Examination of Witnesses (Questions 1-19)
HON MR
JUSTICE HODGE
OBE AND HON
MR JUSTICE
COLLINS
21 MARCH 2006
Chairman: Mr Justice Collins, Mr Justice
Hodge, welcome back to us, we are very glad to have you with us.
There are two things that I need to do, the first is to warn you
that there may be a vote in 20 minutes time, in which case I will
unfortunately have to adjourn the Committee for 15 minutes, but
we will be back. Secondly, there may be interests to be declared.
Keith Vaz: I am a non-practising barrister.
My wife holds a part-time judicial appointment and has had professional
dealings with one of the witnesses.
Q1 Chairman: That is all by way of
interests to declare. We are particularly pleased to have you
with us, because in your evidence to the Home Affairs Committee
last month you said that asylum appeals are now being processed
quickly, but you identified a backlog of about 22,000 appeals
waiting to be heard, mainly entry clearance cases. Is all this
the result of a drive to hear asylum appeals quickly?
Mr Justice Hodge: No, and the
numbers are much bigger than that, there are probably about 80,000
appeals waiting to be heard. The reasons are because of a huge
increase in the number of entry clearance and visit visa cases
that have come in over the last nine months, plus a clearout of
the cupboards, as we sometimes unkindly put it, in relation to
both entry clearance posts overseas and the Home Office, quite
a lot of which was anticipated, but not all of it. We were expecting
something like 30,000 old cases from the Home Office, mainly immigration,
we expect actually to receive something over 42,000. On top of
that, as I said, the number of visit visas and applications to
come here through entry clearance have gone wildly above anything
that the policy-makers anticipated, so there has been a backlog
created as a result of that but we do expect to be able to get
through it by about early spring next year.
Q2 Chairman: In the past this Committee
has been concerned about the standards of decision-making which
can give rise to so many appeals; that with such a significant
successful proportion it is bound to reflect on the original decision-making.
Do you think that is still a problem area?
Mr Justice Hodge: It is very difficult
to get a wholly accurate handle on the quality of decision-making—and
Andrew Collins will no doubt come in on this because he and colleagues
in the Administrative Court see something of it—but we think
that the quality of the decision-making has been going steadily
up. The training that we put in for immigration judges is pretty
extensive, the numbers of successful appeals going round the houses
as they used to do has rather gone down, the amount of time that
judges have to hear the cases and thereafter to decide them is
slightly greater than it was in the days when we were expected
to do three and four asylum appeals a day, so while quality can
always be improved—and I am hoping that we keep improving—I
do not see that as a really grave difficulty for the work done
by our immigration judges at present.
Mr Justice Collins: I was not
sure whether you were not referring to the decisions of the ECOs,
which is a separate issue from those of the immigration judges.
Henry has been talking about the immigration judges and I agree
that my impression is that there has been an improvement; on the
other hand, we do not get an entirely true picture because, as
you know, the initial reconsiderations are dealt with internally
and they allow on the figures roughly between 22%-23%, that sort
of level, so the bad ones ought to be weeded out by that. The
ones that come through to us on the whole are the slightly better
ones. The only criticism I have, and I have always had ever since
I was President of the Tribunal, is that they are almost always
over-long. It is actually much easier to set out in full the evidence
rather than make the effort to summarise and to focus on what
actually matters. It means that you read through vast numbers
of paragraphs and the problem used to be that you had 40 paragraphs
reciting what was in the evidence and then two giving reasons,
which was not altogether satisfactory. That is much better but,
as I say, I still think that there should be a greater effort
on succinctness.
Q3 Chairman: If I can put the Public
Accounts Committee's conclusions rather more starkly, is it really
worth the time and expenditure and effort that you are all engaged
in if the rate of removal casts doubt upon the whole process?
