The Government is grateful to the Constitutional Affairs Select Committee for its report. Asylum and immigration is a high priority for the Government, as shown by the work through the current proposed legislation to create a new fast, fair and effective system of appeals.
The Government regrets the time that has elapsed between the publication of the Committee's original report and this response. As the Committee will know, the original policy for the reform of asylum and immigration appeals in the Asylum and Immigration (Treatment of Claimants, etc.) Bill has been substantially remodelled in response to the representations from a number of interested parties, including the Committee itself. Given that this remodelling answers many of the Committee's recommendations, it was thought more useful to delay this response until the Bill had been amended to reflect the new policy.
The Government's intention in bringing forward the single tier was to reduce delay and abuse in the system.
However, the system also needs to ensure that we have proper and appropriate judicial oversight of the system. The Government considered carefully the many representations made by the members of both Houses, the senior judiciary and asylum and immigration stakeholders, as well as the reports of both the Constitutional Affairs Select Committee and the Joint Committee on Human Rights. In the light of these representations, the Government concluded that it had not yet quite struck the right balance, and presented the amendments that now form part of the Bill.
The details of the new policy, as contained in the amended Bill, are described below. Any references to English courts below have equivalents specified in the Bill for Scotland and Northern Ireland.
An immigration judge will hear the case in the single-tier Tribunal and make their determination. On receipt of a determination of the Tribunal, parties will be able to request a review by a judge of the High Court. This review will be on the papers only. The judge would have three options:
For a transitional period, review applications will be considered in the first instance by senior immigration judges in the Tribunal on behalf of the High Court. If the senior immigration judge does not make an order for the case to be reconsidered in the Tribunal, the applicant can opt in to have the application looked at again by a High Court judge. The purpose of this transitional filter mechanism is to meet concerns about the potential volume of cases reaching the High Court.
The ground for review is to be "error of law". This term is sufficient, without further attempts at statutory definition, to cover all the grounds that might otherwise form the basis of an application for judicial review of the Tribunal's decision on the appeal.
The Tribunal would be able to hold a new hearing and that reconsideration would be subject to a right of appeal, with permission, to the Court of Appeal.
Cases that are identified as particularly important at the first Tribunal hearing and considered by a panel of members will attract a right of appeal with permission to the Court of Appeal.
New section 103D introduces new arrangements for legal aid funding for reviews and reconsiderations of Tribunal decisions. Instead of the Legal Services Commission taking the funding decision, we will provide the judiciary with the power to order that legal aid is paid in these proceedings.
The arrangements will be set out in regulations that will be subject to affirmative resolution. The regulations will be the subject of consultation. The intention is that a judge would order legal aid to be paid where applicants have been successful in reversing the earlier appeal decision, and in cases that can be characterised as "near misses". It is also intended that a High Court judge would be able to order legal aid to be paid in exceptional circumstances. In cases where the Home Office challenges the appeal decision, the applicant shall receive funding as usual.
Below are specific responses to some of the Committee's recommendations. We have not responded to recommendations 3 to 12 inclusive, as these pertain to the proposals in the Asylum and Immigration (Treatment of Claimants, etc.) Bill that have now been substantially amended.
The Committee's criticisms about the quality of initial decision-making echo those made by the Home Affairs Select Committee in its report into the Asylum and Immigration (Treatment of Claimants, etc.) Bill. However, the Government does not accept that the quality of decision-making is poor and it was pleased to note that some of those who gave evidence recognised the improvements in recent years in the standard of initial decisions by asylum caseworkers. These improvements have been made possible by setting a specific target for decision quality, introducing quality assurance systems involving both internal and external assessment, enhanced initial and refresher training and use of language testing. We will be publishing performance data in due course in relation to decision quality but the early indications are that the target is being met and that quality continues to improve.
However, we are not complacent and we recognise that we need to build on the progress that has been made to ensure that the highest standards are consistently achieved. We have drawn up a comprehensive action plan to drive up quality still further and we also recognise the need to strengthen the confidence that external stakeholders have in the initial decision-making process. That is why detailed discussions with UNHCR are underway to explore how they might work with us to provide additional external assessment of the quality of decisions.
