Examination of Witnesses (Questions 320
- 339)
TUESDAY 24 JANUARY 2006
MR JUSTICE
HODGE CBE AND
MR JUSTICE
COLLINS
Q320 Mr Benyon: Would you agree that
there is a perception amongst immigration judgments that there
needs to be a large number of senior immigration judges recruited
to deal with this backlog? I have heard of a case, for example,
for reconsidering that was finally decided 18 months after the
immigration judge had ruled. I think there is a perception amongst
them that there is the need for many more senior immigration judges.
Mr Justice Hodge: There are about
22 senior immigration judges at the moment. I have just been interviewing
all last week for some new recruits. We are certainly going to
recruit three or four more. The example you gave is not unusual.
If something was heard 18 months ago then that will have been
part of the backlog in the Immigration Appeal Tribunal which had
far too much to do. As a result of extremely hard work by my senior
judges—I got them working like crazy all summer—we
have got most of that down. If somebody had their case decided
now there is a reasonable chance that if the review is granted
and then the reconsideration happened it would be dealt with very
much more quickly than your example. But your example exists and
we are doing what we can to hurry cases up. Whether we need hugely
more senior immigration judges is an open question. I hope we
do not in the sense that we do not want to be causing huge expense
right, left and centre without it being needed.
Q321 Mr Benyon: Is there enough of
a pay differential between the two?
Mr Justice Hodge: It is quite
big. They earn about £110,000 for a senior immigration judge
and £95,000 for an immigration judge.[2]
Q322 Mr Clappison: I want to ask
a question about the reconsideration system. An appellant who
is unsuccessful before you has a right of appeal to the Administrative
Court. Does he need permission for that appeal to go forward on
a point of law?
Mr Justice Collins: It is not
an appeal.
Q323 Mr Clappison: I think you called
it reconsideration.
Mr Justice Hodge: He applies within
five days of his decision for a review. Those papers go very quickly
to a senior immigration judge here in London. We make the decisions
within two or three days of them arriving. If the senior immigration
judge again refuses it, they can apply again to the Administrative
Court where Andrew Collins is the Lead Judge. Again, as he said,
that is handled pretty quickly. Then if they grant the reconsideration
it comes back to us, but if they refuse it that is the end of
the line.
Q324 Mr Clappison: What you were
describing sounds a bit like a free run as far as the appellant
is concerned because there are no penalties for the appellant
in appealing. Do you have any reflections to make on that? Are
there any improvements which you would want to make in that state
of affairs?
Mr Justice Hodge: I have sat in
the County Court, the Crown Court, I have done a lot of work in
the Magistrates' Court when I was a solicitor. I now sit in the
High Court and in my Tribunal. There is absolutely no other area
of law that I know of where when you lose people go forward to
whatever the next stage is in the numbers that they do in this
system, particularly asylum. It is something like 60% of people
who refuse to try again. I cannot give you the figures for appeals
from Magistrates' Courts decisions but they are tiny for the reason
I have already expressed. This is not a problem just for the UK.
I spend a little bit of time seeing judges from all over Europe
and everybody has exactly the same worries and problems.
Mr Justice Collins: The problem
is it is a little difficult to see how you can stop it because
these people inevitably do not have any money. It is a very important
issue for them. What cost sanctions could you impose? I cannot
see any other sanctions that could appropriately be imposed. It
is all part and parcel of the important consideration that there
should be access to the court. This was what the battle about
the ouster clause was all about.
Q325 Mr Clappison: I would like to
take you back to the question of adjournments and appeals and
the question of delay in cases. What proportion of delay and wasted
expenditure would you say comes from the Government's side?
Mr Justice Hodge: I have not got
any exciting stats to give you. In terms of adjournments, it is
not all that many. I would say that very many fewer adjournments
are asked for by the Home Office Presenting Officers than by the
individual representatives. But it does happen and quite often
for good reasons on both sides. It might be a bit unfair to say
it is a waste. We used to have a huge problem in terms of quality
with the Home Office not fielding presenting officers to put the
Government's side of the case before the adjudicators as they
then were. But that has largely been cured. It is much less frequent
to have the Home Office not represented in appeal hearings.
Q326 Mr Clappison: Do you have cases
where the Home Office has failed to comply with directions?
Mr Justice Hodge: Yes, a lot.
We do not have any sanctions in our procedural rules. When people
do not follow directions there is not much you can do about it,
as you can in the civil courts.
