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Evaluating tribunal adjudication: administrative justice and asylum appeals

  • Robert Thomas (a1)
Abstract

This article examines the development, operation and reform of the tribunal system responsible for determining appeals against the refusal of refugee status by the Home Office. Consideration of this particular appellate system is situated within a broader discussion of the criteria and values against which tribunal adjudication systems may be evaluated, By examining asylum appeals, light is shed on the theory and practice of administrative justice with regard to: the problematic nature of ensuring accuracy in tribunal decision-making; the tensions under which appeal procedures operate; the importance of onward appeal rights; and the role of tribunals in policy implementation. The article argues that recent reform of the asylum appeal process, including the introduction of a single tier of appeal, the Asylum and Immigration Tribunal, by the Asylum and Immigration (Treatment of Claimants, etc) Act 2004 and restrictions on legal aid, has been motivated by political considerations and may increase the dificulties in operating an effective appeal process.

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1. According to the Refugee Convention 1951, art 1A, a refugee is someone who ‘owing to a well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group, is outside the country of his nationality and is unable, or owing to such fear, is unwilling to avail himself of the protection of that country’. Article 3 of the ECHR prohibits torture or inhuman or degrading treatment or punishment while art 8 provides for the right to private and family life. It is important to distinguish between ‘refugee status’, which means that an individual has been recognised as a refugee under the Refugee Convention and is entitled to rights under that Convention such as family reunion, and ‘asylum’, which simply means protection from the risk of ill-treatment or torture.

2. See Asylum and Immigration Appeals Act 1993; Asylum and Immigration Act 1996; Immigration and Asylum Act 1999; Nationality, Immigration and Asylum Act 2002; Asylum and Immigration (Treatment of Claimants, etc) Act 2004.

3. This is despite the proposal of the Leggatt review of tribunals to establish a unified tribunal service based on the two-tier appeal model. See Leggatt Report Tribunals for Users: One System, One Service (2001); Department for Constitutional Affairs Transforming Public Services: Complaints, Redress and Tribunals (Cm 6243,2004).

4. While the volume of judicial review claims has been increasing-in 2003, there were 5,949 claims-it is extremely small when compared with the workload of the large tribunal systems. In 2003, tribunals under the supervision of the Council on Tribunals decided just over 600,000 appeals. The immigration and asylum appeal system, which determined over 150,000 appeals, now comprises the second largest tribunal system after the social security appeal system. See Department for ConstitutionalAffairs Judicial Statistics Annual Report 2003 (Cm 6251,2004); Council on Tribunals Annual Report 2003/04 (HC 750,2003-04).

5. Cf R E Wraith and P G Hutchesson Administrative Tribunals (London: Allen & Unwin, 1973) p 17: ‘The British constitution tries to keep law and politics apart… but administrative tribunals inhabit a twilight world where the two intermingle.’

6. Home Office Asylum Statistics 2002 and 2003. Of the approximately 540 immigration judges, around 400 are part-time and the remainder work full-time.

7. National Audit Office Improving the Speed and Quality of Asylum Decisions (HC 535, 2003–04) pp 1 and 4; Department for Constitutional Affairs Proposed Changes to Publicly Funded Immigration and Asylum Work (London: DCA, 2003). In 2003–04, the cost of providing legal aid for immigration and asylum cases was £203 million: 432 HC Official Report (6th series) written answers col 165W, 15 March 2005.

8. S Castles and M J Miller The Age of Migration: International Population Movements in the Modem World (London: Palgrave, 3rd edn, 2003).

9. A C Helton The Price of Indifference: Refugees and Humanitarian Action in the New Century (Oxford: Oxford University Press, 2002) p 18.

10. Home Office Asylum Statistics 2000–2004. These figures exclude dependants. The number of initial decisions and appeals in a particular year do not necessarily relate to the claims lodged in the same year.

11. Exceptional leave to remain (ELR) is a subsidiary status and has been replaced by Humanitarian protection (HP) and Discretionary leave (DL).

12. Bugdaycay v Secretary of State for the Home Department [1987] AC 5 14 at 531, per Lord Bridge of Harwich.

13. On the development of the immigration appeals system, see Report of the Committee on Immigration Appeals (Cmnd 3387, 1967); J M Evans Immigration Law (London: Sweet & Maxwell, 2nd edn, 1983) pp 321–374; S Juss Immigration, Nationality and Citizenship (London: Mansell, 1993) pp 124–143.

14. KPMG Peat Marwick Review of Asylum Appeals Procedure (London: Home Office and Lord Chancellor's Department, 1994).

15. Asylum and Immigration Appeals Act 1993, Sch 2, para 5; Asylum and Immigration Act 1996, s 1; Immigration and Asylum Act 1999, Sch 4, para 9.

16. R Thomas ‘The Impact of Judicial Review on Asylum’ [2003] PL 479.

17. Immigration and Asylum Act 1999, s 65(1). See now the Nationality, Immigration and Asylum Act 2002, s 84(1).

18. For more detailed accounts, see M Symes and P Jorro Asylum Law and Practice (London: LexisNexis, 2003) pp 408–497; D Stevens UK Asylumh and Policy: Historical and Contemporary Perspectives (London: Sweet & Maxwell, 2004) pp 221–262.

