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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