Select Committee on Home Affairs Minutes of Evidence


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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