has some value, on the one hand, but the more active the role the more likely things start to go wrong, because if you do not realise the first time an issue is alive until the hearing is over or until you get the decision, then things can go wrong. Judicial review to prevent unfair procedures and breach of natural justice is always important to ensure that there are some ground rules with an incentive to act fairly and to ensure that there is a fresh opportunity to have a real appeal if you have not had one. To limit it to bad faith is, frankly, not the issue. It is merely a technical possibility of review. That is the first point. The second point is that these are immensely complicated and difficult cases. The case load is large. I say "immensely complicated and difficult" in many, many cases. What is a refugee? What is persecution? What is protection? These are issues which are being teased out even today. They are not all settled, it is not all cut and dried, and it is just being applied. There has to be recourse to the higher courts, and to a range of higher courts, in order for these issues to be reflected upon, for developments to be taken into account and for greater opportunity for reflection and wisdom to occur. What happens in a judicial review is completely different in atmosphere from what happens in a pressurised hearing before an adjudicator dealing with three cases a day. You cannot possibly know what the authorities are. In judicial review, you almost certainly will get high quality representation or better quality representation, you will get a more experienced judge with a broader frame of reference and you will get assistance at that level. The third factor is that it is really unhealthy for a single individual, or a small group of individuals, to be the determinative authority of what the law is, what fairness is and how those factors are to be applied without any opportunity for someone to say, "We do not like the way you are going." The whole merger of individual decisions to be reviewed through the discipline of an independent higher court system is very important. If you look at this jurisdiction, it is particularly vulnerable to political pressure. We all know it is a controversial area, more cases ought to go through and we need to speed up the decision-making, and we do not like the volume of cases, but for that to be excluded from higher court review is really very damaging to our‑‑‑ Chairman: I think it might be helpful if Mr Cranston came in here, because he was going to ask about the written submission possibility. Q132 Ross Cranston: I am not sure where we are! I was going to ask about the collapsing of the system of one tribunal, but in relation to judicial review, and I think I really would like to come in after Mr Vaz on the statutory review point, because I do not see a difference between statutory appeal and judicial appeal. If you had the system of statutory review which is there now, there is no real difference between that and judicial review. Nicholas Blake: The statutory review, of course, is focusing upon refusals of leave to appeal to the tribunal from adjudicators. That is what it is essentially doing at the moment. It certainly does it quickly, it is certainly coming up with the same kind of success rates at 25% and it is performing a valuable function, demonstrating that the judiciary can respond to these needs as required. What, of course, you do not get is the oral hearing. Of course there are plenty of cases with oral propriety to tell you about, or cases where we are told, "Your case is wrong", we get leave from the court at an oral hearing, and, we win the case. Indeed, many statutory reviews, I would be certain, are conceded by the Home Office because once you have had an exposure to the point and to the flaw in the reasoning process, many of these cases do not go back for re-litigation. Q133 Ross Cranston: In other words, you are saying that written submissions are not sufficient? Nicholas Blake: It is not always sufficient, no. It may be in a certain number of cases, but you cannot exclude the real possibility of oral submissions focusing minds. Sometimes the way a point is put suddenly opens one's eyes to something which had not previously been seen. Obviously if you prepare your written submissions well, there is a good chance that that will achieve the result; but because of pressure, time, the way it is read, perhaps just the approach of the particular tribunal, oral submissions have always added something in our collective experience. Q134 Keith Vaz: Can I ask Mr Fransman, Ms Stanley and Mr Oakeshott whether they regard the ouster clause as the most draconian ouster clause ever seen in Parliamentary legislative practice? Before they answer, can I tell them that that statement was made by Mr Blake. Mr Fransman: Mr Blake sitting next to me, or Mr Blake who previously gave evidence to the Committee? I was opening my mouth to answer the same question that you put before about the sufficiency of bad faith as the only recourse on judicial review, and that really ties into the question that you are talking about now. I note that the bad faith point as it appears in the Bill is now to be read together with the proposed amendment, which narrows the focus even more. It says, "The court may only consider whether a member of the tribunal has acted in bad faith if the court is satisfied that there is significant evidence of bad faith on the basis of dishonesty, corruption or bias." So it is even more focused. I imagine that someone was concerned that lawyers might get in there with some argument unless it was narrowed even more. Narrowed or not narrowed, limiting judicial review to bad faith is nowhere near sufficient, as Mr Blake has said, and the ouster clause in respect of judicial review is not only draconian - it is not just draconian to direct myself at your most recent question, Mr Vaz - to me draconian suggests an extremely harsh measure but within the sphere of the rule of law. I would call this ‑ and I am not alone, by