ILPA Briefing on the Government amendements
to clause 14.
Clause 14 introduces changes to the
appeal system which are not only unnecessary but which damage
the prospects of an appellant being properly represented and
having a just determination of his appeal.
Statutory review by the High Court under
the proposed system mirrors existing provisions. Taking
the filter of the Tribunal making preliminary decisions into
account[1] the
new s103A scheme of statutory review is very similar to s101
of the 2002 Act. Section 101 was only introduced in
April 2003, but there has been general satisfaction from the
judiciary with its operation. The President of the
Immigration Appeal Tribunal recently described the process of
Statutory Review as ‘speedy and inexpensive’ and
said ‘First indications of the operation of the new
process are encouraging…’.[2] Despite record numbers of asylum
appeals there were fewer than 300 applications for statutory
review in 2003, and since April 2004 the rate of application
has been falling.
Yet clause 14 tightens the
statutory regime without explanation. A
government amendment laid for Report restores the current
‘arguability’ threshold for statutory review
decisions, and is to be welcomed. But other aspects of
the new regime remain a cause for great concern:
1.
The 5 day time limit. The time limit for a s103A
application is to be 5 days only[3], compared with 14 days under the s101
scheme. The reduction is unjustified and potentially
disastrous. Even 10 days is a tight timetable because
applicants frequently need a second opinion at this stage and
new lawyers – often including counsel instructed for the
first time - need time to review an entire case from scratch.
They may need to meet witnesses and consider a large body of
evidence. Shorter time limits will mean rushed
applications, making the task of the reviewer more
difficult and prospects of justice for applicants more remote.
2.
Conditional fees. ILPA has briefed separately
with LAG, Justice, Liberty and BIHR opposing conditional fees
on the grounds they are wholly inappropriate for human rights
work, will damage the provision of legal services and access
to justice, are ill-timed and unnecessary. We
make all points on this issue without prejudice to our full
response to any future consultation.
The courts recognise that asylum
cases, by their very nature, require ‘most anxious
scrutiny’. ILPA considers this should be reflected
in legal aid as much as the appeal system.
·
With conditional fees, practitioners are asked to prejudge
which cases are likely to win without regard to the
consequences of the outcome for the client. They have
to put a price tag on the risk of torture or death for their
clients. We believe this is unfair to practitioners,
but potentially disastrous for clients.
- The
decision on credibility, which is often decisive in
an appeal, is notoriously difficult to predict, as it
depends on the performance of the client as a witness
and the individual approach of the adjudicator.
It must be borne in mind that one adjudicator’s
refugee could be another’s bogus asylum seeker.
There is no need to replace the
existing system of prior funding regulated by the Legal
Services Commission, since the LSC only grants funding after
consideration of the facts and merits of each case -
including the prospects of success and ultimate benefit.
Additionally there is an array of recent statutory and LSC
innovations to prevent abusive applications, but which have
not been taken into account by those advocating conditional
fees:
- Decisions
on appeal funding have since April 2004 been taken in-house
by the LSC. When justifying conditional fees
the Lord Chancellor relied on figures from 2003 when
such decisions were devolved out to
practitioners.
- About
97 of the poorest quality law firms have had their
LSC contracts terminated as of April 2004.
- There
will be a compulsory Law Society accreditation scheme
for immigration solicitors from April 2005.
- The
Nationality Immigration and Asylum Act 2002 gave both
the High Court and Tribunal power to issue
certificates of no merit[4] notifying the
LSC of abusive cases.
Faced
with low rates of remuneration, vilification from the press
and elements in the government and constant change in LSC
regulations, morale among practitioners is rock bottom.
Several high profile quality firms have left the field in
recent months, and there is growing evidence of serious under
provision of advice in many areas. Keith Vaz MP
summarised evidence taken recently by the Commons
Constitutional Affairs Committee as follows: ‘some very,
very good practitioners were giving up on legal aid because
it just did not pay them, .... nobody was going to take
over the work and therefore large parts of the… borough
[of Hackney] were not going to be covered…’[5] Another CAC
member, Anne Cryer MP, described her constituency in Bradford
as an ‘immigration advice desert’. Yet more
radical change at this point is a dangerous innovation.
Time is needed for these changes to bed down and for the
profession to adapt to them.
ILPA believes the conditional
fees provision should be deleted from the bill. Only if
this is not achievable, we seek modifications to create a
presumption of payment where there is a reasonable belief for
the case succeeding, and a 2 year moratorium on consultation
and implementation to allow recent rapid developments to be
evaluated.
3.
The single tier Tribunal: ILPA can see no reason to
believe that the quality of first decision making by the new
Tribunal will be an improvement on current Adjudicators.
