House of Commons - Home Affairs

Select Committee on Home Affairs Fifth Report

7 APPEALS

328. Many unsuccessful immigration and asylum applicants currently have a right of appeal. The most obvious exceptions are non-family visitors and students whose courses last six months or less. The current complex law on appeals is set out in the Nationality, Immigration and Asylum Act 2002, as amended, and regulations made under it.

329. The number of immigration and asylum appeals has grown hugely in the last few years. In 2004, 109,000 appeals were determined at the first stage compared with 35,000 in 1997. A growing proportion of these (in 2004 nearly half) were non-asylum appeals. The number of appeals against entry clearance refusals showed a startlingly large increase between 1997 and 2004, from 8,760 to 44,375.[346] This year about 175,000 appeals are expected, of which only 30,000 will be asylum appeals.[347] Overall, 31% of appeals to adjudicators were allowed in 2004, but in entry clearance cases nearly half of appeals were allowed (47%), a much higher allowed rate than for other types of appeal (29% for in-country immigration refusals and 19% for asylum refusals).[348]

330. The Asylum and Immigration (Treatment of Claimants, etc.) Act 2004 made wide changes to the appeals system, including replacing the two-tier structure (Immigration Adjudicators and the Immigration Appeals Tribunal) with a new Asylum and Immigration Tribunal (AIT), limiting rights to onward appeals and judicial review and introducing retrospective payment for legal aid for onward appeals. These changes came into force on 4 April 2005. Appeals are heard by Immigration Judges in nine hearing centres across the country.

331. We visited the AIT in Taylor House in London, where we observed appeal hearings and talked to staff, judges, appellants and representatives of both sides.

Lack of mutual confidence

332. During our visits to the AIT and to visa sections and the IND, we became increasingly aware of a gulf of misunderstanding or even mistrust between those making initial decisions and those involved in the appeals process. The Immigration Advisory Service pointed out this difficulty in their written evidence:

When IAS has visited ECOs at Post we have found them openly to express lack of concern that a decision we have just observed will be overturned if appealed. It appears to be a common belief amongst many ECOs that the appeal process, run by lawyers and judges who are ignorant of local conditions, regularly overturns 'good' decisions. ECOs feel no engagement with the appeals process and fail to take advantage of the feedback opportunities and learning opportunities that appeal determinations offer.[

349

333. Mr Justice Hodge, President of the AIT, felt that any requests by posts to send teams of immigration judges to visit posts was evidence of an attempt to influence the judiciary to be "kinder" to ECO decisions,[350]but many of the immigration judges we met were in fact keen to improve their local knowledge. We understand that several groups of judges have recently visited entry clearance posts overseas, but we were concerned to hear that ECOs at those posts believed that those judges then absented themselves from hearing cases from those countries to avoid accusations of bias. So far as we can establish, there is no basis for that belief. However, the fact that such a belief was widespread amongst ECOs in post is an indication of the serious breakdown in confidence in the appeals system amongst frontline staff. Another indication of distrust is ECOs' perception of Immigration Judges as lawyers who are used to representing individual immigration applicants.

334. At the same time, judges we met at the AIT and saw at work there were often extremely critical of the quality of decision-making by ECOs and IND caseworkers, the way they substantiate their refusals and their provision of evidence bundles. We have addressed the quality of initial decision-making above (paragraphs 114 to 128 and 216 to 219), and later in this section we look at the refusal notices and evidence provided by ECOs and IND caseworkers.

335. The lack of mutual confidence between front-line staff and Immigration Judges is very worrying. As a first step, each side must learn more about the other. We particularly encourage Immigration Judges to visit entry clearance posts, and recommend that all ECOs and IND caseworkers visit the AIT as part of their initial training.

