Examination of Witnesses (Questions 202
- 219)
TUESDAY 17 JANUARY 2006
MR KEITH
BEST, MR
COLIN YEO,
MR CHRIS
RANDALL AND
MR MATTHEW
DAVIES
Q202 Chairman: Good morning and thank
you very much indeed for joining us for this session as part of
our inquiry into the system of immigration control. I wonder if,
for the benefit of the Committee, you could introduce yourselves
and then we will get under way.
Mr Yeo: My
name is Colin Yeo. I am with the Immigration Advisory Service.
I manage our senior legal team and I am responsible for legal
training in the organisation as well.
Mr Best: I am Keith Best and I
am the Chief Executive of the Immigration Advisory Service. We
have about 370 staff now and 20 offices in the UK and, as I think
you are aware, we are starting to open up more overseas offices
as well.
Mr Randall: My name is Chris Randall.
I am Chair of the Immigration Law Practitioners' Association and
a solicitor with Bates, Wells & Braithwaite. We are an organisation
of perhaps 1,200 members of lawyers and academics interested in
immigration.
Mr Davies: I am Matthew Davies
and I am a member of the ILPA Executive Committee. I am also a
legal aid lawyer, doing immigration law for 15 years.
Q203 Chairman: Thank you very much
indeed. Mr Best, if I can start with you and Mr Yeo, your memorandum
refers to a "culture of disbelief" on the part of entry
clearance officers and the expression has perhaps come up in other
evidence we have received so far. Can you explain exactly what
you mean by that?
Mr Best: I think we very much
share what Fiona Lindsley said to you when she gave evidence.
I would not pretend that this is widespread throughout every single
post in the world; it is concentrated in those particular posts
where there has been some evidence of abuse in the past and unfortunately
it seems to become self-fulfilling because the more suspicion
that there is about applicants from a particular country, the
more refusals there are. We win a very high proportion of those
appeals because clearly that is demonstrating that there is an
element of disbelief there which extends to genuine applicants
as well as to those who are using forgeries or other forms of
abuse in order to try to secure entry clearance. That is what
is unfortunate because it does tend to become very much concentrated
in particular posts: I know Mr Winnick was referring to some figures
in a previous evidence session and actually quoting the percentages
of refusals in some of those posts.
Q204 Chairman: Is it not possible
that the percentage of refusals that Mr Winnick has rightly referred
to actually reflects the reality on the ground, that there are
some places where there are more likely to be applications that
are not justified than others? Is it not the case in some countries
that the demand to come here is greater than others amongst people
who might want to come out of very good self-interest, but who
do not happen to comply with our immigration demands?
Mr Best: I think that is true,
but also I think there is unfortunately a culture of abuse that
arises in certain countries as well where unfortunately there
are rogue advisers and other people only too willing to say to
applicants, who have got perfectly decent applications that probably
would succeed, that they need to gild the lily by adding a forged
certificate or something like that. We come across that quite
frequently where somebody whose application, which might well
have succeeded, is ruined by somebody else having told them that
they should actually add to it in some way which then of course
is discovered.
Chairman: We will come back to the question
of those advisers a little later on.
Q205 Mr Winnick: Mr Best, does that
not to some extent show why there is a culture of disbelief? If
you are an ECO and you have been lied to or, as you have just
said, whatever these agents do in order to make the applications
far more dubious than they would otherwise be, is it not, therefore,
understandable that entry clearance officers, particularly on
the Indian Sub-Continent where clearly there is a suspicion that
people would want to come and settle here, whether that suspicion
is right or wrong, and I think common sense dictates that people
want to improve their standard of living, as we would, in such
positions, though hopefully not lie, does that not, as I say,
give some justification for a feeling on the part of entry clearance
officers that they have to be very, very careful?
Mr Best: I think it gives an explanation
rather than a justification. I think there are ways of trying
to overcome that. One is along the lines that Ms Lindsley was
suggesting of having a better structured way of examining an applicant
and asking more relevant questions. Of course the other is to
have a proper appeals system and the very high rate of successes
on appeal that our organisation achieves, for example, is indicative
of the fact that so many of those decisions are wrong: the concern
about disingenuity about the particular applicant is translated
to all applicants and yet some of those applicants are perfectly
genuine. It seems to me that there is a need to address that particular
issue to make sure that the genuine applicant, hopefully having
had access to good, competent legal advice before making the application
so that they know exactly what is required, and also changing
the way in which there is an examination of the applicant, can
be distinguished far better from the one who is trying to evade
immigration control.
Q206 Mr Winnick: But you would not
wish to deny, would you, and this same question is to Mr Davies
and Mr Randall, that entry clearance officers have duties and
responsibilities, namely that the Immigration Rules should be
applied, Immigration Rules approved by the House of Commons or
Parliament itself? Should they not, therefore, be on their guard
when there is quite a possibility that people are simply lying?
Mr Best: They should be on their
guard and the Immigration Rules should be applied fairly. Our
concern is that they are not being applied fairly, not least because
applicants are not given the opportunity to explain certain discrepancies
in the eyes of an entry clearance officer and that can only then
be remedied on appeal. I know Mr Yeo would like to add something.
