ILPA'S response to request for further
written evidence from Consitutional Affairs Committee for its
inquiry into asylum and immigration appeals
Asylum and Immigration (Treatment of
Claimants, etc) Bill 2003
ILPA's priority in this Bill is
clause 10, a draconian measure aimed against foreigners who
seek to live and work in the UK. Hence, we limit our
written evidence at this stage to this clause.
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]
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.
·
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
·
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.
·
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.
·
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.
·
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. The Home Office is increasingly
appealing against positive Adjudicator decisions. This
surely demonstrates that both parties are of the view that
Adjudicators need to be supervised by a higher court.
·
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.
·
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] and
will 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.
·
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.
·
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 legitimacy and the accountability of the AIT is further
undermined by the removal of the requirement that the
President of the AIT be a High Court Judge. The
Nationality, Immigration and Asylum Act 2002 made it a
requirement that a High Court Judge be appointed by the Lord
Chancellor.[6]
This requirement was introduced into the 2002 Act in the
knowledge that it might be mitigation for the abolition of
Judicial Review of the IAT if a High Court Judge was
presiding over it, so that senior judicial supervision was
maintained over the IAT (‘statutory review’
replaced judicial review in the 2002 Act: section 101 refers).
·
Whilst there continues to be poor quality decision making by
the Home Office at the outset of the process, (a fact
referred to by a wide range of respondents to the DCA) and a
lack of Home Office Presenting Officers to represent at
appeal hearings, it is not safe to have a one tier appeal
process. The burden upon Adjudicators to get the
decision right at the first and only appeal would be
unreasonably onerous. The impact upon the appellant of
an incorrect dismissal of an appeal could be fatal.
The
Government's justification
·
The Government has set out extremely limited reasons for
abolition of the IAT. In the annex to its consultation
letter of 27 October 2003, 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'.
·
However, 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.
Contrast the frequent delays of at least months between a
person claiming asylum in the UK and his/her interview by the
Home Office; between interview and Home Office decision;
between exhaustion of appeal rights and removal from the UK.
We suggest that the second tier of appeal is not a major
cause of delay in the asylum system and its abolition remains
unjustified by the Government. 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.
The proposal for one tier also contradicts the proposals on
two tier appeals made in the Leggatt report.
The statistics
·
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[7]. But
this is not borne out by any analysis of the statistics
published by the government.
·
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. 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?
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.
·
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.
·
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.
·
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.
·
Under current legislation if the Immigration Appeal Tribunal
refuses permission to appeal from an Adjudicator’s
decision, there is no further right of appeal. The
person can apply for statutory review (instead of judicial
review). This entails a paper review only by a High
Court judge of the decision to refuse permission by the
Immigration Appeal Tribunal. It has only been in place
since April 2003 and ILPA considers that this is already a
significantly reduced form of judicial scrutiny as compared
to judicial review, which exists in other areas of law.
·
The proposal calls into question the delicate balance between
legislative supremacy and the fundamental common law right of
access to the courts.
·
Over forty years ago the House of Lords ruled[8] that such clauses cannot ‘oust’
access to the higher courts to challenge a decision where the
jurisdiction of an inferior Tribunal has been exceeded by
breaking the rules of natural justice or applying the
wrong legal test and answering the wrong legal question or by
basing decisions on legally irrelevant considerations. Clause
10 is the most extreme example ever drafted of a ‘modern’
Government’s attempt to curtail the right of access to
the courts. It will result also in the abolition of a
claimant’s right to seek a writ of habeas corpus[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.[10] 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.
·
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 dust has barely settled on the 2002 Act and the
Government is seeking to remove entirely all forms of
judicial safeguard in this area. The Government has not
explained why, having replaced judicial review with a paper
only statutory review for challenging decisions of the
Immigration Appeal Tribunal, it is necessary to curtail these
rights even further.
Some
examples
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
the grounds that they believe 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
Determination, in particular the 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 ie within less than one month. 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”.
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 not finding F credible,
partly because of his account of his journey through Europe
which the Adjudicator did not find credible. An
application for permission to appeal was submitted to the IAT.
This 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 that “the
Secretary of State accepts that it is arguable that the IAT
has erred”.
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.
CLAUSE
10: REMOVAL OF APPEALS TO THE COURT OF APPEAL
·
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.
·
Existing rights of appeal
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[11].
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[12]. 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’[13].
·
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’[14]. 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’[15] so that appeals to
the Court of Appeal would still be necessary.
·
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.
·
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.
·
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.
·
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
·
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 are
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
of cases where the Court of Appeal has carried out this
public purpose will be set out below.
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 they have on occasion been answered wrongly by
the tribunal.
One example
is the case of Zenovics v SSHD[16]. 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.
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[17] the Court of Appeal and
then the House of Lords were faced with the question whether
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[18] 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).
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 which, 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 [19]
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 his
evidence had been disbelieved by the adjudicator. 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 [20]
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.
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.
Procedural
unfairness
The Court of
Appeal has also allowed appeals against tribunal decisions
because of procedural unfairness. In Macharia v
Immigration Appeal Tribunal [21] 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
During 2002
the tribunal determined 5,565 appeals[22]. 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[23].
In other words, only just over 1% of Immigration Appeal
Tribunal determinations were 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?
·
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 were of considerable importance to the
individuals concerned but they also raised complex and
important questions of law of wider significance.
·
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.
6
January 2004