AMENDMENT
TO CLAUSE 10:
Page 9, line
27, leave out Clause 10
BRIEFING:
1.
CLAUSE 10: ABOLITION OF THE IMMIGRATION APPEAL TRIBUNAL
“If
Tribunals were to be at liberty to exceed their jurisdiction
without any check by the courts, the rule of law would be at
an end”
Denning LJ, Master of the Rolls[1]
1.1.
ILPA is totally opposed to the package of provisions
contained in clause 10 of the Bill. They represent an
unconstitutional assault on the immigration system, leaving
decision-making without proper scrutiny by the courts where
people’s lives and human rights are at risk.
1.2.
It is worth recalling the words of Prime Minister, Tony
Blair, when in opposition during debate on proposed
immigration legislation in 1992:
“No
justification has been advanced [for the withdrawal of rights
of appeal from visitors and students by the Asylum and
Immigration Appeals Act 1993] other than this, which we heard
again from the Secretary of State: the system is overloaded.
It is a novel, bizarre and misguided principle of the legal
system that if the exercise of legal rights is causing
administrative inconvenience, the solution is to remove the
right. No doubt that might satisfy the bureaucrats and
Government administrators in many areas, but it can hardly be
a justification for removing rights…When a right of
appeal is removed, what is removed is a valuable and
necessary constraint on those who exercise original
jurisdiction. That is true not merely of immigration
officers but of anybody. The immigration officer who
knows that his decision may be subject to appeal is likely to
be a good deal more circumspect, careful and even handed than
the officer who knows that his power of decision is absolute.
That is simply, I fear, a matter of human nature, quite apart
from anything else”
Tony
Blair, House of Commons, 2nd November 1992.
1.3.
Clause 10 will affect everyone who benefits from the
appeals system: husbands, wives, sons and daughters from all
ethnic groups in the UK will find that they are barred from
challenging decisions of the Asylum and Immigration Tribunal
(AIT). We are unaware of any concern by the Government
about the effect on race relations of these provisions.
1.4.
Clause 10 is about the way we are governed. By removing
the scrutiny of the higher courts (the High Court, the Court
of Appeal and the House of Lords) in immigration decisions,
it will upset the checks and balances on government powers,
contrary to our long established democratic tradition and
contrary to the rule of law.
1.5.
Without the vigorous supervision of a separate, more senior
court, such as the IAT, consisting of experienced judges (many
of whom have been Adjudicators), miscarriages of justice will
inevitably occur.
1.6.
Applications for permission to appeal are also made by the
Home Office if they are of the view that an appeal has been
allowed in error. ILPA's perception is that the Home
Office is increasingly appealing against Adjudicator
decisions. This surely demonstrates that both parties
are of the view that Adjudicators need to be supervised by a
higher court.
1.7.
The IAT has been effectively supervising Adjudicator
decisions for 34 years, since it came into existence in the
Immigration Appeal Act 1969. As immigration, asylum and
human rights law has become more complex, the IAT has been
invaluable in giving guidance to Adjudicators on matters of
law and the approach that should be adopted in deciding cases.
This guidance leads to more efficient and consistent decision-making.
1.8.
Under clause 10, there will only be the opportunity to apply
for a very limited review of a decision – not to
an independent body, but to the very Tribunal which has
itself reached the decision under review.[2]
This offends the basic principle of natural justice that
‘no one should be a judge in their own cause’.
Worse, such review can only be carried out once.[3] This is entirely
illogical: it means that if one party has previously
requested and obtained a review, the other party will be cut
out of the right of review at a later stage even if that
party has a cast iron case for review. Speed is placed
over justice and over getting the result right. The
review will, save in exceptional circumstances, be only by
reference to written submissions[4]
without the opportunity (as presently exists) to have an oral
hearing to argue about what may be complicated issues of law
and fact. The grounds of review will be limited to
those raised in writing, so the AIT will be barred from
considering other defects it may notice. This is
of particular concern when you consider that many appellants
are properly represented.
1.9.
The AIT will have to decide the potentially complicated
issues of whether to uphold the decision, have a re-hearing,
or substitute the first decision with another decision.
The AIT will have to decide the contents and nature of a
substituted decision without the benefit of oral argument.
This means that there would be no opportunity to consider any
new oral evidence if required. If an appellant -
whether claimant or Home Office - had new information there
would be no opportunity to have that heard by the AIT.
1.10.
Only the AIT will have the power to review itself and
therefore will not be accountable to anyone. There will
be no review by a supervisory or independent body. If
it refuses to review itself there will be no challenge
against such a refusal.[5]
Clearly
the legitimacy of the AIT will be undermined by a lack of
independent supervision in addition to having the onerous
task set out above.
The
President of the AIT
1.11.
The new President will have enormous power. It is
unprecedented in British legal history for an individual to
have so much power that cannot be checked and monitored by a
senior court.
1.12.
