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UNCORRECTED TRANSCRIPT OF ORAL EVIDENCE To be published as HC 1006-i House of COMMONS MINUTES OF EVIDENCE TAKEN BEFORE CONSTITUTIONAL AFFAIRS COMMITTEE
Asylum and Immigration Tribunal: the appeals process
Tuesday 21 March 2006 HON MR JUSTICE HODGE OBE and HON MR JUSTICE COLLINS Evidence heard in Public Questions 1 - 73
USE OF THE TRANSCRIPT
Oral Evidence Taken before the Constitutional Affairs Committee on Tuesday 21 March 2006 Members present Mr Alan Beith, in the Chair David Howarth Barbara Keeley Mr Piara S Khabra Keith Vaz Dr Alan Whitehead ________________ Witnesses: Hon Mr Justice Hodge OBE, President, Asylum and Immigration Tribunal and Hon Mr Justice Collins, Lead Judge, Administrative Court, gave evidence.
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 ten 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 2004/2005. 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. 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. Q40 Chairman: In practice when you get, for example, not just unrepresented applicants but an unrepresented Home Office you finish up evolving such a system, do you not? Mr Justice Hodge: Almost, yes. Those are the most difficult cases when the Home Office do not turn up --- Q41 Chairman: Quite common. Mr Justice Hodge: It is very difficult because you have to stay outside the arena and yet try and tease out ---- Mr Justice Collins: There are guidelines which in fact I approved some years ago to deal with that sort of a case because you have to be careful not to overstep the line because the immigration judge must not appear to be an extra prosecutor, as it were, he has got to be careful to appear to be and indeed actually to be, of course, fair throughout and not to take over the mantle of the Home Office presenting officer. Mr Justice Hodge: You would restructure the system very significantly; you would abolish the Home Office officials making decisions and you would put a judge in at that stage, and that judge would have help from the Home Office, would run the case and run the investigation, it would be a bit like the Crown Prosecution Service's relationship with the police, except the CPS do not make the decisions, fortunately, they send them off to the courts. That is what you would do to run an inquisitorial system. Mr Justice Collins: I think that is right, but whether it would take much longer ---- Q42 Barbara Keeley: It sounds as if it would. Is there a sense in which you think it would be fairer, particularly if you look at out of country appeals with an extremely low success rate; do you think that would be a fairer system? Mr Justice Hodge: No, is my view. Breaking very significantly with the tradition of the way British jurisprudence works for any particular group of individuals, you would have to have a major justification for it, I think. Mr Justice Collins: Even in an adversarial system, if you have someone who is unrepresented it is, after all, traditional for judges to try to ensure that that person's case is put to its best advantage. Obviously there is a limit to how much one can do; I can recall when I was at the Bar if I was against an unrepresented party one was sometimes a little upset if you found the judge was weighing-in too much in favour of the unrepresented person and that could itself become unfair. It is a line that one has to recognise and not cross, but every judge will, I hope - certainly should - deal with a matter that becomes apparent if he is persuaded that there is something that ought to be looked at but which, because, perhaps, the person is unrepresented or even incompetently represented, has not been drawn out to best advantage. That is the limit of it and that is something that has always occurred, even in our system. Q43 David Howarth: Coming back to the backlog, or a possible aspect of it - you will probably notice the theme of our questions - we have gathered that there has been a delay in the appointment of new immigration judges following some errors by the Department of Constitutional Affairs. The figures have varied from what we have seen, but what appears to have happened is that there were some mistakes in appointing salaried judges in two areas and that led on to reconsideration of the process to apply fee-based judges overall. I was just wondering whether that is going to have an effect on the backlog. Mr Justice Hodge: Let me clarify the position. We advertised for salaried judges at Bradford and Stoke and we wanted to appoint about five in each hearing centre. We went through the process and the Lord Chancellor pulled the competition because he took the view that the process at an early stage had gone wrong. I have read the letter that he wrote to your chair and that conforms with what my understanding of the position was, papers that should have been available were not made available. That is the first thing; that competition has been re-advertised very recently, the closing date is fairly soon and the interviews for that are going to be in May-time, maybe June, and with luck the appointments will be made shortly after that, before the August break as it were, but it always takes time for salaried judges to get into place because of problems about them leaving their previous jobs. The fee-paid competition has not been affected by that at all. The system advertised for new fee paid judges. We want a net increase of about 100. We have about 100 judges who are on five-year fixed term contracts and the Lord Chancellor took the view that they should not be automatically offered a new job. All of them have applied in this fee paid competition, virtually