Select Committee on Home Affairs First Report

3  Reform of the appeals process

34. The Government proposes to move to a single tier of appeal for asylum seekers whose initial claim has been refused (Clause 10 of the Bill makes provision for this). It argues that the current system is too long and complicated, and provides too many opportunities for people to abuse the process in order to cause delay or abscond. The current two-tier appeal system (adjudication/Immigration Appeal Tribunal) will be replaced by a single appeal to a new tribunal, the Asylum and Immigration Tribunal, headed by a President. The vast majority of appeals would be heard and decided by a single immigration judge. Applicants would be expected to raise all their grounds of appeal at one hearing. On 27 October the Government stated that it was also "looking at ways to restrict access to the higher courts".[27] Clause 10 of the Bill specifies a range of decisions and activities of the new tribunal which will not be challengeable by way of judicial review or otherwise in the higher courts. These include judicial review of removal decisions flowing from a tribunal decision.[28]

35. Several of our witnesses expressed hostility to the Government's proposals. JUSTICE commented that previous recent reforms of the asylum appeals process had "singularly failed to address inefficiency, inaccuracy and incompetence within the initial decision-making process which directly cause inefficiency and delays at the appellate stage". They argued that in the absence of efficient decision-making at the initial stage, it is often only at the stage of first appeal that the substantive merits of an applicant's case are given a proper hearing, and that a second level of appeal is therefore desirable in the interests of fairness. JUSTICE also expressed concern at the Government's proposals to seek ways of restricting access to the higher courts.[29] The Law Society expressed similar views.[30]

36. Citizens Advice stated that they understood the rationale behind the Government's proposals, and might support them if there were grounds for confidence that every appellant would be assured of access to good-quality legal advice and representation before the single-tier tribunal. However, they added that given the existing shortage of good-quality legal advice and uncertainty over the future of legal aid, they could not be confident of this.[31]

37. Mr Peter Gilroy, Strategic Director of Social Services at Kent County Council, commented that moving to a single tier "appears to be a very effective way" of safeguarding the asylum appeals system from misuse. However, he expressed concern as to whether the new system would be properly resourced, and whether it would be compliant with the Human Rights Act 1998.[32]

38. The Constitutional Affairs Committee is currently inquiring into asylum appeals. On 31 October it published a report on the Government's specific proposals to reform legal aid in respect of asylum cases, on which a consultation paper had been issued last June, and it intends to issue a report dealing with wider issues relating to appeals in early 2004.[33]

39. In the explanatory notes published with the Bill on 27 November, the Government addresses the question of compliance with human rights legislation. It argues that:

    "Clause 10 raises issues under article 13 of the [European Convention on Human Rights (ECHR)] in relation to the removal of appeal rights. People may also wish to challenge whether their substantive Convention rights under articles 3 and 8 will be jeopardised by the absence of a further tier of appellate rights. However, article 13 does not require the provision of multiple tiers of appeal. What it requires is access to an independent national authority with powers to provide effective redress. The single tier Tribunal will meet this test. It is wholly independent of the initial decision-making body. The single tier tribunal will provide an effective remedy as article 13 requires and will safeguard appellants' Convention rights including those referred to in articles 3 and 8."[34]

40. The issues raised by the Government's proposals to strip out one tier of the asylum appeals system are ones we will wish to consider further in our forthcoming report on asylum applications, and which the Constitutional Affairs Committee will be dealing with in its forthcoming report on asylum appeals. At this point we will confine ourselves to saying that we support a simplification of the appeals procedure in principle. However, in the course of our asylum applications inquiry we have received considerable evidence that the quality of initial decision-making on asylum claims is poorer than it should be. This is indicated not only by anecdotal evidence but by the statistics showing the rate of successful appeal. In 2002, 34% of initial asylum applications were granted (10% given refugee status and 24% exceptional leave to remain), and 66% were refused. Of those refusals, 77% (i.e. 51.3% of the initial applications) were appealed against, to adjudicators of the Immigration Appellate Authority. At this first level of appeal, 22% of appeals were successful. [35]

41. Trends in appeal outcomes at the initial stage of appeal over the past nine years are as follows: Appeals determined by IAA adjudicators, 1994-2002[36]
Total determined
Total allowed
Percentage allowed

The table shows that the steep rise in initial-level appeals in recent years has been accompanied by a rise in the proportion of appeals which are successful, from one in 25 in 1994 to one in five in 2002.

42. In the case of those whose appeals were dismissed at the first level, but who were given leave to appeal to the second level, the Immigration Appellate Tribunal—which is not an automatic right but has usually been granted only where a point of law is involved[37]—11% of these further appeals were successful, 36% were dismissed and 49% were remitted back to the adjudicators.[38]

43. We note that opponents of the Government's proposals cite the high level of cases that are successful at first appeal as grounds for retaining a higher level of appeal. While there is no reason why, in principle, initial mistakes cannot be corrected at a single level appeal, we recognise that, if the current high level of successful appeals continues, it will be difficult to allay fears that some further cases might have been successful at a second appeal. Implementation of the Government's proposals must, therefore, be accompanied by a demonstrable improvement in the quality of initial decision-making. We recommend that, in considering the Government's proposed simplification of the asylum appeals system, the House should consider whether the Government has made sufficient commitment to investing the necessary resources, and making other improvements to the quality of initial decision-making on asylum cases. The real flaws in the system appear to be at the stage of initial decision-making, not that of appeal. We recommend that the implementation of the new asylum appeals system should be contingent on a significant improvement in initial decision making having been demonstrated. In particular, the relevant sections of the Act should not be brought into force until the statistics show a clear reduction in the number of successful appeals at the first-tier, adjudication level.

27   Appendix, p 26 below Back

28   Explanatory notes to the Bill, para 44 Back

29   Ev 23-24 Back

30   Ev 28-29 Back

31   Ev 16 Back

32   Ev 27 Back

33   Constitutional Affairs Committee, Fourth Report of Session 2002-03, Immigration and Asylum: the Government's proposed changes to publicly funded immigration and asylum work (HC 1171-I). Back

34   Explanatory notes to the Bill, para 138 Back

35   Home Office, Asylum Statistics United Kingdom 2002, paras 25-30; Tables 7.1-2 Back

36   Asylum Statistics United Kingdom 2002, from Table 7.1 Back

37   Section 101 of the Nationality, Immigration and Asylum Act 2002 restricts appeals to the Tribunal to points of law only. Back

38   Home Office, Asylum Statistics United Kingdom 2002, paras 25-30; Tables 7.1-2 Back

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Prepared 16 December 2003