Asylum and Immigration (Treatment of
Claimants, etc.) Bill
Clause 11
An end to the Rule of Law?
ILPA briefing for Report Stage
ILPA
Bill Team
Contact Martin
Penrose
020 7490 1553
billteam@ilpa.org.uk
An
End to the Rule of Law?
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.’[i]
Under the
Asylum and Immigration Bill this will end. ILPA’s
main concern with the Bill is the removal of higher court
supervision of all immigration appeals and linked Home Office
action (clause 11). Our other concerns,
including new criminal sanctions that endanger human rights,
are set out in separate briefings. Clause 11 will
upset the constitutional checks and balances on government
power. It is undemocratic and sets a dangerous
precedent of restricting the fundamental legal rights of an
unpopular minority.
An
end to court oversight
Clause 11 is
subtitled the “unification of the appeal system”.
It creates a single tier Tribunal called the AIT to hear all
immigration appeal cases. Much more significant is the
ousting of all supervision of both the AIT and
the Home Office by the higher courts in such cases. This
will mean that there will be:
·
no rights of appeal from the AIT to the Court
of Appeal or the House of Lords;
·
no judicial review by the High
Court of the AIT; and
·
no legal challenges to Home Office acts
connected with subsequent deportation. This could
include acts of detention, the timing and nature or removal.
There is
specifically NO right of challenge a decision or act that is
outside the law. This breaches the fundamental constitutional
principle of the Rule of Law.
These provisions are an unprecedented
and unconstitutional assault on the immigration system.
Proper judicial oversight is vital in this complex area of
human rights law. It is a cornerstone of our democracy.
The courts
currently recognise asylum decisions as requiring “most
anxious scrutiny” because of the grave nature of the
human rights at stake. The government is turning this
on its head. The abolition of constitutional legal
safeguards will undoubtedly lead to miscarriages of justice.
Britain will be sending refugees abroad to torture and death.
Mistakes can
currently be rectified by judicial review. As a High
Court judge said in such a case recently: “If the
possibility of judicial review had not existed the claimants
would wrongly have been returned to the Ivory Coast.”[ii]
Clause 11
affects all those subject to immigration control. Husbands,
wives, sons and daughters from all ethnic groups in the UK
will be barred from challenging the new Tribunal’s
decisions. Fixated on asylum, the Government seems
impervious to the inevitable adverse effect on race relations.
The
Government’s case
The
proposals came under sustained attack in standing committee
on 20th January. The Minister floundered
trying to defend the indefensible.
The minister
said the proposals were necessary to counter abuse and delay
in the appeals system. This problem is overstated in
our view. The refugee council estimate that in 2001 51%
of asylum seekers were successful either at the different
stages of appeal or where the Home Office withdrew their
refusal decision. [iii]
It is easy but wrong to think of all cases that fail
as abusive. The President of the soon to be abolished
Immigration Appeal Tribunal, Sir Duncan Ousely, recently
suggested that none of the cases that got beyond the
existing first (Adjudicator) tier of appeal should be
considered abusive. [iv]
Nor can the Tribunal itself spot all these cases. When
their filtering decisions – refusals of permission to
appeal - are challenged by statutory review, 17% are being
overturned by the High Court.[v] The current safeguards are vital to
protect cases with merit.
Delays in the
system have been due much more to Home Office bureaucracy
than to appeals. All avenues of appeal are already
subject to strict timetables. In 2003 a new restricted
and speedy form of judicial review –statutory review
- was introduced. The government suggests there are too
many opportunities to challenge at every stage – but
with abusive cases filtered out, what are the courts for if
not checking questions of fundamental human rights?
Weak cases can
be effectively targeted by existing measures addressing the
merits of individual cases – such as improved decisions
on legal aid funding, or the targeted use of costs penalties
or certificates curtailing appeal rights. The
government legislated radically in these areas in 2002, and
is in the process of severely tightening controls on legal
aid. We need time for such changes to bed down, not new
experimentation with basic constitutional safeguards.
