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5. Immigration and Asylum

The 2004 Act

1.  The Asylum and Immigration (Treatment of Claimants, etc.) Act 2004 set up a new single tier Asylum and Immigration Tribunal in place of the previous two tier system of adjudicators and the Immigration Appeal Tribunal. The new Tribunal came into being on 4 April 2005.

2.  We discussed the main provisions of the Bill that became the 2004 Act in our last Annual Report. In particular, we described the provisions for review of the Tribunal's appeal decisions by the courts, which replaced the earlier provisions whereby the Tribunal would have been (subject to very limited exceptions) immune to judicial review. At the time we reported, some aspects of the intended review procedure that caused us concern, particularly the proposed time limits and legal aid arrangements, were still under discussion.

3.  In the event, the Act laid down a 5 day time limit for applying to the court for an order requiring the Tribunal to reconsider its decision on the appeal. The Act also made provision for a system of retrospective funding for review and reconsideration, involving an assessment of a case's prospects of success at the time the review application was made. We regarded the time limit of 5 working days as too short. We also had serious reservations about the legal aid provisions, which were to be given full effect by secondary legislation.

4.  In the autumn of 2004 the Department for Constitutional Affairs held a number of useful consultative events in connection with procedural rules for the new Tribunal and legal aid arrangements. Our members and secretariat attended events in London, Edinburgh and Manchester. Participation in these events materially assisted us in understanding the difficulties faced by practitioners in this field.

Legal aid arrangements

5.  In due course we responded to the Department for Constitutional Affairs' consultation paper on "The Asylum and Immigration Tribunal The New Legal Aid Arrangements for Onward Appeals" (November 2004). We expressed disapproval of the relevant provision of the Act, which had been incorporated at such a late stage that there was little opportunity for external commentators to make representations about it. We thought that retrospective granting of legal aid was fundamentally unfair and could have the practical effect of precluding review of the Tribunal's decision in a significant number of meritorious cases.

6.  The paper consulted on two options for the "prospects of success" test, the first framed in terms of significant prospects of success and the second in terms of very strong prospects of success. We considered neither option to be satisfactory. Despite the assertion to the contrary in the paper, we thought that both options came close to creating a "no win no fee" arrangement for the payment of legal aid fees, with unsuccessful cases likely to be funded only on an exceptional basis. Even for established legal aid practitioners it may often prove difficult to judge the full strength of a client's case before it is finally determined. We were concerned that an appellant's prospective legal adviser would, in effect, be sitting in judgement on a case, which we felt to be wrong in principle. The proposals would deprive the great majority of appellants without independent means of the benefits of prior funding for a review and reconsideration.

7.  Although we considered that neither of the options was satisfactory, we thought the first was less objectionable than the second, on the basis that it would require a less subjective standard to be met in order for the supplier to be successful in his application for retrospective funding. We conveyed our views to the Department and submitted evidence to the same effect to the House of Commons Constitutional Affairs Committee.

8.  By the time the Constitutional Affairs Committee reported, expressing views that were similar to ours, the Government had decided to adopt a "significant prospects of success" test, duly given effect in Regulations. Funding will not necessarily be refused if an appeal is unsuccessful on reconsideration. While successful cases will always be funded, the funding decision in unsuccessful cases will be taken by reference to the case's prospects of success at the time the application for reconsideration was made and on the information available to the representative at the outset. The Regulations also provide for the Tribunal and the High Court to award funding in limited circumstances at the review stage (i.e. if an application would have had significant prospects of success but because of a change in circumstances or in the law the application was dismissed). Funding may also be awarded where applications are withdrawn, abandoned or conceded. The new arrangements started on 4 April 2005.

Procedural rules and judicial titles

9.  We also responded to the Department's consultation on "Asylum and Immigration Tribunal Procedure Rules, and Judicial Titles Order" (October 2004). We welcomed the proposal that appeals should be lodged directly with the Tribunal. This enhances the perception of the Tribunal's independence and remedies difficulties encountered where an appeal is lodged with the Home Office but is retained there for an indefinite period. We also favoured a provision designed to minimise the actions to be taken by the parties where the respondent wishes to withdraw a case. We supported the removal of the closure date mechanism in the existing rules but had doubts about a proposed rule designed to prevent repeat adjournments, which we thought could operate unfairly in individual cases and remove a necessary element of judicial flexibility. But our main concern was that, given the complex nature of immigration and asylum appeals, the proposed time limits were unfair and potentially unworkable in a significant proportion of cases. We suggested that there should be a commitment to review the time limits after they have come into operation and to publish the results of the review.

10.  We also took the opportunity of making some more general comments. We made some observations about the proposed case management reviews, which we thought should be governed by the rules rather than Practice Directions. We further commented on the need for Home Office Presenting Officers to be present at every hearing and noted with approval the Department's hope that this would happen. We commented on the proposed arrangements whereby notices of determination would be served on appellants by the Home Office within 28 days, a period that seemed excessively long by contrast with other time limits. And we thought that in the interests of clarity and transparency the rules should include provision relating to the constitution of hearing panels, including a procedure for the making of representations by the parties about a panel's constitution in a particular case.

11.  This last suggestion arose in part from the fact that the 2004 Bill had been amended during its passage to allow for the appointment of non-legal members to the Tribunal. Our Chairman contributed to the relevant House of Lords debate, drawing attention to our previously stated view that lay members have a valuable contribution to make when issues of credibility arise, particularly in asylum appeals. However, the 2004 Act is not clear as to their role and we thought that the procedural rules might assist in that regard.

12.  The Government responded constructively to a number of the points made by us and other commentators and amended several rules to mitigate the concerns. However, in our view the time limits generally remain inordinately short. The Government also maintained the view that case management reviews, as a new process, should be governed by Practice Directions and administrative arrangements rather than by rules, in order to preserve flexibility in their operation. On the constitution of hearing panels the Government took the line that this was a matter for judicial decision having regard to the individual circumstances of each case and that it would not be appropriate for the rules to deal with the issue. So far as judicial titles were concerned, the Government did not share our view that the use of the word "Judge" was too formal for a tribunal.

Fast track cases

13.  In February 2005, after the consultation on the main procedural rules, the Department consulted on new rules for fast track cases. These are cases where accelerated appeal procedures apply to claimants detained in specified removal centres. Once again, our principal concern was the extreme brevity of the time limits. We suggested that one explanation for the low success rate in fast track cases has been that appellants have insufficient time to prepare cases thoroughly. In particular, we consider it unrealistic to expect appellants to prepare a properly considered notice of appeal within two days. Two days is also insufficient time, in our view, to assess documents lodged by the respondent or to prepare an application for permission to appeal to the Court of Appeal. We also opposed a widening of the circumstances in which the Tribunal may determine a fast track case without an oral hearing.

14.  As with the main procedural rules, the Government made certain welcome amendments to the consultative draft in response to concerns that had been expressed. In particular, the proposals for determining appeals without a hearing were modified to apply only to reconsideration hearings, not to first appeal hearings (except where both parties consent). On the vital matter of time limits, however, the Government maintained the view that they did not operate unfairly.

15.  We continue to have serious concerns about how the new appeals system will operate. We intend during the coming year to pay special attention to it and to visit some fast track hearings. There are also continuing concerns about the availability of advice, assistance and representation following the changed arrangements from April 2004 that we referred to last year. We shall report further next year.

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