Reviewing refusals before appeal

336. Looking at the basis for Immigration Judges' decisions reveals that there are many cases which perhaps need not have gone as far as an appeal. In its 2004 report on the visa operation, the National Audit Office set out the main reasons why entry clearance decisions are overturned on appeal, based on a sample of 180 appeals from entry clearance posts it visited.[351]The results are striking: 34% were overturned because of additional evidence; 23% were based on evidence from the applicant's sponsor; in 20% the judge formed a different view of the same evidence; and in only 14% was the decision not in accordance with the Immigration Rules. If these results are repeated throughout the entry clearance operation, they suggest that thousands of immigration refusals being allowed on appeal might be better dealt with at an earlier (and cheaper) stage in the process.

NEW EVIDENCE

337. In 57% of the cases in the NAO's sample, the judge made a decision based on different written or oral evidence from that available to the ECO. This is permissible under the current law: as the Foreign Office Minister, Lord Triesman, told us, in entry clearance appeals "the Tribunal may consider only the circumstances appertaining at the time of the decision to refuse",[352] but this allows the AIT to look at new evidence relating to the circumstances at the time of the EOC's decision even though this information may not have been available to the ECO making the decision.[353]

338. In over half of entry clearance appeals, the outcome appears to be not so much a judgment on the original decision as a completely new decision reached on the basis of different evidence. We reject, therefore, the argument put by several witnesses that the outcomes of appeals decisions can currently be taken as a satisfactory measure of the quality of initial decisions,[354] although there may nevertheless be benefits to recording this information.

339. But the reliance by the AIT in so many cases on new additional evidence or the evidence of a sponsor strikes us as inherently unsatisfactory, when in principle the AIT should simply be reviewing the decision of the ECO. This is most obviously the case when evidence that could have been presented with the initial application was not provided at the proper time. We understand that the practice of accepting additional evidence has developed in response to the higher courts regularly overturning decisions where any relevant information was not taken into account. Whilst we can understand the legal basis for this, we do not think that this is helpful to the overall integrity of the immigration system. Nor is it clear that evidence from a sponsor in an appeal should be given significant weight in cases where the original refusal was based on the intentions of the applicant.

340. We feel it is more appropriate for new evidence to be considered by the ECO or IND caseworker. We have therefore recommended introducing a "minded to refuse" stage for both entry clearance and in-country applications. (see paragraph 140 above) This would give applicants the opportunity to counter the reasons for potential refusal by submitting further evidence, without having to go to appeal.

341. Introducing a "minded to refuse" stage into the application process both overseas and in the UK might dramatically reduce the number of non-asylum appeals going to the AIT, by allowing applicants to present further evidence to the original decision-maker rather than to an Immigration Judge.

INTERPRETATION

342. In 20% of appeals in the NAO sample the judge substituted his or her interpretation of the facts: as Lord Triesman put it "judges simply double-guess what the ECO has seen".[355]The judge may not have seen the primary evidence: for instance the ECO might have interviewed the applicant and the judge would have to rely on the notes of that interview. Several posts raised with us instances of the AIT overturning a rejection because they did not agree with the ECO that a document was forged. We are not able to estimate in how many cases this may have happened, but it is a significant issue with ECOs who cite it as a reason for lacking confidence in the appeals process.

343. In a further one fifth of entry clearance appeals, it appears that the judge substituted his or her interpretation of the facts for that of the ECO. This can be a particular problem in the case of forgeries. We share the view that staff in posts are in a better position than the AIT to make judgments on forged documents, particularly if supported by specialist teams and appropriate equipment.

