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UNCORRECTED TRANSCRIPT OF ORAL EVIDENCE To be published as HC 211-iii House of COMMONS MINUTES OF EVIDENCE TAKEN BEFORE CONSTITUTIONAL AFFAIRS COMMITTEE
Asylum and Immigration Appeals
TUESday 3 February 2004 SIR ANDREW COLLINS MR ERIC METCALFE, MR HARRY MITCHELL QC and MR DAVID RHYS JONES MR RICHARD DUNSTAN, MS TERESA PERCHARD and MR COLIN YEO Evidence heard in Public Questions 141 - 250
USE OF THE TRANSCRIPT
Oral Evidence Taken before the Constitutional Affairs Committee on Tuesday 3 February 2004 Members present Mr A J Beith, in the Chair Peter Bottomley Mr James Clappison Ross Cranston Mrs Ann Cryer Mr Jim Cunningham Andrew Rosindell Mr Clive Soley Keith Vaz ________________ Witnesses: Sir Andrew Collins, former President, Immigration Appeal Tribunal, examined. Q141 Chairman: Sir Andrew, welcome, we are have lucky to have the benefit of your experience and advice. Could you start by saying how you think the process of statutory review currently operates, or in your pretty recent experience whether it has had a positive effect in reducing delay? Sir Andrew Collins: It certainly appears to be working in the sense that it has been dealt with very speedily. As you know, the application has to be made within 14 days of the refusal by the Tribunal. We deal with it in the administrative court within a fortnight, usually within a week, subject obviously to vacation when we have to catch up. They are running at slightly under the rate of judicial review, if one looks back a year, and I have some figures which show that in this last month, January, we allowed some 17 per cent of those that came through. The figures for December were 13 per cent and for November about 18 per cent, so it is running at that sort of level of cases. We are getting something in the order of 35 to 40 a week, which gives you some idea of the numbers. Q142 Chairman: Are you confident that cases are receiving sufficient judicial scrutiny? Sir Andrew Collins: Yes. In fact, we are giving them longer time than we would other applications for permission because they are the end of the line, or will be if they are refused. Q143 Mr Cunningham: What advantages do you see in involving the adjudicator at an earlier stage? Sir Andrew Collins: It is a question of speed and also a question of saving time and cost. It involves, or would involve, cooperation from the Home Office. The advantage would be that the adjudicator would be in on the initial interview and would be able to take a part in it if he wished. I personally think it would be advantageous to make the adjudicator's role a little more inquisitorial than it now is, and if the application was refused and an appeal against that refusal followed, there would be no need for any further interview, no need for any further evidence of the matters that had been covered by the interview, and the adjudicator incidentally could see that it was fair because, as you know, nowadays allegations are sometimes made, "I did not understand what was being put", "The interpreter did not interpret it properly" ‑ this sort of thing so it would dispose of that, and all that would be needed on an appeal would be any further evidence, documents or witnesses that the appellant wanted to call. As I say, it seems to me that, in principle anyway, this could be dealt with far more speedily than the system at present allows. If you then had a right of appeal on law only to an independent tribunal, now the second stage tribunal, it is pretty close to a one tier, it has all the safeguards and it also avoids the delays. There is another twist which I think should be considered as well, I am not suggesting necessarily at the first stage of appeal but certainly at any later stage, which is to follow the practice that prevails in relation to criminal appeals where, as you know, if you want to appeal you have to get leave of the single judge. If the single judge refuses you have the right of renewal to the full court but you cannot get legal aid for that. If you do represent pro bono, however, you can get legal aid if you succeed ‑ that is to say, it is given retrospectively. Now some such provision would, I would have thought, knock out, or tend to knock out, the unmeritorious cases. At present the system can be tweaked but, as it is operating at the moment, it really does not create any substantial delay once the statutory review is there, and although I know that there is opposition to statutory review on the basis that it is not as full and as fair as judicial review, nonetheless it does provide a judicial scrutiny, and the fact we are allowing some 15 per cent on average shows that it is needed, and it means that at a later stage, if they try it on, we can say, "Well, you have had all your fair process", whereas what is now proposed may not be regarded as fair. Q144 Ross Cranston: I have to make a declaration of interest; I am a recorder and barrister. Sir Andrew Collins: Is that a declaration of interest? I know you are a barrister! Q145 Ross Cranston: Could I just ask you about this involvement of the adjudicator? You do not think there are any natural justice or conflict of interest problems? Sir Andrew Collins: Why should there be? He remains independent and he applies his independent views if there is an appeal. All it means is that, having been involved, he has been able to see fair play or to see any problems in the initial interview. Q146 Ross Cranston: So the adjudicator makes the decision ‑‑ Sir Andrew Collins: No, the Home Office probably would make the decision. Q147 Ross Cranston: Yes, sorry, and then ‑‑ Sir Andrew Collins: The adjudicator would, having been involved ‑‑ Q148 Ross Cranston: Yes, and then there is the internal review. Now that would be, what, three adjudicators? Sir Andrew Collins: No, I would suggest that you do not need a single tier at all. This seems to me to be a pointless exercise, with respect, because once it is accepted, as it has been and as it must be, that there needs to be an internal review and that is a party‑led internal review because you cannot guarantee that things have not gone wrong, if you look at the percentages it is perfectly plain that, firstly, the decision‑making by the Home Office is not universally good ‑ in fact, I would suggest it is universally pretty bad although it has improved a bit ‑‑ Q149 Ross Cranston: I think we are going to come on to that. Sir Andrew Collins: Secondly, because of the pressures, the adjudicator's determinations are not universally good. There are some very poor adjudicator's decisions and that is shown by the fact that in about 30 per cent of cases leave to appeal is granted by the Tribunal, and do not forget it should not grant leave to appeal unless persuaded that there is a real chance of success on the appeal, so when you get to that stage you realise the need for some sort of review. Now, if you have a need for a review, what on earth's the point of dismantling the present system and having that review by a second tier tribunal, which incidentally is in accordance with the Leggatt proposals and what they are proposing to do is contrary to that. Q150 Ross Cranston: So you do argue for a second appellant level? Sir Andrew Collins: Yes, largely because I think this is completely unnecessary and it is not going to save time or money in the long run. Q151 Ross Cranston: When you say "it" is not working ‑‑ Sir Andrew Collins: The Bill. Q152 Ross Cranston: The proposal? Sir Andrew Collins: Yes. Q153 Ross Cranston: And then I think you do accept in your submission the fact that if you have that appellate body, then the referral power is sufficient, is that right, on to the Court of Appeal? Sir Andrew Collins: I am not very happy with it. I personally would be perfectly happy for a slightly narrower right of appeal to the Court of Appeal than now exists, perhaps on the basis of a second tier within the usual CPR test, but I would not quarrel too much with a narrower bar than that. It does seem to me to be a little absurd, though, that if you are only going to refer cases which are of the greatest importance and difficulty you should preclude an appeal to the House of Lords from the Court of Appeal Q154 Peter Bottomley: And the "CPR" test is what, for those of us who are not lawyers? Sir Andrew Collins: The rules of court. A second appeal is limited to cases where there is a point of importance involved. Q155 Chairman: Does anybody know what the initials stand for? Sir Andrew Collins: I have forgotten but someone behind me will remember! Q156 Keith Vaz: A third of all presentation officers, we are told, do not attend the hearings. Is that right? Sir Andrew Collins: It is very unwise and it is a major problem --‑‑ Q157 Keith Vaz: Sorry, is that right, not wise? The acoustics in here are bad. I know it is unwise but is that figure right? Sir Andrew Collins: That I do not know. I would not be surprised because it is all too often that there are no presenting officers in appeals, which creates great difficulties for adjudicators because it is supposed to be an adversarial process. Q158 Keith Vaz: How have your adjudicators, and you yourself as President of the Tribunal, been able to keep your calm at this constant flouting of respect from the Home Office to the way in which the appeals are dealt with? Sir Andrew Collins: We do our best, or we did our best. I am bound to say that what I used to do was send copies of what were decisions involving some of the worst misdeeds of the Home Office to the Home Secretary, but I gave that up after a time because it did not seem to make any difference. Q159 Keith Vaz: So you yourself made representations to the Home Office about the lack of appearance? Sir Andrew Collins: Yes, we did regularly, and one of the major problems, as I say, was, as you rightly point out, the lack of presenting officers. That is what has led to quite a lot of appeals by the Home Office because the adjudicator would allow an appeal quite often wrongly and the Home Office appeal rate I think was pretty good in the sense that the Home Office tended only to try to appeal those which did have a good chance, and that explains why their rate of success is rather higher than the rate of the would‑be immigrant. Q160 Keith Vaz: And clearly there has been a backlog that has developed over the years in your Tribunal, which has nothing to do with the way you have administered it but is due to the decision taken by the Home Office to send in more asylum