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UNCORRECTED TRANSCRIPT OF ORAL EVIDENCE To be published as HC 211-iv House of COMMONS MINUTES OF EVIDENCE TAKEN BEFORE CONSTITUTIONAL AFFAIRS COMMITTEE
ASYLUM AND IMMIGRATION APPEALS
Tuesday 10 February 2004 MR DAVID LAMMY MP and MR JOHN SCAMPION CBE Evidence heard in Public Questions 251 - 311
USE OF THE TRANSCRIPT
Oral Evidence Taken before the Constitutional Affairs Committee on Tuesday 10 February 2004 Members present Mr A J Beith, in the Chair Peter Bottomley Ross Cranston Mrs Ann Cryer Mr Jim Cunningham Mr Hilton Dawson Andrew Rosindell Mr Clive Soley Keith Vaz ________________ Witnesses: Mr David Lammy, a Member of the House, Parliamentary Under-Secretary of State, Department for Constitutional Affairs, and Mr John Scampion CBE, Immigration Service Commissioner, examined. Chairman: Although people are still coming in, if we might just get over the routine of declaring interests. Keith Vaz: I am a non-practising barrister and my wife holds a judicial appointment. Ross Cranston: I am a barrister and recorder. Q251 Chairman: Welcome, Mr Lammy and Mr Scampion. We thought we would start today by looking at one particular aspect of this which does not get sufficient notice, and thereby perhaps signalling that it ought to get more notice in the whole discussion of asylum and immigration appeals, and that is family visitors. What has accounted for the remarkable increase in refusals for family visitor visa applications? Mr Lammy: You will understand that there are varying patterns across the world in terms of populations that are seeking family visitor visas. I know from my own constituency that where in the past I might have had people from the former Caribbean in this situation, increasingly there are people now who are settled in this country from many, many African countries, some Eastern European countries that are now accession states, who are being turned down because they are not meeting the rules in other things. Things flare up, for example, in Nigeria and other places. I think that there are regional variations and from my recollection the figures go up and down in this area. Q252 Chairman: Family visitors are surely less affected by situations like flare ups, as you describe, than asylum applications? Presumably they are determined by the size of the community already here and perhaps to some extent by economic circumstances, whether people can afford to undertake family visits. Mr Lammy: What I mean by that is you will have communities, like Caribbean communities now, that have been long settled in this country for over 20/25 years. You will have people making decisions because they want to have cousins, relatives, come and stay with them and those decisions, all the sorts of determinations that the immigration authorities will feel they need to make, are likely to be harder perhaps if you are talking about a community that is more recently settled or conditions in a country, some African countries, for example, where immigration officials might take the determination that someone is not likely to return. It will be a slightly different standard, I think, from communities that are more settled. In that sense that mirrors what is going on in the world. As you see, Caribbean states are increasingly becoming more prosperous and African states are still in the position that they were and certainly that is a determinant that I can see on a constituency level. I think that is borne out in the figures, these things go up and down, and they are not that dissimilar from the asylum figures. We have seen issues around Somalis with the asylum figures. Certainly they are not decisions of fundamental differences of policy being made in terms of family visitor visas that have changed over the last period. Q253 Keith Vaz: Minister, you have been in office for a while now. How many times have you visited Taylor House? Mr Lammy: I have been to Taylor House once. No, maybe twice. Once or twice. Q254 Keith Vaz: During that time you have sat through one of the hearings, have you? Mr Lammy: Yes. Q255 Keith Vaz: How do you account for the difference in success rate of those who have oral appeals and those who appeal in writing? Do you know what the differential figures are? Mr Lammy: I have not got the figures in front of me. Q256 Keith Vaz: It is a 70% success rate for all cases and 40 % for written cases. Why do you think there is such a difference? Mr Lammy: By definition, I think if the adjudicators are able to have the evidence in front of them, the applicant, the circumstances, the sponsor, there may be different determinations than they might make if they have just got the papers. Q257 Keith Vaz: Better determinations? Mr Lammy: I am not saying better; different. Q258 Keith Vaz: Do you know what the current backlog of cases is at the IT or the IAT? Mr Lammy: We are doing extremely well on the backlog. Q259 Keith Vaz: Do you know what those figures are? Mr Lammy: Again, I can write to you with the precise figures but I know that the asylum backlog has virtually gone. We always said that once we could deal with the asylum backlog we would be able to move on to the immigration backlog. Q260 Keith Vaz: Who is driving this whole process? Your Department is supposed to ensure that there is proper justice and fairness, you are not part of the system which tries to shove these appeals into a sausage machine. Is it the Home Office that is driving this? Nine out of ten cases that came to your Department that you dealt with were asylum cases, visitor appeals were kept very much to the back. Did you make representations about this? Have you said to the Home Office that this is unfair? Mr Lammy: We have got a joint supervisory board so we are very much working in tandem. Q261 Keith Vaz: When did it last meet? Mr Lammy: I think there is a meeting coming up but the joint supervisory board met just before Christmas. Q262 Keith Vaz: Is that where you would say to Home Office Ministers, "Hang on, this is a bad show. We need to be fair with regard to the cases that come to us"? Mr Lammy: I have not had occasion to say, "Hang on, this is a bad show" to Beverley Hughes. We are working together. Clearly the Home Office is looking closely at policy, looking closely across the piece, attempting to drive up quality conscious of speed and we are conscious of the same things as they knock on into our appellate system in this area. Q263 Keith Vaz: So your Department has made no representations to the Home Office about either the flow of cases coming into the Immigration Tribunal, nor the backlog, nor the fact that nine out of ten were asylum cases and, therefore, visitors' cases are kept right at the back? Personally your Department has made no representations? Mr Lammy: We are in constant dialogue about seeing the numbers come down, and they are, about working on the backlog, seeing it come down, and it is, about preparing to see more immigrations vis a vis the asylum immigration case mix, and that work is happening. We are in constant dialogue, representations are constantly going back and forth but it is a close working relationship. Q264 Keith Vaz: You are an assiduous