Examination of Witnesses (Questions 20-39)
HON MR
JUSTICE HODGE
OBE AND HON
MR JUSTICE
COLLINS
21 MARCH 2006
Q20 Keith Vaz: Sir Andrew, the Administrative
Court's total caseload dealing with immigration is up by a huge
number, it is a great burden on your court. It is obviously not
a good thing that this burden is taking you away from doing other
work.
Mr Justice Collins: It is a real
problem. In fact, at the moment, the reconsiderations as you know
are paper-only and we are the end of the line so obviously, particularly
in the asylum cases, you want to deal with it carefully. We reckon
that we cannot really expect a judge to do more than 12 a day
of those, which I think is a reasonable number.
Q21 Keith Vaz: How can the system
be improved without unduly disadvantaging the claimants? Can you
improve the system any further?
Mr Justice Collins: I do not think
we can. We deal with them as fast as we possibly can and we reckon
that the vast majority we can turn round within, at most, three
weeks, usually less than that. It does require, at the present
level that they are coming in, about three judges throughout the
year, if you look at it that way, it will take up the time of
three judges sitting fulltime throughout the year. This certainly
puts a strain on the system and it does mean that we are at risk
of not being able to hear our other work within the time that
we would like to. We are at the moment keeping our heads above
water; we had a real problem at the beginning of this legal year,
last October, largely because of the blitz that the AIT had done
on asylum cases, to get rid of their standing backlog on those.
We have the rather horrific figures in relation to immigration
appeals and, in theory, that could mean that we are going to be
hit with an increase. In fact, if you look at the figures, very
many fewer immigration cases come through on reconsideration to
us. There are some quite interesting statistics on this; to give
you an example, the entry clearance appeals, last year the AIT
received 47,000 odd, 20,000 decisions but only 660 applications
for reconsideration of those, whereas if you look at the asylum
cases, 16,000 receipts and 22,000 decisions—that is obviously
because some had come in the year before and were decided during
the year—11,000 applications for reconsideration which is
about 50%.
Q22 Keith Vaz: The current Bill that
is going through Parliament at the moment which will take away
appeal rights for work permit holders and students, Sir Henry
does not believe that that is going to affect—in the cuttings
that I have seen your comments on, Sir Henry—the workload
of the Tribunal but it might affect your workload, surely, or
JR.
Mr Justice Collins: I suspect
the only effect of that will be to increase the work of the Administrative
Court because the only way to challenge will then be judicial
review. If you abolish appeal rights you inevitably increase the
burden on the Administrative Court.
Q23 Keith Vaz: Would you be against
the abolition of the right of oral appeal in visit visa cases?
Sir Henry would want this because it would clear his backlog.
Mr Justice Collins: The visit
visas, they are not intending—
Q24 Keith Vaz: They are not, but
it is in the Home Office's strategy.
Mr Justice Collins: Yes. There
was a system as I recall where you could either choose to have
a paper appeal or an oral one.
Q25 Keith Vaz: You still can.
Mr Justice Collins: You still
can.
Q26 Keith Vaz: But the proposal is
this might go as part of the five year strategy. That would just
bump up JR, would it not?
Mr Justice Collins: That is always,
as I say, the problem with removing appeal rights. If you remember
the section 55 cases, there was no right of appeal, therefore
they all came to us. Eventually we managed to persuade the Home
Office, with the assistance of the House of Lords, to recognise
that people left to starve on the streets needed to be given some
assistance.
Keith Vaz: Sure.
Q27 Chairman: Given that this is
coming down the track fairly rapidly, is the Government putting
to you any ideas of how this can be managed or any other plans
to assist you to deal with what would be in effect a shift of
activity into the Administrative Court?
Mr Justice Collins: Not directly,
no. There is obviously a difficult line that one has to draw because
we should not be involved in policy, for obvious reasons, but
judges can play a part, particularly judges in our position, in
practical matters and in helping, perhaps, to indicate what problems
will arise if you do this, if you do that or if you do another.
No, the answer to your question is I have not had any direct dealings
on this aspect; I am quite happy to do so if anyone wants me to.
Q28 Keith Vaz: In a previous Parliament
we suggested a universal number for immigration cases. I assume
you have been out to the posts abroad and you have seen how they
operate?
Mr Justice Hodge: I have only
been to Mumbai and Delhi.
Q29 Keith Vaz: They are the busiest.
Has there been any practical decision about this?