Put simply the new President of the AIT will be the only
person who has the power to refer a legal point to the Court
of Appeal.[6] This reference will be to
obtain the opinion of the Court of Appeal only. The
President will not be obliged to follow the opinion of the
Court of Appeal.[7]
The ancient foundation of our common law process is based of
the principle of deference to the decisions of the highest
courts. This Bill gives the President the
unchallengeable power to ignore the opinion of the higher
courts and make binding his/her own decisions.
1.13.
The President also has the power to control the decision
making of other members of the Tribunal. He/She can
order his/her colleagues to treat decisions as final and
authoritative on a particular issue. The President will
be able to do this by issuing a document called a practice
direction. The contents of a practice direction will be
entirely at the discretion of the new President.
1.14.
Practice directions have been used by the Chief Adjudicator
since February 2000 and the President of the IAT since March
2000.[8] To date practice
directions have dealt with the procedure that ought to be
followed when preparing for and appearing before the IAT, the
way in which IAT decisions should be cited and other
administrative matters. The intention was
to increase the efficiency of the IAT by stipulating for
example what documents are required by the IAT at a hearing
of the appeal.
1.15.
Practice directions have not been made to date to fetter the
discretion of the decision making of the IAT or Adjudicators.
1.16.
The new President will however have the power to control how
AIT members decide a case by requiring them to come to a
particular conclusion about an issue.[9]
The new president can make a practice direction at any time
about any matter. He/She does not have to consult
anyone or hear any submissions about any issue before
deciding how all cases on a particular issue will be decided
in the AIT.
1.17.
The new President’s powers undermine the principal of
legislative supremacy. New law can be made in a
practice direction that will not have the status of primary
or secondary legislation.
1.18.
It seems that the new President will be more powerful than
Parliament and will not be accountable to the safeguards of
the higher courts. The effect of the powers of the new
President additionally means the end of the application of
the rule of law to asylum, human rights and immigration
decisions in the AIT.
The
real dangers of a one-tier system
1.19.
Poor quality decision making by the Home Office at the outset
of the process and a lack of Home Office Presenting Officers
to represent at appeal hearings serve only to exacerbate the
fundamental lack of safety of a one-tier appeal process
without further possibility of redress. These are
problems that have now been acknowledged by the government,
but no assurance has been given that implementation of the
appeal changes will be delayed until real improvements
materialise. In ILPA's experience, many if not most
adjudicator hearings involve the adjudicator grappling with
new facts, new information and new issues, which the Home
Office have not considered prior to the hearing or have never
previously raised with the appellant. There needs to be
a right of appeal from what are in effect first instance
decisions where things can and do go seriously wrong.
1.20.
The burden upon Adjudicators to get the decision right the
first and only time of appeal would be unreasonably onerous.
The impact upon the appellant of an incorrect dismissal of an
appeal could often be fatal.
The
Government's justification
1.21.
The Government has set out extremely limited reasons for
abolition of the IAT. In the annex to the DCA/Home
Office consultation letter of 27 October 2003 (signed by
Beverley Hughes and David Lammy; available on IND and DCA web
sites), the Government stated that:
'A
single tier would simplify the appeals system and reduce the
risk of people seeking to play the system by making unfounded
appeals to frustrate final resolution of their case…The
current appeals system is still too long and complicated.
It provides people with opportunities to abuse the system in
order to cause delay or abscond'.
Taking
these elements in turn:
'Opportunities
to cause delay or abscond'
1.22.
It is not the right of appeal to the IAT that causes delay in
the asylum system. An asylum seeker has only ten
working days (five days if in detention) to appeal from an
adjudicator to the IAT. If his/her grounds of appeal
have no merit, permission to appeal will be refused and the
appeals system is exhausted subject only to any resort to the
very speedy paper process of statutory review under
Nationality, Immigration and Asylum Act 2002 section 101.
Do we not need to address the point that there is a huge
backlog at the IAT but that only demonstrates the number of
cases given permission- and the point is that you don’t
abolish something because people are using it!!
1.23.
Contrast the frequent delays of at least months caused by
Home Office inefficiency. For example the delay between
a person claiming asylum in the UK and his/her interview by
the Home Office; between interview and Home Office decision;
and perhaps most significantly between exhaustion of appeal
rights and removal from the UK.
1.24.
In any event the large reduction on asylum claims in recent
months will very soon feed through to reduce delays at all
stages of procedure. There simply is no need for such
drastic action to kill off a patient who has every prospect
of a dramatic improvement.
1.25.
Common sense dictates that, by comparison with these severe
delays, it is highly unlikely that the small time scale
involved in applying for permission to the IAT provides any
major opportunity to cause delay or abscond.
'Too
long and complicated'
1.26.
As to the Government's comment that the two-tier system is
'complicated', it is no more complex than any other system of
appeal rights in the UK.
1.27.
Government’s desire to simplify the asylum and human
rights appeal process will not automatically simplify the
substance of asylum, human rights and immigration law. It
is right that asylum, human rights and immigration law is
complex and fast moving. It is an area of law that
deals with the most serious violations of humanity that are
changing moment by moment on a global scale. Mistakes
made by a one tier Tribunal will result in preventable
deaths, torture, inhuman and degrading treatment that may or
may not amount to persecution.
