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]
| Year
| Total determined
| Total allowed
| Percentage allowed
|
| 1994 |
2,440 |
95 | 4%
|
| 1995 |
7,035 |
230 | 3%
|
| 1996 |
13,790 |
515 | 4%
|
| 1997 |
21,090 |
1,180 |
6% |
| 1998 |
25,320 |
2,355 |
9% |
| 1999 |
19,460 |
5,280 |
27% |
| 2000 |
19,395 |
3,340 |
17% |
| 2001 |
43,415 |
8,155 |
19% |
| 2002 |
64,405 |
13,875 |
22% |
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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