Select Committee on Constitutional Affairs Written Evidence


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

      (b)  either—

        (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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