1.28.
Other, comparable tribunals (such as the social security
appeals system and the employment tribunals system) are two-tier.
Indeed, this was the model suggested by Sir Andrew Leggatt in
his report 'Tribunals for Users One System, One Service' (March
2001). In addition, both the Social Security Appeals
Tribunal and the Employment Tribunals are three-member panels
even at first instance. Yet, it is proposed that
migrants and asylum seekers should be denied a second-tier
appeal without even the added safeguard of a panel decision
at first instance.
A one-tier
appeals system will lead to low-quality justice that is
neither speedy nor fair:
1.29.
In his written evidence to the Constitutional Affairs
Committee's enquiry into immigration and asylum appeals, the
Chief Adjudicator has written:
'Productivity
in terms of deciding cases [at adjudicator level] is high and
reasoned determinations are produced at greater speed than in
much other judicial work'.
ILPA
agrees that appeals are currently dealt with by adjudicators
in a speedy manner. However, speedy decisions from
adjudicators are appropriate only when there can be resort to
a higher tribunal that can remedy any defects in quality.
Without the safeguard of a higher tribunal, adjudicators will
be bound to spend more time on each case, in order to try to
ensure the requisite quality. Adjudicator hearings may
well become longer as a consequence of this legislation.
Thus, the Government's proposals lose their justification
even by the Government's own policy parameters:
1.30.
In essence, the current system already operates speedily.
Therefore, if further speed is to be introduced:
§
Current quality will suffer.
§
There will be no scope for further improvements in quality:
the learning curve for adjudicators, provided by IAT
scrutiny, will vanish.
1.31.
In his written evidence to the Constitutional Affairs
Committee's enquiry into immigration and asylum appeals, the
Chief Adjudicator has written:
'We have
an efficient training system, a reasonably well developed
mentoring system and I have introduced judicial appraisal
which is currently rolling out satisfactorily'.
ILPA
shares the Chief Adjudicator's concern for training. We would
hope that the Government is in a position to say that IAA
training is as good as it can get. We do not think that
the Chief Adjudicator believes that there are defects in
training. Given this, improved training could not be an
answer to concerns about quality in a one tier system. If
current training is already effective, how will future
training be significantly more effective than now?
1.32.
In any event, rights of appeal in any court do not rest on
the right to appeal from a low quality judge to a high
quality judge. They are concerned with rectifying
errors which are bound to creep into any judge's decisions at
some time or other, or with clarifying difficult issues.
We do not have the right to appeal from a High Court to the
Court of Appeal because of quality concerns with our High
Court judges. The Court of Appeal would not be
redundant on the grounds that we could provide further
training to High Court judges. Similarly, in
immigration cases, arguments relying on further training for
adjudicators are arguments that avoid grappling with the
basic principles involved in rights of appeal.
The
statistics
1.33.
The Government has justified the abolition of the IAT on
basis of statistics. The Home Secretary has
consistently referred to 3% of appeals to the IAT being
successful and, therefore, a 97% success rate at the
adjudicator stage[10].
But this is not borne out by any analysis of the statistics
published by the government.
1.34.
According to government statistics, around a third of
applications for permission to appeal to the Immigration
Appeal Tribunal are successful. In 2002, the majority
of appeals determined by the IAT were either allowed (11%,
620 cases) or remitted back to an Adjudicator for further
consideration (49%, 2,700 cases). The remainder were
either dismissed (36%, 2,015 cases) or withdrawn (4%, 225
cases). Where the Home Secretary gets his 3% from is
not understood by anyone, but we can only presume it
inexplicably excludes the large group of cases which are
remitted. There is always a danger in the use of
statistics, which can be manipulated. What is clear is
that in 61% of cases determined by the IAT in 2002 the
Adjudicator was found have made an error, or re-consideration
was found to be required. This must demonstrate that
there is a need for proper scrutiny of Adjudicator’s
decisions.
In
any event, would we want to abolish the right to challenge
miscarriages of justice in the criminal courts on the basis
that only a small proportion of people will be affected?
An
example
Case
of T
The
Tribunal remitted the appeal of Mr T, a Cameroonian because
in rejecting his evidence as to method of escape from
detention, the Adjudicator had effectively set himself up as
construction expert. The Adjudicator had also held
matters against Appellant not put to him at appeal. On
remittal to another Adjudicator fresh expert evidence was
adduced and accepted. Refugee status was granted.
2.
CLAUSE 10 (7): THE DEMISE OF JUDICIAL REVIEW
This provision
makes clear that no court will have ANY supervisory or other
jurisdictions in relation to the AIT. Even where the
decision of the AIT is unlawful, or where the AIT has acted
in breach of natural justice or outside of its jurisdiction,
the higher courts will have no power to entertain
applications or appeals. Furthermore this provision excludes
ANY supervisory or other jurisdiction in relation to
decisions by the Secretary of State to remove or deport a
person from the UK, or in respect of any action in connection
with such decision.
2.1.