Mr Justice Hodge: My understanding
is that nearly all the administrations feel that their computers
do not speak to each other in a way which makes a single number
adequate. From the perspective of the Asylum and Immigration Tribunal
we feel that we can track cases within our own system pretty effectively
and, on the whole, because the Home Office provide us with their
number when they send papers through to us, we can track backwards
and forwards between them. Whether it is working quite so well
with UKvisas and their numbers or not, I do not know. The Committee's
interest is very much noted, but it is unlikely to move ahead
until the computers speak to each other better than they do at
the moment.
Q30 Mr Khabra: With the sort of experience
I have got—a large number of ethnic minority people live
in my constituency and I am dealing with a large number of asylum
and immigration cases.
Mr Justice Hodge: Sure.
Q31 Mr Khabra: Only yesterday I got
two cases and my personal experience has been that the appeals
on average are taking nearly eight or nine months, just to process
the papers. On top of that, as you said, it seems that the number
of appeals, reconsiderations and judicial reviews is not going
to go down, that is a fact of life actually, but at the same time
the legal changes which have taken place mean that they have to
then simply go ahead unrepresented, they have no legal representation
at all, they cannot afford it. The question I want to ask you
is, what is the extra cost to you of having to deal with unrepresented
applications, for instance, because their English is not very
good, they are not able to argue their case—which is important
to win an appeal—and the cases can just fall? How do you
compare with the legal aid savings, this sort of situation?
Mr Justice Hodge: The AIT and
its judges, whenever they have been asked, have always said that
we value representation and we want as many people to be legally
represented as possible, and whenever we discuss these matters
with the Legal Services Commission, which we do periodically,
that is entirely what we say. The numbers of people who are unrepresented
in front of immigration judges have gone up, largely because of
the operation of the merits test. It causes particular problems
for our judges in fast-track cases, in asylum cases, and the hearings
do extend as a result of that. I have not got any figures as to
whether it adds significantly to the cost, but we do not change
the numbers of cases in the lists against whether they are represented
or not and I suppose, speaking just off the cuff, there are swings
and roundabouts like in many things. Some representatives talk
at inordinate length, as many of you will know, and some are very
short and sharp and put their cases very well; it is the same
with unrepresented people. We advise our judges as to how to handle
unrepresented appellants and I hope they deal with them fairly
and properly; some cases will be longer, but some cases might
be shorter. I would be surprised if we could ever produce a figure
about the cost—the change in representation has been very
much driven by the Legal Services Commission's worries about the
total cost of their budget rather than anything to do with us.
Q32 Mr Khabra: Would you agree with
me that a number of those people who are not legally aided are
vulnerable to exploitation.
Mr Justice Hodge: Sure.
Q33 Mr Khabra: By some what I call
dishonest people in the legal profession, which is happening actually
in my constituency, I know that, there is a lot of exploitation
there. That means that for those who have no access to legal aid
the quality of representation can change from being represented
to not being represented; therefore, does it actually have any
impact on the decision-making process by the judge who actually
listens to the case?
Mr Justice Hodge: Bad representation
ought to be spotted by the judge and the judge ought to be able
to rise above it. Badly prepared statements are very obvious and
we get a lot of them, they are really rather short and the judge
can often tease out relevant evidence in questioning of the appellant
after everybody else has concluded, but in many of the asylum
cases and the managed migration cases there is a lot of reading
that goes on before you do the case and after you do the case,
and the actual combination is what leads to what we hope is always
a fair decision. I am not sure I can say much more about it than
that really, save that we still think it is a good idea to have
people represented. Of course, many of our immigration cases are
not represented at all and they are dealt with either on the papers
or when the sponsor comes and does not have any representation.
There is no evidence that I am aware of that we deal with those
in any different way. Can I say about your timing for cases, at
the moment if we are to have an oral hearing on entry clearance
cases we are listing them about 16 weeks away from when we get
them, which is quite a long time and we hope to bring that back.
My colleague behind has asked me to say—I think it is a
criticism of my use of words—when I say a backlog of 80,000
cases, what it means is we have 80,000 cases on our system and
we will be able to deal with those, we think, by the spring of
next year. Whether this is mere wordplay or not, I do not know.
Q34 Chairman: Perhaps it is.
Mr Justice Hodge: We had already
dealt with 78,000 cases by the end of December so we are doing
very well.
Q35 Chairman: If it was 100 it would
not be a backlog.
Mr Justice Hodge: That is right.
Mr Justice Collins: Can I add
to the representation from our point of view? We find now that
very few of the reconsiderations that come on to us are done with
the advice of lawyers; it is usual, I am afraid, for the appellant
to say that he has not been able to get a lawyer to assist. That
is partly, I am bound to say, because most of them do not have
any merit in the sense that there is not any error of law because
we can only allow reconsideration if there is an error of law
but, as I say, most of those now are not with any representation.
