Examination of Witnesses (Questions 280
- 299)
TUESDAY 17 JANUARY 2006
MR KEITH
BEST, MR
COLIN YEO,
MR CHRIS
RANDALL AND
MR MATTHEW
DAVIES
Q280 Colin Burgon: What is wrong
with charging fees on a full cost recovery basis?
Mr Randall: I do not have an objection
to that, but certainly when fees were introduced there was some
notion of service delivery suggested that you would get something
for your money. The problems of communicating with the Home Office
in terms of in-country applications are dire, and I think those
people are not getting good value for money. I cannot think of
any other business with which you might chose to engage where,
when you have given them your money and made an application and
when you ring up, you are told you cannot speak to anybody who
is dealing with this matter; so there is a service delivery issue.
Five hundred pounds for a same-day application is actually a lot
better value than £335 for something that could last a very
long time indeed. It is interesting how many migrants are prepared
to pay that amount. What we would want is the same kind of quality
of service that you get with the same day application imparted
to the majority of applicants in terms of the £335, but there
are applicants for whom that is a lot of money. I can give you
one example. I dealt with a case recently which involved a mother
and four children who needed to make an application here for which
they had to pay. The mother at the last minute travelled abroad
on the advice of the Telephone Inquiry Bureau, wrongly, and was
stopped at the airport coming back. They then had to make an application
in-country the following week. Had the mother made it with the
children, those four children would have been her dependants and
she would have paid one fee of £335; because the mother was
now at port the four children were all independent applications
and they had to pay four times £335 to make the application,
virtually £1,600. Unfortunately, at that stage her credit
card ran out and two of them were rejected and we now have a further
problem. So there are issues about how the fees work that do not
just go into the amounts, and there really is not any sensible
waiver of fee. Except for some particular categories, you cannot
say this is an impecunious client, or whatever, and certainly
some HIV positive clients that I have have really suffered in
terms of trying to raise the funds.
Mr Best: I give one anecdote,
if I may, and that is from a person who is in a foreign High Commission
in this country whose child had just finished doing a university
course here and had been accepted for a subsequent university
course, but there was a period of two months between the ending
of the first one and the beginning of the second one, and was
advised that they would have to pay £500 for an application
to get an extension of two months.
Q281 Colin Burgon: You would not
argue, presumably, with that principle that the people who benefit
from the process should pay the fees rather than the taxpayer?
Mr Randall: I am prepared to accept
that is the case, although I think I need to see perhaps some
better value for money for these fees and I would like some persuasion
that they need to be this high. There is one particular fee, which
is the fee for transferring an "indefinite leave to remain"
stamp from an old passport to a new passport.
Q282 Colin Burgon: Is that 160?
Mr Randall: That is 165. That
is done on the day, it requires no great thought, you do not have
to see the file, and that always struck me as rather steep.
Q283 Chairman: It is only an hour
of a London solicitor's time, Mr Randall!
Mr Davies: I think people are
willing to pay for a service if they get a good service. The premium
same day service, where you can go down to the Home Office and
get it on the day is a good service that we would not want to
lose. It used to be a service that you did not pay for and it
was a very poor service—you had to queue for hours and hours—so
that kind of contact with an official on the day where you can
have an engagement and you can get your visa is a good service.
Whether the whole of the immigration system should be funded from
those fees, I do not think so because I think it needs more investment
than the fees would generate. You have got two stakeholders. You
have got the person who wants the visa, but you have also got
the people who want an immigration system, and I do not think
you can say the fees that applicants pay should fund the whole
thing. You would not get enough income to fund the whole thing
or you would have to put the fees up again. The £500—you
cannot go any higher than that. Clients do baulk at it. They say,
"Oh, God, that is a lot."
Q284 Chairman: So the £500 premium
fee is endorsed by your association?
Mr Randall: Certainly in terms
of being able to deal with an application on the day, faced with
the alternatives, yes.