The Government's proposals to curb judicial review came as a
bolt from the blue. The only prior indication lay in
the opaque, vague and uninformative words of Annex A of the
DCA/Home Office consultation letter dated 27 October 2003,
where the Government said that 'we are looking at ways to
restrict access to the higher courts'. It is truly
worrying that a British, democratic government can purport to
abolish constitutional checks on the powers of the executive
without any prior consultation or openness. Respondents
to the consultation letter were denied any opportunity to
comment on this extremely important aspect of the Bill.
Bearing in mind that the Bill was published only one
month after the consultation letter, the implication is that
either the Government kept quiet about this radical proposal
or that it was hastily cobbled together.
2.2.
Currently if the Immigration Appeal Tribunal refuses
permission to appeal from an Adjudicator’s decision,
there is no further right of appeal. The only remedy is
statutory review (rather than judicial review). This
is a paper only review by a High Court judge of the decision
to refuse permission by the Immigration Appeal Tribunal.
ILPA considers that Statutory Review is already a
significantly reduced form of judicial scrutiny - Judicial
Review, which exists in other areas of law, involves an
opportunity for full oral argument. Statutory Review
was only introduced in April 2003, and the Government has not
explained why it is now necessary to abolish the right to
review entirely, even before the dust has settled.
2.3.
Yet more remarkable is the provision to prevent any form
of judicial oversight of any action in connection with
decision to remove someone from the UK if this is in
consequence of an appealable immigration decision[11]. There would be no legal
safeguard whatsoever to prevent removals, even in error,
prior to the exhaustion of appeal remedies. There would
be nothing to prevent removal even if newly available
evidence had been put to the Secretary of State for fresh
consideration. There could be no High Court challenge
to the legality of detention pending removal in such cases.
Constitutional
implications
2.4.
It is unconstitutional for a person to have no remedy to the
higher courts. The provision risks refugees being
returned to persecution and the families of ethnic minorities
suffering from human rights violations and separation. The
AIT would have unprecedented power. ILPA fears that
without judicial scrutiny, decision-making will deteriorate
in the way expressed by Tony Blair above in 1992.
2.5.
Judicial scrutiny of administrative action is a vital element
of the rule of law. It is the procedure by which the
Judiciary assume a constitutional responsibility to prevent
the abuse of executive power. The judiciary ensures
that public bodies are not above the law.
2.6.
The proposals call into question the delicate balance between
legislative supremacy and the fundamental common law right of
access to the courts.
2.7.
Over forty years ago the House of Lords ruled that clauses
such as clause 10 of the Bill cannot ‘oust’ access
to the higher courts. The House of Lords stated that it
was of paramount constitutional importance that it is
possible to challenge a decision of a lower level Tribunal.
The House of Lords stated that challenges of the lower court
would be necessary where its jurisdiction had been exceeded,
it had breached the principles of natural justice, it had
applied the wrong legal test, had asked the wrong legal
question or had made a decision based on irrelevant
considerations.
2.8.
Clause 10 is the most extreme example of a ‘modern’
Government’s attempt to curtail the right of access to
the courts. The effect of clause 10 will mean that
there is no longer be possible for someone who is unlawfully
detained to challenge this detention under the ancient writ
of habeas corpus.[12]
This is a common law writ that can be applied for in the High
Court which has been used in circumstances where people have
been detained under the Immigration Acts where there is no
power to detain.
2.9.
The clause provides expressly that the AIT and the Secretary
of State can take decisions which are based on “lack of
jurisdiction, irregularity, error of law, breach of natural
justice, or any other matter” and no court can even
“entertain proceedings” to challenge such decisions.[13] This proposal is
undemocratic, unconstitutional and antithetical to the rule
of law. Such a proposal would be disapproved of
elsewhere at any time, but in a modern democracy in the 21st
century it is thoroughly reprehensible. It should be
deleted from the Bill.
2.10.
In practical terms those who have previously been able to
access the courts will now seek advice and help from their
representatives in the community. MPs' surgeries are
likely to be inundated with people seeking advice as to the
impact of these measures on their case whether for asylum or
because a family member wishes to enter the country as a
visitor or student etc. MPs will be faced with the task
of explaining that in this country the right of access to the
High Court has been abolished, but only for those who are
asylum seekers or who wish to immigrate here.
The Statistics
2.11.
Statistics show that permission was granted in approximately
20-25% of applications for JR in 2003. In all these
cases the High Court accepted there was an arguable point of
law. However, the great majority of cases with
permission were then withdrawn before a substantive decision.
In ILPA’s view the high numbers of withdrawals reflects
the practical approach to problem solving both of the courts
and the Treasury solicitor, as we believe (but can not prove
because of limitations on the statistics recorded by the
courts) that in most cases the Home Office effectively
concedes the case, leading to a withdrawal in statistical
terms. Thus the importance of Judicial Review cannot be
judged by the number of cases allowed at substantive hearing.
The numbers of applicants granted permission show that it is
a remedy providing a vital last line of defence to hundreds
of people each year.