constituency MP and you have a large immigration caseload. One of the problems that I and other Members find is the fact that when we write to your Department asking whether or not files have arrived from the posts abroad, we are told that the files have not arrived, the clerk to the tribunal tells us to write to the Foreign Office or the Home Office but when we write to the Home Office they say that the file is with the Foreign Office and even though you have a joint board there seems to be no joined-up thinking as far as the practical implications of these cases are concerned. Have you ever considered a common reference number that would start with the application in the post, that would go through to the entry clearance officer down to the Home Office appeals section and into your Department rather than the three appeal reference numbers that we have at the moment? Have you ever considered that? Would you consider that? Mr Lammy: Yes, I think we would consider it but we have to set priorities and work through, as you will understand. I suspect from talking to you, Keith, that your experience in Leicester is very much at the immigration end; mine in my constituency is asylum and immigration. We have just introduced a unique file number and that was part of our consultation the last time I was with you talking about the Legal Aid implications, talking about having a unique file number. We have been able to do that in that area on asylum. We are clear that asylum has been our priority because asylum was where there were some very, very significant problems. Q265 Keith Vaz: You have a common reference number for asylum cases at the moment? Mr Lammy: No, we are introducing a unique file number. Q266 Keith Vaz: Do you know when that will be? Mr Lammy: That should be shortly after April. We had to start somewhere. Of course we will continue to have discussions but we have always said that asylum is our priority because that was what we were hearing from our constituents. Q267 Keith Vaz: Minister, if you could let us have a note on those figures that would be very helpful. Mr Lammy: Of course. Q268 Mrs Cryer: Minister, for family visitor appeals to be worthwhile they need to be heard fairly quickly for all the reasons I am sure you are aware of. Certainly in my case with my constituents there have been a couple of occasions when two people have died before their mothers, I think it was, were able to get over to see them. Frequently it is about weddings and it is about the birth of children, family celebrations. If these appeals are going to be worthwhile they have got to be held quickly otherwise the occasion is gone, the person is dead. What are you and your Department doing to speed up these appeals? Mr Lammy: We have moved to ensure that there is proper provision in different parts of the country. We have video link-ups now all around our appeals system within the UK to ensure that sponsors and individual courts can talk to one another. We have seen that process speeded up. I think that because we have been able to act on non-suspensive appeals in terms of countries that we put on the white list that are making asylum applications, that has also had a benefit for family visitor visas. We are in constant dialogue with the Foreign Office about capacity issues and other things within their various embassies in and around the world. There are a number of things we have been able to do that have seen some progress. Are there more things that we might want to do as we begin to look more intensively at the immigration caseload? Absolutely, and we welcome what the Select Committee has to say on those issues. Q269 Mrs Cryer: Do you know what the average waiting time is? Mr Lammy: I am afraid I have not got those figures in front of me at the moment but I can certainly provide them to you. Mrs Cryer: Thank you. Q270 Chairman: I think we have got the clear message that the Committee is very concerned about this area of family visitor appeals. If we can turn now to the overall structure of the system. Mr Justice Ouseley in evidence to us said that the move to statutory review in the 2002 Act has undoubtedly removed the scope for a lot of abusive delaying tactics. Why are we now changing that system before there has really been time to measure its success, and there does seem to be some success? Mr Lammy: I think there has been some success. I think it is important to emphasise that statutory review is essentially about permission, if you like, to appeal up to the High Court, it is not about the substantive issue. I think of the 371 applications that have been heard over the last six months, only 59 of them have succeeded, so that is a small number of cases that were going up to the High Court. We have taken the view, and this was recommended by the Home Affairs Select Committee, that we should move to a single tier. In moving to that single tier, you have then to look at the rest of the potential layers after that single tier or you run the risk of simply driving the cases up in that direction. I think that is why we have reached the determination we have to move to a single tier and to ensure that quality is working across the whole system, both in IND and once you get to the new AIT, but to make the determination that those appeals should stop at some point and we say they should stop after a review in the single tier. Q271 Chairman: But what about the Leggatt report analysis for a unified tribunal service with a two tier structure? Yet again here was a serious and careful consideration of the issue which come up with a two tier structure. Mr Lammy: I think Leggatt was right but when we look at asylum this is an exceptional area. One struggles to find other areas of law where there is an incentive to delay. What we know, and MPs know this from their caseload, is this is an area in which I am afraid too many applicants have strung out their cases, strung them out by using the many different tiers, strung them out by using judicial review in an attempt, often a groundless attempt, to remain in the country and to avoid removal. That has gone on in large numbers. If I can just give you the figures: there were just over 70,000 appeals received of the IND decision at the adjudicator stage and 58,000 of those were dismissed. There were 33,000 decisions received at the tribunal stage and over 18,000 of those were dismissed. In total only 3.6 % of adjudicator decisions were actually overturned. In terms of the system, people were clearly using our traditional system of the two layers within the tribunal, of the High Court and sometimes going up to the Court of Appeal or the House of Lords, to stretch out the system and that is why we have had to act. Q272 Chairman: You say to avoid removal, but surely the truth is they do not get removed anyway. You are responsible for administering this vastly costly process at the end of which many of these people do not get removed from this country. Mr Lammy: Removals have gone up. We are now running at about 1,500 a month. They have gone up some considerable way from the 2,000 they were in 1997. I think Beverley Hughes is clear that she intends to see that figure rise even