4. Memorandum submitted by Dr Roger
Ballard
As an anthropologist of more than 30 years standing,
my central professional concern has been to explore aspects of
South Asian social, cultural, religious, political and economic
developments, and most especially with respect to the emergence
of a very substantial South Asian presence in the UK. I have written
numerous academic articles on these issues.
During the course of the last decade I have
become ever more heavily involved in the provision of expert reports
to solicitors whose clients are of South Asian descent, and who
have become involved in legal proceedings of some kind in the
UK. I have now prepared around 300 reports of this kind for use
in all kinds of proceedings; of these rather less than 100 were
for use in either civil or criminal proceedings, whilst the remainder—in
other words around 200—addressed matters of immigration
and asylum. I should also add that in preparing these reports
I have not automatically accepted instructions when solicitors
have approached me: instead I have only done so when I considered
that the appellant's case had a significant degree of merit.
Given the large number reports which I have
by now prepared for submission to Immigration Tribunals, I concluded
that members of the Select Committee might find an overview of
my experiences in the course of so doing a useful contribution
to their deliberations.
1. THE ISSUES
WHICH I HAVE
FOUND MYSELF
ADDRESSING
Although I have not yet had an opportunity to
make a systematic review of all the cases with which I have dealt,
some clear patterns nevertheless seem to have emerged. As to country
of origin, the overwhelming majority have involved applicants
of Pakistani origin; by contrast I have much more rarely commissioned
to prepare reports for applicants who were citizens of other countries,
including India, Bangladesh, East Africa, Afghanistan and Hong-Kong.
Although the specific circumstances which led
to the application being made varied enormously, those which came
my way can be categorised into a number of fairly distinct classes,
most—but not all—of which have to do with family matters
in one way or another. These include:
1.1 Issues of family reunion: most particularly
when one member of a large extended family has found him- (or
more usually her-) self abandoned overseas (eg as a result of
the death of parents or a spouse), but is unable to apply for
leave to remain under the immigration rules because they are aged
less than 65 or over 18. Given the current state of play in immigration
law, such problems can usually only be addressed in terms of a
claim for asylum, reinforced by the provisions of Article 8 ECHR.
1.2 Marital breakdown within the UK, especially
when the bride arrived from overseas. Difficulties arise when
the bride is discarded by her husband before she was eligible
to apply for permanent leave to remain, or because no such application
was made even when she became eligible to make such an application,
but was subsequently discarded. Once again this usually generates
an asylum claim.
1.3 Victims of domestic violence overseas:
claims of this kind have become much more commonplace since the
House of Lords ruling in Shah and Islam. Whilst many of
the cases which come my way involve claimants with kinsfolk already
resident in the UK, such they are able to reinforce their claim
under Article 8, all such applications are still appear to be
vigorously contested by the Home office.
1.4 Victims of sectarian violence overseas:
most of these cases involve Shi'as, Christians and Ahmadis from
Pakistan—and can perhaps be identified as classic asylum
cases, since applicants have fled from religious persecution.
These have usually been turned down by the Home Office on the
grounds that there is some (unspecified) place of safety where
they could have sought refuge in Pakistan.
1.5 Long-standing residents who entered
the UK illegally many years ago: this is a category of cases which
I find most disturbing, since those whom the Home Office is seeking
to deport have frequently a stable conjugal relationship with
a UK citizen.
It should be obvious that only a small minority
of the cases with which I have found myself dealing can be described
as "political asylum" cases in the sense which is commonly
understood. Instead the majority have been cases which have their
origins in the way in which long-distance migration has rendered
many South Asian family networks increasingly transnational character,
but where immigration controls have become so restrictive that
their members efforts to keep in touch with one another—and
to help each other out when they find themselves in the midst
of severe personal difficulties—is generating an ever-increasing
number of asylum cases.