So far as judicial review claims are concerned it is still quite
rare for them to be litigants in person, usually there is some
form of representation. I use the words "some form"
advisedly because, as you rightly point out, there are still,
sadly, a lot of incompetent people who deal with immigration cases,
and some of them may be worse than incompetent. We certainly find
that claims are made when, in reality, they have no proper basis,
but nonetheless they are put forward and when the judge first
sees them they do not have some crucial documentation which shows
that they really have not got a great deal of merit; it is perhaps
understandable that there is a desire to delay what otherwise
might be an inevitable removal when claims have failed. As I say,
from our point of view we do not suffer quite so much in the judicial
review claims from litigants in person—I say suffer from
litigants in person, I do not mean to say that they are not people
whose cases should be properly considered, but it makes it more
difficult to give proper consideration when you do not have the
evidence put before you in the form that it ought to be put and
our system does not enable us to act as the inquisitor, or at
least not to any great extent, although we do try, obviously,
to see whether there is a genuine possibility of some error of
law which needs to be dealt with.
Q36 Mr Khabra: How confident are
you to deal with this large backlog of appeal cases? In my opinion
your load of work will not diminish due to the new arrivals.
Mr Justice Collins: That is right,
I do not expect that we will have a falling-off. We have obviously
to consider, because of the pressure on the judiciary, whether
we can properly use deputies to deal with some of these matters;
that is perforce something we are going to have to look at, although
I do not like the idea on the whole of deputies doing, for example,
reconsiderations on asylum claims when we are the end of the road,
but we may be forced into dealing with some, for example straight
immigration where, although we are the end of the road, if we
get it wrong or it is got wrong it is not the case of someone
being sent back to possible persecution, and they would almost
always have the right to make a further application for whatever
they are after. One can, therefore, distinguish to some extent
between them. Yes, we simply do not know what the future will
bring and that is why I have indicated I am very concerned at
any decisions which abolish rights of appeal because one has to
consider, if you abolish rights of appeal, what is going to happen
because there is obviously going to be an attempt, and a perfectly
proper attempt, to challenge a decision which is said to be wrong
in law.
Q37 Mr Khabra: Each of these cases
goes through two different stages, the first being the processing
of the papers. The time taken in processing the papers is sometimes
enormous actually, I do not know why.
Mr Justice Collins: It should
not be. The judicial review comes in and, as you know, every judicial
review is dealt with initially on paper by a judge to see whether
permission should be granted. There is a 21 day period allowed
by the rules for the defendant to put in an acknowledgement of
service, effectively to seek to persuade the judge that there
is not an arguable case, and obviously that assists the judge
in looking at the case, particularly as, quite frequently, the
acknowledgement of service includes additional material which
has not been put in the claim and gives a truer picture of what
the situation is.
Q38 Chairman: The defendant being?
Mr Justice Collins: Whoever, but
in these cases the Home Office or the secretary of state. That
is the general rule; if it is necessary to deal with a matter
more speedily, again that can be done. I mentioned earlier the
possibility of setting up some arrangement whereby, when removals
are decided on and it is considered that really there can be no
conceivable reason why the removal should not take place because
they have been through all the appeal process, we should be able
to deal with it quickly. If the Home Office tell us that they
want to remove and they have as it were made arrangements and
it should be dealt with quickly, please can you put it straight
before a judge to consider whether there is an arguable case,
there is no particular reason why we should not set up a system
to do that within, say, 48 hours. I am not suggesting we could
do all cases that way, of course we could not, but we are able
to deal quickly and we do deal quickly with cases that need to
be dealt with quickly.
Q39 Barbara Keeley: Taking you back
to the approach in the case of unrepresented applicants—and
you mentioned that the amount of those has been increasing—this
Committee's predecessor committee suggested that the law should
be changed to allow immigration judges to take a more actively
inquisitorial approach. Do you think that the law should be changed
in that way, going further than the teasing-out you talked about?
Mr Justice Hodge: That is a sort
of fast ball. It is a hugely different way of approaching cases
if you become an inquisitor; you move away from sitting back and
having both sides tell you what they think the right answer to
the particular conundrum should be to you getting involved in
it. The German judges who deal with asylum and immigration cases
take far longer than we do, but they call for reports from doctors
on medical issues, they ask for particular reports on country
issues before they get anywhere near talking to person making
the claim. They then tend to quiz the person making the claim,
quite often more than once, and then they take the whole thing
together and make a decision. That is just not the way English
law has developed; the Canadians do it in this kind of way, so
do the Australians, the judges run the whole thing, and in New
Zealand.
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