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Comment :
Asylum Support Tribunal:
support for justice, justice for support

Richard Dunstan, Social Policy Officer at Citizen's Advice, argues that it is time to make the Asylum Support Tribunal a genuinely fair as well as efficient tribunal.

This article appears in the June 2007 edition of 'Evidence' – the newsletter of the Citizens Advice Bureau.

"Legal aid is vital in ensuring that there is legal assistance available to those who cannot afford it". So said the then Lord Chancellor and Secretary of State for Justice, Lord Falconer of Thoroton, in April 2007 – and few would disagree with him.[1] Yet there is still no legal aid for one group of people who cannot afford food to eat, let alone the specialist legal assistance they need to obtain the accommodation and welfare support to which they are legally entitled: destitute asylum seekers and failed asylum seekers who have been wrongly denied such support by the error-prone Home Office.

Where the Home Office decides to refuse or terminate asylum support (including so-called section 4 support for qualifying failed asylum seekers, namely those unable to leave the UK for temporary reasons beyond their control), there is in most cases a right of appeal to the Asylum Support Tribunal (AST). And, since its establishment in 2000, the AST (originally known as the Asylum Support Adjudicators) has in many ways proven itself to be a model tribunal.

However, whilst asylum seekers (and failed asylum seekers) are dispersed throughout the country, including in Scotland, the AST has only one hearing centre – in Croydon, south west London. So many appellants, faced with having to travel considerable distances to attend an appeal hearing, elect to have their appeal determined by the AST on the papers only, without an opportunity to present their case in person (or, better still, have it presented on their behalf by a knowledgeable and skilled advocate). Only 24 per cent of the 62 paper-only appeals determined by the AST in the four-month period January to April 2007 were allowed or remitted to the Home Office for a fresh decision.

Furthermore, as there is no legal aid in this area of law, those who elect for an oral hearing before the AST are in any case most unlikely to get a solicitor or barrister to represent them at the hearing. And, whilst unrepresented appellants are unlikely to have any significant knowledge of Home Office policy and the increasingly complex relevant case law, the Home Office is almost always represented at the appeal hearing by a Presenting Officer specialising in asylum support law.

Of the 223 appeals determined by the AST at an oral hearing in the four-month period January to April 2007, for example, a specialist Presenting Officer attended to present the Home Office case in all but four cases, whereas only seven of the 223 appellants were legally represented at the hearing by a solicitor or barrister.[2] In short, the vast majority of oral appellants who attend the hearing alone and unrepresented, or do not attend at all, are on a vastly unequal footing with the unfeeling, bureaucratic body who's decision they are attempting to overturn.[3]

Yet, as in so many other areas of law, and despite the impressive credentials and apparent empathy of the AST judges, there is convincing evidence that legal representation at an oral hearing before the AST substantially increases the chances of success. Since its launch in June 2005, the Asylum Support Appeals Project (ASAP), a small independent legal charity, has run a duty scheme providing free legal representation to otherwise unrepresented AST appellants on two days per week (Mondays and Thursdays).[4] And in 60 per cent of the cases in which ASAP has provided representation since June 2005, the appeal was allowed or remitted to the Home Office for a fresh decision by the AST. This 'success rate' is double that among unrepresented oral appellants.

Of the 223 oral appeals determined by the AST in the period January to April 2007, for example, the ASAP provided representation in 29 appeals, of which 11 were allowed and five were remitted. Representation was provided at the hearing by a solicitor or barrister in a further seven appeals, of which three were allowed and two remitted. So, overall, the 'success rate' for legally represented oral appellants was 58 per cent. In contrast, of the 187 oral appeals where the appellant was not legally represented at the hearing, only 32 were allowed and a further 22 remitted – a 'success rate' of just 29 per cent, little better than that for paper-only appeals.