any means, in calling it this ‑ an abomination. It is a constitutional abomination to deprive judicial scrutiny in this area, to deprive immigration decisions of judicial scrutiny in this way. So we would most certainly endorse Mr Blake's words and go further. Alison Stanley: Again we would endorse Mr Blake's words. It is a general principle of English law that the High Court exercises supervisory jurisdiction through either judicial review or statutory review of administrative decisions of tribunals. In this particular area of law, which is highly complex, fast‑moving, dealing, as Mr Blake has said, with issues of immigration law, asylum law, EU law, human rights law - so it is a very complex area dealing with individuals' lives - it has to be said that adjudicators do not always get it right, so it is essential that there remains a High Court supervisory function. Nick Oakeshott: We too would endorse Mr Blake's words. In our written evidence to the Committee we have enclosed an opinion from one of the leading Treasury juniors, Michael Fordham, and in his view the proposed ouster is arguably unconstitutional because it conflicts with the rule of law, the idea that judges will supervise the Executive in its decision-making. We also have concerns about whether the ouster would conflict with the UK's obligations under the European Convention of Human Rights. In addition to that - and this is to endorse Alison Stanley's last comments - we have particular concerns that in this area, which involves the right to life, the right to be free from torture or inhuman or degrading treatment or punishment, it would seem to us to be odd to remove the scrutiny of the higher courts in those cases, because in our view they are the most fundamental of cases that the court should consider. Q135 Keith Vaz: Finally can I ask you this? After a person has gone through the appeal process, all the various tiers that we have at the moment, all they have available is judicial review. I, and others on this Committee, have large immigration case loads. What we find is that solicitors take up cases, they exhaust legal aid. They may or may not go privately to a solicitor, but on a Friday evening through the fax comes an application for judicial review by the solicitor concerned. Do you not understand the reasons why the Government might want to limit judicial review. Is it not just an attempt to keep a case going which has no merits? Nicholas Blake: No, and there must be some repository of trust in the courts to dismiss claims which are precisely that. The reason why you get a judicial review at 6 o'clock on a Friday evening is because you have been told half an hour before hand. That is when the immigration officer wants to remove your client, often because the Home Office have not responded to representations may be made by Members of the House or, indeed, by legal representatives, and that is where you get this problem. If they do not remove quickly after the appeal is heard, it may be, three or four years later on, an Iraqi/Kurd case, or something, has been festering away. Q136 Keith Vaz: But this may just be because of bad decision‑making at the initial stage. This bad decision‑making has followed through the whole system and it ends up in the High Court because these cases are not dealt with properly right at the start. Is that a possibility? Nicholas Blake: There is certainly some possibility; although I would hope those kinds of problems are dealt with in the two‑tier system that we would want to see as the solution to those questions. So I would certainly hope that judicial review is not being used to cure a point which should have been taken earlier and could have been taken earlier. Although in the Zimbabwe cases ‑ we are not removing to Zimbabwe, but I know that there are real concerns about some of the decisions about the position members on the basis, "Well, we think you probably will be safe at some stage", and then something else is happening. There may be situations of real concern where removal is about to take place, but if it is simply an attempt to prolong the inevitable, the judge knows that, the Home Office can say that and a fairly resounding clip round the ear can be given to the errant practitioner. Let the judge tell that to the professional bodies. Let this kind of failure come to attention. I do not know whether Mr Irwin wants to add to your previous question, because there seemed to be a challenge to it. Stephen Irwin: The only thing of which I can be of use is on this point, because I am not speaking at all as an immigration specialist or someone with special knowledge of this area. I wonder if I could put it in four stages to you on the ouster clause. The first is to say that I do not see this as merely a legalistic point. I would ask the Committee to consider carefully, although you have a range of lawyers in front of you, indeed judges, today, that this has constitutional implications and they are considerable. Secondly, with that in mind, we are here designing a system, or the Government are being seen to design a system. There is always a temptation, when you hear people of the stature of Sir Duncan Ouseley and those who are with him, to trust the people who are currently in the system. If I may suggest it, that is not always helpful, because we cannot rely in the long term on the good will or the quality of the individuals who are currently there to get it right, or on the hope that we will always have people of that stature. So we always as lawyers, although designing these systems, have to cater for the lowest common denominator at some stage in the future, or for a lower common denominator; and that troubles me, because what could be created by this clause is a local legal culture sealed off, to a considerable extent, from the rest of the legal culture, sealed off from review, as if under a glass bowl, those people operating, who would develop a camaraderie, who would develop a common view and very quickly, however you look at it, have a tendency to think, "We only understand