cases than immigration cases? Sir Andrew Collins: Yes. What happened was, when I started in 1999, we had a backlog of about 5,000 cases. We were quite lucky because there was a slight lull and we managed to get rid of that backlog completely within about two years. It has built up again largely because we did not get the manpower to cope with the increase in numbers into the adjudicators ‑ I think they are running at about 5,000 a month coming into the adjudicators. Q161 Keith Vaz: Do you have enough adjudicators at the moment? Sir Andrew Collins: Again, I am out of it now ‑‑ Q162 Keith Vaz: But when you were last supremo? Sir Andrew Collins: I think about 500 now if you include part time and full time. The quality is not altogether even but that is not surprising and also, to be fair to them, there is a huge pressure. I may be wrong because I am a bit out of date but they used to do four cases a day ‑ one day the hearing, the next day writing up ‑ but as far as the Tribunal is concerned, when I left, we were getting I think about 700 applications for leave to appeal a week and now it is about 900. Q163 Keith Vaz: One of the problems I have experienced as a constituency MP, and I am sure it applies to people like Mrs Cryer and Mr Cunningham who have big immigration caseloads, is the lack of connection between the three agencies involved with an immigration case ‑ the entry clearance officer, the file going disappearing into the black hole of the appeals section of the Home Office, we write to yourself or your clerk and we say, "Where is this case? When is the appeal coming on?"; you write back and say, "We have not received the papers, write to the Home Office"; we write to the Home Office and then the Foreign Office ‑ what can we do about this endless problem? Sir Andrew Collins: I agree we have had problems with this and problems with it in judicial review too because we find unfortunately that a case is allowed by an adjudicator and the ECO does nothing and it takes or can take, and you have no doubt had such cases, a long time to get them to do something and I have had to threaten peremptory judicial review orders from time to time to get something done. You have also put your finger on an important point ‑ that this new Bill is designed with asylum cases in mind but of course it covers all the other ones, and families who want to visit their families here or marriage cases or whatever are finding themselves kept out for longer than they should be in certain cases and, of course, they will suffer from the proposals as well. Q164 Keith Vaz: The Committee under chairmanship of my colleague, Mr Beith, has gone abroad and had a look at the posts abroad and the way in which these applications are made from the start. Would it help if there was a common reference number that was given at the start that is then followed through the entire system? Sir Andrew Collins: I think it might. The obvious problem at the moment is that the ECO is the Foreign Office and the Home Office deals with the decision, or when it gets here it deals with the appeal and so on, and that can create problems and, frankly, I think there should be a much more global approach by all the relevant authorities to these cases. The Home Office and the appellate authorities should liase much more closely than perhaps they do, and that is partly why I am suggesting the involvement of the adjudicator at an early stage because one of the problems that certainly exists now is that an appeal is served on the Home Office and they can sit on it for weeks or months before it is put into the system, and sometimes they have a motive for doing so. An obvious example is where a situation in a country is a bit fluid and Kosovo in the past was a good example of this. When people came from Kosovo before the NATO takeover, as it were, most of them were refugees. Albanians were undoubtedly being persecuted by Serbs but if the Home Office had treated them all as refugees they would have given them indefinite leave to remain, since it appears for some reason which I have never understood that it is not required by the Convention to give indefinite leave, so what they did was to sit on the cases until the situation changed and then of course, when the situation changed, they were no longer refugees. This they have been doing quite regularly ‑ and I do not blame them in one sense. Q165 Keith Vaz: Finally, if we change the procedure of the Tribunal itself and perhaps dispense with the presenting officer and get the adjudicator to cross‑examine witnesses, would that help? Sir Andrew Collins: You could make an adjudicator more inquisitorial, I do not doubt, and that might have advantages, but so long as you have the Home Office properly represented it should not be necessary. It is only where you do not have the Home Office represented that the adjudicator is in a real difficulty. Q166 Keith Vaz: Would that have an impact on the need for legal advice and representation? Sir Andrew Collins: I think so. It is very difficult to substitute the person who has to decide for the lawyer. You should know that ‑ you do need someone representing you who can discuss your account with you. The fact is that the vast majority of would‑be asylum seekers are not good at English: they do need assistance ‑ and they get it, of course. The whole Oakington system, for example, was said to work because there is a representative there who is able to assist. All I am suggesting is that, if you put the adjudicator in there, you have the appeal effectively starting immediately if there is a refusal and if there is a desire to appeal, or any grounds for appeal. Keith Vaz: Can I, for the record, declare my interest which I should have done at the start of my examination which is that I am a non‑practising barrister and my wife holds a judicial appointment. Q167 Mr Soley: I do not have any declarations of interest other than to declare I have not got any! If I put to you whether you would prefer the system to be inquisitorial or adversarial, which would you choose? Sir Andrew Collins: Probably, if it had proper representation on both sides, adversarial but that is because I am a conservative old lawyer, I suppose, and am used to an adversarial system. Also inquisitorial does mean that you, I think, on the whole have to have a rather higher standard of judicial officer dealing with it; you have to ensure that you have a good one and someone who is going to be accepted, of course, and trusted by both parties. Q168 Mr Soley: And is that your main reason for not wanting an inquisitorial system? Sir Andrew Collins: Yes. I do not say I do not "want" it; I can see there could be advantages in it and I do not have, frankly, very strong views either way, but if you press me I suspect I come down in favour of adversarial because that is what I am used to. Q169 Mr Soley: Yes, but is it because that is what you are used to or is it because the inquisitorial system would need a higher calibre of adjudicators? Sir Andrew Collins: I personally think it would need a higher calibre and that is what worries me ‑ that the calibre is not high at the moment, or not universally high. Of course there are some very good adjudicators, and I recognise that the problem lies more in pressure than anything else. It is the same with the Tribunal and that is why I think one needs, and I always have thought you need, some form of review which at the moment is statutory, because they do 120 leave applications a week which is pretty soul destroying, and by the end of the week you would not be surprised if the odd one goes wrong, would you? Q170 Ross Cranston: Could I ask you about the ouster clause? You make the point in paragraph 7 about the legal difficulties of this ‑‑ Sir Andrew Collins: This was before, of course, the Bill and before I knew there was an ouster clause coming. Q171 Ross Cranston: You have referred to Anisminic and we could have a seminar about that, and you mention the interesting point about the judicial review on removal. Sir Andrew Collins: Yes. You have sought to deal with that, have you not? Q172 Ross Cranston: Well, not us, but the government has. Sir Andrew Collins: Yes, the government. Q173 Ross Cranston: You then make the third and, I think, convincing argument to lawyers that this is a point of constitutional principle but could I just ask you about the practicalities of it? My tentative view is that we have only just introduced this system of statutory review; why not let it run for a while and see how it goes? Sir Andrew Collins: I agree. Q174 Ross Cranston: The purist lawyer might say that judicial review is better because we can try again if we do not win with the first judge; we can have an oral hearing which we cannot have with a statutory review; but in answer to the first question from Mr Beith you seemed to be saying that your assessment is that the statutory review is working well and you are allowing 15 per cent on average? Sir Andrew Collins: Yes. Q175 Ross Cranston: What are the merits of statutory review vis-à-vis judicial review? Sir Andrew Collins: Speed. Q176 Ross Cranston: Are we doing any disadvantage to applicants by statutory review as opposed to judicial review? Sir Andrew Collins: Yes, in the sense that if you have the right of oral renewal and then you can go to the Court of Appeal you may be able to persuade other judges to grant you permission. You also achieve delay if that is what you want but, as I say, this was a problem, for example, which arose in the planning field with enforcement notices because people were taking ages or trying to spin out the process and so Parliament introduced a statutory review effectively ‑ "Appeal to a judge, that is it". I perhaps ought to declare my interest in that the statutory review was my idea, and the Secretary of State was concerned that if statutory review was put in everyone would try it and it would lead to an increase. It has not done that and I do not think it will do that but, of course, it is not as good for applicants as a full scale judicial review process. Q177 Ross Cranston: Having declared the interest, can we still have your judgment on its operation in the sense of the question whether you think it has done fundamental injustices? Sir Andrew Collins: No ‑ well, I would say that, wouldn't I, but no, I do not think it has and I do not think anyone thinks it has. It is there because of the pressure on the IAT in terms of numbers and it is necessary to have someone just to reconsider