Examination of Witnesses (Questions 360
- 380)
TUESDAY 24 JANUARY 2006
MR JUSTICE
HODGE CBE AND
MR JUSTICE
COLLINS
Q360 Mr Benyon: On immigration.
Mr Justice Hodge: One of my judiciary's
concerns always is that you work hard and you produce a result
and it does not result in anything very much. As MPs you must
feel exactly the same and so does the Daily Mail and other
worthy journals. Removals is a big, big problem in this field.
An efficient removal system would be great. This is entirely my
own view and not based on anything much, but the Home Office has
got to work with the Foreign Office to get this right. The problem
is that the countries will not take lots of people back who might
be able to go back. I am sure they do work together, but they
need to redouble their efforts. It must be right that if you are
likely to be sent home, if you are here wrongly and you are discovered
to be here wrongly, then the incentive to come here in anything
other than a rightful way is reduced.
Mr Justice Collins: I mentioned
the problem that we had resulting from judicial reviews, because
there have been delays in removal and certainly some of that could
be avoided if a more efficient removals system were put in place.
I do not under-estimate the difficulties of removal and Henry
has touched on them. It is a question of getting countries to
accept returns. Also, sometimes it is not safe to return to particular
countries even though the asylum seeker has failed and Zimbabwe
at the moment is the obvious example of that where, despite other
comments, we have the media saying, and rightly so, that it is
not right to send even failed asylum seekers back to Zimbabwe.
Q361 Mr Winnick: Is it right?
Mr Justice Collins: I believe
it is right. My belief is perhaps immaterial, but I am moved to
that view by two decisions by the Tribunal which have been made
recently and that is the situation as it stands. They are under
an application for leave to appeal to the Court of Appeal and
we will see what happens.
Q362 Mr Winnick: You can well understand
the feeling that the state of terror which exists in the country
just mentioned is such that no one should be sent back.
Mr Justice Collins: There is always
that sort of problem. For example, one had it with Kurds from
Iraq when Saddam Hussein was in power. Most of them came from
the north of Iraq and the decision may well have been reached
that they would have been safe to have been returned back there,
which was the protected part in the north, but there was no way
of getting anyone to the north of Iraq except via Baghdad and
for obvious reasons it was considered that it would not be safe
to send anyone back to Baghdad even though they were not a refugee
in law. That is a situation which has existed elsewhere as well.
There are real problems that we have to recognise in achieving
returns in all circumstances.
Q363 Mr Benyon: Mr Collins, I wanted
to ask you about what you feel the main reasons are as to why
people seek judicial review in immigration cases. Are delays from
the Home Office and UKvisas a factor?
Mr Justice Collins: In the context
that I have indicated they can be. I suppose the answer is because
they hope by applying for judicial review to get whatever order
or decision is made against them overturned, but undoubtedly in
many cases the only thing that they achieve is delay. It is a
concern certainly of the Home Office—and the number of cases
which are entirely lacking in merit gives us some indication that
this may be the case—that these are tactics in order to
achieve delay and certainly that happens. On the other hand, I
think one must appreciate that even though they have had their
asylum appeal dismissed and, in reality, are economic migrants,
I suspect all of us would do everything we could to try to achieve
an improvement of the pretty awful conditions in which these people
live, whether or not they are, strictly speaking, to be regarded
as refugees. One can well understand the motives that lie behind
these applications.
Q364 Mr Benyon: Judge Hodge, the
Immigration Advisory Service have told us that there is a feeling
amongst Entry Clearance Officers that they have no engagement
in the appeals process and they have complained about what they
believe to be good decisions being overturned. Do either of you
feel that there is a legitimate gripe there or is this an organisation
that is failing too often and you are picking up the pieces?
Mr Justice Hodge: It would not
be right for us to comment on the Entry Clearance Officers, as
a group feeling that. They grant many, many millions of applications.
We simply see the ones that they have refused which people then
go on to further challenge. There is anecdotal evidence that they
do not always get the decisions that are made by the Immigration
Judiciary sent back to them so they can look, at them, think about
them and potentially learn from them. I was rather surprised to
discover that it was not automatic, that an entry clearance officer
whose decision had been overturned was not automatically sent
a copy of that decision. I think that ought to be the case. If
they think their decision was good and it should have been agreed
to by our judges, probably the person to complain to is going
to be the presenting officer, or maybe to rethink the way in which
they presented the case. I am not sure I can help.