344. On the other hand, many of our witnesses said that ECOs and IND caseworkers do not always properly apply the required standard of proof and do not provide enough evidence to substantiate their decisions. The former Entry Clearance Monitor, Fiona Lindsley, suggested that one of the main reasons why there have been so many entry clearance appeals is because "there is a culture in entry clearance posts which does not understand that they interface with a legal culture in which they must evidence their decisions".[356]This is particularly obvious when the refusal is on judgmental grounds such as lack of intention to leave the UK, but may also be one of the reasons why the AIT overturns refusals based on allegations of forgery (see paragraph 148 above). Mr Justice Hodge, President of the AIT, said "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".[357]

345. On our visits we were told that measures were in hand to improve the quality of refusal notices issued by posts in order to ensure that the evidence on which decisions were based are more clearly and consistently presented, but we were not in a position to tell whether these had resulted in any improvement (see paragraphs 135 to 137) on training for ECOs). We were also told that IND caseworkers are trained on how to complete a refusal letter and documentation in a new course which has been run by the IND College since April 2005.[358]

346. If the decisions of ECOs and IND caseworkers are to withstand appeal, their refusal notices must show clearly and fully the reasons for the decision and the evidence on which the decision is based. This requires good training, involving lawyers to emphasise the legal standards required, and also good management. Managers must be more active in reviewing refusal decisions so that those which are not sufficiently substantiated can be either strengthened or conceded before any appeal. Managers should also look closely at the reasons why any refusal is overturned by the AIT and discuss each refusal with the caseworker to see what lessons can be learnt and disseminated more generally.

347. We believe that the introduction of a "minded to refuse" stage, coupled with more robust internal reviews of refusals, should largely eliminate any real justification for the introduction of new evidence at (or just before) appeal in the great majority of cases. This would improve confidence in the appeals service throughout the immigration system.

348. However, in those cases which do still go to appeal, it is important for judges to be in at least as good a position as the person making the initial decision to form a judgment on the evidence. In entry clearance cases, this will often mean good local knowledge and access to local experts, for example in forgery. This points towards hearing entry clearance appeals in the major source countries. Some judges we met on a visit to the AIT told us that they were keen on doing this. One benefit would be that the parties to the original decision could appear (the applicant and the ECO) rather than a sponsor and a Home Office Presenting Officer. It might also help to increase mutual confidence and understanding between ECOs and immigration judges. There may however be practical problems, not least in ensuring an adequate level of representation for appellants. We recommend that the Home Office and the Department for Constitutional Affairs work with the AIT to develop a pilot exercise in the near future to assess the potential benefits of holding entry clearance appeals in major source countries abroad.

CASE MANAGEMENT REVIEWS

349. A further way in which expensive time in court could be saved is through Case Management Review (CMRs). CMRs were an innovation of the new appeals system, in which the case is discussed with the judge and representatives for both sides to highlight the key problematic issues before the substantive hearing. CMRs can be done on paper. However, at the moment CMRs apply only in asylum appeals.[359]

350. Mr Justice Hodge, President of the AIT, told us during a visit to the AIT that CMRs are to be extended to immigration and entry clearance cases. The AIT should introduce Case Management Reviews in non-asylum appeals as a matter of priority. These should help to prevent delays and adjournments in court and may even result in weak cases being dropped.

PAPERWORK

351. We were also alarmed by the apparent inefficiencies caused by the large volumes of paperwork associated with appeals. When appeals are lodged (most are now lodged directly with the AIT, although appeals from abroad can still be lodged at the Entry Clearance Post which issued the refusal; no fee is payable to lodge an appeal), the process of amassing paperwork begins. The ECO or IND has to provide the AIT with a 'bundle' of evidence on the case: the original refusal decision, subsequent internal reviews of that decision (ECMs review all decisions which go to appeal), and any other paperwork relating to the case. The AIT requires these to be sent in hard copy, in triplicate. As a result, entry clearance appeals result in vast amounts of paper travelling around the world. For instance we were told that about 90% of the diplomatic bag traffic in and out of Lagos is immigration-related.

352. We were told that work is in progress on developing electronic systems for appeal notification with posts and for deciding issues relating to timeliness or validity of appeals. An Entry Clearance Working Group (see paragraph 388) is continuing work on the use of electronic systems for document exchange.[360]

353. The absence of electronic systems for notification of appeals and for subsequent communication about appeals undermines the efficiency of the appeals system. The requirement to send huge bundles of papers, which may play little or no part in the subsequent hearing, is a drain on staff time and resources. The implementation of electronic communications systems must be given a high priority.

