Examination of Witnesses (Questions 340
- 359)
TUESDAY 24 JANUARY 2006
MR JUSTICE
HODGE CBE AND
MR JUSTICE
COLLINS
Q340 Mrs Cryer: Does the AIT find
that the recently introduced Case Management Review hearings are
having a useful effect in clarifying the issues to be dealt with
in the appeal?
Mr Justice Hodge: I think the
jury is out is the answer to that. I have just interviewed about
25 of my senior people who want another senior job. I asked nearly
all of them this question that you have asked me in a slightly
different form. I would say that half said they were good and
half said they were bad. What matters is if the judge has done
the preparation it can work reasonably well and if the representatives,
particularly of the Home Office have done the representation it
can work well. There has been a complaint about the Home Office
not being as prepared for the CMRs as they might be. Equally,
there are complaints about some representatives not being as prepared,
and the representatives complain about the judges. It is one of
these things we try and build on. They can clarify issues but
what they cannot do is bind the final judge who has got to hear
the case. So you can give directions. But, as I said to Mr Clappison,
you cannot chuck cases out if directions are not followed.
Q341 Mr Spring: Let us turn to outside
experts. The Committee received evidence from Dr Roger Ballard,
who is a consultant anthropologist, about the way that outside
experts were treated by the AIT. I wondered if you could give
us your assessment of how experts like this are treated, the reports
that they make and how far their opinions are taken into account
when making credibility judgments on appellants. Is this a criticism
which he has made which you would accept? What guidance is given
to immigration judges in respect of expert witnesses that appear?
Mr Justice Hodge: We have medical
expert witnesses and country expert witnesses, they are the two
main groups. Sadly, we have a group of medical expert witnesses
who do many hundreds of cases and who do not seem to spend very
long with their clients. We tend to notice them and not pay too
huge a regard to. Most country experts have become such as a result
of a particular interest in the country, either because they are
academics or because they have lived there. They do not acquire
any great particular speciality, and it is just really over time
you learn how well these individuals should be regarded. The IAT
quite often would give a seal of approval to various experts because
of the quality of the work that they did. So again it is rather
a mixed position. Our judges are trained and reminded regularly
that it is their job to make credibility findings. You find some
of our less reputable medical experts tend to say, "I entirely
believed in this person's story and he has definitely been tortured,"
or whatever it might be and we remind our judges that it is their
job, not that expert's. It is quite a tricky world as to how you
can recognise how good an expert is.
Mr Justice Collins: This was a
major problem that I faced when I was President. I handed down
a decision which dealt with this to some extent. The problem with
the country experts is that many have axes to grind and one can
understand why. If they are merely dealing with a situation in
the country generally then their opinion is likely to be no better
than that that can be derived from all the sources that exist,
the country information from the Home Office, the US reports,
Amnesty and so on; there are a wide range of general reports.
If the expert has particular knowledge of a particular situation
then his evidence may be more valuable. One of the problems is
that in many cases the report goes before the adjudicator but
the witness does not and there is no cross-examination, there
is no testing of his evidence. Equally, I am afraid there has
been something of a practice in some quarters for a report to
be obtained for Mr A and that report then to be used, sometimes
without the expert's permission, for Mr B, Mr C and Mr D and the
situation there may not be the same. When I was at the Tribunal
and if we wanted to deal with the country guidance situation,
as we were beginning to do, we would try to ensure that we called
the relevant experts and had them questioned and so we were able
to reach a decision based upon all the material, including that
of the expert witnesses. I like to think, and hope, that the witnesses
were never treated with any discourtesy. Obviously their views
were tested and they were not always accepted, but that is the
same with any witness before any court.
Mr Justice Hodge: It would be
more helpful to have the Home Office sometimes produce particular
experts. We are regularly trying to give country guidance and
we get detailed expert evidence from the appellant's side that
is often quite helpful. But we get very little from the Home Office
side except when there is some huge issue. The Tribunal has decided
a case about Zimbabwe much to the disquiet of the Home Office
recently. But they did send out a fact finding team to Zimbabwe
beforehand and then gave evidence at the Tribunal. I do not want
to send everybody all over the world, but a little more of that
would be helpful from the Home Office.
Q342 Mr Spring: I think that is helpful.
We know from when the Foreign Office seeks advice from different
countries how very difficult it is to make these assessments.