and it appears, as I say, to be working reasonably. All right, the numbers are small but it amounts to what, if it is 15 per cent of forty, about seven a week? And do not forget that this jurisdiction can be life and death. It is all very well to talk about the problems of asylum and flooding in with bogus cases but the fact is there are some genuine ones and, if you make a mistake, you can be costing someone his life. Q178 Ross Cranston: Mr Justice Ouseley gave us some figures as well and he promised an additional note to bring us up to date, and I think he gave us the figure of 35 a week as well? Sir Andrew Collins: He told me that he had said 35 a month by mistake but he has corrected the transcript. Q179 Ross Cranston: That was my recollection. Sir Andrew Collins: It is about 35‑40. Ross Cranston: It is more than I thought. Q180 Mrs Cryer: Sir Andrew, what do you believe would be the result of the proposed reductions in legal help and CLR (controlled legal representation) in asylum and immigration cases, and what about the proposed abolition of legal help prior to the initial decision? Sir Andrew Collins: I think it runs the risk of people not getting their cases properly presented and properly put forward. I do recognise that the difficulty is that there are a large number of incompetent advisers, and I do not only mean legal advisers because there are a lot of people who persist under the aegis of solicitors sometimes, and this has been a major problem. Any steps that are taken to try to improve the quality have my support. Some cases you can deal with in a relatively short time and a relatively short advice but there are those which need more consideration, and one of the problems that all these appellants face is the lack of supporting evidence. It is almost impossible sometimes to obtain supporting evidence, for obvious reasons, but solicitors and advisers are aware ‑‑ Q181 Mrs Cryer: When you say "lack of evidence" can be difficult, are you just talking about asylum seekers or family immigration, because I would have thought that with family immigration the evidence should be there. Sir Andrew Collins: Well, it should be but, of course, again the problem with those is that the appellant is outside the United Kingdom so you have that problem as well, and usually it has to be dealt with through a sponsor, as you know, which does not help. I am worried by the proposals to limit the legal aid but I do recognise that you have to have an eye to cost and you have to have some system of ensuring that only a reasonable amount of work is done, but that should be possibly for someone, should it not ‑ I do not know ‑ in the Legal Services Commission, or some equivalent to the old taxing officers? Mrs Cryer: Thank you. Q182 Chairman: What is noticeable is the presence of the sponsor in appeals is generally to the advantage of applicants, if you look at the statistics of cases. Sir Andrew Collins: Absolutely, but the sponsor has to be there because the appellant cannot be. He is in ‑ wherever. Chairman: Thank you very much, Sir Andrew. We are very grateful for your help. We have more witnesses to see and you have been of great assistance to us.
Witnesses: Mr Eric Metcalfe, Director of Human Rights Policy, JUSTICE; Mr Harry Mitchell QC, Migration Watch; and Mr David Rhys Jones, Advocacy Officer (Refugee Issues), Medical Foundation for the Care of Victims of Torture, examined. Chairman: Mr Mitchell, Mr Metcalfe, Mr Rhys Jones, we are very glad to have your assistance representing three different organisations. May I just warn you that we may have to disappear for a vote, but that will not in any way be a reflection of your evidence! Mr Bottomley? Q183 Peter Bottomley: Could I ask a couple of questions of Mr Mitchell, and he may in answering want to explain where he and those with him differ significantly from government proposals? Why do you believe that in dealing with asylum applications the IND staff "mostly got it right"? Mr Mitchell: That is based on my own experience. I have had ten years as an adjudicator; during eight of those I was mostly dealing with asylum appeals; I dealt with several hundred; and, as I think I have said somewhere in my written submissions, my rate of allowing appeals was round about 5 per cent and that is taking into account those appeals which I dismissed and that the Tribunal allowed. Now, I accept that there are some shortcomings in the way that the Home Office deals with the applications: one of the problems seemed to be that there were long delays between interview and decision, sometimes running into years. Another problem seemed to be the rather curious way the Home Office has of dealing with applications, that a case worker conducts the interview and somebody else later on, who has not seen the applicant, takes the decision. But nevertheless I think on the whole, in spite of all the shortcomings, the Home Office generally got it right in my experience. The adjudicator had the advantage, even if there was a rather poorly presented refusal letter containing all sorts of inappropriate parallels, of always being in the position of being able to not be influenced by that because he had all the evidence before him, usually rather more than was available to the Home Office case worker. Q184 Peter Bottomley: Now that an appellant will be able to ask for an oral review of a refusal by the Asylum and Immigration Tribunal in "exceptional circumstances", do you believe there will be any time saving achieved by the removal of the Immigration Appeal Tribunal tier? Mr Mitchell: Yes, there will be time saved. My own feeling is that the review of the system on top of the supposed single tier system is a re‑invention of the Immigration Appeal Tribunal, and in fact a Tribunal for which I never had very much respect, although having just heard Sir Andrew Collins I did have respect for him ‑ and I am saying that not because he is here but because I genuinely believe it. I have set out in my written submissions the reasons why I did not care for the Tribunal's quality of decision‑making, though that was quite apart from the fact that it was an extra level of appeal. I think that the review system which appears in the Bill is not going to be an improvement. It will be, if anything, something rather worse than the present system because anyone whose appeal is dismissed by the first level judge, as the adjudicators are going to become, will have the right to ask for a review and there will be no requirement of leave. At present you have to ask for leave but there is no such requirement in the Bill for getting a review, so I feel that the Bill presents us with effectively a two‑tier Tribunal with no necessity for leave to go to the second tier and no judicial or other review beyond that, and that worries me considerably. Q185 Peter Bottomley: Is it your experience that, if someone like you with others perhaps in a group like Migration Watch come forward with a commentary on what is going on, you are often referred to as extremists, and then a year or two later the government does what you are suggesting, or roughly what you are suggesting? Mr Mitchell: I have not had that experience. I am aware of some very unkind comments which are sometimes made about Migration Watch; in fact, I have been reading the Hansard report of the last session of the Standing Committee B on the Bill when Beverley Hughes was extremely uncharitable about Migration Watch. In fact, I have suggested to Sir Andrew Green who is sitting behind me that we ought to put in a rigorous response to it. Peter Bottomley: It has always struck me as slightly odd, if I may reminisce, that those who are judged to be good enough to be an adjudicator year after year, or one of Her Majesty's ambassadors, change their spots when they become free! Q186 Ross Cranston: I wanted to take up the point of the successful appeals. You said in your experience you only allowed 5 per cent. In your helpful written evidence you have a very useful table that shows that it might have been 5.7 per cent in 1997 and 9.1 per cent in 1998, but then it has gone up quite considerably in terms of appeals allowed. Are you atypical, or what? Mr Mitchell: Without being able to analyse all the results of all adjudicators in that period it is a bit difficult to answer, but I think to a degree the figures speak for themselves. I know I was often in contact over lunch or whenever with other adjudicators of my vintage and, generally speaking, my experience was the same as that of other people, but I think with the more recent adjudicators who have been put under pressure, as Sir Andrew Collins has been explaining, that pressure has probably resulted in a lot of appeals being allowed which ought not to have been. Q187 Ross Cranston: Yes. I really wanted to ask you about the next level, what used to be judicial review and is now statutory review. In your written evidence you are not very complimentary, or at least you say there is no need for judicial review, and in a sense you say it is abused, or has been? Mr Mitchell: You say the next level is judicial review, but the next level is the Tribunal, of course. Q188 Ross Cranston: Yes, but beyond that? Mr Mitchell: Beyond that? Well, I do not have personal direct experience. I have nothing against judicial review and, in fact, I am rather concerned about its total abolition by the Bill, so I have suggested that in lieu of that you should abolish the power of reviewing the Bill vested in the Tribunal itself which is an odd proposal to make, and instead of that have a direct appeal from the first tier judge direct to the Court of Appeal. I dare say that the Lords Justice, the Court of Appeal, will not be too happy about it but it seems to me that is the proper thing to do. Q189 Ross Cranston: So from adjudicator to Court of Appeal? Mr Mitchell: Yes. After all, there have always been, as far as I am aware, direct appeals from the County Court to the Court of Appeal, and decisions in the County Court are often of far less moment to the defendant or appellant than immigration cases, which as Sir Andrew Collins were saying can be matters of life and death, and certainly are important from the point of view of the family. Q190 Ross Cranston: I think many cases under the CPR from the County Court go first to a High Court and a judge, but maybe the others could come in on this point about the ouster clause. Mr Mitchell has said that he wants a provision to the Court of Appeal: I know there are objections