Much of the criticism of initial decision-making is based on the premise that there is a simple and direct correlation between the outcome of an appeal and the quality of the initial decision. The Government does not accept that the number of successful appeals provides a reliable measure of initial decision quality. A number of other factors can and do affect the outcome of an appeal. For example, information may have been put before the adjudicator that was not made available at the initial decision-making stage or the circumstances of the applicant may have changed. Alternatively, the country conditions may have changed or evolving case law may require the adjudicator to view the case in a different light. These and many other factors may have a decisive effect on the outcome of the appeal.
The Government's view is that it is the duty of all those involved in the asylum process - applicant and representative as well as initial decision-maker and adjudicator - to strive for a just and speedy outcome. It is essential that we continue to address the abuse of the asylum process by those who are economic migrants but claim to be persecuted. We want initial decision-makers to be able to focus on the genuine asylum cases and integrate people deserving of the UK's protection quickly into the community.
We believe that an adversarial system is still the best approach for asylum and immigration appeals as a full inquisitorial system would require the judge to play a major role in the proceedings. However, we agree that the judiciary should be able to be more interventionist, if not inquisitorial, at hearings where necessary - for example, where a party is unrepresented. The Bill states that the Lord Chancellor shall aim to ensure in Rules that proceedings before the Tribunal are handled as fairly, quickly and efficiently as possible, and that responsibility for ensuring this is conferred on members of the Tribunal. Guidance for the Judiciary is already in existence (the Surendran guidelines) and we will look at whether anything further is required in the procedure rules in order to ensure that the aims are met.
Between April 2002 and April 2004 the Home Office increased the number of operational Presenting Officers from 207 to 288 and has introduced more regular recruitment campaigns. Levels of representation are expected to rise in early 2004 as new recruits from the latest campaign take up their posts and complete training.
The extension of non-suspensive appeals to clearly unfounded asylum and human rights claims has been a success. We are satisfied that the very low numbers of applications for judicial review (the effective remedy prior to removal) and the subsequent low number of appeals from overseas of which just 2 have been successful out of approximately 250, shows that we were right to target these cases. There are processes in place to ensure that our decisions are properly taken and are fair, including decisions being subject to review by a senior officer.
The role of the Independent Monitor of Certification of Claims as Unfounded under section 94 of the Nationality, Immigration and Asylum Act 2002 is to monitor the operation and use of the power to certify an asylum claim or human rights claim (or both) as unfounded, and in particular to consider the application of the procedure defined in section 94 and the quality and effectiveness of decisions made under this procedure. The consideration of whether countries are suitable for addition to the list of countries designated under section 94 is not within the terms of appointment of the Monitor, and as such it would not be appropriate for us to implement this recommendation. Any decision to add a country to the list will only be taken after very careful consideration and subject to parliamentary approval. The Advisory Panel on Country Information (APCI) will be consulted in respect of any countries we might seek to add to the list and we would take account of their comments regarding the country information on which we were basing our decision.
In November 2003 the Government announced a package of measures to curb expenditure on legal aid for asylum seekers. One of the measures was the introduction of a financial threshold of five hours work for the initial decision making process in asylum cases. This threshold can be exceeded only with the permission of the Legal Services Commission. The five-hour threshold for the initial stage has applied to all suppliers in England and Wales since 1 May 2004 (following a transitional period). The threshold applies to all work whether done on new or old cases started after introduction. This limit is a key part of the measures to bring asylum legal aid under effective control and cut out unnecessary expenditure. Costs will be limited, and targeted at the most deserving cases. At this stage there are no plans to introduce any further restrictions on the availability of legal aid for the initial decision making process. However, the role of legal aid and of publicly funded practitioners in this stage of the process will be kept under review and any proposals for change will be announced in due course.
Following consultation there was widespread support for the introduction of accreditation of lawyers and other caseworkers to ensure quality representation in asylum cases. The scheme of accreditation that has been introduced involves direct testing of each individual to ensure they have appropriate knowledge and experience of the relevant law and procedure. Applicants undergo practical assessments, for example conducting mock interviews and drafting statements, and are required to submit a portfolio of their work for discussion at interview. The standards to be achieved have been determined by the Legal Services Commission, following consultation with the Law Society and the OISC. The assessment of individuals is carried out by external independent bodies appointed and monitored by the Law Society. Accreditation was introduced in April 2004 and will become compulsory by April 2005.