354. More fundamentally, we agree with the proposal of the AIT review report that the amount and relevance of evidence submitted needs to be considered. In our visits to the AIT we saw case bundles hundreds of pages long, disorganised, not clearly flagged up and almost impossible to work from. The result is that court time is wasted in trying to work out what the facts and issues are.

355. We support the AIT review report's conclusions on the amount and relevance of evidence and also call for an urgent review of whether there is any need for original papers to be available to the AIT. It may be suggested that this is necessary in cases where forgery has been alleged. However we have seen no evidence that the AIT has access to the necessary expertise to verify documents in entry clearance appeal cases.

A ONE-TIER SYSTEM?

356. The AIT is described as a single-tier tribunal, but there is a complex reconsideration procedure which will often involve a further three stages and could involve as many as eight altogether. The losing party can apply for reconsideration of an appeal judgment, such applications being decided on the papers only (there is no oral hearing). Nominally the reconsideration application is made to the High Court, but under "transitional" arrangements it is dealt with first by a Senior Immigration Judge. If he refuses it, the applicant can then apply to the Administrative Court for a renewal of the reconsideration application (again on the basis of the papers). If the application is accepted the case is then usually referred back to a different panel of the AIT for the reconsideration itself.

357. An appeal on a point of law is available to the Court of Appeal from a decision of a panel of three Immigration Judges or from a second determination (reconsideration) of a case by any Immigration Judge. A further appeal can be made to the House of Lords on a point of law from the Court of Appeal. There is no published data on how many immigration appeals get to the Court of Appeal or House of Lords.

358. Challenges to a judge's decision must be based on an error of law, but the alleged error could be that the judge disregarded material facts or interpreted the facts in a way that no reasonable person would. In the first six months of the AIT's operation, 3,158 applications for review of managed migration (in-country) refusals and 745 relating to entry clearance refusals were decided, of which 24% and 31% respectively resulted in the applicant getting a reconsideration hearing. Although we have figures only for the old system, it seems that very few review applications ultimately lead to the applicant winning an immigration appeal.[361]

359. Mr Justice Collins, Lead Judge at the Administrative Court, told us that although the AIT is "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."[362] The Administrative Court spends a huge amount of its time dealing with immigration and asylum applications: of the total 10,500 cases before the Administrative Court in 2005 in all areas, over 3,000 were renewed applications for reconsideration of AIT decisions.[363]

360. Mr Justice Hodge, President of the AIT disagreed with Mr Justice Collins' suggestion that the AIT had not brought improvements. He said that the speed with which cases are dealt with in the new system is "significantly up", but he made it clear that these improvements were "primarily because the procedural rules require judges to act much more quickly than they did before" rather than because of a reduction in the number of stages.[364]

361. We were disappointed to find that the AIT does not provide the simple one-tier system that the Government set out to establish. For the reasons cited in this report, we do not have confidence that the AIT as it currently operates could satisfactorily fulfil that role. But the aim of a genuinely single-stage appeal system which effectively reviews first-instance decisions in one hearing and which is able to take into account human rights considerations must remain the right one. We urge the Government to keep the possibility of such a system under constant review.

Representation

HOME OFFICE REPRESENTATIVES

362. When the Government defends immigration appeals, the official who made the initial decision does not appear. Instead a Home Office Presenting Officer (HOPO) represents the Secretary of State or the ECO. HOPOs are not required to have legal—or indeed any other—qualifications, or any experience of immigration or asylum work. A recent advertisement for HOPOs in London (at a salary of £23,000) clearly stated that no legal expertise is required, nor any particular experience: "While a knowledge of legal procedures would be an advantage, it is not essential…You could be at any stage in your career. Perhaps you are starting out…".[365] Two weeks' training is given, then a period of mentoring before new HOPOs "go live" in about three months. There is no requirement for accreditation or for meeting the standards of the OISC or professional bodies, as the representatives of the appellant have to do (paragraph 377). Nor do they specialise in particular types of case, country or region: they are allocated to a particular court for the day and have to deal with whatever is being heard there. We were told on a visit to the Presenting Officers' Unit that there is quite a high turnover of HOPOs but we do not have statistics on this.