from JUSTICE, for example, to the ouster clause. Do you want to say anything in terms of that particular debate? Mr Metcalfe: In response to the particular proposal to leapfrog ‑‑ Q191 Ross Cranston: In particular the point I was asking Sir Andrew Collins about, the statutory review vis-à-vis judicial review? Mr Metcalfe: In our original submission earlier this year we made the point that we had a concern over statutory review. In light of the proposed ouster I would certainly say that statutory review is more favourable to the extent that it gives an applicant an appeal on a point of law. However, I think Mr Justice Collins correctly highlighted the problem as being the timeframe, that is two weeks, as against the CPR giving you three months under standard judicial review procedures, and in our evidence we highlighted a case that went before the High Court by way of judicial review of someone who had changed lawyers in midstream and it has to be said, in light of the comments that are made about the quality of immigration solicitors, that quite often you find that asylum seekers will change lawyers because of inadequate representation, and this was a change of lawyers that had occurred something like two and a half months after the original adjudicator's decision, and it was not until she had got her new lawyers that she had been able to appreciate that there were significant and tangible areas upon which she was successful ultimately by way of judicial review. Now if that had been a case that had come under the statutory review procedures it is highly unlikely that that particular asylum seeker would have been able to change lawyers within two weeks, and I think it points to the general problems that asylum seekers would face ‑ that is to say most of them do not speak English, they are often taken advantage of by unscrupulous immigration practitioners, and so forth. So in effect you are depriving a class of applicants under the general judicial review procedures for reasons of what are administrative inefficiencies elsewhere. Q192 Ross Cranston: Yes, but maybe the argument would be to improve the lawyers, and of course the Law Society has tried to do that and we also have the regulator dealing with immigration practitioners. Mr Metcalfe: Problems with immigration practitioners are significant, but I would also have to say that there could be any number of reasons why people should be entitled to the benefit of a three month period, and we should not be hasty before we completely move the judicial review regime over to a statutory one. Another point against ouster and perhaps in defence of statutory review is that it has only been in operation since April 2003, which is less than twelve months. Q193 Ross Cranston: I appreciate the other comments you have made about the abolition of any sort of review with the ouster clause, and you have a great deal about fundamental rights and I take all that. You do not want to get rid of the Appellate Tribunal either, do you? Mr Metcalfe: No. In our view, the existing system works adequately. Q194 Ross Cranston: Could you argue that what is proposed, and I think Mr Mitchell made the point, is really the re‑instatement of the Tribunal but within the auspices of the adjudicatory body? In other words, you simply constitute a three person appellate body from within the adjudicators? I think we had some evidence from Judge Hodge, for example, that they would choose Vice‑Presidents, more senior people, to conduct those reviews? Mr Metcalfe: Interestingly enough that would put, as you say, a miniature second tier within the single tier, the problem being that the current Immigration Appeal Tribunal operates a very effective legal procedure which screens out ill‑founded claims to the second tier. In many ways it would be creating a rod for their own backs because, without the benefit of the additional machinery that the Immigration Appeal Tribunal enjoys to screen out applications from adjudicators' decisions, they would find themselves doing a lot more work and, given that there are so many hours in the day, I would question whether they would be able to maintain the increased administrative workload together with giving the kind of anxious scrutiny that immigration and asylum cases normally deserve. Q195 Ross Cranston: Perhaps that is an administrative point that has to be addressed but I take the point. Mr Rhys Jones: As things stand it seems to be sufficient that getting it right most of the time is good enough and, as far as torture survivors are concerned, it is not good enough. The failings at all level do mean that there is a significant risk of making mistakes at first instance, at appeal and, indeed, by the Tribunal. The more checks and balances there are in the system the more likely it is that eventually those mistakes can be corrected. If the system is to be telescoped, then mistakes are more likely to be made. As an organisation that deals primarily with torture we see inevitably recourse to Strasbourg under Article 3 which tries to ensure that State parties do not remove individuals to face torture or inhuman and degrading treatment, and if that is the only recourse that is open then any savings that may be made in the short term may find the government having to defend its position more often at Strasbourg, and those savings may then be lost. Q196 Keith Vaz: Mr Mitchell, the purpose of your organisation is to limit the number of immigrants to the United Kingdom, is it, or merely to tell us that they are coming? Mr Mitchell: No. The purpose is to lobby the government and public opinion generally for a better managed system of immigration. Q197 Keith Vaz: So it is not to stop immigration? Mr Mitchell: No. Again, that was one quarrel I would have with what Beverley Hughes was saying in Standing Committee B last week. She described Migration Watch as an "anti immigration body", which it is not. Q198 Keith Vaz: So you are just there to inform us of developments, and tell us what is going on? Mr Mitchell: Yes, and to criticise developments ‑‑ Q199 Keith Vaz: And to criticise the government? Mr Mitchell: And to criticise the government where we think that is appropriate, yes. Q200 Keith Vaz: Mr Metcalfe, what impact do you believe the proposed reforms contained in the Bill will have on the consistency and quality of judicial authority? Mr Metcalfe: I think it will severely degrade them. If I can point to statistics that we referred to in our original submission on the current success rate of appeals to the IAT, and this is sourced from Hansard December 2003, according to Home Office statistics 16 per cent of appeals to the IAT are allowed and a further 44 per cent are sent to adjudicators for reconsideration, so that is a total of 60 per cent of decisions that have reached the IAT which are found to be in some way flawed and require in some way reconsideration or are, in fact, overturned. Now, to my mind, I cannot help but think that removing that would allow that 60 per cent of cases, or errors, to slip through, if we are just addressing the elimination of the second tier but also if we address by way of judicial review as well. Q201 Keith Vaz: Have you been able to look at other countries and other jurisdictions to see the way in which they deal with immigration cases, whether they allow rights of appeal? Mr Metcalfe: It would be standard practice in any common law jurisdiction which observes the standard principles of judicial review that the decisions of any inferior tribunal will always be reviewable in the national jurisdiction of the High Court, so I think abolition of judicial review would be unprecedented. As regards the practice of administrative tribunals, there have been various experiments. It is often more difficult to compare like with like because, say, as in the situation in Canada, you have an independent agency which has a great deal more expertise at first instance which is able to make the decisions. Q202 Keith Vaz: But your paper that you submitted is very critical of the operation of the Home Office. What if there was a package that dealt with the clear inefficiencies of the Home Office that ensured that the presentation officers turned up in court and that the decision‑making at the start of the case was done robustly and efficiently? If you were presented with that kind of package and the removal of the right of appeal, would that satisfy you? Mr Metcalfe: Not on the point of principle. The point of principle goes to the separation of powers and tribunals are by nature creatures of the executive, and it is in our view a violation of the separation of powers to allow one branch of government complete control over individuals from their arrival in this country as to how they are conducted and detained to their eventual removal without any independent scrutiny. Chairman: Just pausing for a moment, why do you believe that a tribunal with judicial membership and rules overseen by the Council of Tribunals is a creature of the executive? Q203 Ross Cranston: It is a bold claim. Mr Metcalfe: It is, and I hesitate to press it too far. It is, of course, always welcome when tribunals are set up in such a way to mirror as far as possible the independent workings of the judiciary, and one of the best safeguards you can possibly provide in administrative tribunals is the chairmanship of a High Court judge and adopting certain safeguards and procedures to ensure that the decision‑making procedures offer the same kind of guarantees. I certainly would not say that all administrative tribunals are to be treated alike and certainly the proposed tribunal would be under the chairmanship of a High Court judge, but it is nonetheless a Tribunal set up by a government department for the sake of reviewing another government department's decisions and, ultimately, if you are excluding judicial review you are excluding a separate branch of the United Kingdom from being able to review executive decision‑making. Q204 Chairman: Mr Mitchell, do you want to contribute to this? Mr Mitchell: Briefly, I object very strongly, having spent ten years as a judicial officer hearing immigration appeals, to any suggestion that the Immigration Appellate Authority was part of the executive branch. It is true to say that originally, when immigration appeals were set up I think in 1969, the adjudicators belonged to the Home Office but they were transferred to the Lord Chancellor's Department in 1987 and there has never been any suggestion that