Thank you for that answer. I wanted to ask you about the statutory
review process which replaced judicial reviews and also the question
of fast tracking. Paper-based reviews are now being used to challenge
AIT decisions. A couple of years ago you said that the statutory
basis was working rather well. Would you like to comment on that
and update us as to whether you feel that that is still the case?
Mr Justice Hodge: The statutory
review system went with the introduction of the AIT and has been
replaced by this review application which then potentially leads
to reconsideration. I think it is working reasonably well. The
policy is there in the legislation and I think particularly my
senior immigration judges are working hard at it. We asked them
to deal with 18 cases a day and they are very experienced in the
field, but it is a hard day's work to do that. Those cases then
still go on to the High Court. The success rate from the applicant's
point of view is pretty small.
Mr Justice Collins: The problem
from our point of view is largely numbers. It means that a High
Court judge is really dealing with matters which perhaps are not
entirely necessarily suitable for the High Court judge to be used
for. I appreciate the importance of the end result. These are
largely asylum cases. It puts a very great burden upon the Administrative
Court. Let me give you some figures. In 2005 we had a total of
about 10,500 cases coming in to the Administrative Court and immigration
accounted for 7,500 of those. That is not only reconsiderations,
that is judicial reviews also. The reconsideration opt-ins amounted
to something over 3,000 of those numbers. So you can see the pressure
that is upon us as a result of immigration. The bulk of the other
judicial reviews are cases brought when there are final attempts
to remove and this is another real problem because there is frequently,
of course, a delay between the ending of the appeal process and
the attempt to remove the individual who has lost his appeal.
That sometimes means the circumstances have changed and it leads
to a suggestion they have a fresh claim. That is rejected by the
Home Office and we get judicial review of the refusal to treat
it as a fresh claim. Frequently, too, Article 8 of the European
Convention on Human Rights is raised, for example, if someone
has got married here and had a child and then says that because
of the lapse of time they have put down roots here and they have
got a family life here. I am sure some of you will have had constituents
who have raised this.
Q343 Mr Winnick: Yes, very frequently.
Mr Justice Collins: It is a real
problem. That accounts for quite a lot of the judicial reviews
that come before us. There is also the question of removal. Sometimes
there is not a lot of advance notice of removal and so we get
last minute applications usually to the duty judge first and then
if the duty judge feels it necessary, (as frequently he will because
he will not have the full information) to say, "Do not remove
him tomorrow. Let him have a chance to make an application,"
the matter will be considered and dealt with then. We are very
anxious to see whether we can set up some system which gives a
fair opportunity to those who feel that they have a real claim
that they should not, despite having lost their appeals, be removed
when the decision is made to remove but that we should not enable
them—because the fact is, the majority are not meritorious—to
delay the removal for no good reason. This is a real problem.
I think it is important that we should try to set up some procedural
system which ensures that we can deal with these cases very speedily.
Q344 Mr Winnick: It is not unknown
for MPs to be told by quite a large number of constituents one
way or another, at surgeries or around pubs and clubs, that the
country is being flooded by asylum seekers. On the other hand,
a representation will be made to us, namely that so and so has
lived here without permission for so many years, the children
are at school and then you get letters from the head teacher and
others saying in effect it is very unfair indeed that they should
be asked to go. There was a very highly publicised case in Dorset
which you will be familiar with over a sending back to Zambia.
How far in law would that be a factor, that they could be here
four or five years or more but never have had proper authorisation
to be in the United Kingdom?
Mr Justice Collins: There are
decisions of the Court of Appeal and the House of Lords which
are fairly tough on this. The general approach is that the control
of immigration will mean that it is proportionate to remove notwithstanding
that there is interference with family or with private life. The
main argument put forward is that it would be unfair for these
people, who came here mainly unlawfully and have remained here
unlawfully since they have lost their appeal, to avoid the need
to get an entry clearance which others would have to obtain. I
do not know whether or not that is a good argument in all cases
but that is the approach. There is a case called Ullah and
Do which I think is on its way to Strasbourg at the moment.
We shall have to wait and see whether will be entirely upheld.
Mr Justice Hodge: Part of the
argument is also that the spouse or partner with whom a relationship
has been established pretty certainly knew that the person with
whom he/she was having a relationship was here unlawfully and
throughout the time of the relationship was aware of that. That
is certainly a factor that comes into play.
Q345 Mr Clappison: Are you able to
take into account the fact that if people who have obtained permission
in the way you describe, by putting down roots here even though
they were here unlawfully all the time, were given permission
to stay then that would have the effect on people who seem to
come here lawfully that the controls on people who want to pay
a family visit to this country or come here as students would
be all the tighter as a result of that?