this." The Court of Appeal, or any other mechanism of judicial review, does not really understand our problems. That can happen terribly quickly. For example, it is one reason why the practice of sending High Court judges out on circuit has persisted, so that you do not get within the country a local legal culture. The glass bowl here, with this set of people underneath it, would have heat applied. This area generates heat, and that has an effect, particularly where a smallish group of people operate on a specialist area under pressure. It can be very political and it can be very intense on them, and I have great sympathy for them; but if they do not have the safety valve of a proper accessible system for judicial review, then I am very concerned as to what kind of local culture will grow under that bowl and under that heat, and - the last point - this has implications far beyond asylum and immigration. If we do this here, we will see the first, and only really significant, area where there is a shutting off of legal decision‑making from legal review at a higher level; and there must be a temptation ‑ again this not a party point; it could be any government ‑ for this Government or for future governments, under this kind or pressure or a different kind of pressure, to say, "We will wall this off" ‑ judicial review - because it is popular to do so or because it avoids difficulties. I am sorry if some of the things that have been written have sounded like Mr Angry. I am sure we are not trying to meet with that, and we are not trying to be merely legalistic, but I cannot emphasise to the Committee too strongly how lawyers and other professionals and judges, who may not be able to speak directly to you, far beyond the immediate subject area, feel very strongly indeed about this. Chairman: Thank you very much for that, plea, Mr Irwin. There are a couple of Committee members who have to leave shortly because of a memorial service. Perhaps I should just explain that. We just have a few more points we would like to pursue. Q137 Mrs Cryer: Two of my witnesses earlier, Charles Blake and Judge Hodge, suggested it might be better if the judge or adjudicator were able to take a more interventionist or active approach. Do you all believe that the proceedings in asylum and immigration appeals should become more inquisitional rather than adversarial? Also, is there a risk that the Home Office would dispense altogether with presenting officers if the judge were able to assume their role of cross‑examining the applicant and the witnesses? Alison Stanley: Perhaps I could try to answer that. It is a very interesting idea and certainly one that has been discussed in our world for some time. The Canadian model, which you may be aware of, has a similar system. Certainly there is a very strong argument indeed for taking away initial decision‑making from the Home Office and leaving it to an independent body, which would be well‑informed, one would assume, and would be able to access all the relevant country information. Indeed, it might be a cheaper process than our current process. If such a body made better decisions, there would be fewer appeals. That is certainly the experience of the Canadian model, where the Canadian Refugee Board makes initial decisions and relatively few are appealed. Having said that, it is very important that reasoned decisions are given and are still subject to appeal, because otherwise it is one person making a decision; and we have had a very eloquent explanation of the gold fish bowl effect, especially when heat is applied. What concerns the Law Society about this is that this should not be some sort of halfway house. It should not be a mishmash of the existing system and a new interventionist system. If we continue to have poor initial Home Office decisions and poorly prepared appeals because of the lack of public funding, which one of your earlier witnesses talked about, if we have adjudicators who are not trained in proper interventionist treatment of appellants, we may get the worst of all worlds. So although I think it is a very interesting idea and should certainly be examined, I think there are pitfalls in it and we need to be careful before moving into an entirely different system. Nicholas Blake: May I just add to that answer, with which I agree, that if there are advantages in looking at that, it is not the time to do it under this Bill: because what you would tend to have therefore is the first decision being taken by the adjudicator because, at last, the real questions are being asked. There may be advantages to that, but there must also then be an independent appeal in case the wrong questions have been asked, if there was no real opportunity to give evidence to support the answers or, indeed, if something has gone wrong. That tends to be what happens now. One must remember that some of these decisions say, "You have no fear of persecution in Somalia", when you actually come from Sri Lanka ‑ that kind of thing ‑ or you get other fundamental mistakes, or just minds not being directed to the case, and then the adjudicator has a hearing and says, "Oh, you are really about X, Y and Z, are you", and no‑one, of course, has focused upon that. That is where things can go wrong. If you are going to have an intensive inquisitorial system, which may be quite good as a system as a whole, you have to have an appeal from it to make sure that, standing back, the interrogation was not, as it were, Star Chamber interrogation, was not oppressive, that you would get a fair opportunity to ask questions and the real issues being required. That emphasises the importance of an independent appeal. Q138 Chairman: Going back to a point which you made earlier, do I assume from what you said, particularly what Mr Irwin said, that the earlier proposal of turning the Immigration Appeals Tribunal into a superior court of record would not have met the glass bowl arguments, and therefore do you not prefer it to the retention of the rights of judicial review? Stephen Irwin: That is