Some
examples
1
Case of U
U
is a Somali woman who has fled the violent civil war in
Somalia. She has claimed asylum. The Home Office
refused her asylum claim on grounds that they believed she is
not a Somali, but is an Ethiopian national. The
Adjudicator dismissed the appeal; reaching a finding of fact
that U was not a Somali national. Professor Lewis from
the London School of Economics was asked to comment upon the
Adjudicator’s findings that the Adjudicator had made in
respect to U’s ethnicity and nationality. He was
of the opinion that the Adjudicator had made numerous errors
in her approach to the evidence and he reached the firm view
that U was a Somali national. An application for leave
to appeal to the IAT was made and the report from Professor
Lewis was submitted.
The
IAT refused permission to appeal concluding that an appeal
would have no prospect of success. U applied for a
statutory review of this decision by the Tribunal. The
decision of the IAT was notified on the 10th of
September 2003 and the outcome of the statutory review was
received on the 3rd of October 2003 i.e. within
just over 3 weeks. The statutory review was successful.
Mr. Justice Maurice Kay reversed the decision of the Tribunal
to refuse permission stating “in my view it was legally
erroneous for the IAT to deal with the report of Professor
Lewis in the peremptory manner it did”.
2
Case of F
F
is an Algerian national with serious mental health problems.
He feared persecution from armed Islamic groups in Algeria.
The Adjudicator dismissed the appeal partly because of his
account of his journey through Europe, which the Adjudicator
did not find credible. An application for permission to
appeal to the IAT was supported by an expert’s report in
response to the Adjudicator’s Determination, which
concluded that F’s account was indeed credible. The
IAT refused permission to appeal. F then applied for a
judicial review of this decision. The Treasury
Solicitors conceded the matter before it went to court for
the reason because “the Secretary of State accepts that
it is arguable that the IAT has erred”.
3
Case of R and her baby
R
is a Ugandan national suffering from AIDS. She has an 8-month-old
baby who was born in the UK. Prior to the birth of R’s
baby, R applied for asylum and was refused. She
appealed to an Adjudicator who dismissed her case on both
asylum grounds and in respect of her human rights. R
and her baby were within 10 hours of being removed when
solicitors intervened arguing that neither the Secretary of
State nor the Adjudicator had considered the rights of R’s
baby who would undoubtedly be orphaned if they were returned
to Uganda. The Secretary of State insisted that R’s
baby had no rights and it was not necessary for him or an
Adjudicator to consider those rights since the baby was
making a “voluntary departure” with her mother.
R commenced judicial review proceedings against the Secretary
of State. Treasury solicitors eventually conceded that
an Adjudicator should reconsider R’s case and that of
her baby’s and the alleged breach of human rights in
removing them.
4
Case of A
A
is an Iranian who feared persecution due to her activities
for a Kurdish party. As a child she was imprisoned with
her mother and as a small child detained in an Iranian prison
with her mother who suffered injuries that are still visible
today. Her mother was recognised as a refugee. In
dismissing her appeal an Adjudicator found comprehensively
against her credibility. The Tribunal refused leave to
appeal, finding that the conclusions of the adjudicator were
fully supported by the evidence and finding no arguable legal
error. On a Judicial Review challenging the Tribunal
permission was granted and by consent the matter was remitted
to the Tribunal, who on considering the matter fully on the
papers, commented extensively on the adjudicators
determination. The Tribunal indicated that it seemed to
them that the adjudicator was completely wrong in all of his
conclusions on credibility. As a result the Secretary
of State made a decision to grant leave to remain.
5
Case of B
B
is an Albanian, whose wife had been raped. Both he and
his wife were diagnosed as suffering from Post Traumatic
Stress Disorder. On appeal the Adjudicator gave no
weight to two expert psychiatric reports because they he did
not believe the accounts upon which they were based. This
approach was roundly rejected by High Court as “putting
the cart before the horse”. This established case
law on the point as consequence.
6
Case of Y
Y
is from Pakistan. Despite the non-appearance of a Home
Office representative the Adjudicator totally disbelieved Y,
and both his brother and cousin (both recognised as refugees),
and didn’t accept Y was of the Ahmadi sect. The
adjudicator recommended that the witnesses’ refugee
status be revoked. Although the adjudicator failed to
put any adverse matters to his witnesses, the Tribunal said
there was no error of law and refused leave to appeal. The
Administrative Court granted permission on the issue of
procedural fairness. The case has been remitted back to
the Tribunal for further consideration.
7
Case of M
M
a Tamil had been detained in Sri Lanka and claimed to have
been tortured. An Adjudicator rejected this claim and
the IAT refused leave to appeal. The Administrative
Court quashed the Tribunal decision despite reliance by the
SSHD on a note from a detention centre medical officer that
he had no injuries (or possibly a tiny injury). When
the case returned to the IAT, fresh medical evidence showed
huge and extensive scarring which shouldn’t have been
missed. The IAT allowed the appeal.
3.
CLAUSE 10: REMOVAL OF APPEALS TO THE COURT OF APPEAL
3.1.
ILPA considers this removal of the jurisdiction of the Court
of Appeal and the House of Lords to be entirely unjustified.