further. Q273 Mr Dawson: Minister, surely we have got the major failing of this system at the initial decision level. We have got information that 14,000 cases in 2002 were overturned on appeal. Why do you cite this as one element of a judicial system in which there is cause for delay on behalf of the people who are facing that system? Surely this is also a system in which some of these decisions will be matters of life and death if people are sent back to countries where they will face torture and repression? Mr Lammy: Obviously I want to ensure that anyone who arrives in this country genuinely fleeing persecution and torture gets a fair hearing and that hearing decides if that person is entitled to stay in this country. Beverley Hughes, and I support her in this wish, wants that to happen initially at the IND stage. I think that there are a number of things that the Home Office has done to improve quality there. I remember when I was first an MP in 2000 going down to Croydon, as they invited you down, and the system there had a huge backlog. They had just recruited new caseworkers, initial training was sparse and there were problems. I think that situation has improved dramatically. They are now sampling the cases, a second pair of eyes with a second caseworker. They believe there is more work they can do in terms of external assessment both with the Treasury Solicitors and with the UNHCR, better country information and they are setting up a panel of experts to make sure that country information is moving thoroughly. There are more things that Beverley has indicated they want to do at that IND stage, but it has improved. Let us say that it does not work, that that genuine asylum seeker does not get his case heard properly at that initial stage, of course our obligation under the European Convention on Human Rights, and I speak also as Human Rights Minister, is that you should have an effective remedy of that initial decision and that effective remedy should essentially be an independent scrutiny. That is what we are putting in place in terms of the new AIT. Then we are going further than that because we are then saying that if we get it wrong there, if you can establish a clear error of law that would have overturned that decision you can have a review. I think that is a pretty thorough system and I know that the judges that will be in the tribunal want to ensure quality all along the line, and that will defeat those applicants who will seek to play out the system in order to avoid removal. Q274 Mr Dawson: Are you not placing a lot of emphasis on the ability of IND to get the initial decision making right? Is it not the case that the Home Affairs Select Committee only said that they would support a move to a single tier when there was evidence that that process was getting it right and you cannot display that evidence at the moment? Mr Lammy: I think that the Home Office can. Their targets, their internal target and, indeed, their external target, are that 80 % of their cases sampled are effective or better, and they are meeting that target. They can demonstrate that improvement but there are more things that they want to do. I think that looking to see what they can do with the UNHCR will be very beneficial and it is right to show that kind of external validation of the process that they are undertaking and looking in the fast changing environment that asylum and immigration is to ensure that their country information is supervised in a sense by a panel, is moving forward quickly, and looking at what more training they can provide for their caseworkers is a good thing. We accept that asylum was an area where there was a rapid increase in numbers in the mid-1990s onwards and of course we responded by both recruiting more adjudicators and more caseworkers, but those people have now been in place for a few years so I think we are seeing the quality come through. Q275 Mr Dawson: Do we not have an enormous problem if we have only got a single tier of appeal? What about the case of a person with a legitimate case for asylum which has not been recognised by IND at the first stage, which is not recognised at the only appeal level? That person has very, very little recourse now under this proposed system. They can only go on a point of law. They can only go with the backing of that single tier level of appeal. Is that safe enough for people who, as I say, are potentially risking their lives if they are sent back to the countries from where they came? Mr Lammy: I understand the concern and I want to say that we have spent hours thinking about this. What I need to emphasise is that the new AIT is not the old IAA, it is not the old adjudicator tier, it is actually collapsing our senior immigration judges in the old Immigration Appellate Tribunal with the old IAA. That is the first thing. There are some who say it is not a single tier, you have got two tiers within one, but that is not strictly true. I believe that the quality that will come about from more experienced judges sitting with less experienced judges, the ability to have a panel from the outset, which we have not got at the moment, and the ability to review that decision if there is a clear error of law that would substantially alter the outcome is going to be more than sufficient to ensure that genuine asylum seekers get a fair hearing. There will be better case management, and we cannot do that with two tiers. There will be better case management with a single tier. You have got a High Court judge as the President sitting amongst his fellow judges seeking to lead and manage and ensure that they are up to speed with the latest country information and all the other things. That in itself in terms of quality will drive quality up and I know they are working hard to achieve that. I know from reading what Henry Hodge had to say to you that he is supportive of that and believes that they will achieve that. I am confident that the new arrangements are effectively about ensuring that we have the specialist tribunals that we want to set up and that is dealt with in one tier. Q276 Keith Vaz: You sound like a spokesman for the Home Office. You have quoted Beverley Hughes several times in the evidence you have given this morning. Is that not the criticism of your Department? The fact is that your Department is being rolled over by the Home Office because of the numbers that they have to get through on asylum and that is why the second tier is being abolished, because you cannot guarantee the quality of judicial decision making if you take away a whole tier of appeal system, can you, Minister? Mr Lammy: That is not true. I am a spokesman for the Government and I am proud to be a part of the Government. I am proud to work with Beverley Hughes and the Home Office on what I think is a very, very important national issue across the board. Q277 Keith Vaz: You have separate responsibilities. Mr Lammy: We have separate responsibilities and if you will permit me, Keith, within DCA, if you want me to speak in more legalese I can do that. It is essential for any justice system that we have finality. It is not effective to have cases going on for a year and a half, two