right. Nicholas Blake: Yes. Indeed, there would be a number of real problems about that, apart from the flippant one that it is neither superior, or a court, nor does its' record justify it; but you would then have to have every case being determined by a judge of that status, and I am afraid it is simply not possible to rename and then afford it equal status. You have to win your spurs in this area, and there are some spurs to be won. Q139 Chairman: Is there anything other than on the judicial review point that could be, as it were, added onto or refined in the Government's single-tier proposal which from your stand-point would make it better? Nicholas Blake: I would think, trying to think within that framework, certainly the idea of an advisory opinion at the discretion of the President does not look right at all. There ought to be a duty, we would suggest, on the President to at least identify that the determination of the appeal turns upon a question of construction of the statutes, an international instrument to a regulation or a rule, and then the President can either grant leave, him or herself, or with that certificate you can go off to the Court of Appeal. That is the very minimum to keep some degree of scrutiny over the President's certification of what really are or are not questions of procedure. Further, I think that even the internal review of errors needs to be a little more opened up so it can be sufficient to say, "I had a fundamentally unfair hearing. I cannot guarantee you that I would have been bound to have won if I had a fair hearing, but since I have not had a hearing at all because a fundamentally unfair hearing is a nullity, I ought to have a hearing, please." That is not possible under the present regime. Nick Oakeshott: I would like to endorse what Mr Blake has said in respect of the need for an oral hearing on review. It seems to me that, even with the Government's amendment to allow for an oral hearing on review, that amendment is far too restrictive as to when such an oral review will be allowed. That is particularly important in cases where it has been identified that the original immigration judge made an error of law in assessing the evidence in the case, because obviously, in those circumstances, if on review a fair outcome is going to arrive, then the reviewing judge is going to have to hear that evidence again in order to come to a proper conclusion on the facts of the case. So it seems to me that the proposed restriction on when an oral hearing can occur on a review is far too tight. Stephen Irwin: Could I add one idea? I wonder if the Committee could consider that mechanism applied to Revenue matters. Just imagine what the feeling in the country would be if all you could do was to seek written representations, which could be ignored, in a legal culture that was walled off by a series of judges who only dealt with Revenue matters and were employed by, or were close to, the Inland Revenue. The Chancellor would love it, but it would not be good for our politics. Mr Soley: May I say, I have a lot of sympathy with the views you are putting, because the difference is the intensity of the political feeling in society generally. It is the exact reverse of what it would be with the Inland Revenue. That is the problem in a sense, because you are quite right in identifying that that is the risk but it is a difficult political balance. I am sympathetic to the argument you put, but on the other side, and one has to come back on this, as a politician I cannot win the argument in the street on this while there is serious abuse. I can only lose badly. I say that as someone who has fought for refugees and fought against racism. I cannot win this argument unless we deal with abuse. The practitioners at every level have a duty there, and that does not in any way imperil the strength of your argument about the appeal system. Chairman: I take that to be an implied question which Mr Irwin is entitled to answer. Q140 Mr Soley: It was. Stephen Irwin: The two things that I would say are, firstly, it is precisely where the political heat comes onto the legal, judicial system. We must maintain it. Secondly, if the problem is abuse, as an outsider, the process by which one might handle that is to sit down with all parties - not in the face of a piece of legislation that we think is fundamentally wrong in this respect - and say, "What can we collectively do?" A lot could be done, a lot clearly is being done as far as I can tell, to improve the quality of decisions earlier, but it does not seem to me, as an outsider, to be a respectable answer to Mr Vaz's question, "Why have we got too many judicial reviews?", to say, "Let us abolish the mechanism for correcting bad decisions earlier." That is what this is. It is a mechanism for putting right wrongs that have happened earlier in the system, and it is really a cosmetic relief of the pressure to take the corrective mechanism away without curing the earlier decisions that are wrong. That is what this is about. Mr Fransman: I want to endorse that, because it certainly seemed to be disclosed from Mr Vaz's concern that perhaps what was behind this was that last moment `phone call to the MP saying, "We are putting in a judicial review application. The chap is supposed to be on a flight in 20 minutes. Can you, please, do whatever is necessary to make sure he is not put on that flight?", and to abolish judicial review in this area because that might be perceived in the individual case as being an abuse of judicial review application. It is absolutely wrong to abolish judicial review as a response to that perception. First of all, it can be dealt with very simply by a judge, and in many of these cases it is necessary to get the permission of the judge within a matter of hours when an immigration officer is intent on removing a person. In any event, to deal with abuse one deals with abuse, one does not abolish such a constitutionally important remedy as judicial review. Chairman: Thank you very much, everyone, for your help this morning. |