all of them have. We had 800 applications for posts. We are going to interview something over 500 people. Those interviews are starting very shortly. The system sifted in all the current people who are on five-year fixed term contracts. The competition is divided between those who are prepared to work in London and those who are prepared to work out of London. We hope the Lord Chancellor will be appointing those in London first and they will be appointed, again, before August. We have a training date for them in September and they will be on-stream after that. The people out of London a bit further on. Have the problems with Stoke and Bradford made any difference? The answer has to be yes but not a huge amount. The reason is the vast majority of people who apply for jobs as salaried judges are already fee paid judges because they are already fee paid judges they carry on doing their fee paid work. It would have been better, and we would have got a bit more out of them, if we had been able to transfer them a little earlier than we could have done to do the salaried work because on the whole salaried judges sit more and do more work than fee paid judges. It has not made a huge difference. It would have been better if it had not happened but it is not a really significant factor as to why we cannot get through the level of work that we have got at the moment or get better frictional levels, whatever they may be, until the spring of next year. Q44 David Howarth: Can I just come back to the fee paid aspect. The impression that the Lord Chancellor's letter gave to the Chair was that there were two elements in what appears to be a two month delay. One was simply the weight of applications, which was understandable, but the other was something to do with learning the lessons of the Bradford and Stoke events. Am I right in thinking that is not the impression you have? Mr Justice Hodge: I have got his letter here somewhere. That is not the impression I have. The competition for fee paid judiciaries, if I may put it this way, motors along independently of the Lord Chancellor's decision on Stoke and Bradford. We are starting the interviews fairly shortly. It is a fantastic task. You have to take out senior judges to be a part of a three person panel. I was working it out today, it is something like 137 judge days to do all these interviews but we are doing it. We have a great feel, I am pleased to say, and I hope the system will be helped by having significantly additional numbers certainly in place by the end of the year and quite a lot of them before the end of the year. Q45 David Howarth: You mentioned "clearing the backlog by spring next year". Mr Justice Hodge: Yes. Q46 David Howarth: Is that assuming the present situation with the delay in appointing the new judges or is it on some other subject? Mr Justice Hodge: We do not think that the appointments system is going to make a huge difference to all of that. What we hope, and to pick up on what Mr Vaz was saying earlier on, is with the increased number of judges we will be able to sit in an increased number of courts and therefore the timescale - the 56 days - and all those problems of the paperwork going backwards and forwards can be reduced and we will be able to hear the cases. I am confident that the new judges will make a contribution but if we did not have them we think we would still probably get through to a much more manageable level of work in progress by the spring in any event. Q47 David Howarth: Back on the salaried side, we have been given the impression that the Department is looking to increase the numbers there substantially as well, is that right? The number was something like 220 vacancies. Mr Justice Hodge: No. I do not know where that comes from. Q48 Keith Vaz: It comes from the Minister. Mr Justice Hodge: 220 fee paid is probably what he is talking about. Keith Vaz: 220 vacancies. Q49 David Howarth: There is some confusion about this. Mr Justice Hodge: It is not salaried. We have 183 salaried judiciary and 383 fee paid judiciary at the present time. We want to get to nearly 500 fee paid judiciary and we want to add somewhere between ten and 15 more salaried judiciary to our numbers. In very round figures, we ought to finish up with something like 200 salaried judiciary and just under 500 fee paid judiciary at the end of all this process. Q50 Keith Vaz: Maybe it would be helpful, because the Minister is obviously giving us different figures, if we had a timetable so we keep track of these judges and we do not find them in the cupboards. Mr Justice Hodge: There are no judges in any cupboards in our system. Q51 Keith Vaz: None in the closet. Mr Justice Hodge: No. Q52 Keith Vaz: If we could have that note it would be helpful because we have had different figures from the Lord Chancellor. Mr Justice Hodge: We will make sure we will get them for you. What I am telling you is, I hope, very up-to-date. We will make sure you get it in an easy and clear way. Q53 David Howarth: The total you are aiming for, how has that figure been arrived at? What has prompted the precise increase that you are looking for? Mr Justice Hodge: The core of the increase is in Stoke and Bradford. When we last did a big recruitment exercise of salaried judges we had fewer salaried judges assigned to those two centres than most of the other centres and yet the workload that is now present, particularly for immigration, visit visas and so on, in those two centres and, indeed, asylum is greater than it was. In terms of public expenditure - and I do not get involved in this - it is obviously a very interesting issue as to how you handle volumes. If you have too many