Mr Yeo: The success rates on appeal
certainly suggest that entry clearance officers really are not
getting it right on a regular basis, and the difference is that
an entry clearance officer spends perhaps minutes looking at a
case and routinely rejects the documents that are submitted, whereas
if you take it up to appeal and somebody takes legal advice, they
know what the criteria are by this point, they are actually getting
questions put to them which they have an opportunity to answer
and they are able to spend a bit of time with the decision-maker
instead. In those situations, the cases are often successful.
Q207 Chairman: You said, Mr Best,
that this did not apply everywhere and you said it was worse in
some posts than others. Could you supply, if you have not already,
for the Committee a breakdown of which posts you think from your
experience are problematic, and that is by reference to your success
of appeals? Specifically the Committee is going to go, in two
groups, later this year to India and Pakistan and Nigeria and
Ghana, so perhaps you could tell us whether the High Commissions
in those four countries are ones that give you particular concern
because it would help us to know whether we should be, as it were,
looking for a culture of disbelief when we go to those countries.
Mr Best: Certainly we can supply
that. Our criteria in looking at whether we can justify opening
an overseas office are very simple: first of all, the volume of
applications; and, secondly, the percentage rate of refusals.
Where both are very high, then we feel we can justify having our
presence there in order hopefully to help people before they make
the application.
Q208 Chairman: But you are saying,
are you, that in India and Pakistan there is a culture of disbelief
that we should expect to find when we go there?
Mr Yeo: I would highlight Islamabad
in particular as being a particular problem.
Q209 Chairman: And in west Africa?
Mr Best: Accra, Lagos, some posts
in east Africa. It very much depends, I think, on the volume and
the history of abuse.
Q210 Chairman: If you can provide
us with a list, that will be very helpful, I think. If I can just
pursue the point Mr Winnick started with, it is the case, is it
not, that there are some people who present applications that
are not correct and it is also the case, is it not, that some
people who gain entry to this country perhaps with what looks
like a legitimate application, nonetheless, then breach the Immigration
Rules by, for example, staying on at the end of a holiday or student
course? That is the case, is it not?
Mr Best: Yes, I think you are
aware, Chairman, that for very many years now we, as an organisation,
have been advocating embarkation controls and we are delighted
that first Her Majesty's Opposition and now the Government, with
e-borders to be rolled out from 2007-08 onwards, have acknowledged
the utility of that, not least to try to engender greater public
confidence in the system to know who is actually leaving the United
Kingdom as against those who have come in and particularly matching
identities because it is only then that we will have a true measure
of the number of people who are actually overstaying.
Q211 Chairman: This Select Committee
has over a number of years, long before I chaired it, shared that
consensus on embarkation controls, so that is common ground with
everybody. However, in the current situation, faced with the reality
that there are people who gain entry, have come through, got a
visa and overstay or whatever, should healthy scepticism not be
a perfectly proper part of an entry clearance officer's job?
Mr Best: Anybody looking at, whether
it is entry clearance applications, the filling in of income tax
returns or indeed the application for social security benefits,
I suspect, should have the same healthy scepticism that you refer
to. Our concern is whether that scepticism then translates into
unfair refusals and, if those refusals are unfair, that then translates
into an inhibition on the need for the UK to actually have a fair
immigration system.
Mr Yeo: I would highlight two
particular problems with going beyond healthy scepticism. Healthy
scepticism is absolutely fine, but one problem is that the Immigration
Rules often present a list of issues to be addressed rather than
a list of criteria which you might or might not meet, and this
gives the entry clearance officer a very difficult job to do.
They have to look at whether you have got, for example, adequate
maintenance and accommodation, but without any real definition
of what that actually means, and that runs throughout the Immigration
Rules. Now, if people actually had clear and transparent criteria
to address, then, one, they would actually be in a better position
and they would actually know beforehand whether they could, or
should, make an application which might stand a chance of success
and, two, it would also make the job of entry clearance officers
themselves an awful lot easier, less subjective and more objective,
and they would be able to apply the laws of the country more easily.
The other problem is that entry clearance officers, and this is
something covered in the Immigration Advisory Service evidence,
have, and I struggle with how to characterise it, but perhaps
a misguided idea of average human behaviour and they expect people
to behave in quite strange ways sometimes. If somebody deviates
from that behaviour in some way, then they just get refused and,
if that comes to appeal, it gets overturned; immigration judges
have a slightly more realistic approach.
Mr Best: I think there is insensitivity
to local culture which is bred of an inadequacy of trying to train
people in that. I have made certain proposals and suggestions
to Kerry Brown, the Head of Policy of UKvisas, for example, who
asked to have a meeting with me shortly after his appointment.