Other steps have also been taken to improve the quality of suppliers. For example, firms awarded contracts are subject to new contract arrangements restricting the amount of work that can be done without authority from the Legal Service Commission and poor quality firms will not have their contracts renewed. In centres where IND operates fast track processes, publicly funded work will be restricted to firms with a special contract. This will prevent touting and poaching of clients at these centres and will reduce duplication of casework.
The measures in clauses 23 to 27 of the Asylum Bill will improve the effectiveness of the regulatory scheme administered by the Immigration Services Commissioner, especially his ability to deal with rogue advisers. These measures include provision to tighten the requirements for advisers wishing to be qualified under the regulatory scheme; new powers of entry, search and seizure for the Commissioner when investigating the illegal provision of immigration advice; and a statutory duty on the designated professional bodies to comply with a request of the Commissioner for information.
The review of refusal decisions by the Entry Clearance Manager (ECM) is an important part of the management control of the Entry Clearance system. As the Committee correctly records one benefit is that reviews can avoid unnecessary appeals. Full guidance is contained within the manual of Best Practice issued by UKvisas. This is reinforced in the training that all ECMs receive.
Family visitor appeals are lodged with the Entry Clearance Officer (ECO) at the relevant UK Mission site and forwarded direct to the IAA. All other overseas appeals are lodged with the ECO and forwarded to IND. The flow of appeals between IND and the IAA is jointly managed. Asylum appeals have been prioritised in accordance with Government policy; this has caused delays in the forwarding of immigration appeals to the IAA. However, the focus on asylum appeals has resulted in a reduction in applications which has allowed a greater number of immigration appeals to be forwarded to the IAA each month.
In future, the appeals system will be further improved by the measures in the Asylum and Immigration (Treatment of Claimants, etc.) Bill. DCA, IND and Foreign and Commonwealth Office have agreed in principle that it would be sensible for appeals to be lodged by the appellant direct on the Tribunal in the new system. These measures will significantly speed up the system for all appellants.
We recognise the issues highlighted by the Select Committee in this section of its report. The Home Office, UKvisas and the IAA have, therefore, been working to ensure that it is possible to track cases throughout the process from initial application to final determination. The necessary changes in processes and systems have been made to ensure that key reference numbers are searchable in the process. This solution will be kept under continuous review to ensure that the problems highlighted in the report do not occur. A longer term solution towards the development of a single reference number is likely to be an expensive and complex exercise. Therefore, we are considering in more depth what the options might be for such a single reference number, particularly as part of the development of other initiatives such as the e-Borders programme.
The success rate at the adjudicator tier for oral appeals (challenging the refusal to issue a visa to visit a family member in the UK) for the financial year 2003/04 was 58%. This compares to a success rate of 38% for appeals determined on the papers. For the same period, 51% of appeals were determined on the papers.
The appellant indicates on the notice of appeal whether or not he wishes there to be an oral hearing. The main difference between an oral and a paper appeal is that at an oral hearing the appellant is represented by a family member in the UK or by a legal representative.
Adjudicators will decide an appeal on the basis of the evidence before them. This may not be exactly the same as the evidence originally before the ECO, although the adjudicator is restricted to considering the position at the time of the ECO's decision. For example, the sponsor can place the motivations for the visit in context. They may also voluntarily assume responsibility for ensuring the return of the applicant at the completion of their visit, although this can not be enforced, and it is the intentions of the applicant, not the sponsor, which are paramount. This can provide the adjudicator with a greater understanding of the situation than is often achieved through written submissions. The ECO rarely sees the sponsor, while the Adjudicator never sees the appellant in visit visa cases.
The current system has proved to be efficient and has allowed officials at the Immigration Appellate Authorities to work together with the Immigration and Nationality Directorate in managing the flow of appeals. However, the Government recognises that there are concerns that the appeal should not be lodged with one party to the appeal and, in developing the proposals for a single tier Tribunal, we are reconsidering the procedure. In principle, we agree that it would seem sensible that the notice of appeal should be lodged directly with the Tribunal when the new system is brought into effect. This would be a matter for procedure rules, which will be subject to consultation.