Select Committee on Constitutional Affairs Written Evidence


Annex B

ASYLUM AND IMMIGRATION (TREATMENT OF CLAIMANTS, ETC) BILL: STATISTICS

  A key part of the Government's evidence that the asylum appeals system is being exploited is the statistic that fewer than one in ten of the cases that seek permission to appeal to the Immigration Appeal Tribunal (IAT) succeed in reversing the decision on their case. This letter sets out the reasoning behind this information.

    —  In 2003, there were about 35,000 applications made for permission to appeal the decision of an adjudicator to the IAT.

—  Also in 2003, there were under 2,500 cases which, at the conclusion of the IAT appeal process, received a different decision in their case.

—  We cannot express this as a direct proportion because of the way the statistics are collected, but however you look at it, fewer than one in 10 of cases in which permission to appeal is sought actually receive a different decision.

  The initial decision on an applicant's asylum claim is made by the Immigration and Nationality Directorate (IND) of the Home Office. If unsuccessful, the applicant may appeal to the Independent adjudicators in the Immigration Appellate Authority (IAA).

  After the adjudicator has made their decision on the appeal, either party may further seek to appeal the decision of the adjudicator to the Immigration Appeal Tribunal. This is a two-stage process. First, they must seek from the IAT permission to make their appeal. If successful, they will then have a full hearing before the IAT. In its decision, the IAT may dismiss or allow the appeal, or remit the case for reconsideration by an adjudicator.

EXPLANATION OF STATISTICS

  In 2003, [28]there were 32,178 decisions on applications made for permission to appeal to the IAT. Of these, 12,002 were allowed to go to a full hearing and 20,111 were dismissed. [29]Therefore, 37.3% of permission applications succeeded in getting a full hearing.

  Because of the way our systems collect data, we cannot follow this same cohort of cases through to the end of the process. Instead, we have to look at a "snapshot" of the cases at each stage of the process in a particular period. However, the proportions at each stage are consistent over time, making this a statistically valid approach to take.

  In 2003, there were 9,451 decisions on substantive appeals by the IAT. The difference between this number and the 12,002 that were given permission for a full hearing is because the IAT is currently handling a backlog of cases. Nearly all of the 12,002 cases will eventually proceed to a full hearing.

  Of the 9,451 decisions, 1,441 were allowed outright, and 3,184 were dismissed outright. A further 4,199 were remitted to the adjudicators for reconsideration.

REMITTALS

  The appeals that were allowed have obviously succeeded. However, it is not correct to say that all of the 4,199 remittals have also succeeded. A case is not necessarily remitted because the IAT is convinced an error has been made by the adjudicator. Instead, because of the limited scope of the IAT to reconsider evidence, it will remit a case if there has potentially been an error in the case, or because it wishes for further evidence to be considered. Indeed, if you look at a sample of cases remitted by the IAT, you will find that in many of them they are reasonably sure that a given decision is correct, but it needs to be further considered by an adjudicator to ensure that this is the case. An example of this would be where an adjudicator may have properly considered all the evidence, and made a reasonable decision based on that evidence. However, in his determination, he fails to note that he has indeed considered a key piece of evidence. This would be a case in which the decision of the adjudicator is correct, but in which the case would be remitted to make sure of this fact.

  We have taken a statistically significant sample of cases that are remitted, and have found that in no more than one-quarter of the cases does the adjudicator reach a different decision to that which was reached first time around. This one-quarter of cases may properly be said to have succeeded, as they have achieved their aim of reversing the original decision. It is unimportant that the other three-quarters have reached an advanced stage of the process: they have still failed to overturn the original decision.

  Using this proportion, one-quarter of the 4,199 cases remitted is 1,050. I would stress that this is still likely to be a generous estimate, but the limits of our sampling technique do not allow us to be more precise. Therefore, if you add the 1,441 allowed cases to the 1,050 remitted cases which achieve a different decision, you find that in 2,491 of the cases can the appellant be said to have succeeded. As a proportion, 26.4% of those cases that have been granted permission to appeal succeed at a full hearing.

  Therefore, to find the overall success rate for cases in which permission to appeal is sought, we need to combine the two rates (37.3% of appeals are allowed to go to a full hearing, of which 26.4% succeed) to get an overall success rate of 9.85%-which represents a success rate of just below one in 10.

HOME OFFICE APPEALS

  In the interests of full disclosure, I would like to comment on one potential defect in our statistics. It is not possible from the numbers that we have available to us to tell whether an appeal that is brought to the IAT is brought by the asylum applicant or the Home Office. Anecdotal evidence suggests that the proportion of cases brought by the Home Office has fluctuated over time. However, it also suggests that the Home Office has a significantly better success rate than one in 10 when bringing appeals, which means that if you were to be able to distil out only those cases in which the appeal is brought by the asylum applicant, the success rate would actually be worse than one in 10.

OTHER STATISTICS RAISED IN DEBATE

  I would also like briefly to mention two other numbers that have been brought up previously in this debate, and explain whey they do not represent the full picture.

  At second reading in the House of Lords, the Rt Rev the Lord Bishop of Oxford referred to a figure of 58.8%, while the Joint Committee on Human Rights in its recent report quoted a figure of "almost 60%". This is an accurate figure—the actual percentage of cases allowed or remitted at an IAT full hearing based on the 2003 figures is 59.7%—but we need to be clear about what it represents. Similarly, Lord Clinton-Davis later in the second reading debate referred to a success rate of "as much as 23%".

  First, in the calendar year 2003, 37.3% of cases that applied for permission to appeal to the IAT were granted permission to appeal. In other words, nearly two-thirds of cases failed before they even got to a full hearing before the IAT. It is right to take these cases into account, as they have entered the appeal process asserting that they have a good case, and have been found wanting at the first hurdle. If you take them into account, the 60% figure reduces to no more than 22% success, which is that quoted by Lord Clinton-Davis.

  However, secondly, as I have already discussed, it is not meaningful to include every case that is remitted in any estimate of success. Cases are remitted for many reasons, and fewer than one in four actually receives a different decision when reconsidered at the adjudicator tier. The most meaningful way to assess success in the IAT is to consider the proportion of cases that receive a different decision in the process, either by being allowed outright by the IAT, or by being remitted then receiving a different decision before the second adjudicator; as I have already outlined, this comes to fewer than one in 10 of cases that initially seek permission to appeal.

  I appreciate that bringing any sort of clarity to statistics is a difficult task, but I hope that the numbers that I have outlined will help to inform debate on this issue.

Lord Filkin

Parliamentary Under-Secretary of State

Department for Constitutional Affairs

6 July 2004


28   All figures quoted in this letter are from the calendar year 2003. However, the proportions in the figures are consistent over time, so the conclusions remain true Back

29   The remaining 64 were either remitted or withdrawn. We have not included statutory reviews at this point; there were 307 decisions on statutory review applications in 2003, of which over 80% failed, making them statistically insignificant in these calculations Back


 
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