363. In the past there has been considerable criticism of the Home Office for failing to send HOPOs to attend immigration and asylum appeals. When this happens, the judge is expected to carry on regardless rather than adjourn,[366] and the danger is that the judge then appears to be an "extra prosecutor".[367]

364. The situation seems to have improved in the last few years: the number of cases in which no HOPO appears has gone down from around 40% of cases in 2004[368] to about 10% of substantive first hearings now.[369] However, there is clearly still a problem: on one visit to the AIT we were told that earlier that week there had been two days when four courts had no HOPO all day, and one day when three courts were lacking HOPOs. The Government must ensure that Home Office Presenting Officers attend every appeal that the IND or UKvisas wishes to defend.

365. On the other hand, it is not clear how effective the HOPOs are able to be in defending the initial decision. In the cases we observed, they said little other than to affirm their reliance on the ECO's reasons for refusal, provided no explanation of the facts or issues and scarcely did any cross-examination.

366. The Director General of IND, Lin Homer, has recognised that not all HOPOs are sufficiently well-trained to provide adequate representation in certain types of case. Concerns that the Home Office was not properly defending bail applications from foreign national criminals led her to increase the level of HOPO representation in those cases. Her comments suggested to us that in such cases they are now required to be legally trained:

Chairman:

Ms Homer: Yes. When I became aware of the issue I did ask that we increase the level of legal representation and legal advice we were taking.

Chairman: Are you normally represented by barristers now?

Ms Homer: Or lawyers. We have presenting officers within the Immigration Service who are not always fully legally trained.

Chairman: They are not legally trained at all, are they?

Ms Homer: Some of them are.

Chairman: Most of them are not and they have no legal qualifications, have they?

Ms Homer: That is right. What I have asked is that our legal team be involved in this decision about the level of representation in individual cases so that we can make the most vigorous applications to oppose in those cases where we feel it necessary.[370]

We were subsequently told that the requirement is in fact that "only senior and experienced presenting officers appear for the Home Office in these cases".[371] We are concerned that the Committee was given a misleading impression of the quality of representation in these sensitive cases of great public concern.

367. It is hard to see how HOPOS can provide a robust defence if they have neither a full understanding of immigration and asylum law and practice nor practical advocacy skills, and might not stay in the job for long enough to build up these attributes. If the Government is serious about defending appeals, the quality and skills of HOPOS must be improved. They should be required to meet at least the same standards as appellants' representatives.

368. In several of the appeals we saw on our visits to the AIT, HOPOs could not provide a good defence because they had not had the opportunity to prepare. A major problem is a lack of papers. Sometimes none at all arrive in time for the hearing; sometimes only the bare reasons for refusal with no supporting documents; and at other times the bundle reaches the judge but not the HOPO. This is in large part a result of the new lodging arrangements (see paragraphs 381 to 390 below), but we got the impression from our visits to the AIT that there may be wider administrative difficulties.

369. Although in theory HOPOs could contact the ECO or IND caseworker who made the original decision in order to clarify the refusal notice, ask for further information or discuss tactics for defending the decision, in practice the HOPOs we spoke to very rarely did this. In one case we saw during a visit to the AIT, where the HOPO had not contacted the ECO, the appeal had to be adjourned to get clarification from the ECO because it was a complicated case involving forged documents, fake identity and allegations of serious criminality and the judge had already spent at least half an hour in the courtroom trying to work out from the papers what had happened. On our visits we did not meet a single ECO who had ever been contacted by an HOPO to discuss a case. We understand that decision-making staff in the IND are not routinely contacted to provide further information or explanation of a decision either.