years, three years. That is the first thing. It is also important that we respond to what is effectively an abuse of process, and you will be familiar with an abuse of process, in a proportionate way, so we are balancing fairness, our human rights obligations and going beyond our human rights obligations alongside notions of proportionality and seeking to deal with what is an abuse of process. You cannot have a situation in which of the 70,000 appeals that are made of IND, 58,000 are dismissed. Q278 Keith Vaz: It is interesting that you only bring the figures that show that there is a so-called abuse of process but you have no figures on the backlog. One of the judges who deals with this area, Mr Justice Ouseley, informed the Committee that there was a growing trend for the Home Office to bring appeals in cases where it was not represented before the adjudicator and that this has contributed to delays in the system. Do you know how many cases are taken to the next stage by the Home Office when the Home Office just does not appear before the adjudicator? Do you have any figures on those or is the judge talking complete rubbish? Mr Lammy: No. I think that the Home Office has sought to increase the number of Presenting Officers. The figures are that since October two-thirds of cases have had representation by a Presenting Officer. They have just recruited an extra 65 Presenting Officers and they want to see that number grow. There are issues around the recruitment of Presenting Officers and other things because these are effectively people who could opt to be barristers, solicitors, other things, but want to present for the Home Office. They have increased the numbers and two-thirds of cases have representation. I think that must be a good thing. You know that within our tribunal system it is not essential in terms of effective justice for the Presenting Officer to be there. Q279 Keith Vaz: Minister, I am not talking about the Presenting Officer being there or not being there, I am talking about a judge who has a lot more experience than you or I, with the greatest respect, who deals with these cases on a daily basis who says that the abuse goes the other way, they do not even turn up to court and they are appealing. It is the issue of the appeal, not the issue of not turning up to court. There is a great trend. Are you aware of this trend? Do you have any figures to give to the Committee on this? Mr Lammy: Presumably those Home Office figures are available. I have not got them in front of me but I can make them available to you. Q280 Keith Vaz: Thank you. Mr Lammy: What I have said is that the number of Presenting Officers has increased. In a sense it is misleading to suggest that the Home Office is not turning up itself to present its case because within the system that is not essential. Q281 Chairman: I think you may have got slightly ahead of yourself in suggesting that Presenting Officers would normally be solicitors or barristers. As I recall, they are normally not solicitors or barristers. Mr Lammy: No, forgive me. What I am saying is that having been down there and having spent some time with Presenting Officers, the sorts of young people who want to be Presenting Officers also have options available to them to become solicitors or barristers or other things. That was what I meant. Q282 Keith Vaz: About a third of all applications to the IAT receive permission to appeal, as you know, indicating that there is some prospect of success. If you have only one tier for the system is this not likely to lead a lot of injustice to a number of applicants, or are they just given permission for fun? Mr Lammy: I think the important figure is the 3.6. Effectively 96 % of adjudicator decisions are upheld. Of the 6,000 cases a month, about 250 of those are successful, so that is what we are dealing with. That is still a large number but what I am saying is that can be dealt with by review. We are satisfied that in terms of increasing quality, senior judges sitting by less senior judges in the tribunal, being able to have a panel from the outset, being able to ensure that the President is able to refer up to the Court of Appeal or the House of Lords and that we keep the star decisions, we will retain quality and that is what you are concerned about. Q283 Keith Vaz: Finally, Minister, you are the only barrister in that Department, apart from the Lord Chancellor. Do you not feel a special responsibility to point out to colleagues in Government the concerns of the legal profession that the removal of a whole tier in our system that has been around for a very long time is just going to disappear without the package that Mr Dawson correctly said the Home Affairs Select Committee suggestion put forward? Is there no concern about this? Mr Lammy: I said that we sat down and thought long and hard about this. We felt that there were other legal notions that we needed to bring to bear. One is finality, and that is massively important. The other is that our response is proportionate. Let us be clear, we are dealing with an abuse of process here. Lots of MPs on both sides of the House will know that when a constituent turns up having failed and says, "My solicitor is going to judicially review this", there is no merit in the case at all but it is judicially reviewed, what is effectively happening is the process is being strung out in order to remain in this country. That undermines the whole system and it is not good either for the genuine asylum seeker. It is not just about judicial review for judicial review's sake, it is about having a system that works. We are leaving judicial review in, of course, for anyone who alleges bad faith, corruption or bias on behalf of the judge, but we are also saying where is the best place to have these considerations. The best place is in the tribunal itself, it is not in the High Court. There are other jurisdictions where there is no proximity of the High Court. There is no proximity of the High Court in the criminal domain from a Crown Court decision. There are other areas within our system where that is not the case. Q284 Mr Cunningham: Is the real reason, Minister, you want to abolish the second tier because it has been very successful? Is that the real reason? Mr Lammy: We have got some fantastic senior judges in our immigration tribunal, or in the old Immigration Appeal Tribunal, and that is why I wanted to emphasise that what we are doing is collapsing the two tiers because they will remain in the new system. What we do not want is a system that effectively takes at minimum 65 weeks, and that is without statutory or judicial review. We want a system that is much quicker than that. The new system that we are proposing will be about 18 weeks because, as I said, there are cases that are groundless moving quietly through our system, clogging it up and making it harder for the genuine asylum seeker. Of course the IAT has its strengths and I think it will bring those strengths to bear within the new AIT. Q285 Mr Cunningham: In the timescale saved, how many people would you deport? Mr Lammy: That is not a determination for me. That is a determination that is quite rightly a judicial