Mr Justice Collins: That is one
of the arguments, that it is wrong that people who come here unlawfully
should be able to avoid the restrictions and avoid the need to
go through the proper channels that that might otherwise achieve.
Q346 Mr Winnick: We have had a complaint
from Islington Law Centre and perhaps they are not alone in putting
forward this view. They say that the Home Office challenged the
results of some 80% of the immigration or asylum cases which the
Law Centre had won, but that in every single one of those cases
the original decision was upheld. Therefore, they suggest that,
despite the Home Office challenge, the Home Office seems to be
pursuing cases automatically which they lose and where there is
not necessarily a great deal of merit. Would you say there is
any substance to that argument?
Mr Justice Hodge: I hesitate to
disagree with Islington Law Centre. Obviously there are cases
where the Home Office takes a flier and should not be putting
in an appeal. It took quite a long time for the Home Office, as
it did for lots of people in the system, to recognise that it
was only errors of law which can now be challenged. The reason
why the original decision will have been upheld is probably because
the Home Office had not identified an area of law and were just
disagreeing with the credibility findings of whatever it was by
the judge. I would not, in discussions with the Home Office, if
I were to have them, use this example that you have given as a
stick with which to beat them. I would not say that that is common
at all.
Q347 Mr Winnick: Islington Law Centre
is saying it is sour grapes on the part of the Home Office, they
do not like losing a case and automatically they try and get the
decision reversed. It could be said it is not very professional.
Mr Justice Hodge: If that is the
case then it is not very professional. But I do not think I have
evidence to suggest that that is a common problem.
Mr Justice Collins: I think this
was a problem that was more apparent when there was a general
right of appeal. When I was President we did certainly have to
indicate to the Home Office when dealing with applications for
leave to appeal that they should choose rather more carefully
those cases which they appealed, but I was not aware that it was
a problem so much now. I think that message had got across.
Q348 Mr Winnick: There does seem
to be a wide variation in success rates for different types of
immigration appeals. We have got statistics which show that 47%
of entry clearance cases are successful on appeal as compared
with 29% for in-country immigration, and that is obviously appeals
lodged within the United Kingdom. Is there any particular reason
why there should be this disparity?
Mr Justice Hodge: On asylum cases,
the number of successful appeals at the first stage has usually
been round about 17-20% and it has remained pretty much around
there for the last three or four years. The number of family visit
visa appeals that are successful has always been high. There is
a split between those cases where there is an oral hearing and
those cases which are dealt with on paper. I checked this morning
and over the last seven months the number of successful appeals
on visit visa cases where there had been an oral hearing has been
just over 50% and where it is on paper it has just been just over
30%. Why is that? There are all sorts of different reasons. I
know the representatives argue that the entry clearance officers
simply do not do the work as well, but actually things often change
somewhat by the time the case gets to us. My judges do not see
the applicant because they are in wherever they are coming from.
But they very often do see a sponsor who may be very convincing.
There may be some additional information which has come to the
judicial system which builds on that, which was before the entry
clearance officer and which gets taken into account. We are applying
the standard of proof on the balance of probabilities in these
kinds of cases. Right the way across the piece, in all judicial
hearings oral representation has a real premium. A lot of the
research that has been done on tribunal success rates shows that
as well. I do not think we can point the finger entirely at any
one factor; it seems to me to be a group of factors.
Q349 Mr Winnick: The argument has
often been, as certificated by the Home Office Presenting Officers,
that the sponsor may be a perfectly excellent person and well
known in the wider community, but the issue is not the sponsor,
it is the credibility of the appellant, who may be a 20- or 25-year
old person living on the Indian sub-continent. Why on earth would
she want to come for a visit when there is every possible incentive
to stay, even though in practice that would not be possible lawfully?
Is all of that taken into account?
Mr Justice Hodge: The issue is
usually whether there is accommodation, finance and whether they
will return. I hope that my judicial colleagues are always having
proper regard to all those issues. If the Home Office wants to
say something about the particular appellant which puts them into
some category or other then they should say that in the course
of the appeal. It is quite easy for any of us to stereotype particular
groups but usually very hard for anybody to prove the stereotype.
It is very unconvincing evidence when people say something like,
as I have heard it said, "What does a farmer's boy from Gujarat
want to do being on a working holiday in the UK?" I do not
think that is a proper consideration. You have got to look at
what the evidence is. If the Home Office or the entry clearance
people or UKvisas are seriously worried about the way in which
our judiciary decide cases then their remedy is to present more
clearly and more fully whatever it is they say should be there
to support the original decision.
