Examination of Witnesses (Questions 310
- 319)
TUESDAY 24 JANUARY 2006
MR JUSTICE
HODGE CBE AND
MR JUSTICE
COLLINS
Q310 Mr Winnick: Gentlemen, we are
very grateful to you for coming along and giving evidence today
to our inquiry. As you know, we are looking into various aspects
of the immigration control system and not least the question of
appeals. The situation has changed from the previous two-tier
system of the adjudicators and the Immigration Appeals Tribunal
to the Asylum and Immigration Tribunal. I wonder if there are
any comments you want to make, Mr Collins, Mr Hodge, before we
start or should we go straight in to questions?
Mr Justice Hodge:
Let us go straight in.
Q311 Mr Winnick: The new Asylum and
Immigration Tribunal has been operating for some nine months.
There have been questions previously under the old system and
now the new system about delays, backlogs and the way in which
it takes a considerable amount of time before a person who is
lodging an appeal from overseas has their case heard in the United
Kingdom. Is there any particular problem that you see, and would
you recommend any change in order to speed up the process?
Mr Justice Hodge: The asylum and
immigration system has always been dogged by huge numbers of backlogs
except more recently in the asylum system where the legislation
has meant that we have been processing appeals rather quickly.
The entry clearance system and the appeals from those decisions
used to go eventually to the Home Office, but the existence of
the numbers was not at all transparent, nobody really knew how
many there were. The former tribunal system had a management agreement
via two departments to send somewhere between 7,000 and 8,000
cases a month to the adjudicator tier and everything else waited
in a backlog. Now the system is much more transparent. We know
today how many cases we have awaiting hearing. There are probably
somewhere in the order of 88,000[1]
cases awaiting hearing. People talk about frictional levels, ie
the amount you can deal with as you are running along. That is
probably 25,000, so there is a backlog of the difference and that
backlog has been caused by an under-estimation by the policy people
of the numbers of entry clearance cases that would come in. They
have gone up absolutely massively in the last nine months. It
is also caused by the numbers that the Home Office said they had
in their cupboards coming into our system, which they thought
were 30,000 and in fact turned out to be 42,000. We now have them
all processed and on our computer and we will be able to run through
them, we hope, given good luck, speed of judicial working and
so on so that we are probably down to frictional levels by the
early spring of next year, but it all depends on numbers. Nobody
has ever been very good, as the Committee will know, at estimating
the number of appeals or indeed the number of applicants that
there are in asylum, immigration or entry clearance. The only
area where it has seemed to be more accurate than it used to be
is in asylum where numbers have gone down significantly.
Q312 Mr Winnick: Are some of the
delays not caused by regular adjournments, because it is a requirement
of the Home Office to present further evidence, or presumably
the appellant's representatives arguing that more time is required
to get all the evidence? Is that a regular feature of such hearings?
Mr Justice Hodge: Adjournments
are a regular feature in any of these worlds. When I first came
in to the asylum and immigration judicial system the adjournments
were running at over 30%. Two or three years ago we got them down
to about 17 or 18% and they are at about that rate now. Sometimes
they are caused by the Home Office and sometimes by the appellants.
We could probably get them down a bit more but it would not be
by a huge amount. There are always illnesses on the day and so
on. I do not think in my capacity as a senior judicial person
I am anything like as worried about adjournments as we were some
time ago. Everything can be improved and we can no doubt improve
there, but I do not think there are very serious problems.
Q313 Mr Winnick: When I used to appear
many years ago there was one adjudicator—he has long since
retired—who we all knew would ask for an adjournment, I
am sure for the best of reasons and so we could guarantee that
the case would be delayed.
Mr Justice Collins: It did happen.
Our problem is the reconsiderations. Under the new system, if
they lose the appeal—or indeed it can be done by the Home
Office if they see fit—they have the right to apply for
reconsideration in form to the Administrative Court, but under
the transitional provisions in the Act they are dealt with initially
by a senior immigration judge and if he refuses then they have
a right to renew to the Administrative Court. Henry had to deal
with a substantial asylum backlog during last summer and that
resulted in a significant number of extra cases for reconsideration
coming to us. The reconsiderations are on paper only and we are
the end of the line. As far as delays are concerned, we were able,
so long as we were not under too great pressure, to turn them
round within three weeks at most. The vast majority were dealt
with very quickly indeed and indeed the vast majority had no merit
at all because, of course, the reconsideration is on law only,
not on fact. At the beginning of last term, at the end of the
summer vacation, we were faced with a backlog of 1,200 cases because
we simply did not have the judge power to deal with them.