Q327 Mr Clappison: Do you think sanctions
would be practical and would you like to see them?
Mr Justice Hodge: We always have
debates about this between our judges. What we need to do is hear
and decide the cases as fairly as possible. Most people who come
before any court or tribunal—and ours is no exception—want
that done and they want it done fairly. It would not be much of
a sanction to grant asylum to somebody who did not deserve it
merely because the Home Office had mucked up. It is a fine line
to walk. You can be firm and occasionally very cross with presenting
officers who might go back and tell their bosses that you were
not very nice to them today. Maybe that gets through, it is the
same with the representatives, but it is very difficult to suggest
really useful sanctions. We just want to try and persuade everybody
all the time to get on with it.
Q328 Mr Clappison: I understand that
the time limits for the entry clearance officers are a lot longer
than for the appellants. Do you have any reflection to make on
that?
Mr Justice Hodge: It is all fairly
technical. When the AIT came into being we merely inherited the
times that the entry clearance officers via the Home Office had
agreed with them in the preparation of their bundles. It is a
month for visit visa bundle preparation and three months for a
settlement of the case bundle preparation. With any kind of postage
overseas you have 28 days for the service to be deemed to be effective
so that creates a huge timescale. Negotiations could take place
between the Home Office and the visit visas people and us about
reducing the three months and the one month time period for preparing
bundles. That has manpower implications abut it ought to be done.
The other thing we are looking at is trying to persuade entry
clearance appellants to be more prepared to send their appeals
to the entry clearance officer rather than send it straight through
to us because that will shorten the process by quite a lot. One
of the things we are very pleased about in terms of the AIT is
that all appeals are supposed to be lodged with us rather than
with the Home Office. I do not know where they used to disappear
to but they were there somewhere. It is interesting that within
our system we have had to start up a small unit which is dealing
with MPs' queries which we did not have before. They are usually
about delay. I hope we are beginning to be able to respond appropriately
to you. You will be hearing from my side rather than the Home
Office now.
Q329 Mrs Dean: Mr Hodge, you have
mentioned the occasions when there is an absence of presenting
officers. I understand that two years ago 40% of cases were dealt
with in the absence of a Home Office Presenting Officer. Could
you give us some idea of what the figure might be now?
Mr Justice Hodge: I do not know
off the top of my head, but I think it is over 90% of cases have
a presenting officer at a substantive first hearing. With reconsideration
hearings, I have never heard of there not being one. It is much,
much better than it was. I remember trying to persuade the dear
old Home Office that the only way to deal with the problem was
to have a rolling recruitment programme because they did not do
that. But they did start it and they recruited a lot more people.
Q330 Mrs Dean: So it has come down
from about 40% to 10%?
Mr Justice Hodge: Yes. I do not
think I would agree with the 40% figure. I think that would be
right in some centres. One of our centres, Hatton Cross, had a
very high level. It was not always the case right the way across
the country. There are nine hearing centres around the country.
Q331 Mr Winnick: If there is no presenting
officer but the appellant is representing, what would be the procedure,
to adjourn or for the case to continue without the Home Office
being able to justify the refusal?
Mr Justice Hodge: We would expect
the case to continue. It is the Home Office's responsibility to
be there. If they cannot field somebody then, unless there are
compelling reasons, I would expect my judiciary not to adjourn
and to hear the case and indeed they do. It makes it difficult
sometimes but they get on with it.
Q332 Mr Winnick: There would be the
justification in writing for the refusal, obviously, but by not
having the presenting officer present it is almost as though the
authorities are abandoning the case.
Mr Justice Hodge: It might feel
like that but we do not treat it technically like that. What is
really cheeky is when they do not send somebody along to the hearing
and then they apply for a review or an appeal on the basis that
something has gone wrong. But if they had had somebody there they
could have sorted it out.
Mr Justice Collins: We lay down
in the case guidelines how an adjudicator should deal with a situation
where there was no presenting officer because obviously it is
an adversarial process and the adjudicator was not there to enter
the fray as it were and take over the mantle of the presenting
officer. Equally, he is entitled to ask questions and to raise
points if he feels that proper explanations have not been given
and he should do that. The dividing line is not always easy to
draw. There have been cases where the adjudicator stepped over
the line and entered into the fray too much.
Q333 Mrs Dean: Does the AIT have
any concerns about the quality of Home Office Presenting Officers,
and would it perhaps be a good idea for them to be accredited,
as the publicly-funded representatives on the other side are?