adjudicators or the tribunal were not independent. Q205 Keith Vaz: If an appellant has access to an independent tribunal, why should he or she be entitled to a further remedy under Article 13 of the European Convention on Human Rights where he would not be entitled to an in‑country remedy with the same decision made by a court? Mr Metcalfe: I am a little unclear on the point you are making in relation to Article 13 and in‑country as opposed to external review. Q206 Ross Cranston: I am not sure you accept the premise. You would say it is not an independent tribunal. Mr Metcalfe: I should clarify the point about independence. I certainly do not want to impugn the independence of High Court judges or any of the other independent staff at the adjudicator level or Immigration Appeal Tribunal level. There are, however, points to be made by reference to the jurisprudence in the European Court of Human Rights as to what constitutes independence for the sake of compliance with Article 6 of the European Convention. I do not want to go too much into the case law on that point, particularly because there are questions about how Article 6 applies to immigration cases in general, but there is extensive jurisprudence in relation to the extent to which administrative tribunals can be regarded as independent and various compliance they have to have with various standards. I would say for present purposes and discussions I am happy to say they are independent tribunals, but I do not think even recognising they are independent takes away the need to have further judicial review. It is accepted as a matter of good practice that you need superior courts monitoring inferior courts for the sake of ensuring consistency and coherence. Q207 Keith Vaz: Going back to a previous answer, JUSTICE has no objection to somebody being removed from the country once they have gone through all the various judicial levels and they have had their case looked into, and basically what you appear to be calling for is better enforcement, is that right? Would that be a correct way of summarising your position? That once they have gone through the system and they have been told they cannot stay, they should be removed as quickly as possible? Mr Metcalfe: We were surprised that the Home Office was using this as a basis for justifying delays when some of those were, in effect, the failure of the Home Office to remove people who had no valid claim to be in the United Kingdom. Assuming they have received fair procedures and so forth and it has been established that they have no further claim, then there is a category of people who can be validly removed, and we pointed to the fact that in certain cases the Home Office does not remove certain people who are otherwise eligible to be removed. Q208 Keith Vaz: And that would be presumably Migration Watch's position, once you have been through the system, or would you not want them to go through the system at all, and you would just like the Home Office to make the decision? Mr Mitchell: No. We agreed there should be an appeal system. I have expressed views on what should be the limitations. Q209 Keith Vaz: And once they come to the end of that they should be removed swiftly? Mr Mitchell: Yes, and could I say that it was the universal frustration among adjudicators that we would hear appeals, dismiss them and then nothing happened. We all wondered, "What are we here for? What are we doing? Why all this effort and public expense if the end result is nothing?" The people who came to claim asylum and have had their appeals finally rejected and dismissed are still here, and nothing is done about removing them. Q210 Keith Vaz: But it is administrative action; it is not legal action. It is the failure of the administration to follow through on a decision that has been taken. Mr Mitchell: Yes. Q211 Mr Soley: Mr Metcalfe, do you have a view particularly about adversarial versus inquisitorial? Mr Metcalfe: We have not addressed it so far in our evidence. Our view would be that of Mr Justice Collins. We would favour adversarial proceedings. Q212 Mr Soley: Why? Mr Metcalfe: It is simply that, to tell you the truth, the United Kingdom has very little experience. United Kingdom administrative tribunals have very little experience of inquisitorial methods. There are some exceptions but, when you are talking about something as large scale as immigration decision‑making, I do not know that the United Kingdom has much experience. Q213 Mr Soley: Can I characterise that answer as an "old conservative answer"? Mr Metcalfe: No, it is a pragmatic one. We would fully support, for instance, a first level decision‑making tier that had a great deal of expertise such as the system that had operated in Canada. If you had immigration experts making decisions at the first instance perhaps there would be a greater case for an inquisitorial procedure, but that takes a massive amount of resources and I would be surprised if that would be able to be achieved. Ross Cranston: We have lots of ombudsmen who do lots of good work. Q214 Mr Soley: And Mr Mitchell you are in favour of the inquisitorial system? Mr Mitchell: I am glad to have the opportunity to answer this question. I strongly disagree with what Mr Metcalfe has just been saying. The adversarial system, after all, is appropriate in civil litigation. If you are having a dispute over an alleged breach of contract or something like that, the judge can be totally detached and sit quietly, hear the evidence and the submissions, and then make a decision. In immigration and asylum appeals there is an important public interest at stake. It is not just the question of the appellant versus the Home Office: it is important that, if the appeal is to be allowed, it should be allowed on proper grounds; that the evidence should be properly explored; that the adjudicator, or whoever, should be given leave to ask such questions as may be necessary to arrive at the truth, and the truth particularly in asylum appeals, can be very elusive. So I do think it is most important that adjudicators and judges hearing immigration appeals should be at liberty to ask questions without descending into hostile cross‑examination. That is to be avoided; you can still ask a lot of pertinent questions for the purpose of arriving at the truth. The point has been made previously and by a lot of other people in public of late that the adjudicators have been hobbled for a long time now by the lack of presenting officers and by the lack of any counsel being appointed in lieu of presenting officers, and that lack makes it all the more important that adjudicators should not feel inhibited from asking proper questions to arrive at the truth. Q215 Mr Soley: And how would you deal with Mr Justice Collins' concern that maybe the level of experience, training or whatever might not be sufficient? Mr Mitchell: You have to improve the training of adjudicators. Q216 Mr Soley: So you are looking for a lock, stock and barrel change in terms of moving from adversarial to totally inquisitorial, and that would mean new people doing it? Mr Mitchell: Having now been retired from the bench for fourteen months I have to confess I often used to indulge in inquisitorial questions myself simply because that was the only way to get a satisfactory picture of the truth and to be able to give a proper determination of the issues before me. Q217 Mr Soley: Mr Rhys Jones, do you have a view? Mr Rhys Jones: Only to say that the prospect of yet another change on top of all the changes that have gone through so recently, and indeed are going through now, worries me more than somewhat. Having said that, the Medical Foundation is somewhat schizophrenic because we also advocate independence for the whole process to be taken away from government control as far as that is possible, so that we would have to link into an immigration review board, as exists in Canada, with a significantly higher calibre of officers dealing with cases at first instance. At the moment my understanding is that, by and large, case workers in the Home Office are school leaver level; certainly the salary level that they get paid suggests that that is the level of candidate they are recruiting. Presenting officers are paid slightly more but only have one day's training; and adjudicators have limited training and very little training in the particular area that concerns us. Is this the time to introduce a completely new process? No. We would want to see things trial‑piloted and considered with much more care. Q218 Mr Soley: But you are describing a situation in which you would almost prefer it to be inquisitorial if you could get there without any hiccups? Mr Rhys Jones: All other things being equal possibly, but we would like significantly more training for adjudicators and presenting officers if they were to be there, again just looking at the Canadian model, so that presenting officers would become officers of the court, be bound by the court and subject to the rules of the court so they could not, as we perceive at the moment, tend to go on frolics of their own, ignore the refusal letter, deal with matters as they see fit and reopen the entire case, rather than agreeing matters which can be agreed beforehand. So if we were to be faced with an inquisitorial system then the adjudicator, or whoever at that tribunal level, would be dealing with pertinent matters, matters which could not be agreed beforehand, much as I understand is the system in Canada. Mr Metcalfe: If I could simply offer a reason for our defence of the adversarial system that was raised by Mr Mitchell's comments about the weight to be given and comparing immigration cases with normal civil matters, it strikes me that the appropriate analogy for an immigration case, or at least asylum cases where the possible outcome is the person to be returned to a country with a risk of further mistreatment or torture or death, would be a criminal case, and it would be a considerable shift in this country were we to take inquisitorial proceedings in criminal cases as opposed to adversarial proceedings, and that is the analogy I would draw at least in relation to asylum decisions. Q219 Mr Soley: That brings me to Mr Rhys Jones because, Mr Rhys Jones, you are often protecting the interest of people who have been tortured and who fear going back to such a regime. In fact, an inquisitorial system could benefit that person in as much as, and I speak from my experience as an MP who has dealt with many of these