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:
We know that the Home Office's current position
is that within the brave new world of the objective, transparent
points-based system there will be no need for appeals. What we
have argued for is, please, would you actually run this new system,
prove that there is no need for appeals and then consider their
abolition, but to abolish appeals before this new system is tested,
we think, is extremely unwise.[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
358
Ev 409, HC 775-III Back
359
In its 2004 Report on Asylum and Immigration Appeals, the
Constitutional Affairs Committtee suggested that the new appeals
system was designed to deal with concerns relating to asylum appeals
rather than immigration appeals.Second Report of Session 2003-04,
HC 211, para 132 Back
360
Ev 386-7, HC 775-III Back
361
Ev 389, HC 775-III Back
362
Q 315, 24 January 2006 Back
363
Q 342, 24 January 2006 Back
364
Q 316, 24 January 2006 Back
365
Guardian Jobs (online): Immigration Appeals Presenting Officers,
4 April 2006: http://jobs.guardian.co.uk/browse/government/policy/vacancy-1115991.html
Back
366
Q 331, 24 January 2006 Back
367
Uncorrected evidence taken before the Constitutional Affairs Committee,
21 March 2006, HC 1006-I, Q 41 Back
368
Constitutional Affairs Committee, Asylum and Immigration Appeals,
Ev 19 Back
369
Q329, 24 January 2006 Back
370
Qq 953-956, 6 June 2006 Back
371
Ev 405, HC 775-III Back
372
Q 335, 24 January 2006 Back
373
Ev 289-92, HC 775-III and Qq 381-400, 24 January 2006 Back
374
See Qq 236-242, 17 January 2006 and Qq 335-6 and Qq 374, 24 January
2006 Back
375
Constitutional Affairs Committee, Fourth Report of Session 2002-03,
Immigration and Asylum: the Government's proposed changes to publicly
funded immigration and asylum work,HC 1171 and Fifth Report of
Session 2004-5, Legal Aid: Asylum Appeals HC276-I Back
376
Ev 249, HC 775-III. NB The information given provide a snapshot
of the proportion of appeal records in each appeal category for
which a representative has been entered onto the AIT's electronic
database. It is not an indication of the proportion of appellants
appearing with or without representation at a substantive appeal
or onward hearing. Back
377
Q374, 24 January 2006 Back
378
Q319, 24 January 2006 Back
379
Q 311, 24 January 2006 Back
380
We were told on a visit to the AIT that in March 2005 7,100 entry
clearance and in-country appeals came through plus about 2,000
family visit appeals. Back
381
Q 1180, 13 June 2006 Back
382
Ev 386, HC 775-III Back
383
Asylum and Immigration Tribunal, The AIT Review Report, April
2006, para. 3.26 Back
384
Asylum and Immigration Tribunal, The AIT Review Report, April
2006 Back
385
Asylum and Immigration Tribunal, The AIT Review Report, April
2006, para. 3.34 Back
386
s. 4 Back
387
Q 378, 24 January 2006 Back
388
Stg Co Deb, Standing Committee E, Immigration, Asylum and Nationality
Bill, 20 October 2005, col 116 Back
389
Q 639, 9 May 2006 Back
390
Immigration, Asylum and Nationality Act 2006 s. 4(2) and (3) Back
391
Q 378, 24 January 2006 Back
392
Ev 268, HC 775-III Back