determination. When someone has got to the end of the road they are subject to deportation. That is our system. I have said we are removing more people than we have ever removed before. The question is should someone fearing deportation, fearing removal, aware that they are not a genuine asylum seeker within the Convention, be able to stretch out the adjudicator stage, to stretch out the tribunal stage, to then make an application for statutory review, potentially judicial review beyond, to judicially review the Home Office decision to remove them? Is that a system that we are satisfied by and our constituents are satisfied by? Is that a system that is beneficial to the taxpayer who is funding that person during the process? Are we satisfied that of the 70,000 appeals received from the IND, just under 59,000 of them are dismissed and we end up with a situation where only 3.6 % of those adjudicator challenges are successful? Do we feel that we need those two, three, four layers in terms of process to satisfy that? I do not think the determination that we have come to is that we do. Q286 Mr Cunningham: I do not know about that but it seems to me that you have made great play of statistics on the time factor. It seems to me that if you reduce the amount of time it takes to go through the system, for want of a better term, and given your relationship and collaboration with Beverley Hughes, have the two of you sat down and looked at the system and said "We have saved time in the appeals system but what are we doing about removals" because to me both run in tandem? At the end of the day that is the end product of it. Mr Lammy: We have taken those removal figures from around the 2,000 figure they were in 1997 to 1,500 a month. We are seeking to go further. There are issues that Beverley, as the Home Office Minister, would be able to explain in greater detail than me. There are issues around how quickly we can get particular countries to react to provide their citizens with passport so they can remove back to that country. There are challenges in that area but we have made tremendous strides. The figure is higher than it has ever been before and we want to see it go up. That is what Beverley would say. At the same time, I do not want a system that is just about speed, I want a system that is fair. As I have said, both the 1951 Convention and Article XIII of the Human Rights Legislation mean that fair is an effective remedy. Fair is independent scrutiny. In this country, with the proposals that we are putting before Parliament, we go beyond that because, indeed, we are putting a review stage into the single tier. Q287 Mr Cunningham: Let us be perfectly clear about this. We all want to ensure that we have got a fair system, there is no question about that. We all experience, as everybody in the House of Commons experiences, the difficulties with the asylum system but at the end of the day we want to know that the system is working properly and it is not going to be changed every five minutes because you have hit a hiccough. We want to be assured that you are having joined-up government and looking at the possible problems that could be thrown up. That is one of the reasons why we are raising these issues this morning. We all want justice at the end of the day for everybody. Justice should be driving it, not other factors like mathematical equations about how many numbers you are reducing it by and that sort of thing. Mr Lammy: What I feel very strongly about, and what I think some backbenchers have raised with me, is the injustice, frankly, of applicants who are genuinely playing the system. That is an abuse of process. That is not just happening around the margins, that is happening all too often. You have to seek to deal with that. How does that help the genuine asylum seeker? It does not. How is that a responsible way to spend taxpayers' money that could actually go to bring benefits in other parts of the system? That is why we are taking this issue so seriously and that is why I use the figures that I do to demonstrate that there is a problem. If we were to leave the tiers as they are the system would still stretch for beyond six months, I think that is what Henry Hodge was suggesting, if we were to tweak further with the system that we have. That is why I think the balance should be in terms of fairness and justice, and justice is also, as I have said, about having finality in the system, proportionality in terms of our response and dealing with the abuse of process. I want to reassure Members that means that the proposals we have come forward with are about the right ones. Q288 Andrew Rosindell: Minister, if I could move on to one or two other items regarding the Bill. In line with what other Members have been talking about regarding fairness and justice, I think we all feel that fairness and justice needs to be extended not only to those who are seeking asylum but those also who are paying the cost of this and, therefore, of course changes need to be made to ensure that the rules are tightened up. However, we must ensure of course, I am sure you would agree, that the objective is to ensure justice for those who are genuinely seeking asylum to this country. How would you address the criticism, which has been supported by several senior members of counsel, that clause 10 of the Bill contains what has been described as the "most draconian ouster clause ever seen in parliamentary legislative practice"? Mr Lammy: I do not think I can respond to that much further than I have already indicated. There are other parts of our system that do not rely on judicial review and on access to the higher courts in that way. I believe in this area that what we need and want is a specialist tribunal that has an effective review mechanism. This tribunal will be led by a High Court judge in terms of the President, the review judge or, indeed, the review panel will be able to look at novel and complex cases. We are also saying, and it came up in the Bill Committee, that there should be access to the higher courts in terms of the President being able to refer up to the Court of Appeal or to the House of Lords. There has been some discussion about whether those decisions should be binding and I have undertaken to look at that. Q289 Andrew Rosindell: If I could follow that up with a further question. If the new tribunal were to fail to hear from a party due to some error, or if it were to make a fundamental and substantive error of law or fact, do you not feel that a claimant should have the opportunity to seek judicial review under those circumstances? Mr Lammy: I think that once the claimant has been subject to the IND process, and I have talked about the things they are doing to increase the quality there, and has been subject to the first judge in the IAT and the things that we are doing to improve quality there, as against the fact that presently the adjudicators are getting 96 % of their judgments upheld, that applicant, if they believe there is a clear error of law that has been made that would substantially alter the decision, should be entitled to review. That review is being led by our more senior judges within