Examination of Witnesses (Questions 120-139)
HOME OFFICE
AND THE
DEPARTMENT FOR
CONSTITUTIONAL AFFAIRS
30 JUNE 2004
Q120 Mr Davidson: Given that you have
the same structure of tribunals operating under two apparently
different legal aid systems, would it not have been sensible for
you to compare and contrast on a regular basis to see whether
or not there were any lessons which could be learned, particularly
if you were seeking to make changes or wanting to comment on changes
the government might want to make in England and Wales?
Mr John: Your point is a fair
one, but I am not familiar with the extent to which the Legal
Services Commission has compared and contrasted with the Scottish
Legal Aid Board.[11]
Q121 Mr Davidson: And you have not, being
in charge of the tribunals.
Mr John: That is right. I am in
charge of tribunal operations.
Q122 Mr Davidson: Obviously some appeals
which are successful are justified and you have outlined why that
is. Is there a number of cases where you feel that you were right
and the appeals process had it wrong and you would not change
the decision you had made in the first place?
Mr Jeffrey: There are certainly
cases where the adjudicator finds against us and as things stand
we have an opportunity to appeal to the tribunal and take that
opportunity and sometimes win.
Q123 Mr Davidson: What sort of percentage
is that? Give me a feel for that.
Mr Jeffrey: I do not have figures
in my head. I think the safest thing for me to do is to write
to you.[12]
Q124 Mr Davidson: Is this a relatively
small number?
Mr Jeffrey: No, it is not insignificant.
Q125 Mr Davidson: Does "not insignificant"
mean big?
Mr Jeffrey: In a proportion of
cases, which I would guess is of the order of 5% or 10%, we go
to the tribunal because we disagree with the adjudicator's findings.
It is a guess and the safest thing to do would be to write to
you.
Q126 Mr Davidson: Clearly you are always
going to lose some things which you think you should not have
lost. I understand that is in the nature of the process. Are there
any particular areas where you feel that there is a clash of policy
between yourselves and the appeals mechanism? How is that then
addressed? If you think you have it right, but they are systematically
overturning you, then perhaps they have the policy wrong. How
is that then resolved?
Mr Jeffrey: In the end the appellate
authorities decide. Where there is a marked difference in practice,
we do look very carefully at what the reasons for that might be.
Mr Gieve: On the question of policy,
that is not really a problem we face with adjudicators, but there
are cases where the courts find against, or re-interpret the legislation.
You will have been voting on a number of cases where we have tried
to restore the position or change it. Ultimately it becomes a
question of legislation, but all of that is subject to the Human
Rights Convention.
Q127 Mr Davidson: I just want to clarify
in my own mind whether or not the feedback loop is operating sufficiently
well to make you feel confident that aberrant decisions, either
individual ones or in a category, are then able to be re-addressed
in some way by the system, albeit that some people will have got
through or been rejected and so on, and at some point the system
re-connects. Is that a fair assessment?
Mr Gieve: Certainly we do constantly
monitor what the results are and why and adjust our decisions
to meet that where we think either we agree with them or alternatively
they have clarified a point of law where we have taken a different
view, but we accept that, or where it is just a fact of life we
have to adjust to.
Mr Jeffrey: May I interject, because
I have found the answer to your question in the NAO's Report?
In the footnote to Figure 5 it is reported that in an analysis
of the tribunal's determinations the tribunal has determined 1,000
appeals from the 2002 case load brought by the Home Office, of
which 350 were allowed and 300 were remitted to the adjudicator
for reconsideration. I have not been able to work out quickly
what percentage that is, but it is not a small number.
Q128 Mr Davidson: In terms of changing
grounds of appeals, one of the issues which concerns me is the
coaching of applicants. As a constituency Member, and I am sure
others have as well, I have had people come to me who have clearly
been coached. I remember one particular Iranian family who said
that they had been told to say that they were Christians. They
said they were not saying it just for the sake of argument, but
they really were Christians. That is disingenuous in the extreme
and you sympathise with them. To what extent do you feel that
your system is quick enough to respond to coaching? What can be
allowed through will obviously spread like wildfire through the
ranks of those who are doing the coaching and those who are applying.
Female genital mutilation as an argument against being sent back
is suddenly another one which is appearing, certainly in my surgeries
and I presume in some others as well. To what extent do you have
mechanisms which allow you to take account of those when decisions
are being made and at appeal stages as well?
Mr Gieve: You are quite right
that this is a moving picture and people quickly find out which
arguments are most likely to be successful and they try to adopt
those. We have to adjust first of all to assess the truth or otherwise
of it, but also develop our own understanding and arguments. You
are absolutely right that in all immigration matters, but in asylum
in particular, you are constantly having to adjust your practice
because this is a two-sided business.
