Select Committee on Home Affairs Written Evidence

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.


  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.


  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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