One of those proposals to use the existing human resources within
most posts and that is the locally engaged interpreters. I found
very good practice some years ago in Dhaka where 13 locally engaged
interpreters sat down once a month with the entry clearance officers
and just talked about their own cultural background and the aspirations
of people from that background and such like. It seems to me that
this would be a very simple mechanism for actually trying to make
sure that entry clearance officers in post could use local resources
there to try to find out a little bit more about that cultural
sensitivity. You cannot do it for all the world's posts on the
general entry clearance officers training course, in which we
take a part, until they are in the actual post itself.
Q212 Chairman: In your evidence,
you talked about an FE college in Birmingham where, you say, the
vast majority of students who had paid deposits to join courses
did not get visas. Again, if there is an issue about student overstayers,
as the situation is at the moment, unless ECOs exercise their
judgment as to whether someone is likely to be an overstayer or
is a legitimate student, no other part of the system is going
to deal with that issue, is it?
Mr Best: No, but it is a question
of whether you use the carrot or the stick really. It seems to
me that there is a need to advertise carefully and more prominently
than is done at the moment that overstaying is an offence and
that people can, and will, be prosecuted, if identified, for overstaying.
That will become easier with full embarkation controls. Perhaps
the greater penalty on top of that, however, is to say to somebody,
"You will be debarred from coming to the United Kingdom subsequently
for a certain period of time", and maybe, in a bad case of
abuse, for a very long period of time. It seems to me that is
a far greater incentive for people to abide by the Immigration
Rules than an entry clearance officer in a very short space of
a few minutes trying to assess whether somebody has the intention
to leave the UK at the end of their limited period of leave.
Mr Yeo: Also, coming back to this
idea of transparent criteria, maybe some of those applicants should
not have applied in the first place, but they will not have known
that. The college is trying to recruit, and it is encouraged to
by the Government's drive to recruit foreign students, and yet,
when students do apply, thinking that they might stand a chance
of success, it turns out that perhaps they never did. They have
not had access to legal advice, they do not know what the criteria
are and they cannot make a judgment on whether to apply or not.
Q213 Chairman: In those circumstances,
it may well be that the entry clearance officer was actually exercising
the right decision.
Mr Best: It could be.
Chairman: People may have, we do not
know, but may have appropriately applied, so the system should
deal with that.
Q214 Mrs Dean: Mr Best, you claim
that an "arms race or escalation situation develops"
in posts, with unreasonable requirements for applicants being
ratcheted ever higher. How do your criticisms square with Home
Office figures which show that UKvisas are being issued more than
ever before? I think there were two million in 2004-05 and that
amounted to 81% of applicants.
Mr Best: Well, I think I would
answer that in the same way as Ms Lindsley answered it. Of course
you have got to look at the refusal rate which has now trebled
over the last few years, so clearly something is going wrong somewhere
when you then link that with the success rate we have, for example,
and other practitioners as well, on appeals.
Q215 Mrs Dean: I understand that
82% of family visit cases that went to appeal with you were successful
and, similarly, 65% of student visit cases were. Can you tell
us what percentage of cases referred to the IAS are actually taken
to appeal?
Mr Yeo: Not off the top of my
head, I am afraid. We can get back to you on that.
Q216 Mrs Dean: Perhaps it is something
you can let the Committee know because it would be interesting
to know what proportion of the whole that 82% is. Can you estimate
how many of the appeals in which the IAS is instructed should
not have been necessary had appropriate decisions been made in
the first place?
Mr Best: I am not quite sure whether
you are saying the evidence of that is the success rate on appeal
or something else.
Q217 Mrs Dean: What I am saying is
that obviously you have talked about 82% and 65% for those two
categories—
Mr Best: It fluctuates of course.
Q218 Mrs Dean: Yes, but have you
made any estimate of how many of those could, or should, have
decided in favour of the applicants in the first place?
Mr Best: Well, we would say the
ones where we succeeded on appeal should have been decided in
favour of the applicant.
Q219 Mrs Dean: Have you calculated
any approximate figure of the amount of wasted expenditure, therefore?
Mr Best: No, I think it would
be very difficult for us to do that and I think that is a question
that has to be directed at the Asylum and Immigration Tribunal
and indeed the Home Office of the processing of appeals and the
extra time spent by entry clearance officers in completing explanatory
statements. The last, we would say, is a very necessary part of
setting out clearly the reasons for refusal which form then the
basis of the case from the Home Office presenting officer's point
of view, but that is a necessary part of an appellate process.
I have always thought that every charity ought to be in the forefront
of trying to do itself out of its work because hopefully it is
dealing with a problem that should not exist. If we could get
to a situation where the decisions by entry clearance officers
were impeccable, then there would be very few success rates on
appeal. We would be out of a job, but it would probably be in
the best interests of applicants.
Mr Randall: Just on the point
about those entry clearance appeals which were allowed and which
one would have anticipated would have been allowed, the law requires
basically the officer to look at, and document, a situation at
the time of the decision. There is little scope for bringing in
new material, except seeing a sponsor, at appeal if it is an oral
appeal as opposed to a paper appeal and that is the only new information
that you get, so I would concur with Keith that the numbers of
appeals that actually succeed in entry clearance appeals are the
numbers where you would have expected a proper decision to have
been made, subject only to the sponsor being seen.
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