Q365 Mr Benyon: There ought to be
some sort of follow-up. There should be an engagement with the
appeals process to find out why a different decision was arrived
at, sort of ongoing training.
Mr Justice Hodge: That is a matter
for UKvisas.
Q366 Mr Benyon: It is a matter for
our inquiry.
Mr Justice Hodge: As I said earlier
on, training is great for all of us at any time and I am sure
Entry Clearance Officers and Entry Clearance Managers would benefit
from it. We are regularly asked to supply judges to go and assist
in the training, I resist it. On some occasions we have asked
one of our judiciary to attend regional meetings of Entry Clearance
Officers. It is not right for us to train only one side of the
groups who appear in front of us. We do a little bit of work with
presenting officers, we do a little bit of work with ILPA conferences
and things like that to try and assist. Learning from our judgments,
if they think there is anything to learn, seems to me to be a
matter for UKvisas.
Q367 Mr Winnick: Mr Justice Hodge,
if one got the impression, correctly from IAS, and perhaps other
people regarding Entry Clearance Officers, Entry Clearance Officers
would say, not publicly, if there is any training to be done it
should be done by immigration judges and the rest who are trying
to process appeals in the United Kingdom because the Entry Clearance
Officers in the post understand the position much better, they
understand the location, where they are working and the incentive
to go abroad. They are told lies repeatedly and yet those lies—and
that is being the devil's advocate—are being accepted by
the judicial authorities in the United Kingdom. That is a very
crude way but I am sure that is the position of many, many Entry
Clearance Officers in places like the Indian sub-continent, and
certain areas of Europe. Do you have a response to that? Immigration
judges do not really understand the situation in places where
the Entry Clearance Officers frequently refuse permission for
people to return.
Mr Justice Hodge: Everybody knows
what the system is. They know what it is, the presenting officers
know what the system is. We are here as independent judges to
make a decision on the evidence that is in front of us. If we
should be told that kind of information, the country information,
as to why you should not believe somebody then that should be
presented as part of the case. We are periodically asked to send
teams of immigration judges to go and visit posts. With respect
to those who request that, what are they trying to do? The answer
has to be they are trying to influence the Judiciary who go there
to see the kinds of problems that there are and to be "kinder"
perhaps to the entry clearance officer decisions. I do not think
that is our role. We do not think it right to go and sit in solicitors'
offices and see their problems with Legal Aid and the difficulties
they have dealing with their cases in that sort of way. We are
an adversarial system, we are the independent judiciary. We want
inter-change, we do exchange information with the officials at
official level. I do not want the independence of our Judiciary
compromised at all. It is down to the parties to put a convincing
case to any judge and it is the same for Entry Clearance Officers
as it is for anybody else.
Q368 Mr Winnick: When you say you
are sometimes asked, asked by whom precisely?
Mr Justice Hodge: By colleagues
in the UKvisas who suggest it might be an idea for us to send
a group of people to somewhere to look at the conditions.
Q369 Mr Winnick: You believe that
would be to try and influence decisions?
Mr Justice Hodge: Of course, they
would not say that, would they?
Q370 Mr Winnick: I am not trying
to say that—
Mr Justice Hodge: I do not think
it is right to send teams of our Judiciary around the work places
of one of the parties to the appeals which we have to hear. I
do not think that is the right way for us to ensure that the world
outside sees us as an independent judicial group.
Mr Justice Collins: I agree, I
think there are real dangers in doing anything like that. With
the ECOs one possible problem, at least I always have thought,
is that it is the Home Office who present the appeals but ECO
is the Foreign Office. Certainly when I was at the tribunal one
got the impression there was not the full liaison that perhaps
there ought to have been in enabling the ECO's decision to be
explained and the necessary evidence to be put before the adjudicator
in respect of it. It may be this is a problem of which they are
very aware, I do not know. Maybe improvements have taken place
since I was at the tribunal. That is an obvious possible difficulty.
Mr Winnick: In relation to the UK, the
explanation given by Mr Justice Hodge is one I entirely agree
with myself. We shall see what the Committee comes up with.
Q371 Mr Browne: To what extent do
judges discuss with the Government their concerns about the quality
of initial decisions that have been taken and if they do, does
that make a tangible improvement? Is it beneficial? If they do
not, ought it to be?