ILPA considers that the supervision of the higher courts is
vital if decision-making by the Home Office and the AIT is to
be kept in check and this important area of law is to keep
pace with international human rights developments.
If
higher courts cannot set down the law, British immigration
law will grind to a halt: it will not longer be a body of
principle fairly applied, but a mish mash of decisions
lacking coherence or joined up thinking. ILPA fails to
understand how that will benefit refugees, migrants or the
British public.
Existing
rights of appeal
3.2.
The Asylum and Immigration Appeals Act 1993 was condemned by
Tony Blair during its passage through Parliament as being
unfair, arbitrary and seriously detrimental to good race
relations. He did, however, welcome the extension by
the Act of rights of appeal to asylum seekers. The Act
also introduced a new right of appeal from the Immigration
Appeal Tribunal to the Court of Appeal on a question of law[14].
3.3.
An appeal to the Court of Appeal may only be brought with the
permission of the Immigration Appeal Tribunal or, if refused,
the permission of the Court of Appeal itself[15].
Such permission will only be granted by the Court of Appeal
if it considers that ‘the appeal would have a real
prospect of success’ or ‘there is some other
compelling reason why the appeal should be heard’[16].
3.4.
The Court of Appeal has made clear that as far as immigration
appeals are concerned, ‘properly reasoned well
structured judgments of the IAT will normally mark the end of
the road unless there is some uncertainty about the
applicable law’[17].
At the same time the Court of Appeal has acknowledged that
appeals to the IAT often raise complex issues of fact and
difficult questions of law, that the law is still developing
and that decisions of some panels of the IAT are of ‘uncertain
quality’[18] so that appeals to the Court
of Appeal would still be necessary.
3.5.
The requirements that a would-be appellant must identify an
error of law in the tribunal’s determination and that he
or she must then convince the tribunal or the Court of Appeal
that an appeal would have a real prospect of success mean
that very few immigrants even attempt to appeal to the Court
of Appeal, let alone obtain permission to do so.
3.6.
The Lord Chief justice Lord Woolf, in his report Access
to Justice, said of appeals to the Court of Appeal that
they serve two purposes: the private purpose, which is to
do justice in particular cases by correcting wrong decisions,
and the public purpose, which is to ensure public confidence
in the administration of justice by making such corrections
and to clarify and develop the law and to set precedents.
3.7.
Immigration and asylum is an extremely complex and difficult
area of law. Decision makers are required to interpret
and apply several pieces of primary legislation, numerous
pieces of delegated legislation, the immigration rules, the
Immigration and Asylum Appeals Procedure Rules, two major
international treaties (the Refugee Convention and the
European Convention on Human Rights), the relevant case-law
of the UK courts and the Immigration Appeal Tribunal, the
European Court of Human Rights, the European Court of Justice
and, increasingly, the domestic courts of other jurisdictions.
Decision makers are required to determine difficult questions
of fact, often on the basis of very limited and fragile
information, about the autobiographies of individual
immigrants and about conditions in the countries from which
they come. In doing so, they are obliged to take into
account every relevant consideration and to disregard every
irrelevant consideration and they are under a particular duty
to give ‘anxious scrutiny’ to cases where
fundamental human rights, including the right to life itself
may be at stake.
3.8.
These are formidable requirements and it is therefore
inevitable that even the most able and conscientious decision
makers will from time to time make a decision that is wrong
in law, particularly when they are also subject to immense
pressure to determine as many appeals as quickly as possible.
The
public purpose
3.9.
Lord Woolf identified the public purpose of appeals to the
Court of Appeal as including the clarification and
development of the law and setting of precedents. For
the reasons given immigration law is immensely complex and
subject to constant change (not least because of the
frequency with which new legislation is introduced). For
that reason, there is a heightened need in this area for the
clarification and development of the law and for the setting
of precedents. Refugee and human rights law is
particularly subject to change and development. The
refugee and human rights Conventions are ‘living
instruments’. They are intended to provide real
and effective protection to individuals falling within their
scope in a world in which change is constant but otherwise
unpredictable. That means that both Conventions have to
be interpreted and reinterpreted in order to determine
whether the UK owes any obligation to protect individuals
fleeing from circumstances to which the law has not
previously had to respond.
Some
examples where the Court of Appeal has carried out this
public purpose
a)
Misunderstanding as to the jurisdiction of the tribunal
The tribunal’s
jurisdiction is defined by the relevant statutory provisions.
How those provisions are interpreted determines what appeals
the tribunal can and cannot hear and what questions it can
and cannot address. Those are absolutely fundamental
questions and the tribunal has on occasion answered them
wrongly.
One example is
the case of Zenovics v SSHD[19].