370. Another difficulty is that we were told HOPOs start preparation on a case only the day before the hearing. This means that there is rarely any opportunity to make inquiries or to chase up bundles.

371. We believe that it is essential that the work of HOPOs is organised so that they have enough time to prepare for appeals and can discuss cases with the ECO or IND caseworker wherever the basis of a decision may be unclear or clearly open to challenge.

372. The immigration judges we met at the AIT told us of the problems caused by the fact that HOPOs cannot themselves concede cases, even if they consider them unwinnable. They can do so only on the instruction of the official who made the decision. If they do not get such an instruction, the appeal goes ahead, the HOPO says simply that they are relying on the grounds set out in the refusal notice, and the judge has to go through all the motions of making and promulgating a decision. This is a waste of time and money.

373. HOPOs should also be given the power to concede cases which they consider un-winnable. This would be another way in which court time could be saved.

374. A recent initiative which seemed to have great potential was sending some HOPOs out to posts on attachment, so that each could learn more about the other. When we visited the Presenting Officers' Unit we met two HOPOs who had recently done this. Both reported that they had benefited greatly from seeing how ECOs work, and that they had been able to give ECOs a better understanding of how appeals are won or lost. Their reports are due to be compiled and evaluated by UKvisas quality teams.

375. To increase mutual understanding, we recommend that the current programme of HOPO attachments to posts overseas is extended to allow every HOPO to see at first hand how both ECOs and IND caseworkers work, and to share their own knowledge and experience.

APPELLANTS' REPRESENTATIVES

376. Mr Justice Hodge told us that although the "utterly wicked, incompetent and useless" lay advisers who used to appear in immigration and asylum appeals have "pretty much gone", there is still a problem with the quality of advocacy in front of immigration judges which in his view is "not much better than it was two years ago".[372] When we visited the AIT we saw some very good advisers and others who were much less impressive.

377. The scheme for the regulation of immigration advisers seems to have produced improvements. Since 30 April 2001 the Office of the Immigration Services Commissioner (OISC) has overseen the regulation of legally qualified advisers operating in this area and regulated immigration advice and immigration services provided by other advisers. As well as investigating complaints about regulated immigration advisers, it also identifies and investigates organisations which potentially should be registered.[373] In addition, since 1 April 2005, the Legal Services Commission (LSC) has required all advisers (including solicitors) who conduct publicly-funded immigration and asylum work to be accredited under its own accreditation scheme. We were not in a position to determine the degree to which the quality of representation in immigration appeals has improved since regulation was introduced, but we suggest that one of the ways the OISC could do this is through spot checks on how representatives are performing in the AIT.

378. However, because it is now much harder for representatives to get legal aid to carry on with an immigration or asylum appeal, the number of cases where the appellant is unrepresented is increasing.[374] The Constitutional Affairs Committee has frequently criticised the Government's approach to legal aid for asylum and immigration.[375] In entry clearance cases, it is often only the sponsor who will appear. Between 2003/4 and 2004/5 the number of immigration applicants who were unrepresented when they sought permission to appeal to the Immigration Appeal Tribunal rose from 13% to 16% (for asylum applicants the increase was even bigger: 15% to 32% in the same period).[376] Accurate statistics about representation before the new Asylum and Immigration Tribunal are not yet available, but Mr Justice Hodge told us that "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."[377]

379. The lack of representation does not seem to deter people from continuing with their appeal. As Mr Justice Hodge noted, there is no reason why they should not keep appealing: "Something like 65% of people who are refused by my first tier judiciary in asylum cases tr[y] 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 and so they keep going often for as long as they can and quite often unrepresented."[378] In asylum cases the incentive to stay in the UK for as long as possible may be stronger than in immigration cases because the applicant is likely to come from a dangerous or unsettled country.

380. Legal aid changes have not resulted in fewer appeals, and any savings may be offset by the disadvantages of having unrepresented appellants. The Government must investigate other ways of discouraging unmeritorious appeals whilst encouraging those with merit.