The government
argues that the changes are proportionate as in only a small
percentage of asylum cases is the first appeal outcome
changed by further appeal. They have sought to rely on
inconsistent sets of statistics from internal DCA data.[vi] In fact the available
appeal statistics are unreliable, as they do not track cases
over time. Most importantly, the government’s
percentages show the changes would impact on thousands
of asylum appeals a year[vii]
– not to mention non-asylum immigration cases. Even
if it were only hundreds as the minister has suggested –
is this really an acceptable level of miscarriage of justice
to sacrifice in the name of expediency? What area of
justice is next for such treatment?
The government
says the new AIT will provide adequate legal safeguards
because it will supervise itself. This is muddled and
dangerous thinking:
·
The new single tier Tribunal model is untested and wholly at
odds with the recommendations of the 2001 Leggat report into
the Tribunal system.
·
The opportunity to apply to the AIT itself for a limited review
of its own decision offends the basic principle of
natural justice that ‘no one should be a judge in their
own cause’. This is a rotten foundation on which
to build a new legal institution.
·
The internal review occurs only once and is limited to
written grounds raised. Only exceptionally can there be oral
argument or evidence at the review. This clearly
inhibits justice. It will prevent review of important
issues that may have arisen late or have been overlooked. It
is of particular concern when many appellants are poorly
represented – a problem likely to be exacerbated by new
restrictions in legal aid.
·
The ability of the Tribunal to seek an opinion from the Court
of Appeal is clearly inadequate. It prevents the courts
from intervening in cases where the Tribunal is blind to its
own error.
·
The new Tribunal President will have unprecedented and
unchecked power to supervise his own law making.
In the new
AIT speed is valued over justice and over getting the result
right.
Who
agrees with us?
·
The Joint Committee on Human Rights: “The
Committee considers that it could be strongly argued that
there is a real danger that the ouster of judicial review of
tribunal decisions contemplated by clause 11 would violate
the rule of law and that the differences of legal authority
and seniority between the proposed Tribunal on the one hand
and the Court of Appeal and the House of Lords on the other
make it inappropriate to allow self-review by the Tribunal to
be the only way of correcting errors which affect Convention
rights or rights under the Refugee Convention.[viii]
·
The Home Affairs Committee: “the real flaws in
the system appear to be at the stage of initial decision
making, not that of appeal..” It recommended that
the appeals proposals “should not be brought into force
until the statistics show a clear reduction in the number of
successful appeals at first tier adjudicator level.”[ix]
·
The Council on Tribunals: “It is of the
highest constitutional importance that the lawfulness of
decisions of public authorities should be capable of being
tested in the courts. … In the Council’s
view it is entirely wrong that decisions of tribunals should
be immune from further legal challenge."[x]
·
Sir Andrew Collins – High Court judge and former
Tribunal President: “And do not forget that this
jurisdiction can be life and death. It is all very well
to talk about the problems of asylum and flooding in with
bogus cases but the fact is there are some genuine ones and,
if you make a mista1ke, you can be costing someone his life.”[xi]
·
Professor Vernon Bogdanor of Oxford University: “The
clause….is not to be condemned merely because it will
promote inefficiency. It is a constitutional outrage, and
almost unprecedented in peacetime.”[xii]
·
Wade on Administrative Law - the leading
constitutional law text: “Judicial review is a
constitutional fundamental which even the Sovereign
Parliament cannot abolish.”
·
Claire Curtis-Thomas MP – We will return after a
year or so…. but we will not have served those people [asylum
appellants] well…They will have been denied justice by
an ineffective and inefficient system that needs to be
revised.” [xiii]
·
Edward Garnier MP – “This is a an
unnecessary disproportionate and wholly irregular attack on
the rights of the citizens and non citizens who bring
themselves within the jurisdiction of our courts.”[xiv]
·
Annabelle Ewing MP – “The clause places the
tribunal above the law…our founding constitutional
principles should not be used as a plaything of the
Government”[xv]
·
Humphrey Malins MP – “ [Clause 11] has been
described by one senior judge as a clause that would “no
doubt appeal to Mr Mugabe”.”[xvi]
What
about Tony Blair?