Q285 Chairman: Coming back on your
point about the level of service, the IND argues that there has
been an increase in the level of service since the introduction
of application fees, and they argue that this benefits applicants.
They also argue that demand has remained strong overall, exceeding
the forecast, with no evidence that the price of our fees has
had an effect on overall demand. Do you think they are putting
a reasonable case forward or they are just trying to pull the
wool over people's eyes?
Mr Randall: They set themselves
a target of dealing with a significant proportion of applicants
within three weeks and 13 weeks, and that expectation is often
met. I think our concerns are particularly with the cases that
fall out of that. There does seem to be a black hole beyond the
13 weeks, that once you have gone over that you really have a
problem, a problem in communication and there is a service delivery
problem as well, so in that sense there are areas in which performance
has improved, but there are other areas where it is bad and it
is as bad as it has ever been.
Mr Davies: I agree with that.
I think if you wanted to focus on an area where they are getting
it wrong it is what happens to those that they do not process
within the three to 13 weeks. I am happy with the service that
you get in most cases. When you submit them by post they tend
to come back around the three weeks mark. If they are not granted
within the three week mark, you get a letter saying, "We
have got to send this to the casework section. It can take about
13 weeks", and it may come back granted within 13 weeks.
The big problem is those that, for whatever reason, they have
identified there is something wrong with, and they often sometimes
get it wrong what is wrong with it, but if there is something
wrong with it they think it can be taken out of this framework,
and if they think someone, for example, is an overstayer (and
they may get that wrong), they send it to a different section,
the enforcement section, who then put most files into a work-in-progress
store, and these work-in-progress stores are just sitting there,
and if you write to them that section will never respond to you.
I have got a case where after two years the case has been sitting
in a work-in-progress store because the initial caseworker thought
the client was an overstayer when he was not. I found that out
under the lovely Data Protection Act, thank you very much, but
when I phoned the Home Office, knowing full well what they had
done with the case and knowing full well where it is, which work-in-progress
store it is in, because the Data Protection Act has told me, they
will not tell you over the phone, they will not write you letters.
So there is a system that is working, which is those that they
can turn round quickly—that is working—but when they
think it does not meet the criteria and we have to look at it
closely, it is going into this kind of black hole and those are
probably the kind of cases you are getting as MPs, clients saying,
"I applied two years ago and nothing is happening."
Q286 Nick Harvey: Can I come back
to appeals, which we talked about earlier. Your association said
that the fast-track asylum appeals are too fast for justice to
be done, but, equally, you have talked about entry clearance appeals,
the supply of paperwork being too slow; so some are too fast and
some are too slow. What would you say was the proper sort of speed
for appeals to progress through the system?
Mr Randall: If I could deal with
the entry clearance bit, and my colleague will deal with the asylum,
fast-track bit. On the entry clearance system as it currently
works, recently, as of April last year, appeals are lodged with
the court as opposed to the Home Office, or can be, and there
is a delay in the courts because there is a backlog of non-asylum
appeals, there is a delay in registering appeals and then they
have to send out to the entry clearance officers to say: "There
has been a decision. There has been an appeal. Please now prepare
the papers." I think there is an 11-week delay in the court,
if I am correct, and then they are given 19 weeks to respond.
That is an awfully long time to produce what is a bundle of documents
and generally one page. That seems to be too long. I will hand
over to my colleague to explain the other side?