Mr Justice Collins: This has always
been a problem, it is a problem I had right from the outset when
I was first President of the AIT; one did sometimes wonder what
one was doing or what was the point of what one was doing. It
has improved to some extent, but the real difficulty, talking
from the point of view of the Administrative Court, is that we
are faced with a large number of judicial review applications
which are brought when removal takes place. If removal has been
delayed, as it often has been, for a considerable time, then circumstances
are alleged to have changed, or the individual has set up some
sort of a life here, perhaps has married and had children and
so on. As it happens, this morning I was dealing with a case where
someone had been here for 10 years, six of which had been taken
up in the failure to consider the application in time, i.e. that
was the time it took between the application and the decision
and another two years before any removal action was taken. That
is perhaps a slightly extreme case, but it is by no means entirely
untypical and I am sure that you will have had constituents who
have been in this position. That means that we get a very considerable
number of judicial reviews when removal is made. The difficulty
we are facing at the moment is one which actually falls on the
duty judge, because what has been happening is that someone who
has got temporary admission and has to report reports and suddenly
is told, "Right, you are on a plane tomorrow" or even
in 48 hours or whatever it is, very quickly. The result is that
since they have reported usually just at the end of court hours,
the duty judge has an application to issue an injunction and he
is really in no position often to do other than that. We are trying
to set up with the Home Office an arrangement which, if they do
decide to remove, will avoid that—and I understand entirely
why in many cases they decide it is necessary to put them in custody
before the removal, because otherwise there is a real danger in
many cases that they will disappear. If, for example, it were
an arrangement that there was, say, three days, within which they
are told you must contact any legal advisers, you must take any
proceedings if you are advised that any proceedings are appropriate;
if you do not do anything within that time, you are out, that
is it. If a judge knows that that system or some such system is
in operation we can avoid, I hope, the delays that inevitably
occur when removals are attempted at the last minute without proper
notice. That is a real problem but, as I say, we are dealing with
it. It does not directly arise from the appeal system, but it
does arise from the failure to remove those who have gone through
the appeal system unsuccessfully. Having said that, I do not want
it to be thought that one is criticising the Home Office simply
because there is a failure to remove; one recognises that there
are countries and there are situations where it is actually very
difficult to remove—for example, because a country will
not accept; because it is not possible to get people to a safe
part of the country. That happened with Iraq, if you recall, when
Saddam was still in power and it was impossible to remove those
who were not actually refugees to the north part, who had come
from the north part, the Kurds, from the autonomous area. That
sort of thing does arise and there are no doubt difficulties,
but if there are such difficulties then it may be that consideration
should be given to some sort of timed ILR or some system whereby
those who they know cannot be removed are not left in limbo. That
is a policy matter which obviously I am not competent to deal
with; all I can say is that of the 10,500 or thereabouts applications
made to the Administrative Court last year, 7,500 were immigration
reconsiderations or immigration-related, so you can see the volume
of the problem that we face.
Q4 Dr Whitehead: In terms of appeals
overall, in 2004 there were roughly the same number of immigration
appeals and asylum appeals. I would imagine in terms of what has
been said this afternoon about the increased backlog, that figure
this year will mean that there are probably considerably more
immigration appeals than asylum appeals.
Mr Justice Hodge: Yes. In the
figures you quote we used not to break down immigration into managed
migration, entry clearance and visit visas in quite the way that
we do at the moment, but from our perspective within the tribunal
system for the last two or three years we have heard around about
100,000 cases a year—slightly more—of which the bulk
used to be asylum; we had an agreement with the Home Office that
they would send us 6,000 asylum cases a month so 72,000 asylum
cases a year. This year the projections look to be that we will
receive about 175,000 appeals, so a very significant increase,
and of that probably about 30,000 will be asylum, so a real sea
change in the way in which we do our work.
Q5 Dr Whitehead: The imbalance therefore
reflects upon the criticism that this Committee in fact made in
the previous Parliament of the most recent changes that were made
at that point, which the Committee suggested were designed mainly
to deal with the issue of asylum rather than with the issue of
concerns in relation to immigration.
Mr Justice Hodge: Yes. The legislation,
particularly the procedure rules, prioritise our handling of asylum
cases and, as a matter of practice, we also prioritise the handling
of managed migration which is in-country appeals. Everybody says
that that has helped towards the diminution overall of asylum
cases because if you cannot stay around for years, as Andrew has
indicated some people have been doing, you arrive now, you are
likely to have your case dealt with by the Home Office pretty
quickly and when it comes to us on appeal we are listing the case
28 days after the appeal and deciding it in a total of six weeks
in something like 75% to 80% of the cases. That is magically faster
than almost any other bit of litigation process that goes on in
the UK and we have taken five or six weeks out of what we did
in the year 2004-05. That is as a result of a lot of very hard
work by all the staff and by the judges for whom I have overall
responsibility.