The injustice of this inequality of arms has been acknowledged by the Asylum Support Tribunal itself, which in its annual reports has consistently expressed its concern about "the lack of [legal] representation available to appellants at asylum support appeals". And, in a report published in March this year, the Joint Committee on Human Rights – a joint select committee of MPs and members of the House of Lords – concluded that "the absence of [legal aid] for representation before the Asylum Support [Tribunal] may lead to a breach of an asylum seeker's right to a fair hearing, particularly where the appellant speaks no English, has recently arrived in the UK, lives far from Croydon and/or has physical or mental health needs".[5]

And such injustice matters. For, as the Asylum Support Appeals Project has noted, "the human cost of poor [Home Office] decision-making is great. Every time [the Home Office] makes a mistake it risks forcing someone who is actually entitled to support into destitution and exposing them to the associated dangers of living on the streets".[6] A genuinely fair appeals mechanism is therefore essential to avoiding such destitution, the risk to the well-being of the men, women and children concerned, and the associated detriment to social cohesion and public policy more generally. And for the appeals mechanism to be genuinely fair requires that all appellants have timely access to specialist legal advice and representation.

In June 2006, in our report Shaming destitution, Citizens Advice called for legal aid to be extended to cover advice and representation in all appeals to the AST. And in March 2007, noting that, where an appeal to the AST fails for want of adequate legal representation, the resulting destitution "may be a violation of Article 3 of the European Convention on Human Rights", the Joint Committee on Human Rights similarly called upon the Government to "make legal aid funding available for representation before the AST".

It would not cost the Government a great deal to respond positively to this call. The number of appeals to the AST is relatively small – currently, fewer than 2,000 appeals per year, of which many do not proceed as far as a hearing – and may well decrease further as the quality of Home Office decision-making and management of cases improves under the New Asylum Model.[7] And the cost of providing legal representation at appeals before the AST would be partially offset by, for example, an associated reduction in the number of (far more costly) applications for judicial review in the courts.

In rejecting the concern of Citizens Advice, the Joint Committee on Human Rights and the AST itself, the BIA has argued that "providing public funding for representation at asylum support appeals would put such appellants in a better position than those refused social security and other welfare benefits who do not qualify for free legal representation at their appeal hearings." However, this argument overlooks the fact that, unlike those refused social security and other welfare benefits, those appealing to the AST are not allowed to work. So, if wrongly denied asylum support for want of adequate legal representation before the AST, they have no other (legal) means of avoiding homelessness and destitution.

There are a number of ways in which the aim of making good quality, publicly funded representation available to all AST appellants could be achieved. One obvious and straightforward way to do so would be for the Legal Services Commission to fund (and expand) the work of the ASAP, the current principal funding of which (by the Big Lottery Fund) expires in June 2007. But whatever mechanism is favoured, it is time for the Government to put some money where its mouth is, and make the AST a genuinely fair as well as administratively efficient tribunal.

If you have any questions, contact Richard.

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Footnotes:

  1. Speech to Association of Personal Injury Lawyers conference, 20 April 2007. [back]
  2. Source: Citizens Advice analysis of 285 Reasons Statements (decisions) posted on the 'decisions' section of the AST website. [back]
  3. In 47 of the 223 oral appeals determined by the AST in January to April 2007, neither the appellant nor a legal representative attended the hearing. The Home Office was represented at all but one of these 47 hearings, and all but six of the 47 appeals were dismissed (four were allowed, and two remitted). [back]
  4. In addition to the duty scheme, the ASAP operates a telephone helpline providing second-tier advice on asylum support appeals (0845 603 3884). For further information on the ASAP and its work, see www.asaproject.org.uk. [back]
  5. The Treatment of Asylum Seekers, Joint Committee on Human Rights, Tenth Report of Session 2006-07, HL 81-1, HC 60-1. [back]
  6. Failing the failed? How NASS decision making is letting down destitute rejected asylum seekers, Asylum Support Appeals Project, February 2007. [back]
  7. The New Asylum Model, under which all new asylum claims have been processed since 5 March 2007, provides for end-to-end management of each claim by a single case owner responsible for all aspects of the case, including welfare support as necessary. [back]
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