Q129 Mr Davidson: How can you assure
me that your mechanisms are such that they allow you to respond
quickly enough to these new waves of, as it were, fashionable
arguments?
Mr Jeffrey: Our senior case workers
play a large part here. They work with groups of basic case working
staff and there is an extent to which they are encouraged to look
out for trends of this sort. The staff themselves are alert to
lines of argument which seem very similar. Sometimes the detail
is identical from case to case. It bears out a point I was making
earlier, that this is in many cases ultimately about credibility
and it is very hard to get under the surface of an apparently
credible story sometimes.
Q130 Mr Davidson: Can you just clarify
a point for me? Am I right in thinking that anyone who is granted
asylum anywhere in the EU is then subsequently able to come to
the United Kingdom and settle freely?
Mr Jeffrey: They certainly have
the right to come to this country. Whether they have rights of
establishment here depends on whether they assume the nationality
of the EU country in which they are living. I should like to check
that.[13]
Q131 Mr Davidson: One of the arguments
which has been advanced to me recently, again in my own constituency,
is that one particular national group will seek to go to where
it is fashionable, a particular line of argument is accepted,
get accepted there for asylum and then come to the UK, which is
where they wanted to come in the first place. I wondered whether
or not there was any monitoring of this by you or whether or not
you would have any reason to do so if in fact there was freedom
of movement.
Mr Jeffrey: On some scale there
certainly is a phenomenon of people acquiring some status in another
European Union country and then using the travel documents issued
by that country to come to this country, concealing the fact that
they had that status and then applying to us for asylum. We have
tried to get behind that by various measures taken at the ports
and airports.
Q132 Mr Davidson: Can I be clear? Again,
my understanding would be that if somebody in my constituency
gets asylum, they are then free to live, operate, work and have
travel documents which would enable them to travel elsewhere within
the EU and indeed throughout the world.
Mr Jeffrey: I do not think that
the grant of asylum in itself gives that freedom of movement.
In the rest of the EU what it may well do is set them on the road
to acquiring the nationality of the European Union state in which
they are living. Once they are, for example, French, or German,
or Dutch citizens, then they are perfectly free to come to this
country as any other French, or German, or Dutch citizen would
be.
Q133 Mr Davidson: This is a line I perhaps
ought to pursue elsewhere. What happens in situations where applications
for asylum are accepted and subsequently it is found that the
grounds for asylum were fraudulent?
Mr Jeffrey: I cannot think of
any cases where that has been undone.
Q134 Mr Davidson: Is there provision
for it to be undone?
Mr Jeffrey: It would be open to
us to revoke the status.
Q135 Mr Davidson: Again from my own constituency
experience, I am aware of situations where people have quite openly
boasted that they lied in their applications, had their applications
accepted and are now telling other people to use exactly the same
lies. I wondered whether or not there was a mechanism.
Mr Jeffrey: I cannot say immediately
how often we do that, but it is certainly open to us, if we have
evidence presented to us that there has been deception and people
have misled us, to revoke the grant of asylum.
Q136 Mr Davidson: A further point in
relation to removals and we have touched on some of these issues.
My understanding is that when somebody is refused permission to
remain and they are deemed appropriate for removal, their right
to access UK facilities such as education and health and so on
would cease. Is that correct?
Mr Jeffrey: Yes.
Q137 Mr Davidson: I have experience in
my own area and I am aware of this in other areas where colleges
are continuing to sign up people who have been refused permission
to stay and are receiving the funding for these people, but no
checks are made. Is there a mechanism by which there is a feedback
in terms of who is entitled to claim free education and who has
been refused permission to stay?
Mr Jeffrey: This is something
which is more for the Department for Education and Skills, but
it is something we are in touch with them about. It is certainly
the case that access to main services for someone in the position
you describe is not available. I would not care to say how detailed
the checks colleges make are.
Q138 Mr Davidson: Do you have a mechanism
by which you inform them? In a sense, would it be fair to say
that none of that is your fault, it is all their fault, because
you have given them the information already?
Mr Jeffrey: No, it would not be
fair to say that.
Q139 Mr Davidson: Why in that case would
it not be fair to say that? Why have you not given them this information?
Mr Jeffrey: If someone wants to
access services in this country, then they need to establish a
basis for doing so. They certainly would not be able, for example,
to present to college authorities a passport which demonstrated
they had leave to be in this country.
Mr Gieve: There is a question
about how rigorous people are in quite a lot of services in checking
entitlement. Some are not. Some people do not feel it is their
job to do that. Just going back in terms of when people lose entitlement
to support, as you know, we are changing this in the current Bill,
but at present it is true that families continue to be entitled
to support until the point of removal.
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