Evidence submitted by Immigration Advisory
Service
Created in 1993, IAS is the successor organisation
to UKIAS. Together we have been using public funds to assist immigrants
and asylum seekers with their initial and onward appeals since
1970. UKIAS was the only body in receipt of public funds to undertake
this work. We have considerable collective experience of arguing
and presenting onward appeals at the Immigration Appeal Tribunal
and have a small team of senior legal staff dedicated to this
work. IAS enjoys high rates of success at this level and other
levels of appeal. We are also unusual in representing a considerable
number of immigration clients (spouse, child, visitor, business
and student cases) as well as asylum clients.
We believe these proposals may force us to stop
assisting our clients with onward appeals, leaving poor initial
appeal decisions unchallenged. The effects will be a drop in the
quality of decision making as judicial supervision is curtailed,
more unjustifiably separated families, more student refusals,
more unfulfilled business needs and more genuine refugees returned
to face persecution and torture. The worst affected immigration
clients will be from poor countries, particularly in south east
Asia and parts of Africa, where decision-making is in our experience
at its worst and most prejudiced.
FUNDAMENTAL OBJECTIONS
IAS is absolutely convinced that the proposed
AIT re-hearings are totally unworkable if they are to be done
unfunded. Representatives simply cannot be expected to prepare
new witness statements, new expert evidence, new country bundles
and attend court for, potentially, a full day if the funding is
not in place to do so. The new regime will make proper preparation
for re-hearings impossible, which will have the effect of making
it less likely that funding will be granted, giving rise to a
self-fulfilling prophecy.
IAS is a not-for-profit organisation and a charity.
The proposals seem to assume that claimants' representatives are
making unmeritorious applications in order to profit from public
funds and therefore that it is acceptable to impose an element
of calculated commercial risk on the decision to appeal. IAS makes
no profit, has no profit margin to gamble with and cannot take
commercial risks. There is a very real danger that IAS will be
unable to undertake AIT review work at all, therefore. We would
be forced to gamble, literally, on losing some cases but winning
enough other cases with enhanced costs to break even. This is
entirely unacceptable and impractical. After over 30 years of
publicly funded work before the Immigration Appeal Tribunal, it
appears that we will be forced to withdraw from onward appeals
work.
OBJECTIONS TO
UNDERLYING ASSUMPTIONS
IAS strongly objects to several of the underlying
assumptions in the proposal. These assumptions need to be challenged
because the proposed changes, in common with almost every single
piece of primary or secondary legislation for the last decade
in the field of immigration and asylum, will not have the universally
desired effect of reducing delay and improving efficiency while
maintaining standards of justice.
IAS BELIEVES THAT
THE FOLLOWING
UNDERLYING ASSUMPTIONS
ARE FUNDAMENTALLY
INCORRECT:
We dispute that there are a significant number
of unmeritorious appeals at all. The standards of decision-making
by many Immigration Adjudicators are, sadly, shockingly low. IAS
knows and respects a considerable number of adjudicators and recognises
that they have an extraordinarily difficult task, particularly
given the consequences of an incorrect decision, but the fact
is that many adjudicators appear to be incapable of writing a
properly reasoned determination, irrespective of whether the appeal
is allowed or dismissed. The most common errors include:
— failure properly to consider expert
evidence such as medical evidence;
— failure to make plausibility findings
with reference to country information;
— circular reasoning (eg "I do
not believe you because I do not believe you");
— logical non sequiturs, particularly
over the significance of behaviour by asylum seekers;
— simply omitting to give reasons for
conclusions reached.
Such determinations simply cannot be said to
be safe or sound. A claimant is entitled to a properly reasoned
decision, whether the appeal is over a future risk of death or
torture or over the right for a husband and wife to live together
in the UK.