Mr Justice Hodge: In my time involved
in the tribunal we have had quite a lot of input with the Home
Office through the various channels out there. I used, when I
was Chief adjudicator, to send examples of good and bad reasons
for refusal letters to the Home Office saying this is what we
found. I hope that fed into the training. It is quite common now
for judicial officers to be on Programme Boards and I sit on one
run by the DCA on which Home Office representatives sit. I am
periodically heard to make some polite criticisms in the way that
you suggested about these kinds of things. There is an input on
quality but again my view is that as the independent judiciary
we have to be cautious about how far we go with that. Again, I
have turned down quite a number of requests to get involved in
the training of people writing reasons for refusal letters and
those kinds of things. I do not think that is a role for the judiciary
to be involved in. We do work with presenting officer units where
some of our immigration judges go and talk to them.
Q372 Mr Browne: There is a healthy
degree of feedback?
Mr Justice Hodge: Yes, that is
right.
Mr Justice Collins: Yes, I would
entirely agree with that. That is the approach that I adopted
when I was President. Of course you can do a bit with individual
decisions, and indeed, one should, and we have, indicated why
a particular refusal letter in a given case was poor and what
ought to be covered by a good decision letter. That is something
one could properly put in a decision and hope that decision is
then used for the purposes of training. One can do quite a bit
that way, that is perfectly legitimate. I entirely agree with
Henry, one has to be very careful because of the need for independence
to not be seen to be advising. You remember there was a pamphlet
issued by the Treasury's Solicitors some years ago, The Judge
Over Your Shoulder which was intended—had good intentions—to
indicate the sorts of things that ought to be borne in mind, but
if the judges start doing that then you can see there could be
a perception that the judges are involving themselves in a way
in which they ought not to be involving themselves and it is a
line we have to be very careful not to cross.
Q373 Mr Browne: A reassuring balance
is struck. My other question is not related. It is a charge quite
often made that the public funding for immigration solicitors
and advisers has been cut back because of attempts by the Government
to reduce the Legal Aid budgets, and that has a negative effect
on how well applicants are represented. Is that your perception
that those budget reductions do potentially compromise their representation
and the Legal Aid budget has a point below which it ought not
to fall and perhaps it has fallen that low already?
Mr Justice Hodge: We are regularly
consulted or have discussions with officials about these kinds
of issues. I say to them as I say to you what we, the judiciary,
want is good quality representation in as many cases as we can
get it. We will take reasonable quality representation, we can
even put up with poor quality representation. It is much better
to have representation than no representation at all. If the system
reduced the ability for people to be represented that may not
help us to get a fair decision and it may not help the wider system.
We all know Government has been very interested in cutting down
the money spent on immigration and asylum. We all know there has
been some very poor work done by some solicitors and barristers
in the system and if they are out of it that is a very good thing.
I do not think at this stage I could say that we have any helpful
evidence to say anything other than we want decent representation.
Mr Browne: Can I tempt you a bit because
it is not a popular area of Government spending. I do not think
most ministers go around telling newspapers, particularly the
one you referred to yourself 20 minutes or so ago, that this is
an area where the taxpayers are going to spread its largesse a
bit more generously. There is always that political pressure to
cut budgets and you said that potentially would have a damaging
effect. You were very diplomatic, I wonder whether I can tempt
you not to be, about whether it does have a negative effect or
whether it has the potential to do so?
Mr Winnick: Mr Hodge, you did say earlier
you would like to see organisations like IAS well funded.
Q374 Mr Browne: This is a current
problem.
Mr Justice Hodge: Anecdotally,
we are confident that the number of cases that are represented
in front of us has gone down. We think that is not a good thing.
I cannot produce any statistics for you. We have looked at how
we can do it but the way our computer system works and the way
people are represented one time, are not represented the next,
and are the next we do not respond to very effectively. We will
no doubt at some stage get some kind of statistics which might
help this kind of question. We have a problem, as I said to the
Committee earlier, in the North West where it seems there are
significantly fewer advisers. However, many advisers you have,
it all responds to the number of cases that are around and the
value of them. Where the tightening up has been on asylum is that
it is much tougher to get permission to carry on representing
asylum cases. People like solicitors have to drop out at an earlier
stage than they probably used to do and that has created problems
for us. What we are then talking about is potential unfairness
to the applicant, the appellant who is not as well served as he
might be. We train and retrain our judiciary and talk about how
best to handle the unrepresented appellant. I hope we do as good
a job as we can do in those circumstances.
Q375 Mr Winnick: I think that is
covered.