Mr Davies: The way fast-track
works: they have two main fast-track centres, one at Yarlswood
and one at Harmondsworth, and the LSC have set up a duty solicitor
scheme, and I am one of the duty solicitors. You basically get
a call on the day you are on duty and you are told that tomorrow
your client, who you have not yet met, who you are going to take
on, will be interviewed about why they wish to claim asylum, they
will have their full asylum interview, so you have less than 24
hours to get down there to see your client, and often you will
only have an hour before the interview—they only allow you
an hour meeting before the interview because they will schedule
it at 10 a.m. The interview then goes ahead. At the end of the
interview you have got literally a matter of hours to put together
any representations or further evidence you want to submit before
a decision is taken, because the decision is normally taken that
same afternoon or late evening, and you get the written decision
the following day. If you have a client who basically says, "I
have got a history of torture or a history of political opposition",
or whatever, you want to go away and do a bit of research to try
to pull the threads of that story together, and the time just
is not there. The Home Office say they have a flexibility policy,
so if you put forward to them reasons why it should not be in
the fast-track, it should be taken out, they say they will be
flexible, and on a case by case basis they are flexible, but often
they are not when they should be, and that is a real issue. If
you are refused, you have two days in which to lodge your appeal—so
you have two days in which to collate grounds of appeal and further
evidence—and then you serve that and then, in two days time
after that, you have your appeal hearing very fast. It is fast.
At the appeal stage 50% of the lawyers are dropping out, because
50% of the lawyers are saying, "I cannot say there is over
a 50% chance that this appeal will win." The individuals
still appeal themselves, and so 50% of appellants in fast-track
are unrepresented. That is very fast. We say that is slightly
too fast. The whole timetable is about nine days from application
to appeal. If you doubled that, that might be fair, easier to
work within.
Mr Yeo: Can I come in on the appeals,
because it really is a very long time to be waiting for an appeal,
and all the entry clearance officer has to do is put together
the documents that were submitted to him or her and then type
up the reasons for refusal, and the entry clearance officer really
should know what the reasons for refusal are because they have
just refused the case—it does not take 11 plus 19 weeks
to type that up. In addition, of course, there is enormous hardship
for the applicants. The wedding or the funeral is already over
and done with, the course has already started without the student
and the spouses remain separated for an additional year sometimes.
Q287 Nick Harvey: What time frame
would you propose?
Mr Yeo: Certainly far shorter.
As short as possible basically.
Mr Randall: I would say if it
came down to four weeks I would be very happy.
Mr Yeo: Absolutely.
Q288 Nick Harvey: We have talked
about the entry clearance officers abroad often having very little
respect for the immigration appeals that follow, and there seems
to be a sort of disconnect between the two. What could be done,
do you think, to try and get entry clearance officers to have
a sense of engagement with the appeal process?
Mr Yeo: Scrapping the appeals
is not necessarily the way forward, I would not have thought.
There are all sorts of useful things that could be done with the
appeals to create a proper feedback loop, or whatever you want
to call it, so the entry clearance officers can learn from the
decisions that they are getting wrong. Very simple things come
to mind. You could set targets for entry clearance officers, and
they should not have a certain number of their decisions overturned
on appeal; they should actually look at the determinations, which
we seriously doubt actually takes place, and there needs to be
proper follow-on, and, where they have made mistakes, there needs
to be trained analysis on problems with individual entry clearance
officers and they have to be accountable, but you will not be
able to do that without appeals.
Mr Randall: If we are talking
about disconnections, there is also a very annoying disconnection
between the occasion when you have won your appeal and you have
the determination in your hand and the time it takes for that
determination to be sent out to the entry clearance officer so
the visa can be granted, and that can be months, and there is
an historic problem and it has not been dealt with. The resources
are there, you can scan it, there are a range of ways of doing
it, but it is an on-going and very annoying issue for applicants
who have won their appeals and then cannot get the visa they want.
Mr Best: The complaints of entry
clearance officers made to me when I go out to posts and talk
to them is that they see the applicant but the immigration judge
does not see the applicant. The immigration judge sees the sponsor,
who is very often well-to-do, well respected in the community;
and if the issue is, say, intention to leave at the end, they
may think that this young applicant in front of them has got very
little incentive to go back home at the end, but then when uncle,
a respected doyen of society, comes and gives evidence before
an immigration judge, "Of course my nephew will go back.