cases, there is nothing more compelling and convincing than a person who has been tortured. On the negative side of that perhaps is if they are traumatised to the point of not being able to speak for themselves, and those are the ones you presumably want the legal representation for, is that right? Mr Rhys Jones: It could be. This is very much off the top of my head to the extent I would not wish to be bound by this but I would certainly want to see in those circumstances adjudicators of a calibre where they could deal with, and had sufficient knowledge and expertise to deal with, the psychological harm and potential for harm in such an inquisitorial system. I do not want to overplay retraumatisation but it is a phenomenon that exists and we must be very careful about where we tread in dealing with some of our clients. Q220 Mr Soley: I agree with that. The reason why I am pressing you slightly on this is because the medical council, I do not think, is always as good as it could be on producing the medical evidence to back it up. I often wonder whether we would not be better off without the legal representation so that you have got direct contact with the victim. I speak, again from personal experience, of many people who have been tortured and are afraid of going back. I have to say that you can get a very convincing feel for it, and somebody speaking on their behalf can actually be a lot more difficult? Mr Rhys-Jones: I think there is a difference of context. An individual comes to you, as their constituency MP, seeking help, seeking advocacy, seeking support. They are, either before they arrive through correspondence or as they present themselves in your surgery, laying themselves open, saying, "I am a tortured Somalian. I am worried about what is going to happen to me in the future." This may be the scenario you are faced with. Whether they would view ‑ let us call them adjudicators ‑ adjudicators in the same light as being in their corner, on their side, particularly if it was an inquisitorial system, and whether that would actually inhibit rather than enhance their ability to give testimony, I am not sure. Q221 Mr Soley: Let me give you the sort of example that is fairly common. There is a woman who has been raped and who finds that difficult to talk about, not least because of the cultural problems; the cultural problems make it particularly severe in that culture. How easy is it for them to convey that to a third person? Mr Rhys-Jones: Extremely difficult. The training tool that we have used in the past with adjudicators, and I will mention to the Committee now, is to suggest that each of you should turn to the person next to you and reveal to that person your most intimate secret and then have that person tell us. You will not do it. Neither will many victims of torture. One of the reasons that torturers get away with what they do is because they are confident that they are imparting a secret which the person they torture will not tell, or will not tell easily. There is an enormous skill, and there needs to be time and patience, in bringing their testimony to bear. I am not sure that any court setting is appropriate always to bring out the testimony. Q222 Mr Soley: Yes. In a way I suppose it is at the heart of my question, because I think what I am after here is the difficulty that you have in asking someone to represent a person in that situation, where they have to talk about it publicly on behalf of someone who might not have talked to them about it fully anyway, unless you yourselves, as medical people, are dealing with it? Mr Rhys-Jones: Well, I should make it clear that I am not a medical person. It seems to me that what you are asking to do is to take out of the therapeutic relationship the therapeutic work that is done over what can be a considerable amount of time before we begin to approach the full truth and put that into a court setting. However, we are vulnerable individuals and we do not think that vulnerable individuals manage particularly well under the current system. It is nevertheless going to be a court, and I have serious misgivings about what you suggest. Chairman: Thank you very much gentlemen. We are grateful for the evidence you have given us. We have more witnesses yet to see.
Examination of Witnesses Witnesses: Mr Richard Dunstan, Immigration Policy Officer and Ms Teresa Perchard, Director of Policy, Citizens Advice Bureau, and Mr Colin Yeo, Head of Department, Higher Appeals, Research and Information Department, Immigration Advisory Service. Q223 Chairman: Ms Perchard, Mr Dunstan, Mr Yeo, welcome. We are very grateful to you, from the Citizens Advice Bureau and the Immigration Advisory Service, for coming to give evidence this afternoon. You have heard the discussion that has gone on already about access to judicial review. If the Government went ahead with its proposals to block access to judicial review, do you consider that a revised version of statutory review could be seen as a robust but efficient alternative? Mr Dunstan: I am not sure we can really add to what has been said by previous witnesses, particularly those today and in earlier sessions as well, although I think it is quite likely that there could be some impact on the voluntary sector, such as ourselves, with CEBs, with clients coming in very late in the day wanting to access a solicitor and perhaps not being able to do so. I do not think we have a view over preference between judicial review and statutory review. Q224 Chairman: The Immigration Advisory Service in evidence to us said that, "Where there is immunity from criticism or review, a decision‑maker has no incentive to make a good quality decision", and it went on to express the fear that a combination of things, including cuts to legal aid, could bring about a situation in which success at appeal would decline and the Home Office would then say, "We are making much better decisions now because not so many are being turned down on appeal." Mr Yeo: That is certainly one of our concerns. I did not completely catch the question, but I thought you were perhaps suggesting the Government is thinking of abolishing judicial review completely and replacing it with some sort of statutory review mechanism beyond what is already in place. Q225 Chairman: We know what the Government is proposing in terms of ouster for judicial review, and we have heard today the merits of letting the existing statutory review system roll on longer because it appears to be working well. I presume you would agree with that? Mr Yeo: Yes, our experience has been that such reviews can be successful. Certainly the success rate suggests that they are. Q226 Peter Bottomley: I am sorry; can I stop you for a minute? Does "success rate" mean that a decision has been overturned, or it is sent back, or does "success rate" mean they confirm a decision that is already made? Mr Yeo: The success rate in challenging, so overturning, decisions; and it has been much higher than under the old system of judicial review. That is partly because I think representatives have been more self‑selecting in the cases they have taken forward. As far as we are concerned, it has been working quite effectively, although certainly there is potential for injustice where it is a less thorough procedure and there is less opportunity for developing the law further at a higher stage. Ms Perchard: I think, looking all around the theme of securing the best quality decision and review of decision, what we have highlighted in our evidence is not so much a concern with the proposed changes to the system, in terms of tiers, but the need to ensure that people get good quality legal advice and representation and also that there is a proper focus on improving the quality of initial decisions ‑ the success rate at appeal has been going up steadily across all types of appeal ‑ and, rather than focusing on the back end of the system, focusing on the front end and getting decision‑making right and making sure that people get access to proper advice; and representation is very important as part of these changes, not just changing the system of review and appeal. Q227 Mrs Cryer: I want to address two questions to Mr Yeo on behalf of the Immigrants Advisory Service. Referring to something ‑ I am not sure whether it is you ‑ that someone at the IAS has said, why do you believe that entry clearance officers will revert to increasingly arbitrary decisions and what effect do you believe the new Bill will have that will give them the knowledge that challenging such decisions will be increasingly difficult? Mr Yeo: The reason we say that is that we have got experience of a very large number of very poor entry clearance officer decisions. When the right of appeal was removed for family visits we believe the quality of decisions fell drastically, and when that right of appeal was reintroduced there was a very high success rate in terms of challenging the decisions. I think the overall rate is about 80%. Our success rate, I think, is over 90%. Where the decision‑maker is effectively immune from criticism by a tribunal or some other review mechanism, they have no incentive to get it right, and previous experience tells us that does turn out to be the case as well. Q228 Mrs Cryer: I understand personally ‑ this is from personal experience in my own constituency ‑ that often family applications are refused because there is no proper method of removal. So that once a person is in, if he or she decides to stay, there is no way they are going to be removed and, therefore, to play safe perhaps, entry clearance officers do say no. Then, if it does go to appeal, in my experience you often get the family coming up and saying, "It will be all right. I will give you my absolute assurance that this person is going to go back". I am sure that that does work. Could you comment on that? Mr Yeo: Yes, certainly. There is disparity sometimes perhaps between the reasons that are expressed by an entry clearance officer for turning down a decision. Partly that is structural, because the decision to refuse is made on one day and an appeal will then be lodged and written reasons will be given perhaps six or seven months later. There is an enormous delay between the actual decision and the written reasons being given. I assume they refer to notes that were made at the time, but I am not sure. We suspect that a lot of decisions are made on an instinct basis, as you suggest. If the ECO suspects that a person might not come back, they