Q350 Mr Winnick: Presumably it is
not part of the function of your body in any way, where an appeal
has been successful against refusal to visit these countries,
to find out later what happens with the person concerned. That
is not part of the usual function, is it?
Mr Justice Hodge: No.
Q351 Mr Winnick: But one would expect
the Home Office to do so.
Mr Justice Hodge: There is no
record of people leaving, is there? In public policy terms, if
there was a record of people leaving the country after they had
a record of them coming in then it would be much clearer as to
what you might do about it. But that is not a matter for me to
even talk about.
Q352 Mr Winnick: So we will not pursue
that argument. Mr Justice Collins, do you have anything to add?
Mr Justice Collins: Not on that
aspect, no.
Q353 Gwyn Prosser: I want to continue
with the theme of disparities and numbers. The Immigration Advice
Service has highlighted the fact that in 2003-04 the percentage
of students appealing against refusal of entry clearance ranges
from 32% for Indians to 88% for Nepalese applicants. Mr Hodge,
would you agree that those statistics reflect a variation in the
quality of the original decision-making process or is something
else going on?
Mr Justice Hodge: There may well
be a difference. I would expect that 88 and 32, when you talk
about India and Nepal, conceals massively different numbers. Very
many fewer people would probably want to come from Nepal to be
students and therefore might have their cases much more effectively
prepared. Who knows? This is all terribly anecdotal, but there
are a lot of criticisms of various posts and how they behave made
by representatives in relation to applications for entry clearance.
Often the finger is pointed at East Africa and some posts in India.
Our job is to try very hard to deal with what we have got in front
of us when we are asked to make a judicial decision on an individual
case. I am confident that my judiciary do everything they can
to make sure they are as fair as they can be. As I have said already
to the Committee, anecdotally people do not think that the work
done at the entry clearance level is as good as it might be, certainly
not in comparison to the work done by the Home Office in visa
refusal letters.
Q354 Gwyn Prosser: The difference
between the ways different posts make their decisions is a very
important part of our inquiry.
Mr Justice Hodge: We are hopeless
in trying to help you on that. We simply do not think about it
like that and we do not keep stats like that. I doubt you could
trail into our very effective computer system and find an answer
that would help you.
Q355 Gwyn Prosser: To what extent
would you say you could have practices in various posts at entry
clearance level to influence outcomes?
Mr Justice Hodge: I have absolutely
no evidence about that at all. I do not even have a feel about
it. Most of the corruption allegations that we hear are usually
to do with people helping people and certainly not about misbehaviour
by officials.
Q356 Mr Winnick: You mean agents
who are notorious outside the High Commission building?
Mr Justice Hodge: Yes, indeed,
smugglers, traffickers, all those types of people.
Q357 Gwyn Prosser: Do you have a
view, Mr Collins?
Mr Justice Collins: These are
not allegations that I have come across. I am not saying it could
not happen, I suppose anything could happen, but certainly it
is not something that I have ever noticed has been a problem.
We would only notice it, of course, if allegations were made.
Q358 Gwyn Prosser: You have already
touched on the issue of bad advice and bad advisers and the way
it has changed in recent years. To what extent would you say that
the continuing bad advice, albeit less than it was, affects the
appeals process, the number of appeals and indeed affects the
work of the Tribunal?
Mr Justice Hodge: One of the things
I do have is stakeholders' meetings with various groups and we
get some excellent people coming to those. The representatives
in particular will say that they often do not get anywhere near
an appeal because they prepare the application extremely well.
They put in convincing evidence and they succeed at that stage.
Good representation anywhere along the line is usually going to
be very helpful for both sides. I do not think I can go much further
than that.
Mr Justice Collins: I do not think
it is bad advice that is so much the problem because the appeal
is going to be brought normally in any event. It is poor preparation
of the appeals that creates the main problem in dealing with the
appeals. After all, as we have indicated, there is no disincentive
to making an application to go further. In many cases now that
is done without advice, ie the appellant puts in his application
in person.
Q359 Mr Benyon: Do you think that
the system is geared to a volume which would be massively reduced
if we were more efficient at enforcing removals? Is that too obvious
a comment to ask or is it unfair?
Mr Justice Hodge: In terms of
asylum, if we start talking about fortress Europe and a fortress
Britain and all this kind of thing, the numbers have gone down
all the way across Western Europe—
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