The significance of the mistaken assumption
is that the proposed measures will not tackle the underlying malaise,
only the superficial symptoms. Better and more effective training
for adjudicators, more time to write determinations, a more inquisitorial,
less adversarial system, better decision-making by the Home Office
and a more participatory, engaged Home Office are the real solutions,
yet the proposed measures do nothing to advance a genuine quality
agenda. Indeed, by seeking to reduce judicial scrutiny and make
it harder to challenge poor reasoning, the measures can only contribute
to a worsening of an already poor state of affairs.
We strongly reject the apparent assumption that
unmeritorious appeals are brought exclusively by publicly-funded
claimants' lawyers. A very considerable number of unmeritorious
Home Office appeals have been brought since an unannounced change
of Home Office policy two years ago, when the Home Office suddenly
started lodging appeals against adjudicator decisions to allow
appeals. In the experience of IAS, many of these appeals could
properly be described as vexatious, particularly where the Home
Office failed to send a representative to attend the adjudicator
hearing, which invariably leads to a later Home Office appeal
if the appeal was allowed. The Court of Appeal has commented on
a number of occasions on this phenomenon. [2]The
measures do nothing to restrict such appeals, despite the fact
that the Home Office is wasting public funds both directly by
employing staff for this purpose (rather than appearing in front
of adjudicators at first instance) and indirectly by forcing other
publicly-funded lawyers to defend Home Office appeals.
If the funding rules are to be implemented,
as seems inevitable, we suggest that some sort of cost sanction
be included in them to discourage Home Office appeals. This could,
for example, take the form of enhanced costs for the claimant's
representative (or the Legal Services Commission) if the Home
Office appeal is unsuccessful or the Home Office acts in an inappropriate
way.
In addition, the measures do nothing to discourage
privately funded unmeritorious applications, although this is
less of an issue than Home Office appeals.
We also strongly object to the underlying assumption
that claimants' representatives engage in publicly-funded work
for the purpose of making a profit. IAS does not and indeed cannot
and we operate under not-for-profit contracts with the LSC. Most
solicitors firms undertaking this work are small but dedicated
high street practices with very small profit margins and relatively
low salaries. None of us do this work for profit, we do it because
we care about the work and the clients. Preventing us from representing
our clients' interests by these means is sordid and unnecessary
and it ignores the high success rate of claimant appeals to the
Immigration Appeal Tribunal. We are aware of dubious claims by
Ministers that very few remitted appeals are ultimately successful
but as lawyers we can only judge decisions by their transparency
and quality of reasoning. The statistics indicate that we have
been extremely successful in demonstrating that adjudicator decisions
lack these qualities.
These measures will no doubt reduce the number
of onward appeals by means of financially penalising claimants'
representatives and making the work all but impossible except
on a pro bono basis but, as stated above, it does not mean that
judicial decision making will improve or that properly reasoned,
rational decisions will be reached. The measures will have a retrograde
effect on the quality of decision making and will only serve to
undermine justice.
ISSUES OF
CONCERN
PROPER USE
OF CHARITABLE
FUNDS
IAS has not had an opportunity to seek legal
advice from specialists on this question but we are extremely
concerned that our charitable status will prevent us from participating
in AIT reviews under the proposed funding regime. We cannot gamble
our charitable funds and we cannot take commercial risks. We simply
do not have the money to do so. We are also concerned that our
trustees may be personally liable if this is considered a breach
of trust. We may well be forced to abandon this review work entirely.
We seek assurances from the DCA that this is
an issue that has been considered and that separate funding arrangements
can be made for IAS and RLC, the two largest and among the most
respected suppliers of legal representation in the sector, and
for other not-for-profit organisations, such as Citizens Advice
Bureaux.
AIT RE-HEARINGS
As stated at the outset, this is an issue of
the utmost concern to IAS. We simply cannot see how it is feasible
to expect a representative to prepare for a full hearing of an
appeal without funding. If the re-hearing is to be meaningful,
fresh evidence will be needed, as will up-to-date expert and country
information, a witness statement dealing with issues arising from
the previous hearing and any new matters and a lawyer will need
to attend court, potentially for a whole day—and all of
this must be done pro bono, in the hope that funding will be retrospectively
granted. This is quite simply impossible.