our system, within asylum and immigration. The whole point of having a tribunal system in the first place, whether it is social security appeals or employment appeals, is about having that specialism. I say balanced in terms of fairness and justice and against speed of process to ensure finality. I think we have got the balance about right and we should be able to get that decision about right. Of course, we are not ousting judicial review from decisions made by the Home Secretary, from executive decisions. It would be quite wrong for us to say that you could not challenge a circumstance or a decision made by the Home Secretary. We are not ousting judicial review from someone who alleges that the judge has demonstrated dishonesty, bias or corruption. It would be quite wrong for us to oust judicial review in those circumstances. We are saying that we believe the AIT will be a quality tribunal. We know that the senior judges and the judges in that process, because they understand that they have not got access to higher courts, want to get that decision right and we believe also that in terms of country information, in terms of judges sitting side by side, in terms of the President being primus inter pares amongst his colleagues, we can be confident that the system we are putting in place is the right one. Q290 Andrew Rosindell: If I could ask one final question along the same lines. Have you considered allowing a potential direct appeal to the Court of Appeal from the adjudicator, restricted to points of law only? This has already been suggested by Harry Mitchell QC of Migration Watch. Is that something that you have considered so far? Mr Lammy: We have considered it and we have rejected it because I think it is right that the review mechanism within the tribunal should deal with clear errors of law and should the President of the tribunal determine that he needs further guidance from the Court of Appeal or the House of Lords, he is able to make that determination and to enable the precedent system, if you like, of the court to function correctly and appropriately. Q291 Ross Cranston: Is that not putting great power in the hands of the President to decide whether or not cases are going to go to the Court of Appeal? You are depending on one person. Mr Lammy: The President cannot sit in every case but I have no doubt that he will want to be in dialogue and discussion with his Deputy Presidents and he will want to be in dialogue and discussion with his senior judges. It is right and proper that in a sense we should allow the judges to put those mechanisms in place to ensure that they are getting access to the higher courts, let alone the star decisions that they will be leading themselves within the tribunal. Q292 Ross Cranston: In other words, from what you are saying it would be not just the decision of one person in practice but the decision of the collective wisdom of the tribunal? Mr Lammy: What I need to emphasise, which perhaps I have not emphasised enough, is that moving to a single tier is going to give us greater flexibility. It means that a case coming initially in terms of a challenge to the IND decision if it is novel and complex, and did not appear to be novel and complex initially but as the hearing took place the individual judge determined it can go to a panel, also means that at the review stage a panel can look at it and the panel may have the President in it but it may not. That flexibility is there and I have no doubt that a President cannot sit in every court at the same time and, therefore, will have to put in place mechanisms by which to decide how to refer that case up and will rely on the professionalism and the ability of his colleagues to make that determination. Q293 Ross Cranston: Then to make a recommendation that this case ought to go further. Mr Lammy: Yes. Q294 Ross Cranston: Why abolish the possibility of appeal to the House of Lords? They are going to be exceptional cases and in the few exceptional cases that we have had in this area the House of Lords has laid down important principles. It seems such an exceptional course to take when it is not going to be ---- Mr Lammy: I think the balance is if you move it to a single tier you have to examine quite closely the areas in which it has potential for disingenuous applicants to seek to go. Just looking at our experience of statutory review, coming back to that, which I was talking about earlier, it has been successful but we are still in this situation where 379 people have had it in the last six months and only 59 of those have been allowed. It indicates that you have got to look beyond the single tier and, in a sense, the balance that we have struck in looking beyond the single tier is let us have the President refer a case up, let us put the onus, as it were, on the President to refer a case up to the Court of Appeal or the House of Lords. Q295 Chairman: Let me get this clear. Several times you have referred to the President referring the case up to the Court of Appeal or to the House of Lords. Does the Bill provide that the President can refer a case as far as the House of Lords or does it exclude appeal to the House of Lords? Mr Lammy: We are in discussions currently. I should indicate to you that I am minded to allow that case to go to the House of Lords. Chairman: Thank you very much for that. Mr Soley: That is important. That is very important. Q296 Ross Cranston: You have made the point that there are ouster clauses, and of course there are ouster clauses, but this is the mother of all ouster clauses. There is nothing comparable to this, is that not right? Mr Lammy: Yes, and you will be aware of the Anisminic case where it was attempted before. We have had to be explicit in the drafting in this area and, as I have said, we have had to balance the arguments around the abuse of process in this area, the arguments about not reaching finality quickly enough against in the majority of cases. We have had to think very carefully about issues around social cohesion because obviously a smooth process that gets fairness and justice earlier assists in social cohesion. It is that balance that we are making in coming to the determinations we have come to and saying that we believe that that can be done within the single tier, but then acknowledging those that would say that this is not a genuine single tier because you have a review mechanism, but we believe that that is right in order to ensure that we have fairness and justice in the system. Q297 Chairman: If we could turn to non-suspensive appeals, a term which most of us find confusing, the Government used to think that they were not a very good idea, that they were not an "effective remedy" because obviously the person has to go back to the country where he thinks he will be in danger. Why was that view changed? Mr Lammy: What we were saying with the non-suspensive appeals was that there was a presumption that the country was safe. If you look at the first wave of countries that began in January 2003, we have the Czech Republic, Cyprus, Estonia, Hungary, Latvia, Lithuania, Malta, Poland, Slovakia and Slovenia. These will become in May accession states but what we