turn it down. When that goes to appeal it is well‑established that suspicion is not a good reason for a refusal and we are able to overturn a lot of those decisions. Mr Dunstan: Can I add to that? It is also the experience of our advisers that a lot of ECO decisions seem to be made on a gut feeling and are not formed by any particular evidence. I would draw attention to the fact that the success rate of appeals on entry clearance ‑ it in particular ‑ is very high. It is 35‑40% in other than family visitor appeals and in family visitor appeals themselves it is 50%. So that is a startlingly high success rate. There is also a marked lack of evidence to show the extent to which those granted visitor visas overstay when they are not supposed to. Undoubtedly there are cases. No‑one would dispute that there are cases‑‑‑ Q229 Chairman: Where would this evidence come from? Mr Dunstan: Well, there has been very little research done to examine the questions ‑ certainly the Government has not undertaken any research on this point, as far as I am aware; it certainly has not published any ‑ and it might well be a valuable subject for research: because, as Colin and I have said, you have entry clearance officers making decisions on gut feelings; they are not tested unless the case goes to appeal. Many cases, of course, do not go to appeal, but decisions should be based on evidence rather more than gut feeling at the entry clearance level. Q230 Mrs Cryer: Usually the evidence is that there is no incentive to go back ‑ perhaps he has not got a child or has not got family there ‑ so it is not just a gut instinct. I am talking about cases that I deal with ‑ so I have some experience ‑ whereas, as you say, when it goes to appeal, in fact when families come to me and ask me to help them ‑ my first response is to the uncle, or whoever ‑ I always say, "Can I have your assurance that this man is going to go back? Because if I give my word he is going back, you are going to let me down very badly." I think when you get to that situation, eyeball to eyeball sort of thing, you do get the truth, and frequently the person sponsoring is going to say, "Yes, I know him. He is going to go back. I give you my assurance", and I can work on that. I am sure this happens. Mr Dunstan: It is sometimes quite a difficult thing for an applicant in that situation to sort of push in advance that they will go back, and at some point a judgment has to be made, but I think, in terms of policy making, it would be in everyone's interest if there was a little more information about what people actually did in practice having arrived in the UK. There seems to be an assumption that lot of people stay on beyond the terms of their visa, but there is very little hard evidence of that. Q231 Mrs Cryer: There is actually. I go back to what I said originally, that it is a problem of non‑removal. If they decide to stay, not much is going to be done because there is no system in place for removing them. Can I move on to another question? Again, it is to Mr Yeo. Do you think that the emphasis on dealing with asylum cases quickly will have a positive impact for those making immigration appeals in relation to visitor visas, insofar as it might speed up the process for them, or do you believe it is more likely to lead to rough justice? Mr Yeo: It is far more likely to lead to rough justice. We are desperate to improve the speeds between refusal of entry clearance and determination of the appeal. It is very much in our clients' interests to reduce that period as much as possible, and it is very frustrating that the Home Office seems to be obsessed with the idea that it is in everyone's interests to spin out appeals as long as possible. That is not the case. About 60% of our casework is immigration, where we want to get things done as quickly as possible. However, under the proposed system we are not at all confident that there will be good quality decisions made; and with some of the changes that have already been introduced under the 2002 Act and the Procedure Rules and so on, things like the adjournment regime, where a closure date has been introduced ‑ this is something that David Blunkett was discussing a lot at the time ‑ where a date is set when the appeal has to be determined, it is incredibly unjust in a lot of immigration cases where there is a very short period between the case entering the Immigration Appeal Authority and the hearing coming up. The opportunity to respond to new Home Office points, or gather further evidence, or just deal with the case properly is very limited even though, as I say, it is in our interests and in our clients' interests to try and get it done as quickly as possible. Q232 Mrs Cryer: I assume you do appreciate that in family visits, certainly when people come to me, they are in a hurry. Usually it is a wedding, or someone has died, someone is dying or the birth of a new baby and therefore they really do want to come in quite quickly. So you would agree that if you could speed it up‑‑‑. You are saying it would lead to rough justice, but you do understand? Mr Yeo: The appeal system does not lead to very much delay. The appeal system is very quick in immigration cases. The enormous delay comes from the period where the file is with the entry clearance officer abroad and is then, for some reason, stuck in the Home Office because the appeal is lodged with the Home Office rather than the appeal authority. The Home Office then hang onto it for weeks or months before they finally give it to the appellate authority. The delay is much, much longer at that initial stage than for the appeal stage, and it is very frustrating, as you say, in family visit appeals. It is also frustrating for separated spouses and any other family type case. Q233 Keith Vaz: Can I, first of all, congratulate you on the work you have done, the research you have done, into family visitor appeals. It is excellent work and I am grateful to you for what you have written. What you are describing, Mr Yeo, is an administrative problem, that if the administration worked efficiently from decision to the file coming over to the appeal processing centre ‑ that it had been tracked on ‑ that would make huge difference to the appeal system? Mr Yeo: Yes, I mean, it is very difficult initially to find out where a case is, whether it is still with the entry clearance officer, whether it is with the Home Office, whether it is with the IA; and should you contact the wrong one of them, they do not know either. Q234 Keith Vaz: Would you support the establishment of a common reference number, given right at the start when the initial application is made, that is kept on that file ‑ because, of course, these posts will keep the file for two years after refusal and it is tracked right through the system ‑ rather than having to go and find out what the UK's visa reference number is, then the Home Office reference number and, finally, the Taylor House reference number? Mr Yeo: It would facilitate good administration, but it would not sort the problem of a six‑month delay between the entry clearance officer making the refusal and getting round to giving us the written reasons why they have made their refusal. Q235 Keith Vaz: Yes. Of course, the ECOs will tell you, as they told the Committee when we went abroad, that they are on target, they do not wait six months, by and large they write up their explanatory statements as soon as the refusal is made; but I agree with you that it takes much longer than that. Do you think that they should give the applicants, right at the start when the application is made, more information about the appeal process and better information about why they have been refused? Mr Yeo: Yes, certainly. Q236 Keith Vaz: Mr Dunstan, please feel free to come in as well? Mr Dunstan: Yes. I think there is a general point here that the Government's justification for the current proposals is to reduce delay in the appeal system. I think the point has already been made by Colin and previous witnesses that within the appellate structure itself there is very little delay; the system is working reasonably well. Delay in the past has been either within the Home Office or with entry clearance officers. I am pleased to say that things are changing. In our written evidence we commented considerably on delay in the Home Office Appeals Processing Centre, with appeals sometimes taking years to reach the appellate authority. It is that kind of delay that in the past has created the incentive for playing the system, or spinning appeals out, however you want to describe it. I have been doing this kind of work for 20 years and I have not had many opportunities to give the Home Office credit, but I think you have to when the opportunity arises. Over the last year ‑ during 2003 ‑ the Home Office, if what they are now telling us is true, have cleared the backlog of asylum appeals within the processing centre. That is very, very welcome news indeed. It means that appeals, asylum appeals, are moving rapidly through to the appellate system and are going to be determined quickly and properly, and that considerably reduces the scope for delay. We are told that the backlog of entry clearance appeals within the Home Office Appeal Processing Centre will be cleared by April/May, and then they will move to the backlog of non‑asylum immigration appeals. Q237 Keith Vaz: If you praise the Home Office as having improved, it must be doing a fantastic amount of good work, Mr Dunstan, in view of what you have said about them in the past! Mr Dunstan: As I said, it is not something you get to do very often, but I think it has to be done when it is deserved; and I think it is very belated and should have happened years before. The problem in the past has been getting synchronicity between the three parts of the system, between the Home Office, between the appellate authority and entry clearance. Q238 Keith Vaz: Those who have the right to appeal have to do so within a certain time limit. Obviously the Home Office are under no time limits. Do you feel that once the written reasons are put in, that ECMs and ECOs do review their decision? I get the feeling they do not, that the ECM's back up what has been said before and the case gets sent off to London and joins this never ending queue of cases? Mr Dunstan: Yes, I cannot give you any hard figures, but we have seen the figures for nuclear visas for family visitor appeals and I have to say that the number of decisions that are