Mr Justice Hodge: Diplomacy!
Mr Winnick: I do not think we will go
further down that line. Mr Burgon?
Q376 Colin Burgon: Last week we had
some interesting evidence from the Immigration Law Practitioners'
Association and the Immigration Advisory Service who talked about
the appeals procedure. Believe it or not they said, in their view,
some appeals proceed too fast and others too slow. When we questioned
them about this ideal window that they would like they came up
with the idea of four weeks. What is your view? Is this a figure
that is plucked from nowhere or, does it sound reasonable? Would
you agree with it? How do you react to that?
Mr Justice Hodge: The speed with
which asylum appeals are dealt with has been significantly increased
since the introduction of the AIT. The procedure rules require
us to list the cases for a substantive hearing four weeks after
we get them, and we do, and most of them are heard within that
timeframe. We do the same with managed migration within the country.
In-country immigration cases get listed within 28 days of when
we receive them as well. We ran through the problems about the
time with entry clearance in out of country settlement cases,
and some work is being done to try and improve that. Some people
say that the timescales are bordering on unfair in asylum cases.
In both areas of work the speed with which you get a decision
out of our system is pretty good in comparison to quite a lot
of core systems. I am not sure where IAS say the four week timescale
should appear from. It would be very difficult to deal with cases
from out of country in that kind of timescale. We do not have
the resources, as I have already said, to catch up with our current
case load until early spring 2007. We have been very well resourced
as a system, because of the high priority that has been given
by parliamentarians and government, to dealing with asylum cases
in particular. We have good numbers of judiciary, good hearing
rooms and good systems altogether.
Q377 Colin Burgon: Have you anything
to add on that?
Mr Justice Collins: No, not on
that aspect.
Q378 Colin Burgon: Can I ask you
about the current Immigration, Asylum and Nationality Bill proceeding
through Parliament which I think you will accept significantly
reduces the right of appeal against refusal of leave to enter
or remain. Will this be a Bill that saves money or will it, as
some argue, simply result in an increase in judicial review applications?
Mr Justice Collins: That is our
concern but if you remove appeal rights then the only remedy will
be judicial review and that is, of course, on the whole a more
expensive procedure than an appeal would be. We have to wait and
see I suppose. I think there is a real risk there, yes.
Mr Justice Hodge: I agree there
must be a real risk. There will be a risk of increasing a workload
in the Administrative Court of 10,000 cases a year by a factor.
But the number of appeals to the AIT you would reduce would be
many tens of thousands potentially. I have read the Bill, I have
looked at the points system and so on. It will have an impact
on my tribunal, the Asylum and Immigration Tribunal. The numbers
of appeals on work permit issues and students, if it goes through,
will of course reduce. In all the time I have been involved with
this system there has always been plenty of work for everybody
to do. I do not think it will mean any huge change in volumes
of work.
Q379 Mr Winnick: Of course, you will
no doubt know there is a good deal of concern across the House,
which I think is mainly confined to one party, over a substantial
reduction, which is going to be the end result. How far would
it be right for your position, Mr Justice Hodge, and yours, Mr
Justice Collins, to not make representations to the Government
but to say, in effect, what you just told us, that any reduction
along the lines I have just indicated would indeed mean a more
expensive position, big issue reviews and far more regularly submitting?
Mr Justice Collins: All I have
done is to state the obvious and, in fact, the Administrative
Court at the moment is short of judge power. We really need a
minimum of eight judges available each week and we simply do not
have that for every week during term time. Any extra burden on
the court will have the risk of increasing delay in dealing with
the cases that come before us, unless there is a corresponding
reduction in some other part but that is not happening at the
moment. So far as the Administrative Court is concerned generally,
not only dealing with immigration but other matters, we are being
kept busier than we were. There is plenty of scope for judicial
review and the other things we deal with. It is not only judicial
review, for example, now we deal with appeals from the disciplinary
tribunals of the doctors and dentists and so on that used to go
to the Privy Council. We have the terrorist cases, the controls
orders and so on, which come to us. We have the Proceeds of Crime
Act cases which are beginning to increase. The workload on the
court is increasing and the result may be a call for additional
judges and high court judges are slightly more expensive than
other judges.
Q380 Mr Winnick: So we have understood,
yes.
Mr Justice Collins: Only slightly,
but they are.
Mr Winnick: Can I thank you both for
the evidence you have given today. It has been extremely useful.
It will be when we are considering our report. Thank you.
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