effectively have said is that there is a presumption that those countries are safe and the person ought to be removed back to that country if their claim is refused and they can make an appeal from there. The first wave of countries was very successful. As we move on to the second and third waves we still say that there is a presumption that, for example, in the second wave Jamaica is safe, but it gets more complicated and we have seen cases, for example, involving, in the context of Jamaica, homosexual men saying that it is unsafe for them and the courts have made determinations in their favour. Why non-suspensive appeals have worked is that effectively they have put more obligation on the applicants. We certainly know that they have reduced claims from countries on the list by almost three-quarters and that is because people have had to think hard about whether they really have a genuine claim. Q298 Chairman: The Home Office suggested to the Home Affairs Committee that there may be other grounds for certifying a case as "clearly unfounded" than the source country of the asylum seeker. What other grounds might there be? Mr Lammy: I am sorry: I am not familiar with the grounds beyond the fact that the country is palpably safe. I would need to take more advice on that. Chairman: Obviously, it is for the Home Office to explain its own view but it may well be something that gets discussed further as we come to consider the later stages of the Bill. Q299 Mr Soley: On the basis of the policies that are being pursued at the moment, is it your assumption that more appellants will go through the system without being legally represented? Mr Lammy: No. When I was with the committee last time I discussed at that stage the consultation we were having on legal aid and effectively what we concluded as a result of that consultation was the LSC should be the organisation that called a case in, as it were, after a period of time, and that made a determination about whether a case had sufficient benefit or merit to command legal aid funds. That is obviously a very different standard from a traditional determination but nevertheless I think that still means that those who need it will get legal aid. Yes, it will perhaps be more obvious where cases have not got legal aid that there has been a determination that that case lacks merit. Q300 Mr Soley: I understand the issue about merit, but what I am asking you is whether you anticipate, looking at the policies in the round, that the number of appellants who are not legally represented will increase. You seem to be saying you do not think it will increase. Mr Lammy: Right across the board we want to support people that are genuine in their claims and what we have said on the legal aid front is, "If your case has sufficient benefit in order to command taxpayers' money in terms of legal aid, or if it has merit on appeal, you will get legal aid. If we make the determination that it does, not, ie, that there is not an arguable case here," - and I have to say that it is a lower standard than you would expect in terms of the judicial process on whether a case should get legal aid - "then you will not get legal aid". If you are asking me, does that mean that the appellant then continues to represent themselves on their own, I do not know how that is going to pan out. My instinct is, probably not and that they are going to accept that they have reached the end of the road and we begin to make removal a serious issue. Q301 Mr Soley: What I am questioning here is not your motivation, which I am sure is good. What I am questioning is whether, if as a result of your policies the number of people legally represented is smaller, bearing in mind also that many Home Office Presenting Officers do not turn up, you could actually end up delaying the system. If the Home Office Presenting Officer is not there for an appellant case and if as a result of your general policy there is a reduction in the number of appellants who are not legally represented, what happens to the case? Mr Lammy: My own assessment is that it is not going to pan out quite like that. I think there will still be a number of cases that have got legal aid, cases where there is an arguable case, cases where there is merit that will move through the system and lawyers will be there in our new IAT. As now, lawyers make the determination, and I have certainly seen this in terms of people who come to see me. When someone comes to them they say, "Look: I am sorry; I cannot represent you because on the basis of the Act you are not an asylum seeker", and that person has no representation. That determination is now being made by the Legal Services Commission because you know that there has been some serious concern that we have had, I am afraid, too many less scrupulous lawyers in this area. I am not sure in practice how different the figures will be but it must be right that people do not get legal aid where there is no merit. Q302 Mr Soley: I understand that and I want to come to the quality of representation in a moment. What I just want to clarify again is, are you saying that in your view the number of people legally represented in cases is not going to change that much? It seems to me it is almost certain to go down. That is right, is it not? Mr Lammy: I think it will go down. Forgive me: I thought the determination you were asking me to make was how many of those cases still go on. Q303 Mr Soley: No. I was talking about who will be legally represented and who will not be. Mr Lammy: How many of those cases continue in the system is what I am talking about. I think that if you have not passed the legal aid threshold then you are certainly not going to pass the judicial threshold. There will be some people who feel that they want to represent themselves but I think the vast majority will accept that they have not got a case because they know they have not got a case, plus the fact that, because what we are doing in terms of the single tier will mean that it will become very obvious very quickly that they have not got a case, it will now mean that they are not able to play the system out even longer. Q304 Mr Soley: Turning to the quality of representation, do you feel that the main problem now is with the professionally qualified advisers or do you still feel it is with the more general advice system? Mr Lammy: John may want to say something about the advisers. There have been very real problems in terms of some of the advice that is available on the asylum and immigration side. I think it is right that we have put in place now accreditation through the Law Society, the sitting of exams so that people can be sure, and it is right that we have got the OISC doing the job of work that they are doing to drive those standards up. This work began, obviously, a few years ago, but that it should continue I think is right. One of the problems that I always find on the asylum and immigration side is that the most vocal voices are often the quality practitioners, many of whom are in London, that they are seriously undermined by those who are not of the standard that they should be. Mr Scampion: May I, Chairman, if it is appropriate, say