2. PROBLEMS I
HAVE ENCOUNTERED
IN FULFILLING
MY BRIEF
AS AN
EXPERT
In fulfilling my role as an expert, I take it
for granted that my role is to draw on my academic experience
to provide the Tribunal with an objective opinion, rather than
to act as a "hired gun" whose sole purpose is to advance
the interests of those instructing me. In doing so I readily accept
that my role in the proceedings is primarily to offer an opinion,
in the sense that the Tribunal is the ultimate arbiter of the
facts when it comes to determining the outcome of the appeal.
That said, I frequently find that role difficult
to fulfil, partly because of the time pressures to which I now
frequently find myself subjected, but above all because many—although
by no means all—adjudicators seem determined to overlook
the role which I am expected by law to fulfil. With such issues
in mind I would like to take the opportunity to set out some of
the most salient problems I have encountered in fulfilling my
role as an expert.
2.1 Problems emanating from the Home Office
2.1.1 Timetable: whilst it is not so long
since there was often an unconscionably long interval between
the date on which the application presented to the Home Office
and the hearing of an appeal before the Tribunal, the reverse
is now the case. "Fast tracking" has recently become
so intense that everyone concerned is tripping over themselves
to keep up with the schedule. When the deadline for the preparation
of a report is 48 hours hence, there is no time to seek further
clarification from the applicant, to track down relevant documents,
let alone to prepare a considered report.
2.1.2 Letters of refusal: letters of refusal
prepared by IND on behalf of the SSHD are becoming steadily longer,
and set out ever more extensive grounds on which the application
has been dismissed. However the quality of the arguments presented—with
which I have now grown familiar, since they appeared to be downloaded
wholesale as macros from the IND's database—are invariably
very poor.
Although lengthy, they can rarely be described
as considered, and regularly seek to dodge and obscure the central
issues at stake. Some examples: in the cases with which I deal
it is not so much the authorities in Pakistan who are the actual
perpetrators of the persecution which has given rise to the application,
but rather bodies of people from whom the authorities are unable
and unwilling to offer the appellant a sufficiency of protection.
IND officers regularly reject such applications on the grounds
that there is no evidence that the authorities have directly persecuted
the appellant. Likewise the data-base from which IND officers
appear to download ready-made clauses which they then paste into
their reports overlooks the fact that Pakistan has no system of
public welfare for the indigent, and hence no support for women
in distress, especially when they are responsible for children.
Furthermore I have never seen a Home Office letter of refusal
pay any explicit attention to the consequence of the House of
Lords ruling in Shah and Islam; instead they go out of
their way to construct their arguments in such a way as to evade
any reference to it.
2.2 Problems in the tribunal
In my experience adjudicators vary a great deal
in their responses to the expert material put before them. Some
clearly pay close attention to what I have to say. However rather
more appear to take every possible opportunity to avoid or dismiss
the significance of what I have to say. With that in mind it is
worth emphasising that my remarks in this section highlight the
underside of my experiences, if only because they are all too
commonplace. I certainly would not suggest that the critical comments
listed below apply to all adjudicators.
2.2.1 My status as an expert. Although I
make it quite clear in all my reports that I understand that my
duty is to assist the Tribunal rather than to advance the case
of those instructing me, I have the strong impression that few,
if any adjudicators take this very seriously. Hence in their determinations
they all too frequently either over-ride or discard the opinions
I offer, without providing any significant indication of the grounds
on which the have chosen to do so.
2.2.2 Credibility. The assessment of credibility
is always a crucial issue in cases of this kind: most applications
stand or fall on this issue. Adjudicators are faced with a tricky
task when assessing the credibility of the story which appellants
have to tell. Given that the events at issue have invariably taken
place in a distant country, the adjudicator is likely to be wholly
unfamiliar with social and cultural mores which apply in the specific
context within which those events occurred, and equally unaware
of the likely response of the local police and judiciary to such
events. That is why expert evidence of such crucial importance
in Immigration and Asylum cases.
Nevertheless this makes the preparation of an
expert report a challenging task if one is to provide the requisite
background information whilst also ensuring that one does not
appear to step on the adjudicator's toes. I deal with this problem
by explicitly acknowledging that it is the adjudicator's task
to determine matters of credibility, before going on to offer
my own assessment by using a phrase such as "in the light
of the internal coherence of the account of her difficulties which
the appellant has presented, I can see no obvious reasons why
doubt should be cast on the story which she has told".