salaried people with not enough work to do that is a disaster, if you have too few that is a disaster as well. At the moment we have got a lot of fee paid judges who work really hard in our system and we would like to not make them have to do quite so many days, which is probably helped by increasing the numbers of fee paid. I say to all my judicial colleagues whenever I go around and talk to them, which I do a great deal, there is always going to be absolutely stacks of work for the salaried judges and as far as I can see lots of work for the fee paid. We try and keep a balance like that. Q54 David Howarth: You are aiming for a steady state then in terms of case in and case out? Mr Justice Hodge: Steady state has never been the case. Q55 David Howarth: That is the basis? Mr Justice Hodge: That is what we are trying for, yes. A ratio which is about two salaried to five fee paid. Q56 David Howarth: What has happened in the past, the ratios have got out of kilter. Is it true in a way the Department has made errors on estimating how many judges have been needed on previous occasions? Mr Justice Hodge: As some of you know, I started in this system about four or five years ago and I think there were 80 salaried judges. We have well over doubled the salaried judges in that period and we are adding some more. The numbers of fee paid judges has dropped a bit. There was a huge campaign before I arrived but the number of fee paid judges has gone down. People give up, they get other appointments, they retire. At one time we had 440 fee paid judges and we are now down to about 380. Q57 Keith Vaz: You keep referring to "we", Sir Henry, are you involved in the sift process? Are the judiciary involved in the sifting of applications? Mr Justice Hodge: Yes. We actually insist on it. Q58 Keith Vaz: Judges have been involved in looking at 800 applications? Mr Justice Hodge: Yes. Q59 Keith Vaz: No wonder there is a backlog. You actually read the application forms, senior judges have been involved? Mr Justice Hodge: Yes, quite a lot of them have been fairly senior judges. There was an occasion when we were not involved in them and we were troubled about the result that came out of that. The sift process, as run by the DCM and no doubt as it will be run by the Judicial Appointments Commission in the future means that you go along - and it depends on the type of competition - and look at all the application forms. You send them round a little circle, there is a chair and you, the judge, and a lay member who is on the DCA panel. You go through however many a day - ten or 12 a day - and you sift in and sift out. Some speak for themselves, some drop out automatically because they are hopeless. The difficult ones, like always, are the ones who are on the cusp. Q60 Keith Vaz: Given the lessons to be learned from Stoke and Bradford, where the Lord Chancellor says he had to abort the process and described it to this Committee as chaotic, you do not seem to share that kind of description, you just felt it was an ongoing process. Mr Justice Hodge: He took the view that particular competition was chaotic. Q61 Chairman: Somebody must have advised him to that effect. Mr Justice Hodge: There were terrible stories about - cupboards - papers sitting in people's drawers. Q62 Keith Vaz: Do tell. Mr Justice Hodge: That is one of the stories. Some official had them in a drawer and they were not available in the right sort of way. All of that was a contributory factor to why he pulled the competition. We - the judges - were not consulted about the pulling of the competition. Q63 Keith Vaz: Are you comfortable with the fact that 80 members of staff from the DCA Judicial Appointments are going to be automatically transferred to the new Judicial Appointments Commission, bearing in mind that the Lord Chancellor himself has described some of these processes as chaotic? Are we confident that none of these 80 people involved in this process is going to be transferred to the new department? Mr Justice Hodge: I cannot say who is going to be transferred but my understanding is that on the whole the bulk of the people who are involved in judicial appointments in the DCA are moving over to the JAC, and one would expect that to be the case. I have been involved in judicial competitions over a number of times, nearly all in the asylum world, and it might disappoint you but actually the system has got better. Now it is not perfect, and it is incredibly frustrating for any individual when their career is on the line and their papers are not handled properly. You can imagine the feeling of those who applied for the Stoke and Bradford competition, how fed up they were and it was bad for morale that all of that happened. They have been working very hard within the DCA to get it right, it still frustrates us sometimes when they do not. I am not complacent about it but it is certainly an improved system Mr Justice Collins: When I was involved I must say I was very impressed with the quality of the DCA people who dealt with the matters and sat on the committees with me. Chairman: This was not a normal occurrence? Q64 Keith Vaz: It was a blip. Mr Justice Collins: It sounds to me like a blip and it may not have been any of those who were directly involved who were to blame, I do not know. The story was told, it could have been any official at a low level who received the documentation and was supposed to put it in order but did not put it in order. One does not know but I do not think one can assume from what has been said that it was those who have been moved over who were necessarily in any way to blame. Q65 Chairman: Moving on, the Home Office is seeking to