Consultation on the Use of experts
Sue Wilson-Fraser
Contract Design
Legal Services Commission
85 Gray’s Inn Road
London WC1X 8TX
DX 450 LONDON
Initially by fax to
0207 759 0547
25 February 2005
Dear Madam
Consultation on the Use of
Experts
I write in response to this consultation on behalf of the
Immigration Law Practitioners’ Association.
Much of the consultation paper deals with matters outside
ILPA’s remit, and we note that it is planned to publish a separate consultation
on immigration cases. It would
therefore be inappropriate for us to seek to respond to most of the specific
questions raised in this paper. There
are, however, some comments which we wish to contribute at this stage.
1.
Nothing would please our members more than to be able to tap
into a pool of quality assured experts.
ILPA therefore has no quarrel in principle with the development of a
system of accreditation, provided it is flexibly operated so as to extend, not
limit, practitioners’ choice. We
certainly agree with the Commission’s view that, even in the long term,
compulsory accreditation is not practicable (consultation question 4.6).
2.
Over the years ILPA has sought to facilitate the selection of
appropriate country experts through the publication of our Directory of
Experts, recently re-launched in electronic form in conjunction with the
Electronic Immigration Network. The
importance of high quality expert evidence to quality decision making in the
immigration field is demonstrated by reactions to the initiative, which have
included the following:
Professor Stephen
Castles, Chair of the Home Office’s statutory Advisory Panel on Country
Information said he "very much welcomed the initiative";
Crispin
Passmore, Head of Immigration Services at the LSC, said that he hoped that the
"register of experts develops to become the core of asylum experts
used";
UNHCR said:
"We have
noticed here in the United Kingdom that the use of expert evidence has become
an increasingly important variable in the refugee status determination process.
As such, your efforts aimed at ensuring that practitioners and decision makers
- therefore indirectly asylum seekers - have access to a high level of
expertise is something that UNHCR would like to welcome - with open arms.
3.
Much in the current consultation paper seems to be predicated
on an assumption of the availability of choice from an ample supply of
experts. This is alien to our members’
experience. Immigration practitioners
more commonly face a dearth of experts on country conditions who are able to
address the issues in particular cases with sufficient authority. This is especially so in view of the
volatility of conditions in most refugee-producing countries, the need for the
most up to date information in asylum cases, and the frequent need for narrow
focus on specific regions, ethnic groups, political organisations, legal
provisions or social attitudes and customs.
Even where the relevant expertise exists, many academics and
professional commentators are not eager to take on the role of court expert in
immigration cases, but need to be cajoled into doing so, while those who are
willing may be overwhelmed by the demand.
It is not a buyer’s market. The
LSC must bear all these factors in mind in formulating any guidelines for the
selection and remuneration of such experts.
4.
Immigration practitioners also have frequent need to instruct
medical experts, particularly in the fields of scar identification, psychiatric
injury and psychological assessment.
Our members commonly encounter difficulties, not least because of the
practical difficulties imposed by tight Home Office and appellate authority
timetables, the NASS dispersal of so many of our clients and the detention of
others. The doctor, psychiatrist or
psychologist willing to offer the quickest appointment and report is not
necessarily the best or most appropriate expert. Access to a pool of quality assured experts in these fields,
especially if nationwide, would be beneficial, but we are concerned at the low
levels of remuneration contemplated for such experts in Annex F to the
consultation paper. The best
psychiatric experts tend not to be those who rely on churning out asylum
reports for a living, but to be those who have thriving practices and other
pressing professional commitments and who therefore require adequate
compensation for making time to accept instructions as experts in immigration
cases.
5.
Our members also frequently have specialised needs for experts
in cases involving children, not only the unaccompanied but also sometimes in
families. Paediatric age assessments,
child and educational psychologists’ reports and independent social work
assessments, in addition to country of origin reports, may be needed. It is imperative that whatever arrangements
are devised for the funding of experts in immigration cases be sufficiently
generous and flexible to meet the special needs of these cases.
6.
Another consideration is that it is often most appropriate to
instruct the treating clinician to prepare an expert report in immigration
cases, perhaps more so than in other areas of legal practice. Indeed the Immigration Appellate Authority
has indicated that it is apt to attach more weight to psychiatric and
psychological evidence from a treating professional than from one who has
examined the appellant solely for the purposes of a report. This is an additional argument not only against
a compulsory accreditation scheme, but also against a rigid or too parsimonious
fees regime.
7.
For all the reasons indicated above the notion floated in
paragraph 9.25 of the consultation paper of specifying fees “on a block basis”
in immigration cases for country of origin and medical reports may be
impractical, in part because we doubt the existence of sufficient numbers of
high enough quality experts willing to be treated in this way. The proposal may also be inimical to good
practice. Immigration practitioners
should not be encouraged to commission similar reports on a regular basis as
suggested in paragraph 9.25, but should be instructing their experts to address
very case specific questions within the context of the country or medical
background. The Immigration Appeal
Tribunal itself has emphasised that expert evidence is far more worthwhile if
it is properly focussed on the facts of the individual case than if it is
largely 'generic'. For example, in
country of origin reports we do not need our experts simply to generate word
processed general accounts of a country’s history or human rights record, but
also to answer questions arising from the client’s personal history and
circumstances. In some cases this will
involve time spent in special research on, for example, the outcome of local
elections at a particular date, the structure of a particular minority
political organisation, the foreign relations between a government and its
neighbours at a particular time, the incidence of the implementation of certain
provisions of a penal code, and so on.
Any expert worth instructing should be accorded the professional dignity
of fair payment for additional time spent on a complex case or arcane point.
8.
I now turn to the question of interpreting. This is indeed an expert service in which
quality is of the highest importance, but whereas other experts are usually
commissioned on a strictly occasional basis, many of our members have developed
continuing working relationships with a small pool of trusted individual
interpreters in the languages of their main client groups, including localised
dialects and tribal languages. Such
interpreters may not be registered, but may nevertheless be highly experienced
and skilled. They are resources that
should not be lost. We welcome the fact
that the consultation seems to contemplate a system flexible enough to
accommodate them. The indication in
Annex F that the registered may be paid at a slightly higher rate than the
unregistered interpreter seems to us fair enough, provided the distinction does
not become too great.
9.
Finally I take the opportunity to remind the LSC that as yet
it has not responded to a paper on the use of experts and interpreters which
ILPA prepared and submitted, at the LSC's request, following a meeting in late
2003. I enclose another copy now. It addresses questions which were raised by
the LSC at that time.
We look forward to commenting on the consultation paper on
the use of experts in immigration cases once it is available, and hope that
this contribution, and our enclosed 2003 paper, may have some influence on its
contents.
Yours faithfully
Rick Scannell
Chair
encl