overturned by entry clearance managers when an appeal is lodged is extremely small. That is no doubt a factor in the fact that the success rate when the appeals get to the appellate authority is markedly high. If entry clearance managers perhaps exerted a slightly more reviewing function than they appear to at present, there would be far fewer appeals. Q239 Keith Vaz: Do you think that ministers should exercise their discretion more on these immigration cases, once they have been turned down, if there is compelling evidence for them to intervene? They do have ministerial discretion to intervene! Mr Dunstan: They do, but I think one would hope that it is not necessary for a case to go as far as the minister, that it could be resolved well before it has to go to the minister. Going back to what I was just saying about entry clearance managers, entry clearance officers themselves making better decisions is the first thing that needs to happen, entry clearance managers getting more of a review function and there being fewer appeals. Q240 Keith Vaz: Where they do not, if you had a policy section in UK Visas and the decision was reviewable ‑ for example, if the Members of Parliament wrote in to UK Visas, as we do, and the review took place, as it does at the moment in the post abroad, but then there was a review in London to look at the facts of the case ‑ would that speed up the system? Ms Perchard: Well, I mean, it is introducing a new form of appeals system, but that should be possible at any stage when something comes to light that was not considered properly, and that is about the quality of the decision‑making process. I think what we have tried to highlight in our evidence is the rising trend of success rates on all types of appeals, the very high rate of greater success on family visitor visa appeals and the costs that that is loading into the system at the back end. It is giving people delays around being able to successfully make a visit to the UK to join friends and family for essential celebrations ‑ weddings, funerals, whatever ‑ and it is loading costs onto the public purse when, if it was invested earlier down the line, you would not be thinking, "How can I get round this delay?" By getting the minister to look at this in the Home Office and overturning it, you would get the trend picked up and taken to improve the quality of decisions in the first place. I think that is what is missing in this tribunal system, the focus on individual case decision‑making rather than looking at the overall trends and using the evidence from those overall trends to get improvements and fairness, quality of fairness, in decision‑making. I think that is underlining a lot of what we are saying in our evidence really. Q241 Keith Vaz: One of the biggest refusal points for me, and I am sure for other colleagues, is the person who turns up in Bombay or Delhi who owns a very small farmholding in the Punjab or Gujarat and says, "I am paying for the ticket", when everyone knows he is not paying for the ticket, it is being paid for by relatives in Leicester, Coventry, Shrewsbury or wherever, but then it is refused. No matter how many copies of the ticket you send, they still will not change their mind. It has to go through the whole system. It is better information, is it not, being given also to advocates? Ms Perchard: We are applying particular values to looking at that decision where the applicant is making an assumption about how best to present their application, and they are doing it in a totally different situation to Home Office officials in Croydon or ministers in government. So you have got this sort of.... That is how things like that happen. People do not know what it is they are entitled to, how to present their case effectively to avoid being refused unfairly, and then what follows is a long period of time, a lot of cost and anxiety as well. Mr Dunstan: There is also delay at the very end of the system following a successful appeal, particularly in family cases. The Home Office has the opportunity to appeal to the tribunal, and the practice seems to be to take 28 days to decide whether to do so, regardless of whether they do so or not. In the vast majority of cases they do not, so that is 28 days wasted in the vast majority of cases. Then there is further delay with the entry clearance base responding to that decision and issuing the visa. As Mrs Cryer has already said, many family visits are for a particular event, there is a need for the visa to be issued quickly and in many cases, of course, that event passes, even in the case of a successful appeal, without the visa actually being issued. Q242 Keith Vaz: Could I ask you finally. Do you think that the system would be improved if the appeals were conducted abroad; that if we sent adjudicators out therefore on a kind of very large circuit, they would be able to hear some appeals ‑ may be not all of them, but some appeals ‑ out there in the post abroad where they could see the appellant? Would that help in any way? Is it worth a pilot? Mr Dunstan: I suspected from reading previous evidence that you might ask that. I think it is very hard to say. My guess is that it probably would. The feeling is that it would. I think it is fair to say we have not given it a huge amount of thought, because I do not think we see it as a realistic policy option. For costs reasons, I simply cannot see the Government going for that, to be honest. If we thought that it was a realistic option we might have given it more thought. Ms Perchard: We have highlighted in our evidence the differential success rate of appeals where people have oral appeals and representation, which is much higher than the average, and on paper. Q243 Keith Vaz: Oral is higher than written? Ms Perchard: Yes, on family visitor visa appeals. One would think that the ability for people to represent themselves in front of the adjudicator would help people get access to justice, as a result of looking at the statistics in the UK. It might also assist adjudicators in developing a deeper understanding of the users of the tribunal system. Mr Yeo: We would be extremely concerned about appeals from abroad, because there is an enormous issue of access to legal representation. We opened an office in Sangatte, near the entry clearance post there, in order to try and facilitate better quality initial decision‑making, to inform potential applicants better about how to go through the process ‑ what kind of documentation is necessary ‑ and that has been a very successful experiment. We have got quite a close working relationship with the entry clearance post there, so certainly improving initial decision‑making. Q244 Keith Vaz: There is not a post there, there is an applications centre. Mr Yeo: Yes. Q245 Keith Vaz: They do not make decisions though, do they? Mr Yeo: I believe they do make recommendations. Q246 Keith Vaz: Do they? Mr Yeo: I am not 100% sure about that one, but I believe they do. That has been quite successful, and it has helped to improve the quality of the decisions. Actually having the appeals would be enormously problematic and it would be very difficult to maintain the consistency of decision‑making. There would also be a danger of a very cosy relationship between the people at the High Commission or the post and the adjudicators as well. Q247 Keith Vaz: You could have a cosy relationship with Sangatte? Mr Yeo: There is an independent appeal from that initial decision‑making which makes it rather different. We are able to facilitate better initial decision‑making. Maybe afterwards it is different, in the circumstances. Q248 Chairman: Is it your experience that the outsourcing of applications has actually helped people to have the right documents, to appear at the High Commission with what they need and to understand the process better, which is something we looked at. Do you have any experience of that? Mr Yeo: Not personally. As an organisation, yes. If people know what to expect when they make an application and they are aware of the kind of standard of proof issues and the fact they need to document their income, where it comes from, those kinds of things, then they stand a much better chance. Of course we can advise them to discuss things in a way that the entry clearance officers will understand as well. Mr Dunstan: There are definitely advantages, and fairly obvious ones, to the outsourcing program, and it has certainly made it much easier for people to approach the place where they actually have to make the applications and get the papers. There have also been concerns about whether people have been properly advised and formally advised when they go to the agents to make applications and whether people have been discouraged from making applications. Obviously such agents are not subject to the same rules and regulations as entry clearance officers. Q249 Chairman: Are you drawing a distinction between agents, who include some very legitimate agents and lots of other sorts but also the outsourced, as it were, franchised centres, and a number of other places as well, who are working to a brief provided for them by the High Commission? Mr Dunstan: I am just sounding a word of caution to that. I think overall our experience is that it has been to the benefit of applicants, the outsourcing, and we are certainly not opposed to it. Q250 Peter Bottomley: I do not want to go past the final paragraph of Richard Dunstan's supplementary note in December, saying that the rate of appeal requests can be related to the rate of decision‑making, because he drew our attention to the fact that his financial review on family visa applications had come out and that had consequences. My question is this. Would it help if appeals against the refusal of entry clearance were lodged directly with the immigration appellate authority rather than the post abroad? Mr Dunstan: Yes, it would, and I think that I would extend that to all appeals. I think it is a bit of an anomaly that they go through the Home Office. I am sure there are some historical reasons for that ‑ probably before my time ‑ but I think most organisations on our side of the fence would prefer appeals to be lodged with the appellate authority and go straight there. It would cut out a stage which certainly in the past has simply added a great deal of delay to the process as a whole. Mr Yeo: We would agree with that. Chairman: Our thanks to all three of you for your help. The Committee has to remain to do some other business. |