Evidence submitted by Hon Mr Justice Ouseley
President, Immigration Appeal Tribunal
Consideration of the merits of the proposals in
subordinate legislation must start from what Parliament has already
enacted. One of the problems with consultation on subordinate
legislation is that there may be different views about the meaning
or effect of what has already been enacted, as well as of that
which is proposed. My comments are therefore based on my understanding
of each. The Regulations cannot contradict it or go outside the
enabling power. It seems to me that Parliament intended the system
to operate as follows:
1. The legal aid funding for applications
for reconsideration should be made to the High Court when it deals
with them, and in the interim period, to both the Tribunal and
then to the High Court as successively they deal with those applications.
The Act, in section 103D(1) gives the impression that that issue
is to be dealt with at the same time as the application for reconsideration
itself.
2. The Tribunal upon substantive reconsideration
then appears able from the Act, section 103D(3), both to be able
to grant legal aid for the application (if no order had been made
by the High Court) and to grant legal aid for the substantive
reconsideration.
3. The Act is quite clear that the Tribunal
deals with that funding retrospectively, knowing the result and
full strength of argument in the reconsidered appeal.
4. However, all of that is subject to the
very wide language of the regulation-making power in section 103D(4)
and (5)(c) in particular.
5. The draft Regulations, Regulation 6,
do not expressly exclude the High Court from making a decision
on the grant of legal aid for the application for reconsideration
when deciding on that application, but do not expressly permit
it either. This uncertainty is undesirable. It may be that it
is intended that the High Court should have no such power, and
that it all should be dealt with by the Tribunal upon reconsideration
itself. I do not see why, conformably with Parliament's enacted
intent, the High Court should not be able, if it felt so moved
in any particular case, to decide that legal aid funding be granted
for that application stage.
6. However, the real issues for debate are:
— what test should be applied under
section 103D(1) and (3); and
— who should review any adverse decision
under section 103D(3).
The Act itself is silent as to the basis upon
which the High Court, or Tribunal in the interim, should grant
an application for reconsideration (regardless of how it is to
be funded). The proposed Procedure Rules cannot control the High
Court jurisdiction. But it is proposed that insofar as the Tribunal
is involved in granting applications, the merits test (Rule 27(6))
should be:
(6) The immigration judge may make an order
for reconsideration only if he is satisfied that—
(a) the Tribunal may have made an error
of law; and
(i) there is a real prospect that
the Tribunal would decide the appeal differently on reconsideration;
or
(ii) there is some other compelling
reason why the decision should be reconsidered.
7. This may influence but does not have
to influence the High Court approach.
8. But the merits test should be related
to the legal aid test for simplicity of operation.
9. The proposed tests in draft Regulation
6 and 7 (Option 1) appear to envisage legal funding being granted
retrospectively if there was (i) a reasonably arguable error of
law and (ii) a significant prospect that the appeal would be allowed
in consequence. This is obviously demonstrated where the appeal
actually is allowed and this should need no further consideration.
It is difficult to envisage a Tribunal rationally refusing to
grant legal aid funding retrospectively in those circumstances.
10. Where the appeal is dismissed, the Tribunal
should go on to ask itself whether, in the light of what it now
knows, it regards the appeal as having involved a reasonably arguable
error of law with a significant prospect of that leading to the
appeal being allowed, even though it was ultimately unsuccessful,
or some other compelling reason for consideration.
11. Thus the test in the Regulations should
be that legal aid funding should be granted by the Tribunal for
the substantive reconsideration:
(a) if the appellant succeeded on reconsideration;
and
(b) if not, nonetheless there was a significant
prospect, judged as at the date of reconsideration, that the appellant
would succeed in his appeal as the result of an error of law,
or there was some other compelling reason for reconsideration.
12. One advantage of retrospectivity is
hindsight. It should be used to assess prospects of success in
the light of all that is known. This covers both changes in circumstance
or law, for better or worse, and the more detailed examination
of legal and factual material which a full hearing brings compared
to a paper application on a comparatively short analysis, with
no input in most cases from the respondent.
13. I do not regard it as sensible to try
to assess prospects, as the draft Regulations require, as at the
time of making the application, ignoring all that is now known,
and trying to work out how much of that was or should have been
known or realised earlier. This latter test would also have the
disadvantage of inviting the Tribunal to reach a different conclusion
from the High Court which granted the application, but theoretically
on the same material. This is because it is likely that the High
Court would grant an application for reconsideration where there
was a reasonably arguable error of law with a significant prospect
of it affecting the ultimate outcome of the appeal. Yet that is
what a Tribunal would have to reject if it were to reject funding.
14. That problem does not arise where the
Tribunal is making its decision with the benefit of a hindsight
not available at the High Court. It is difficult to see that the
grant of the application for reconsideration would not otherwise
automatically lead to the grant of legal aid retrospectively,
as the conclusion of the High Court would dictate the answer to
the question. Rightly or wrongly, however, there is no point in
the retrospectivity enacted by Parliament if that is to be the
approach.
15. The test which I suggest seems to me
to strike a fair balance between access to the Courts and deterrence
to abuse. I have no objection in principle to retrospective funding.
I do not think that the stricter option put forward reflects the
deterrence which retrospective funding itself inherently engenders.
On present information, the stricter option is too tight, and
does not strike a fair balance. The other option is probably not
very different from what I have set out above except that it appears,
bizarrely, to suggest that the Tribunal put itself into the position
of making an assessment regardless of its knowledge of the outcome
or of the way the argument developed before it.
16. I do not have very decided views about
who should review a legal aid decision. There is an obvious advantage
in it being a different and higher body for the fresh thinking
and independence it brings. There is an obvious disadvantage in
that this is not obviously High Court work and not all the detail
will necessarily be obvious from the determination of the merits
or of the funding unless it becomes very detailed. The less stringent
the test, the less necessary a High Court review. Some such High
Court review might be best provided for as a step available after
a Tribunal review.
17. I am sending a copy of this to the DCA.
Hon Mr Justice Ouseley
President, Immigration Appeal Tribunal
9 December 2004
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