Q6 Dr Whitehead: Would you say, in
terms of the criticisms that were put forward by the Committee
in the last session of Parliament, that that was a reasonably
fair criticism, but that is not now the problem that was the case
when that criticism was made?
Mr Justice Hodge: The system still
prioritises the handling of asylum cases, because that is what
Parliament has decided. Previously, we did not see the immigration
cases or indeed the asylum cases because the appeals went to the
Home Office, not to the Asylum Tribunal, so we did not know how
many cases there were sitting around in the cupboards and offices
and so on, but we do now. This is one of the great advantages,
from a public policy point view, of this system, it is very much
more transparent; I can tell you accurately how many appeals have
been made since 4 April which probably the Home Office might have
been able to do with a lot of internal counting, but they are
all on our computer and we know, and we can therefore tell you,
when we are not going through them as quickly as we might do.
As I say, we hope to get back onto an even keel once we have sorted
out the current backlog.
Q7 Chairman: For many of us as constituency
members, of course, it is the families who are so distressed by
drawn-out nature of these procedures, when they are usually family
events that have occasioned the application.
Mr Justice Hodge: We are very
aware of that and, again, we are trying everything we can to make
our visit visa processes better than they were. To help the Members
of Parliament the Asylum and Immigration Tribunal have set up
a team who handle MPs' queries alone, and some of you kindly write
to me as well. There has been quite a lot of work done with our
administrative staff meeting the staff of MPs who deal with immigration
cases and I hope that we are providing you with some kind of halfway
reasonable service. But it is the case that although we are well-resourced
in comparison to lots of organisations, we have got more work
coming in than we are resourced to deal with.
Q8 Keith Vaz: To whom do you make
these representations, complaining about the extra work that you
have got, Sir Henry?
Mr Justice Hodge: I do not go
around making representations like that because I regard myself
as part of a system which is trying to deal with the numbers that
we have got. We have enough judges to be able to sit about 120
courts on a daily basis, we could sit 150 courts and we are going
to employ some more judges and therefore to make some difference
over time. We keep our asylum and managed migration cases going
in the way I have explained to Mr Whitehead and we simply have
to let the other appeals wait in a fairish queue. When your colleagues
or, indeed, the representatives or the individuals, write to the
Tribunal and say "Why hasn't my appeal been heard?"
we have a system now of getting that in front of a duty judge
and if there appear to be helpful and sensible reasons why we
ought to try and get it in quicker, we do what we can to achieve
that.
Q9 Keith Vaz: I realise you are a
judge and therefore you have to use moderate language when discussing
your feelings, but before you were a judge you were a leading
practitioner on the other side; it cannot be right, can it, for
the President of the Asylum and Immigration Tribunal to be telling
a Select Committee that he has looked in the cupboards and found
another 60,000 files, because when the Chairman gave you some
figures of 22,000 you said he was wrong, he was five times below
the number that you have got, thank goodness you have a transparent
system. I do not know whether they were transparent cupboards,
but thank goodness you have a transparent system, we now know
we have got such a huge backlog. Somebody must be to blame for
this, it seems to be a complacent attitude and even the Lord Chancellor
said he felt uncomfortable about this backlog.
Mr Justice Hodge: If we are looking
for blame I suppose the first piece of blame would be that traditionally
the Home Office and the entry clearance system, frankly, did not
handle the immigration cases as well as all of us would have liked
them to do, and no doubt that was part of the reason why the changes
have been made. In terms of secondary blame it is very difficult
to judge the numbers of people from outside the country who are
going to want to come here, and the estimates were very significantly
wrong. Why is that? Some people say, but I do not know the answer
to this, because Western Europe and the western world generally
has tightened up very much on asylum cases a way in is through
some kind of entry clearance or visit visa system and, therefore,
the numbers who are going to use that system have gone up while
the numbers who are trying to use the asylum system have gone
down. The world is, I suppose, getting richer. We get very many
people from Pakistan, India and Bangladesh, those societies are
getting much better off than they were.
Q10 Keith Vaz: Increased prosperity
has led to these backlogs?
Mr Justice Hodge: Yes, I would
think it must be a contributory factor.