Mr Justice Hodge: I became the
Chief Adjudicator in the IAA in 2001. When I came I think it would
be fair to describe what are known as the reasons for refusal
letters in asylum cases as on the whole pretty poor. I think they
have improved substantially and I think Andrew Collins agrees
with that; they are now much fuller. I do not think we are quite
so confident about entry clearance officer decisions. Issues of
accreditation, which I know some people argue for, is really just
another name for training. We all benefit from more training.
I am confident that if entry clearance officers were trained rather
better than they are at the moment things might improve, but my
judiciary certainly do not find the entry clearance officer work
anything like as good as that done on the asylum cases now. This
is very impressionistic because it is very difficult to get anything
hard and fast about it. This is just what people say and feel.
Q334 Mrs Dean: Mr Collins, do you
have the same problems with Home Office delays and a lack of representation
in judicial review as there appears to be in appeals?
Mr Justice Collins: No. The Treasury
Solicitor will be instructed in all cases that come before us
except for reconsiderations when the system is that there is no
Home Office input save in fast track cases. There are a small
number of cases which are dealt with in the fast track system
and in those one gets a comment from the Home Office, otherwise,
because of the need for speed, the Home Office takes the view
that they would prefer the matter to be dealt with speedily rather
than any delays to enable them to put in written observations.
In a judicial review case the Treasury Solicitor will normally
put in an acknowledgment of service, if one is needed and at any
oral hearing they will nearly always appear through counsel. Counsel
on the Treasury list are competent counsel, we do not have that
problem.
Q335 Mrs Cryer: I want to move away
from the government side of things and towards the advice and
representation on our constituents' problems. You said to the
Constitutional Affairs Committee two years ago that the quality
of appellants' representatives had got better, that it was not
brilliant but it was improving. Do you think it is still improving?
Could you comment on the quality of advice being given? My office
in Keighley seems to spend a lot of time trying to sort out the
muddle caused by unqualified advisers.
Mr Justice Hodge: You are hearing
from Suzanne McCarthy next who regulates the lay advisers. The
utterly wicked, incompetent and useless folk who apparently used
to appear in front of our appeal system have pretty much gone.
I regret to say that there are still some pretty rubbish advisers
out there and we sometimes pick up some of those problems and
I am sure you do as MPs. The quality of advocacy in front of our
immigration judges is not much better than it was two years ago
in my view. It is alright, but in the great scheme of where is
the really good advocacy and where is the really poor advocacy,
I am afraid it is down towards the poor rather than the very,
very good. But there are some terrific people who are very dedicated,
who care very much for their clients and who do very good work
in front of us. At the senior immigration judge level the Home
Office is very well represented and the appellants are usually
pretty well represented. Like everything else, it is pretty much
a mixed bag. Legal Aid makes a big difference as well.
Q336 Mrs Cryer: Do you think in another
year things might be better?
Mr Justice Hodge: The Legal Services
Commission is putting lots of effort in to trying to get proper
accreditation but I just do not know whether that is going to
work. Every time you talk to solicitors they say people are leaving
the field in droves, and there is definitely a problem in the
north-west with people getting reasonable quality advice. We do
not see it so much in London.
Q337 Mr Winnick: In our last session
we took evidence from the Immigration Advisory Service which has
been around from the beginning of the appeals system on 1 July
1970. Are you in the main satisfied that IAS representation is
of the quality which you would expect and the JCWI which is not
government funded?
Mr Justice Hodge: I would say
the IAS and the RLC (Refugee Legal Council), both of which provide
a lot of representation, are good organisations. They provide
good work and if I was in charge of funding I would make sure
they were decently funded to carry on doing the work that they
are doing. I think we are confident about them. We are confident
about quite a lot of solicitors. We are not very confident about
some solicitors and we are not very confident about some lay advisers
even though they may be regulated by OISC. But it is all part
of the same problem.
Q338 Mr Winnick: Do you find some
advisers' English, even those that have been accepted by the organisation
we will be hearing from in a moment, is adequate?
Mr Justice Hodge: We do not see
that in terms of advocacy at all.
Q339 Mr Winnick: So it is not a problem?
Mr Justice Hodge: No.
2 Note by Witness: Salary figure for a Senior
Immigration Judge is £116,515. The salary for an Immigration
Judge is £93,483. Back
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