a word about that? I think the standard is going up. It is not as high as I believe it needs to be. It is not as high as I honestly believe it can be. If I can just look alternative it in three sectors, there is the publicly funded lawyer, and I do believe the Legal Services Commission accreditation programme is going to make serious inroads into raising the quality of those lawyers with only one caveat: it does depend upon an adequate supply coming forward, and if there is an inhibition on that supply because of the perceived restriction in funding that could turn into a problem, but of course whether that is a problem or not time only will tell us. There is the sector that I represent. It is not a negligible amount of representatives who appear before the adjudicators in the tribunal at the moment; it is a minority, but it is a significant minority. What we are able to do is to introduce through our quality audit approach measures to ensure in due course that those advisers meet the proper standards of representation in presentation of cases. That leaves a third sector, if you like, and that is the non-publicly funded lawyer. The regulation of that sector, if I am frank, is not as effective as the regulation of the other two sectors is likely to become unless we can persuade the Law Society to introduce measures which are going to be more proactive in terms of ensuring that an accreditation system works for them and in terms of ensuring that their Professional Standards Unit gets involved in looking at the lawyers to make sure that they are able to deliver in a way that I believe the other three sectors will deliver. It is heartening at one remove to see that there is some improvement recognised by those who are experienced in the courts system. It is a long way though, I think, from saying that the improvement is where it should be. However, as I say, I think the measures that are in contemplation now, if we can work at them assiduously (as I hope we will), will give us a good chance of making sure that the new courts system, whatever that is going to be, is supported, as it needs to be, by a representation system that is strong and supportive, because if it is not then obviously it will be much more difficult for the new proposals to work. Q305 Mr Soley: You are putting your faith in the regulatory system rather than something like the Office for the Supervision of Solicitors? Mr Scampion: I have to put my faith in the statutory regulation system, Mr Soley, because that is what I am here to do. Yes, I do. Q306 Mr Soley: What about the OSS? I see it as still a failing organisation. Mr Scampion: If I may say so, I would not go so far as to say that. What I would say about the Law Society is that over the last two years there have been some signs of them looking much more actively at the need to get involved in immigration and it may be - and this is something I am not really qualified to make a final judgment on - that their regulation of immigration and asylum matters is a better regulatory system than their regulation elsewhere. That is something they will comment on; I cannot, but there are signs that what they are introducing is beginning to work. They need to go further and they need, if I can put it this way, to go as far as the Legal Services Commission are going in what they are doing in respect of the publicly funded lawyers. Ross Cranston: I think last time you were here, partly tongue in cheek, I invited you to take over the regulation. Q307 Mr Soley: Does the Home Office failure to provide representation cause your department trouble? It must do, surely? Mr Lammy: The basic principle of tribunals, as you know, is that the assumption is that it is informal, that you can represent yourself. Indeed, during the committee stage I think there was cross-party support, and I think this was because of the nature of our tribunals, for a more inquisitorial nature in terms of how our tribunals work. I was happy to indicate that we are keen for the judges to look at how they can be more active, more inquisitorial, in the system. I think there is a presumption in tribunals that perhaps does not exist in other more adversarial parts of the law. Against that backdrop the adjudicators themselves have said that they do find it assists them if they have a Presenting Officer, and I am pleased that the last quarter has seen two-thirds of those cases represented. As I have said, I am pleased that the Home Office has been able to recruit more Presenting Officers but it is not essential in terms of the functioning of the system. Q308 Mr Soley: Finally, can I ask you, either within your department or at an interdepartmental level, have you considered the possibility of moving in this area of policy from the adversarial system to the inquisitorial system? Mr Lammy: That discussion is ongoing. It goes on very much with the judges themselves. I do not think we are about to move from what we have to a French-style inquisitorial system but I do think there are ways in which we can facilitate our judges to be more active and that is probably appropriate where we have a single tier and we are in those discussions at the moment and I am open to those discussions. Q309 Mr Soley: And that is discussed with the Home Office as well, or just within your own department? Mr Lammy: No. That is discussed, of course, with our colleagues in the Home Office. Q310 Chairman: If that discussion is not resolved in the context of this Bill we could find ourselves sitting here a year later as yet another initiative to change the system, so will it be resolved in the context of this Bill? Mr Lammy: I very much hope so. What I am indicating is that there is a whole spectrum of things that you can do to establish that more inquisitorial system. I do not envisage a complete volte face in us moving to the sorts of things you might see across the water in France but I do envisage ways in which our judges can be supported to be more inquisitorial. Q311 Chairman: Can I just clarify one point? Under the proposed clause 10(6) as amended it says that the exceptional nature of the case will allow an oral hearing on review. What elements would justify such a hearing? Mr Lammy: That has got to be a determination that the senior judges in the IAT themselves make. What we are saying is that there has been an issue - and I was talking about speed and length of time before - about cases being remitted back from the IAT tribunal to the adjudicators and that is obviously, in terms of the length of time and other things, an issue for us. What we have said is that if something comes up that is exceptional, if, for example, there is a change of circumstances or something like that, then the tribunal at review stage should be able to hear that matter orally if it sees fit. Chairman: Thank you very much. We are working hard to try and make sure that the report is in the hands of Members when we get to report stage. Early March we assume that is likely to be. This is quite difficult given the Government's breathtaking timetable on this and other issues. We are certainly endeavouring to do that, so we are grateful to you both for your help this morning. |