Q11 Keith Vaz: The Home Office, surely,
must take primary responsibility for this, because do they not
deal with the allocation of cases to yourselves any longer?
Mr Justice Hodge: No, because
appeals come direct to us so the Home Office now directly deal
with managed migration within the country, asylum claims—both
groups have been refused in some way or another by the Home Office,
then they put in an appeal and that appeal comes to us—visit
visas have always come direct to our tribunal system and they
are dealt with by entry clearance posts, which is UKvisas now,
and settlement cases are also dealt with in posts abroad by entry
clearance officers. It is UKvisas and the Home Office which are
the engine-rooms of the decision-making and after the decision
is not liked the appeal comes to us.
Q12 Keith Vaz: Is it not the case
that documents on an appeal are sent to Loughborough or to the
post abroad, there is still this choice open to people?
Mr Justice Hodge: Yes.
Q13 Keith Vaz: The documents are
then photocopied and sent back so that there is proper tracking
of the files. Is there not a 56 day lag here?
Mr Justice Hodge: Yes.
Q14 Keith Vaz: Why is there a 56
day lag?
Mr Justice Hodge: We inherited
that; it is one of the things that we are going, over time, to
do something about.
Q15 Keith Vaz: Why are you not dealing
with that immediately? It seems to me very odd that when people
appeal this adds to the length of the process; they have to wait
56 days.
Mr Justice Hodge: Electronic notification
of appeal receipts.
Q16 Keith Vaz: Has that started?
Mr Justice Hodge: Not yet. It
was agreed on 2 March. The management of the paper in this system
has always been very difficult. The 56 days for people to write,
to prepare bundles out in the entry clearance posts to send in
to the appeal system was something that was agreed between the
entry clearance when it was in the Foreign Office and the Home
Office, and we inherited that at the time. Do not ask me why it
is so long and we agree that it should be shortened; some work
is going on to deal with that. On visit visas it is supposed to
be a month, but there are ridiculous rules throughout the whole
judicial system about service abroad which all come from the days
when pigeon post was 28 days to get anywhere. You could do it
much quicker.
Q17 Keith Vaz: Will you look at this?
Clearly, it is not acceptable that there should be a delay, you
as President of the Tribunal believe that there should not be
this delay, you cannot understand why people have to wait 56 days,
the documents are being photocopied and sent back. Would you look
at that, because it sounds like a management problem for your
department?
Mr Justice Hodge: We can agree
certainly with the Committee that we will look at it and we can
report to you as we go along how we are getting on, but we are
looking at it in a major way now. We are looking at how the documents
are transferred: at the moment they are going in diplomatic bags,
that is not working terribly well. We are almost certainly going
to go somebody like one of the international couriers who can
guarantee to get the papers there in no time flat, there are all
sorts of process problems in the system and the volume and the
process problems all combine together to make it less efficient
than it could be. I am going to get it efficient, Mr Vaz, pretty
soon I hope, particularly with all the help of all the people
who are putting lots and lots of effort into getting it right.
Mr Justice Collins: Some of the
time limits of course are in the rules so it will need a rule
change.
Q18 Keith Vaz: You did say to the
Home Affairs Select Committee, Sir Henry, that the new appeals
system was better than the old one because it is faster.
Mr Justice Hodge: It is very much
faster on the asylum, it is very much faster on managed migration,
I have given you the figures for that—it is probably, actually,
still faster on entry clearance and on visit visas because you
did not know and we did not know how long the files were sitting
around somewhere—in the cupboards as we impolitely call
them. We know now much better than we did before. I do not think
it is good enough but it is not absolutely disastrous. It is bad
news for the individuals who are suffering this blip, as I hope
it will be seen as—
Q19 Keith Vaz: It is a very long
blip, is it not? For as long as I have been sitting on this Committee
there has been a backlog; even the Lord Chancellor is concerned
about this backlog and it is a very long blip for the people waiting
for their appeals. Mr Khabra and I and probably other Members
of this Committee deal with people who cannot go to the weddings
that they would like to go to because it is sitting in some cupboard
in your office.
Mr Justice Collins: I do not think
it is so much in your office, it is in the Home Office.
Mr Justice Hodge: We do not like
that but we think that you can pick up for those kind of constituents
of yours now in a better way than you could in the past; whether
it is going to be perfect is another matter.
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