establish a points based immigration system. Now we have gone over today things which perhaps should have been anticipated when previous policy decisions were made. What kind of consideration has been given, and in particular have you been drawn into, about the potential implications for your courts of a points based immigration system? Mr Justice Collins: The answer is as far a I am concerned none. That is personal. It may be that I have not asked specifically whether the administration in my court have been. I do not think so is the answer because it is, after all, a policy matter where perhaps the view is taken it is not really for the judiciary to be involved. Q66 Chairman: That is not the issue I am putting to you. Mr Justice Collins: I know. Q67 Chairman: The experience we have had of a number of policy decisions which one has taken, their consequences need to be anticipated. Mr Justice Collins: Yes. Certainly when I was President of the IAT I was involved in discussions of that sort. I think they might be valuable provided, of course, they are put on the basis of what might be the effect of a particular approach. It may give some information which will help those who have to make the decision to make the right decision. Q68 Chairman: Do you think the number and type of appeals going to the IAT will be significantly affected by what you understand the system to be? Mr Justice Hodge: Probably. We do not think we get all that many work applications but we get lots of student applications and they will go. I am likely to be corrected about this but people are talking in the region of 25-30,000 appeals a year in relation to students which might drop out of the system. You heard what I have said about the huge increase in volume of cases, and they are certainly not all students. I rather suspect looking at it with a bit of historical view that although there will be a significant reduction of student case numbers probably, because I have already said so on previous occasions, it may not make a huge difference to the workload of the tribunal because numbers who want to come in and use the rest of the appeals system are going up all the time. Q69 Chairman: You have not been involved in any discussions yet? Mr Justice Hodge: No, we have not been asked about this at all, no. As Andrew says we get very closely involved once the policy decisions are in place, and you have to produce procedure rules and those kinds of things. Q70 Chairman: As long as you have sufficient time. The Minister referred at one point from a standing start to completion in the best part of a year and a half to two years. At a relatively early stage in that timetable you have to be consulted about what it is going to mean for the judges you require and the support you require? Mr Justice Hodge: Yes. Q71 Chairman: Is it a general feature of the system that you do not get asked until rather late in the day about the implication of changes? Mr Justice Collins: I do not think I am really in a position to know necessarily because the question of judicial manpower is obviously not for me and the impact on the judiciary will be a matter for the Lord Chief Justice and clearly his office on the whole. If he wants to ask me he will and I will give such information as I can. It has not been, has it, in the past, certainly, part of the process that judges are involved to any great extent. I think that has been changing to some extent over the years but it is a change that has to be very carefully watched, for obvious reasons. I like to think - and indeed it has been my experience - that the Departments, both the DCA and the Home Office, have been more willing to discuss with the judiciary possible solutions and possible effects of any decisions. As Henry says we have always been involved in the procedure rules, certainly so far as the Tribunal is concerned. Mr Justice Hodge: I sit on an appeals board with representatives of the DCA and the Home Office. That is specific to asylum and immigration but there are a number of DCA boards which now have representation from much more senior judiciary than me, as you know, I am sure. That is part of the slightly greater involvement that the judges are having in the policy issues. The Asylum Appeals Board looks at things like policy and we talk about it. Q72 Chairman: It ought to be a natural corollary of dealing with something this Committee has criticised in the past, which is the Home Office making decisions which have enormous consequences for the budget of the Department of Constitutional Affairs. The DCA has not had much input into those decisions. If they are going to have an input then some of the people will have to ask if the judiciary have some idea of what the practical implications are? Mr Justice Collins: Whether or not that will become more the case after April once the Court Service is effectively under the aegis of the Lord Chief Justice and is more separate from the DCA than it is at the moment, I do not know. I would have thought that is likely to have an effect on the way these sorts of matters are approached. Mr Justice Hodge: In Asylum and Immigration we are part of a single asylum budget, as you know, which includes the Home Office and NASS. That might change in the future and some elements of the DCA want to create a tribunals budget which will have us within it and the rest of the tribunals service within it. There is a bit of ring-fencing at the moment. Q73 Chairman: Is there anything either of you would like to add? Mr Justice Hodge: No, thank you very much. Mr Justice Collins: I do not think so. Thank you. Chairman: We are very grateful to you for your help this afternoon. |