Neither is it an answer to claim that the re-hearing
will be limited to certain issues by directions issued by a SIJ
or the High Court when granting permission for a review. If credibility
findings are challenged, or the AIT's approach to expert or country
evidence is challenged, the entire case will have to be re-heard.
It is actually very unusual for an adjudicator to make purely
legal mistakes on a narrow point.
The decision on funding must be made prior to
the full re-hearing. IAS believes that the purpose of the proposed
measure would be perfectly well fulfilled if the funding decision
is made after the error of law assessment but before the re-hearing,
as the disincentive to doing the initial pro bono work to lodge
the appeal would still be effective. The hearing to consider the
error of law and the re-hearing have to be separated. IAS would
be happy to discuss this further with the DCA.
There is no reason why a decision on funding
cannot be made before the re-hearing if the test applies at the
time of the initial application for a review anyway.
DIRECTIONS BY
AND EXPECTATIONS
OF AIT
IAS is also concerned that the AIT will expect
representatives to behave in certain ways but will not have regard
to the funding difficulties under which representatives operate.
For example, directing that a skeleton argument or witness statement
is prepared for a re-hearing or that a directions hearing is attended
is entirely unrealistic if the representative must do so pro bono.
However, the AIT will retain discretion to dismiss appeals or
exclude evidence if it is not served in accordance with what a
representative may consider to be an unreasonable or impossible
direction.
The AIT cannot expect representatives to meet
the standards of conduct and case preparation expected of professional
lawyers if those lawyers are unfunded. In particular, IAS is a
not-for-profit charity and does not have a contingency fund, profit
margin or bank overdraft that can be risked to undertake such
work. We will simply be unable to comply with the expectations
and requirements of the AIT and the LSC and may be entirely unable
to undertake the work at all. This also has implications for the
regulation of representatives. The LSC, OISC, Law Society and
Bar Council will need to recognise that basic standards cannot
be met if the LSC is not willing to pay for them.
NATURE OF
THE TEST
FOR FUNDING
IAS is concerned that even the proposed test
of "significant prospects of success" is inappropriate.
The "very likely to succeed" or "very strong prospects
of success" tests are wildly inappropriate and would effectively
prevent any review applications at all from publicly-funded claimants.
It is rather difficult to see how or if the
"significant prospects" test differs from the "real
prospects of success" test for permission to appeal to be
granted by the Tribunal. Creating a second test seems unnecessarily
confusing. It is also extremely difficult to see how this will
work in practice.
IAS suggests that a "vexatious" or
"unreasonable" test would be far more appropriate if
some sort of test is required. In contrast to the existing system
and procedure rules, which merely allow or permit the Tribunal
to notify the LSC that funding was not appropriate in any particular
case, the new system could force the AIT to consider this question
properly in every single case. Representatives would at least
know that if a case is brought with good faith and it passes the
"real prospects" test, then funding would be guaranteed.
This would also prevent the need to de-link error of law consideration
and the full re-hearing.
Colin Yeo
Head of Higher Appeals
Immigration Advisory Service
December 2004
2 For example, see one recent example in P and M
v SSHD [2004] EWCA Civ 1640 (8 December 2004): "36. Before
leaving these issues, we would emphasize that it is important
that the IAT confines itself to its proper reviewing role, because
there is justified concern at the length of the appeal process.
This has contributed to Parliament changing the process in a way
that will restrict the rights of the parties to appeal. If all
concerned had acted more responsibly, an appeal may not have been
considered necessary in this case. Usually the blame is placed
upon the immigrant or asylum seekers' advisers. In this case the
failure of the Secretary of State to be represented undoubtedly
contributed to what has happened" Back
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