·
In the great majority of appeals the same personnel will make
decisions in the same way, but with reduced opportunity for
their errors to be remedied in practice. Under the single
tier an appeal can be reconsidered only once, limiting the
prospects of remittal for a fresh full hearing on the facts.[6] This will
exacerbate the effects of the current ‘listing lottery’
– where an appellant’s chances are determined
largely by the individual approach of the Adjudicator who is
chosen to hear the case.
·
Furthermore, we are concerned that the independence of
members of the Tribunal may be compromised under the unified
arrangement, since senior members will supervise the lower
ranks. This is of particular concern in an area such as
immigration where political concerns are so prominent and the
Home Secretary is habitually denouncing judicial decisions in
public.
Improving decisions first
time – a revised role for lay members
We endorse the views of Lord
Kingsland as expressed in the Committee debate: It
is essential that the Government ensure that each tribunal
has at least two and normally three members to consider all
the factual aspects of an asylum seekers application. The
issue of credibility, more than any other issue determines
the outcome of tribunal decisions. In this
regard, I support what I take to be the proposals of ..Lord
Goodhart, that at least one, and preferably two lay members
should always sit when a tribunal decision is taken. Lay
members are at least as well qualified as judicially
qualified members to assess issues of credibility and it is
unacceptable that only tone adjudicator should undertake that
responsibility.[8]
Support for this view comes
from Sir Andrew Leggat’s 2001 report into the Tribunal
system. He suggests that lay members play an important
role in ‘broadening the experience that tribunals
brought to bear on a decision particularly in relation to
decisions of fact’, and that appropriately qualified lay
members helped users cope with the stressful experience of
appearing before a tribunal.[9] Complex factual issues are a
regular feature of immigration and asylum cases, ranging from
the circumstances of an alleged marriage or the obligations
within an extended family abroad to the political situation
in a country from which asylum is sought. Many cases
would not be suitable for a hearing by a chairman, even
legally qualified, sitting alone and expert members should be
used when appropriate at this level.
We
advocate that the lay members should be recruited carefully
to bring particular skills and insights into the facts of
appeals. Again we endorse Leggat, who said: In
setting the qualifications for appointments to the tribunal,
and to sit in particular cases we believe that care should be
taken to ensure that those selected bring relevant experience
and skills to the decisions to be taken, such as knowledge of
conditions in particular countries concerned or of refugees.[10]
As to cost implications, we again agree
with Leggat’s view: We think that additional
expenditure will be significantly out-weighed by: an
improvement in initial decision making and therefore fewer
appeals, a clearer focus in second tier appeals on legal
issues; and there for a progressive reduction in the number
of challenges to cases throughout the IAA and in the courts.[11]
Time limits
1.
ILPA supports Lord Goodhart and Lord McNally’s
amendments 44 and 45 which ensure the current 14 day deadline
for statutory appeal is effectively retained.
Conditional Fees
2.
ILPA supports the principal behind Lords Goodhart and McNally’s
amendment 47. We support the deletion of all of
103 D [amendment 47] in particular because the timing of the
proposals.
3.
We also propose the following amendment aimed at ensuring
that no conditional fees are introduced for at least 2 years
to ensure current changes are properly evaluated beforehand:
Page 16,
line 6, at end insert:
“but
such regulations shall not take effect before a period of 2
years after the date of enactment of this Act and the power
shall not be exercised without such regulations being in
place”
4.
If there is to be a conditional fee arrangement, then surely
the starting point should be, barring exceptional
circumstances, that a successful application for an order for
reconsideration should be paid, without reference to whether
the outcome is affected. We agree with Lord
Kingsland when he stated ‘if an advocate were
reasonably satisfied that there were reasonably arguable
grounds for believing that an error of law had been made,
then that, in principle ought to be enough to ensure a grant
of legal aid.’[12]
We there fore support the
principle behind Lords Goodhart and McNally’s amendment
48, particularly extended further to create a duty on the
Tribunal to give reasons for a decision that an application
had no reasonable grounds and withholding costs was therefore
appropriate. [see separate briefing with LAG/Liberty/Justice/BIHR]
Lay members:
5.
ILPA supports the amendments of Lord Kingsland and Baroness
Anelay of St Johns which allow for the appointment of lay
members and provides for 3 members of the Tribunal to hear
appeals in normal circumstances.
6.
However consequence of this would be to deny the 103A
statutory review in most cases as it is excluded from
application to decisions of the Tribunal sitting as panel of
3 members. We therefore would propose the following
additional amendment:
Page 14 lines 20 and 21, delete
all.
2.6.04
ILPA Billteam
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