Teething problems

381. In the first six months of the AIT's operations, a backlog of 39,000 entry clearance and family visitor appeals built up. Mr Justice Hodge explained that this had two causes: firstly an "under-estimation by the policy people" of the numbers of new entry clearance appeals, and secondly an under-estimation of the numbers of "transitional" appeals which had been received by the Home Office or posts before April 2005 but not yet passed on to the AIT. This had been estimated at 30,000 but in fact turned out to be 42,000.[379]

382. Under the old system appeals were lodged with the IND who forwarded them to the Immigration Appellate Authority (IAA) at a fixed rate (normally around 9,000 per month), complete with bundles of evidence.[380] Any other appeals waited at the IND but were not logged or counted. Entry clearance appeals were lodged with posts; most were sent to the IND for forwarding but family visit appeals bypassed this and were sent direct to the IAA. Under the new system, with most appeals being lodged directly at the AIT, the AIT was sometimes receiving 3,000 appeals per day which it then had to forward to the IND or posts with a request for bundles.

383. The AIT implemented a Recovery Plan in October 2005 which allowed it to do the initial processing of all these cases by December 2005. All this meant was that the cases were logged on the system and bundles requested (in the case of entry clearance appeals, posts are given 11 weeks to submit bundles in non-settlement cases and 19 weeks in settlement cases). If the AIT does not receive the bundle in time, it lists the appeal for hearing regardless and tells the posts to submit them within a further four or eight weeks. The inevitable result is that appeals go ahead without the bundles. As the Minister for Immigration, Citizenship and Nationality, Liam Byrne MP, recognised, this is most unsatisfactory: "It is completely unacceptable if you have observed cases where papers were not there in time".[381]

384. Wherever possible, cases must not be listed for hearing until the bundle of documents has arrived. To provide a disincentive for delay, posts should be required to pay the costs resulting from avoidable delay. There would still need to be an absolute time limit in all cases, beyond which cases would have to be listed, with the Home Office presenting the case as best it can.

385. It may be that, if the AIT revises the requirements on the amount of evidence which has to be submitted and introduces electronic systems for document exchange, these problems will eventually diminish or disappear entirely. But this issue has also highlighted what appears to be worrying lack of communication between the AIT and posts. Each of the posts we visited told us that they had received only a trickle of appeals notices over the summer and then suddenly hundreds would arrive in one day, with no warning. They had not even been told about the AIT's backlog clearance exercise. Some posts were by now being completely overwhelmed by the number of notices of appeal arriving and were unable to send back bundles in time: in Lagos we were told that they were receiving 800 appeals notices per week, and handling 2,000 at any one time. In other cases the appeals notices did not even arrive until after the deadline. New Delhi told us of a whole set of appeals notices which had been dealt with by the AIT in November and dated December 2005 but not received at the post until after the target date of 21 February 2006.

386. When bundles did not arrive back at the AIT the AIT did not know (or ask) why and simply went ahead and listed cases for hearing. Posts had difficulties contacting the AIT when they needed to know what was happening with individual cases.

387. It appears to us that the AIT's backlog recovery plan took no account of the effect it would have on posts. Each side blamed the other for the lack of bundles. Judges, representatives and appellants were left frustrated, and justice was not being done.

388. We are told that communication is being improved. The larger posts are now sent daily emails about the number of appeal notices which they will receive. Posts have been given phone numbers and emails for individual contacts at the AIT. An Entry Clearance Working Group, comprising officials from the DCA, UKvisas and IND, is looking at ways to improve processes.[382] Apparently the Prime Minister's Delivery Unit is also conducting a review of the Visit Visa appeal system.[383] The report of an internal review of the AIT also makes a number of recommendations.[384]

389. The outstanding appeal workload is now 87,000, which has been stable since the end of 2005. AIT management envisages that all new cases will be heard and decided within normal timescales by January 2007.[385]

390. Although the main causes of the current backlog of immigration appeals were the change in the way appeals are lodged and the underestimate of the number of appeals still waiting to come into the system, the resulting problems indicate that the appeals system is quite unable to cope with a surge in demand. This is exacerbated by lack of communication which allows problems to develop in one area which then have an unfortunate effect elsewhere.