I will make sure he will go back", the immigration judge
is persuaded. I understand that sense of frustration from entry
clearance officers from their point of view. It only goes to show,
unfortunately, this whole test of intention is a very difficult
one and one where very often, even more than otherwise, entry
clearance officers get the decision wrong and why it is overturned
on appeal. This raises a whole question about training of entry
clearance officers. We are part of the entry clearance officer's
course here, but there needs to be better training of entry clearance
officers in post. I have already referred earlier in my evidence
to one suggestion I have made about trying to gain greater cultural
understanding and knowledge of the post in which people are situated,
but it also means the sort of thing that Mr Yeo was talking about,
about exposing entry clearance officers more to why appeals are
allowed, what is the rationale behind them, how they can improve
their decision-making in the light of that, and we believe that
that means far greater involvement of other agencies like ourselves
in actually helping in that process and also maybe something equivalent
to what UNHCR is now doing with the Home Office on asylum applications
and initial decisions, namely what they call a "quality initiative".
Something along those lines might well have quite a considerable
effect on improving the overall quality of decisions at the entry
clearance officer level.
Q289 Chairman: We are going to need
some progress, unless there is a major addition to Mr Best's point.
Mr Randall: Just that we do think
the appeal system is an important discipline on entry clearance
officers' decisions.
Q290 Nick Harvey: So the entry clearance
officers need more training, but, as you observed to us, they
think that the appeals regularly overturn good decisions that
they have made. Is there any sense in which the appeal judges
just do not have adequate knowledge of local conditions? Should
we be trying to train them more? Would they be the ones getting
it wrong?
Mr Randall: I do not think the
fact that a significant number of entry clearance appeals succeed
is a problem with the courts. I think it is a problem with the
initial decisions.
Q291 Chairman: Is there a case for
holding appeals in major source countries?
Mr Randall: It would be difficult
logistically, I suspect.
Q292 Chairman: But it could be done.
Mr Best: It has been looked at
before. Superficially it is very attractive. Whether you would
persuade the immigration judiciary to take part is another matter.
At one stage it was contemplated—this was going way back
to the days of the Wilson Committee, which gave rise to the present
system—the system came into being in 1970—whether
expatriate doyens of society like businessmen, rather like people
who often are asked to be honorary consuls, should actually perform
that function, and it was discounted as not being practical.
Q293 Chairman: Yes in principle,
no in practice.
Mr Best: Yes, in principle, but
difficult again in practice.
Q294 Mr Streeter: The broad thrust
of your evidence this morning, gentlemen, is that it is the initial
decision that is the real culprit in the system, and improving
the quality of decision-making in the first instance is really
what you would like to see. I do not speak for the Government,
but the Government are arguing that they are increasing their
investment in this system which will lead to an increase in the
improvement and quality of initial decision-making. Therefore,
are they not justified in reducing the amount of money spent on
the appeal process? Are you not able to support the broad thrust
of where the Government are going on this?
Mr Best: Certainly we support
the Government's initiatives. I speak regularly with UKvisas.
I am aware—because I go and very often deliver the training
myself—of a lot of initiatives and they are very welcome
and I applaud and support those. I think there is much more that
needs to be done along the lines that I have been suggesting,
and I think there are some open minds in UKvisas to actually developing
things further along those lines, but nothing along that line
of improving the initial quality of decision should take away
from the need for appeals. It was summed up far more eloquently
than I can possibly express by the shadow spokesman for home affairs,
as he then was, back in 1992, when he said, "When a right
of appeal is removed what is removed is a valuable and necessary
constraint on those who exercise original jurisdiction. That is
true, not merely of immigration officers but of anybody. The immigration
officer who knows that his decision may be subject to appeal is
likely to be a good deal more circumspect, careful and even-handed
than the officer who knows that his power of decision is absolute."
Q295 Mr Winnick: I wonder what has
happened to that person?
Mr Best: Well, of course, that
person is our present Prime Minister.
Q296 Chairman: He has changed his
mind since then!