Q314 Mr Winnick: That is a pretty
large number.
Mr Justice Collins: Yes, that
was a pretty large number. We take the view that 12 cases, interspersed
with our other paper applications for permission for judicial
review, were really all that you could expect a judge to do in
a day and do them conscientiously because we are the end of the
line on asylum and if you get it wrong then the consequences are,
to say the least, unfortunate. You can see the problem. If you
have a judge doing 12 cases and you have a 1,200 backlog, the
mathematics is obvious. We did manage to deal with that by using
as many judges as we could, but the danger is that it has meant
we were not able to deal with other matters with the expedition
that we would have hoped. That is the major problem that we face
with the new system. The backlog of immigration cases as opposed
to asylum cases is going to come through again in much the same
way, although not so many will apply for reconsideration. At the
moment we are receiving about 450 a month. I do not believe that
that number is going to reduce.
Q315 Mr Winnick: The Government's
intention clearly was to stop the previous way in which once a
case was lost before an adjudicator, not by the Home Office, the
Government would have in mind the case was lost by the appellant
and then it would go to the immigration tribunal, even though
it was argued it had to be on a point of law, but I suppose the
Government said in effect this was just further delay, hence the
reason for the single-tier system.
Mr Justice Collins: The new system
has not cured that at all because what you have got now is although
in form a one-tier system, in reality you have got all the disadvantages
of the two-tier system because of the right to apply for reconsideration.
If reconsideration is allowed—and I think the AIT itself
allow reconsiderations in something like over 20% of cases—then
there is a fresh hearing and there is a right of appeal direct
to the Court of Appeal after that fresh hearing. As things stand
there has not been any difference.
Q316 Mr Winnick: So we are back to
the two-tier system, are we not?
Mr Justice Collins: In effect,
yes and that was inevitable.
Mr Justice Hodge: I hesitate to
completely disagree with Andrew. The numbers are down in comparison
to what was there previously, but the speed with which they are
dealt with is significantly up and that is primarily because the
procedural rules require judges to act much more quickly than
they did before. The speed of processing asylum cases, which has
been the Government's worry and indeed the whole of Western Europe's
and North America's worry, has gone ahead very much more quickly.
We are certainly now concluding cases, either allowing the appeals
or dismissing the appeals, much more quickly than we did when
the IAT was in existence. There is an argument that the IAT was
very significantly under-resourced. When I started as head of
this new Tribunal in April there was a backlog of 5,000 review
cases and 4,500 cases to hear. We worked our way through the review
cases, as Andrew said, but we have shoved some of it off to the
High Court.
Q317 Mr Winnick: Previously under
the former two-tier system there had to be a point of law going
from the adjudicator—
Mr Justice Collins: Not until
2002. Before the 2002 Act there was a right of appeal generally
and then it was limited to law.
Q318 Mr Winnick: What about now?
Mr Justice Collins: It is limited
to law now.
Q319 Mr Winnick: So you cannot just
automatically get the case reviewed by judges?
Mr Justice Collins: No. The majority
of reviews that come to us are now in person and tend to be attacks
on credibility findings, but of course you can understand that
the individuals do not appreciate that that is the situation.
Mr Justice Hodge: Something like
65% of people who are refused by my first tier judiciary in asylum
cases use the review system because there is absolutely no reason
why they should not. They want to stay and there is no cost penalty
or anything like that. So they keep going often for as long as
they can and quite often unrepresented.
Mr Justice Collins: There is no
disincentive because they are almost always entitled to fee exemption.
1 Note by Witness: The outstanding workload
before the Asylum & Immigration Tribunal (AIT) at the end
of December 2005 totalled 88,000 comprising initial appeals, onward
review applications and appeals being reconsidered by the AIT. Back
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