The tribunal decided that it had no jurisdiction to hear
appeals on human rights grounds where an appellant’s
claim on refugee convention grounds, but not his or her claim
on human rights grounds, had been certified by the Secretary
of State under Schedule 4 to the 1999 Immigration and Asylum
Act. Had that decision been correct, then a substantial
number of appellants who might have been at real risk of
serious harm, albeit not for a reason falling within the
refugee convention, were they to be removed from the UK would
nevertheless have no right of appeal to the Tribunal. The
Court of Appeal overturned the Tribunal’s decision and
held that the Tribunal did have jurisdiction to hear a human
rights appeal where only the asylum, but not the human rights
claim had been certified. This decision is no longer of
practical relevance because the legislative provisions
concerned have been repealed. However, it provides a
clear illustration of (a) the complexity of the kind of
legislative provisions that the tribunal is required to
interpret and apply; (b) the potentially disastrous
consequences for individuals of an erroneous interpretation
of the legislation; (c) the importance of an appeal to the
Court of Appeal in order to clarify the meaning and effect of
the legislation.
b)
Interpreting the Refugee Convention
The Court of
Appeal and the House of Lords have made numerous decisions
interpreting (amongst other things) the Refugee Convention
definition of a refugee. To take but two examples:
In Adan v
SSHD[20]
the Court of Appeal and then the House of Lords were
faced with the question fear of persecution arising in the
context of clan based civil war could satisfy the Convention
definition of a refugee.
In Shah and
Islam v SSHD[21]
the House of Lords very importantly found that women in
Pakistan accused of adultery were entitled to asylum. The
House of Lord’s decision clarified and provided guidance
on one of the most difficult issues in refugee law, i.e. what
is meant by ‘membership of a particular social group’.
It is important to note that in this case, the tribunal
refused leave to appeal in the Islam case (Shah was
a judicial review of the tribunal’s refusal to grant her
leave to appeal).
c)
Errors of approach by the tribunal
It is an
elementary requirement that in reaching its decision the
tribunal is to take account of all relevant evidence. There
are many cases where the Tribunal has failed to do that,
thereby arriving at decisions that, if left uncorrected,
could have potentially disastrous consequences for the
appellant. Again to take but two examples:
In Drrias v
Secretary of State for the Home Department [22] an adjudicator had
found that the appellant was a Coptic Christian from Sudan
and that if returned to Sudan there was a real risk that he
would be detained, physically abused and otherwise persecuted
for reasons of his religion by the Islamist regime. The
Tribunal allowed the Secretary of State’s appeal. The
Tribunal did so because it was completely mistaken as to what
the adjudicator had found about the appellant. The
Tribunal thought that the adjudicator had disbelieved his
evidence. In fact, the adjudicator had believed his
account. The Court of Appeal struck down the tribunal’s
determination without hesitation.
In Demirkaya
v Secretary of State for the Home Department [23] the Tribunal found that the
appellant, a Turkish Kurd suspected by the authorities of
being a separatist had been severely tortured in the past.
On one occasion he had been detained by Gendarmes who sliced
his back with a bayonet so that he was left with 35 scars.
On a number of other occasions he was detained by the police
and severely beaten and tortured, including one time when he
was pushed through a window so that he was cut by the glass
and then hanged upside down out of the window until he lost
consciousness. He was told by the police that he would
be killed and his death would be passed off as a suicide.
The tribunal found, nevertheless, that he could be returned
to Turkey. The Court of Appeal overturned that decision
because the tribunal had failed to identify any reason why he
would not be treated in the future as he had been in the past.
d)
Inconsistent decisions by the Tribunal
Many asylum
seekers flee from similar problems arising in particular
countries. Deciding whether they qualify for asylum
depends in part upon assessing a common body of evidence
about general conditions in those countries (e.g. UN reports,
reports by NGOs such as Amnesty International, expert
evidence and so on). There have been a significant
number of occasions where different Tribunals have reached
opposite and irreconcilable conclusions on claims that have
been factually almost identical, both in terms of the
individual’s particular predicaments and in terms of
what the evidence shows about circumstances in his or her
country.
e)
Procedural unfairness
The Court of
Appeal has also allowed appeals against tribunal decisions
because of procedural unfairness.
In Macharia
v Immigration Appeal Tribunal [24]
the Tribunal heard an appeal by the Secretary of State
against an adjudicator’s decision that the appellant had
well founded fear of being persecuted in Kenya. At the
hearing before the Tribunal the asylum seeker’s
representative was presented by the Secretary of State’s
representative and by the Tribunal itself with fresh evidence
forming a bundle of documents almost 1” thick. She
was allowed only 10 minutes in which to look at the documents
and prepare her response to them. The Court of Appeal
found that that was wholly inadequate time in which to assess
that evidence and allowed the appeal because of procedural
unfairness.
The
statistics
3.10.
During 2002 the tribunal determined 5,565 appeals[25]. During the ‘legal
year’ (October – September) 2000 – 2001 the
Court of Appeal heard only 57 appeals from the Immigration
Appeal Tribunal. During the legal year 2001 – 2002
the Court of Appeal heard only 66 appeals from the
Immigration Appeal Tribunal[26].
In other words, only just over 1% of Immigration Appeal
Tribunal determinations was appealed to the Court of Appeal.
Bearing
in mind the actual numbers of appeals from the tribunal to
the Court of Appeal, it is quite impossible to justify
abolition of the right of appeal to the Court of Appeal in
terms of any need to remove an impediment to speedy
resolution of appeals.