Mr Yeo: We can all see there is
a stronger case to remove appeals if the quality of initial decisions
improves and if the success rate on appeal declines, but that
does not appear to be what the Government is suggesting but making
a lot of promises about investment and various different initiatives,
and it is not as if they have not said these things before or
they have not taken the issue seriously apparently before, but
they are going to be removing appeals, which could be, first of
all, a really valuable input into the improvement in the decision-making
quality but also a very good measure of whether those improvements
are actually real or not.
Mr Randall: This is at a time
when within the managed migration scheme they are planning to
export a range of work permit decisions to the posts abroad. If
you look at the entry clearance refusals there is a 45% success
rate on appeals. That is the area where those decisions are worst.
It does seem extraordinary that they are exporting the decisions
from a bit of the Home Office that works quite well (the UK bit)
out to the bit that is most problematic (and there have been the
most problems with access to) and where there will be the least
appeals in the new system. At the very least, I think that we
should be retaining appeals until we see how that works out, but
I think improved decisions have reduced appeals because the decisions
are better, not for any other reason.
Q297 Mr Streeter: Would it not be
better as advisers from your point of view to guide your clients
towards making fresh applications, which sometimes, if they start
again, can be dealt with more quickly than steering them into
the appeals route?
Mr Randall: Often one does, but
the question is: will you be prejudiced in your new application
by what happened before? You need to have confidence in the system,
but quite often that is the case, because entry clearance appeals
take so long or because the client has not put in the right documents
from outset and therefore cannot win the appeal.
Mr Best: Every competent lawyer
will, of course, seek to have the initial refusal overturned by
communicating with the post overseas before going to the expense
of appeal anyway. We frequently do that. Sometimes we are successful
where the mistake has been made over a particular document or
there is some dispute about the validity of a document and we
can clarify that, but I am afraid, as you know, the Government
(and certainly Baroness Ashton in the Grand Committee in the Lords)
has been expressing for some time now that the solution as the
Government sees it is to improve the administrative review of
initial decisions. We do not see that, I am afraid, as an adequate
substitute for the right of appeal.
Q298 Chairman: Both of your organisations
have submitted evidence, which we need not repeat now, about the
structural communication problems with all the different bits
of the FCO, UKvisas and so on. Is your view that there needs to
be a fundamental structural re-organisation of this whole system
as one unified organisation with a policy unit which is linked
in well to all the operational parts? Is that where your evidence
is leading us?
Mr Best: Yes, and we have advocated
for a long time that to make decisions in-country should be taken
by a separate body. Whether it is an executive agency or non-departmental
public body I think is a matter for debate, but it should be by
a separate body, it would help to take the politics out of the
situation. You will only be very mindful of the fact that the
Home Office lost two ministers, including the Secretary of State,
over broad allegations of political interference in decision-making.
If one can distance that decision-making leaving clearly the right
and the responsibility of government to set the policy guidelines—that
must be right—but the actual executive action, making decisions
on individual applications, should be taken by a separate body
free from political influence, rather like—I make the analogy
with the Governor of the Bank of England—setting interest
rates. When I was in this place every single time the Chancellor
changed interest rates he was immediately accused of political
skull-duggery. I have never heard the Governor accused of that;
so that is the point.
Q299 Chairman: That deals with the
independence of the decision-making, which I understand. The other
issue that is raised by your association and the ILPA is simply
the things that go wrong in the system in terms of delays and
poor communication because there are so many different parts of
it. You have work permits here, you have the Croydon operation,
you have got the overseas units, often with different employers,
different lines of accountability. Is the conclusion of the ILPA
also that to solve those practical problems of communication and
delay we need a restructuring into a single coherent organisation?
Mr Randall: It is worth pointing
out that lots of things go wrong within the individual structures
that make up the big structure as well. Certainly if that could
exist that would be very good. However, the trauma of getting
from here to there, given the problems of reform of large organisations,
would worry us greatly.
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