391. Although the AIT is legally separate from IND and UK visas, and the responsibility of a different government department, it nonetheless forms a critical part of the decision-making process. Its work needs to be managed so that it enhances the performance of the system as a whole, rather than focussing narrowly on performance against its own targets and measures.

392. We recommend that a permanent group comprising representatives from the AIT, Immigration Judges, HOPOS, appellants' representatives and officials from UKvisas, the IND and the Department for Constitutional Affairs should be established to oversee the operation of the appeals system as a whole, to allow problems to be aired as soon as they develop and to assess solutions in terms of their impact across the system.

Removing appeal rights

393. The Immigration, Asylum and Nationality Act 2006 significantly reduces rights of appeal. When it is brought into force, applicants will be able to appeal against refusal of entry clearance only if they are family visitors or dependants in certain categories, or if they allege race discrimination or a breach of human rights.[386] This means that most student or work visa refusals will no longer have a right of appeal. However, Mr Justice Hodge told us that he did not think this would mean any huge change in volumes of work for the AIT.[387]

394. The then Immigration Minister stated that these appeal rights will probably not be withdrawn until the new points-based immigration system is up and running.[388] The Chief Executive of UKCOSA (the Council for International Education), Dominic Scott, argued that appeals should not be withdrawn until it is proved that under the new system they are not needed:

389

395. The Government is proposing a more thorough internal review mechanism for entry clearance cases to compensate for the removal of appeal rights. Details of this are yet to emerge, so it is not yet clear, for instance, whether the new review procedures would also apply to cases which do still have a right of appeal, in order to reduce the likelihood of them getting that far. In addition, the duties of the entry clearance monitor are to be widened and the Secretary of State must report on the new scheme.[390]

396. Mr Justice Collins told us that "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."[391] The AIT's estimate of the average overall costs of an entry clearance appeal is £626; a substantive Judicial Review hearing costs between £643 and £780.[392]

397. There is a danger that removing appeal rights will result in dissatisfied applicants seeking judicial review instead. To reduce the likelihood of this, the Government must be in a position to show that initial decisions are high quality and that there is an effective avenue of internal review, before further appeal rights are removed.

398. There is little doubt that those who are involved with the appeals process are working hard and diligently, often under trying circumstances. But in this chapter we have examined the evidential basis of decisions taken in the AIT, the quality of Home Office representation and the clear lack of mutual confidence between decision-makers in the IND and UKvisas and the AIT. Taken together we do not feel that the appeals process as it currently operates provides a sound basis for this vital part of the immigration system.

346 Home Office Control of Immigration Statistics 2004, Cm 6690, Table 7.1 Back

347 Uncorrected evidence taken before the Constitutional Affairs Committee, 21 March 2006, HC 1006-I, Q4 Back

348 Home Office Control of Immigration Statistics 2004, Cm 6690, Table 7.1 Back

349 Ev 41, HC 775-II Back

350 Q 367, 24 January 2006 Back

351 Report by the Comptroller And Auditor General, Visa Entry to the United Kingdom: The Entry Clearance Operation, HC 367 Session 2003-2004, 17 June 2004, p. 27 Back

352 Nationality, Immigration and Asylum Act 2002 s. 85(5) Back

353 Ev 408, HC 775-III Back

354 Both the National Audit Office and Fiona Lindsley, formerly Independent Monitor of Entry Clearance Refusals, (Q 73, 13 December 2005) have recommended that statistics should be kept on appeals by post in order to assess decision-making quality. Back

355 Q 1175, 13 June 2006 Back

356 Q 83, 13 December 2005 Back

357 Q 349, 24 January 2006 Back