Will
references by the President of the AIT to the Court of Appeal
be an adequate safeguard?
3.11.
In hardly any of the cases mentioned above did the tribunal
itself grant leave to appeal to the Court of Appeal. Each
of these cases was of considerable importance to the
individuals concerned but they also raised complex and
important questions of law of wider significance.
3.12.
The Bill envisages the Court of Appeal being seised of a case
only if the president of the tribunal decides to make a
referral to the Court. The current unwillingness of the
tribunal to grant leave to appeal to the Court of Appeal even
in genuinely important and complex cases provides a strong
indication that such cases will not in future be referred to
the Court of Appeal.
3.13.
No rational or convincing justification has been offered for
denying appellants the right to appeal to the Court of Appeal
and for denying immigrants access to the High Court. As
long ago as 1771 the principle was established that an
African slave was no less entitled to the protection of the
courts than was a British subject: ‘Every person
within the jurisdiction enjoys the equal protection of our
laws. There is no distinction between British nationals
and others. He who is subject to English law is
entitled to its protection’[27].
3.14.
Absent such justification for departure from so fundamental a
principle of English law, Tony Blair’s analysis of an
earlier piece of Immigration legislation applies with even
greater force to this Bill than it did to the Asylum and
Immigration Appeals Bill 1993, of which he said:
We
do not take exception to the detailed provisions of the Bill
alone, but to the ethos and prejudice that underlie it.
We take exception to the assumption that asylum seekers
should be treated as bogus until shown to be genuine…That
prejudice which runs throughout the Bill…is nasty –
worse than that; it is calculated. It is part of a
design to play up this issue not for any interests of the
public or the country, but simply for the interests of the [Labour]
party...hysterical claims were made earlier when isolated
cases of fraud were used to construct an entire argument to
provide that the current system is subject to wide-scale
abuse.
An
attempt has been made to portray anyone who has opposed the
provisions on the ground of natural justice as someone who is
advocating an irresponsible or open-door policy for
immigration. All that has been done in the knowledge
that that those who will be most affected by the bill will be
of a different race or colour. I cannot believe that
that is irrelevant to the way in which the Bill has been
handled. This is a matter which arouses alarm among
some of the population and which is designed to arouse the
most virulent type of nationalism among others. An
attempt has been made to pretend with varying degrees of
crudity that those who seek to enter this country do so from
the worst of motives rather than the worst of circumstances.
Some elements of the debate may have been more elevated than
that, but in several respects we have witnessed a fairly
distasteful exercise-an attempt under the guise of making
necessary regulations to stir up passions and prejudices that
were better left dormant.
It will
not be members of Parliament who suffer once the bill is
enacted: it will be those who are least able to defend
themselves and in the poorest condition to withstand some of
its provisions – those most vulnerable to racial
sentiment. I do not believe that that can possibly help
good race relations in this country. The way in which
the Bill is presented and the sentiment that underlies it do
not merely make it objectionable in its provisions and unjust
and arbitrary in its operation but reflect discredit on the
Government who have introduced it.[28]
4.
AMENDMENT TO SCHEDULE 2:
Page 33, line
16, at end add -
4.1.1.
( ) A member of the Asylum and Immigration
Appeal Tribunal shall be known as an adjudicator.
BRIEFING
4.2.
In the Home Office/DCA letter dated 27 October 2003, the
Government stated at Annex A of the letter that:
'The
new judiciary will generally be titled Immigration Judges or
Senior Immigration Judges, but the precise hierarchy remains
to be determined'.
4.3.
This amendment aims to probe the Government on this issue, so
that we can learn more details of how the AIT would work on a
day-to-day basis. The Bill is very silent about this.
4.4.
It is quite clear that the qualifications for membership of
the AIT are the same as the current qualifications for
adjudicators (see Sched 1 of the Bill). Adjudicators
are not judges. Changing their title will not make them
judges. Giving them additional training will not make
them judges. It would be highly unsatisfactory if even
the title allocated to members of the AIT were to be used for
political purposes. By calling them 'judges', the
Government gives the impression to lay people that AIT
members have equal status as members of the judiciary, which
would imply that the one tier appeal is sufficient because
asylum seekers have judicial hearings before persons of the
same status as litigants in the courts. The title
'immigration judge' appears to be political spin. It is
disappointing that the Government chooses to obfuscate the
issues by its use of language.
4.5.
The Government has not set out in detail who will qualify as
a senior immigration judge. The workload of senior
immigration judges would appear to lie to a significant
extent in the discretion of the President of the AIT (see
Sched 1, new Sched 4, para 8 of the Bill). Yet, the
President’s actions will under clause 10 lie outside the
scrutiny of any court.
4.6.
Moreover, tasks and duties to be performed by senior
immigration judges (as opposed to immigration judges) are not
spelt out in the Bill. These important matters -
serious issues about the division of functions within the AIT
- should be considered by Parliament now and not simply aired
at a time and in a form that suits the Government. This
is not democratic.
19
January 2004
ILPA
Bill Team
Contact Martin
Penrose
020 7490 1553
billteam@ilpa.org.uk