“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..… a right of appeal is
a valuable and necessary constraint on those who exercise
original jurisdiction.” So said Tony Blair in 1992
attacking proposals to limit immigration appeals. [xvii]
We agree.
Clause 11 is novel, bizarre and misguided. It is also
unconstitutional and fundamentally undemocratic. It
institutionalises second-class legal treatment of immigration
issues. It sets a dangerous precedent.
Please
support amendments to delete the restriction of access to the
courts when the Bill comes to report.
Some
examples showing the importance of court supervision in
asylum appeal cases.
Case of A
- A is an Iranian who feared persecution due to her
activities for a Kurdish party. As a child she was
imprisoned in an Iranian prison with her mother who suffered
injuries that are still visible today. Her mother had
subsequently been recognised as a refugee. In
dismissing A’s appeal an Adjudicator found her not to be
credible. The Tribunal refused to fully consider
further appeal, finding that the conclusions of the
adjudicator were fully supported by the evidence and finding
no arguable legal error. When this was challenged on
judicial review, the High Court accepted there was an
arguable case, and the matter was returned to the Tribunal.
They then considered the matter fully on the papers and
suggested that the adjudicator had been wrong in all
conclusions on credibility. As a result the Secretary
of State granted leave to remain.
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 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.
Case of M - M is a Tamil from
Sri Lanka. He claimed to have been tortured while in
detention there. An Adjudicator rejected this claim and
the Tribunal refused leave to appeal. The
Administrative Court overturned the Tribunal decision despite
reliance by the Home Office 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 Tribunal, fresh
medical evidence showed huge and extensive scarring which
should not have been missed. The Tribunal allowed the
appeal.
Case of K - K is from the
Ivory Coast, where she was detained for supporting an
opposition political party. Her asylum claim in the UK
was refused after 5 months. Her first appeal was heard
5 months later. At her appeal her story was only
partially believed by the Adjudicator and the case was
dismissed. Five months later fresh evidence was
submitted to the Home Office. The Home Office ignored
the new material, and a month later detained her, and a
daughter born while her claim was being considered, and set
directions for removal. Judicial review was initiated
to prevent removal until the Home Office had properly
considered the fresh evidence and developments that included
the eruption of civil war in Ivory Coast. Her
detention, with her 1-year-old daughter, was maintained for a
period of over 6 months before bail was granted. Thirteen
months after fresh evidence had first been presented, the
Home Office finally agreed to allow a fresh asylum appeal to
an adjudicator on the new evidence. K won this appeal.
The High Court later held that all but one week of the family’s
detention had been unlawful and she should be awarded damages.
The judge suggested this was a cautionary tale showing that
decisions of the Home Office and Adjudicators can be wrong
and the need for judicial assessment.
February 2004
[i] Lord Scarman in R v Home Secretary
Ex parte Khawaja [1984] AC 74
[ii] R(Konan) and SSHD 21 January 2004
[iii] Refugee council statistics 2002: http://www.refugeecouncil.org.uk/infocentre/stats/stats004.htm
[iv] Evidence to Constitutional Affairs
Committee 20 January 2004
[v] Evidence of Sir Andrew Collins to
Constitutional Affairs committee 4th February 2004.
[vi] Figures given in committee on 20.1.04
differ from those given to the Home Affairs Committee by
Beverly Hughes on 8.12.03.
[vii] In the 12 months to 1 Oct 2003 there
were approx 78000 asylum appeals. 3.6 % of this is 2,800.
[viii] HC304 published 10.2.04.
[ix] HC109 published 16.12.03
[x] In written submission to the
Constitutional Affairs Committee
[xi] Evidence to the Constitutional Affairs
Committee, 3rd February 2004.
[xii] Times 9th January 2004
[xiii] Debate in Standing Committee, 20
January 2003 Hansard col 237
[xiv] Debate in Standing Committee, 20
January 2003 Hansard col 279
[xv] Debate in Standing Committee, 20
January 2003 Hansard col 276
[xvi] Debate in Standing Committee, 20
January 2003 Hansard col 230
[xvii] Tony Blair, House of Commons, 2nd
November 1992.