Yet despite the care with which I phrase such
statements, adjudicators not infrequently take cognisance only
of the first part of the formulation but overlook the second,
so enabling them to determine issues of credibility as they see
fit. Having done so they are in a position to discard all the
analytical arguments which I developed before reaching my conclusion,
on the grounds that if credibility is not established, all the
other arguments I might have advanced are ipso facto irrelevant.
2.2.3 Stepping into the appellant's shoes:
Section 6 of the Judicial Studies Board's Equal Treatment Benchbook
once explicitly warned of the dangers of deploying [one's]
own assumptions to evaluate the behaviour of those whose cultural
conventions may be very far from congruent with their own. In
such circumstances, it is more appropriate to think oneself into
the shoes of the actors in the case, and to seek to apply their
notions of reasonableness and common sense, rather than to unthinkingly
apply one's own.
For whatever reasons this advice (of which I
was the original author) has disappeared from the latest edition
of the Benchbook. Nevertheless I cannot see why the advice
should not still hold good, and that it would appear to be particularly
relevant to the task with which Adjudicators in Immigration and
Asylum cases regularly find themselves confronted. Certainly it
is with precisely with such considerations in mind that I seek
to prepare my reports.
Whilst I would in no way wish to try on the
Adjudicator's judicial shoes for size—if only because I
am acutely aware of the onerous nature of their responsibilities—I
am nevertheless frequently disturbed by the way in which they
so often dismiss so lightly my efforts to assist them to fulfil
their role in an equitable manner.
2.3 The Legal Services Commission
Most of my reports are funded by the Legal Services
Commission. This is surely right and proper, given that most asylum-seekers
are by definition next to destitute. Nevertheless I am disturbed
to note the increasing number of privately funded cases which
come my way, either because the appellant is not eligible for
legal aid, or because local immigration solicitors have opted
out of publicly funded work. I am particularly alarmed that when
these funding problems persist at the appeals stage, including
cases in which the Home Office has appealed against an adjudicator's
decision in the appellant's favour to the AIT.
Meanwhile as far as my own personal experience
of the LSC is concerned, I would comment as follows:
2.3.1 Level of funding: In keeping with
Government directives, LSC appears to be bearing down on expenditure
in immigration and asylum just as they are in all others. However
as IND letters of refusal become ever longer and more complex,
so they demand ever more extended responses—even though
many of the arguments with which I have to deal are as familiar
as they are specious.
2.3.2 Level of detail expected: as asylum
cases become ever more contentious, I find myself placed in a
cleft stick. Whilst I get the strong impression that adjudicators
yet further downgrade the value of an expert report if one has
not met the appellant in person, and also if one has not appeared
before the Tribunal to give evidence in person, the prospect of
gaining LSC approval for the additional fees that would be incurred
if one were to do so appears to be remote.
However it is worth noting that the core of
the problem in this case lies with the Tribunals, not with the
LSC. I most usually find the documentation with which instructing
solicitors provide me is sufficient for my purposes, and on the
relatively rare occasion on which it is not, I simply ring up
the appellant in search of further details. I should also make
it quite clear that I have no wish whatsoever to spend my time
travelling all over the country to give evidence in person at
Tribunals.
2.4 Legal representation
I have little doubt that many other respondents
to the enquiry will have raised the issue of the quality of legal
representation which those seeking entry to the UK through the
asylum and immigration system receive. I can only add my voice
to the chorus of complaint.
My experience suggests that the best of the
solicitors and counsel working in this area are excellent. But
even if one leaves aside the unqualified "advisers"
who play a substantial role in mis-guiding appellants, there are
a disturbing number of solicitors and barristers working in this
field whose efforts can in my experience only be described as
atrocious.
I trust these comments will prove helpful to
the Committee in the course of their deliberations.
19 November 2005
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