19. Despite this being the only practicable way of managing decision-making, in strict constitutional terms the whole system is conducted by the Secretary of State; for instance, the Immigration Rules (HC 395, 1994) r 328 state that all asylum applications will be determined by the Secretary of State in accordance with the United Kingdom's obligations under the Refugee Convention and Home Office ‘reasons for refusal letters’ habitually contain phrases such as ‘the Secretary of State has noted your claim that you were tortured’ even though they are signed and written by IND caseworkers.

20. Nationality, Immigration and Asylum Act 2002, s 78. Section 84 of the 2002 Act also lists the grounds on which an appeal may be lodged. See further R Thomas ‘Asylum appeals overhauled again’ [2003] PL 260.

21. Asylum and Immigration (Treatment of Claimants, etc) Act 2004, s 26.

22. See especially Karanakaran v Secretary of State for the Home Department [2000] 3 All ER 449 where, at 479, Sedley LJ explained that: ‘[t]he question whether an asylum claim falls within the convention is not a head-to-head litigation issue. Testing a claim ordinarily involves no choice between two conflicting accounts but an evaluation of the intrinsic and extrinsic credibility, and ultimately the significance, of the applicant's case… Such decision-makers, on classic principles of public law, are required to take everything material into account.’

23. Leggatt, above n 3, Pt II, ‘The Immigration Appellate Authorities’, para 22. For example, Social Security Appeal Tribunals have the largest caseload of any appellate system with some 230,000 appeals per year but this only represents around 1% of all initial decisions; by contrast, the proportion of asylum refusal decisions that are appealed was 80% in 2002 and 74% in 2003. For a recent study of the failure of welfare applicants to challenge adverse decisions, see D Cowan and S Halliday The Appeal of Internal Review: Law, Administrative Justice and the (non-) emergence of disputes (Oxford: Hart Publishing, 2003).

24. GH v Secretary of State for the Home Department (former KAZ- country conditions -effect) Iraq CG [2004] UKIAT00248, para 26. See also Nationality, Immigration and Asylum Act 2002, s 85(4).

25. Sandralingham and Ravichandran v Secretary of State for the Home Department; Rajendrakumar v Immigration Appeal Tribunal and Secretary of State for the Home Department [1996] Imm AR 97 at 112, per Simon Brown LJ. In Secretary of State for the Home Department v SK (starred determination) [2002] UKIAT05613, para 20, the IAT (chaired by Collins J) expressed disagreement with the view that the appeal process is an extension of the decision-making process ‘since it may seem to suggest that the appellate authority is somehow to be regarded as being part of the administrative process’ but recognised that the appellate authority is ‘bound to test the decision against facts found by it at the date of the hearing’ and in this sense comprises the judicial part of the decision-making process.

26. Sivakumaran v Secretary of State for the Home Department [1988] AC 958. The burden of proof in human rights claims under art 3 of the ECHR is expressed in different language-is there a real risk of ill-treatment contrary to art 3?-but has been held to be the same as that under the Refugee Convention: Kacaj v Secretary of State for the Home Department (starred determination) [2002] Imm AR 213; R (Dhima) v Immigration Appeal Tribunal [2002] Imm AR 394.

27. Secretary of State for the Home Department v RK (obligation to investigate) Democratic Republic of Congo [2004] UKIAT00129, para 46.

28. [2004] UKIAT00129, para 46.

29. The Franks Committee Report of the Committee on Administrative Tribunals and Enquiries (Cmnd 218,1957) para 41.

30. H Genn and Y Genn The Effectiveness of Representation at Tribunals (London: Lord Chancellor's Department, 1989) p 3.

31. P McAuslan ‘Administrative Law, Collective Consumption and Judicial Policy’ (1983) 46 MLR 1; P Birkinshaw Grievances, Remedies and the State (London: Sweet & Maxwell, 2nd edn, 1994) p 56.

32. J A Farmer Tribunals and Government (London: Weidenfeld and Nicolson, 1974) p 4.

33. See eg P Nonet Administrative Justice: Advocacy and Change in a Government Agency (New York: Russell Sage, 1969); M Partington ‘Restructuring Administrative Justice? The Redress of Citizens’ Grievances’ (1999) 52 CLP 173 at 178–184; S Halliday Judicial Review and Compliance with Administrative Law (Oxford: Hart Publishing, 2004) pp 111–125.

34. T G Ison ‘“Administrative Justice”: Is It Such a Good Idea?’ in M Harris and M Partington (eds) Administrative Justice in the 21st Century (Oxford: Hart Publishing, 1999) pp 33–34.

35. For recent overviews of the administrative justice system as a whole, see Department for Constitutional Affairs, above n 3; National Audit Office Citizen Redress: What citizens can do if things go wrong with public services (HC 21,2004-05).

36. For recognition of similar values in the social security context, see R Sainsbury ‘Administrative Justice: Discretion and Procedure in Social Security Decision-Making’ in K Hawkins (ed) The Uses of Discretion (Oxford: Oxford University Press, 1992) p 295.

37. See J L Mashaw Bureaucratic Justice: Managing Social Security Disability Claims (New Haven: Yale University Press, 1983) pp 24–31; D J Galligan Due Process and Fair Procedures: A Study of Administrative Procedures (Oxford: Oxford University Press, 1996) pp 237–240.

38. Sainsbury, above n 37, p 302.

39. C G Blake ‘Judicial Review, Second Tier Tribunals and Legality’ in M Partington (ed) The Leggatt Review of Tribunals: Academic Seminar Papers (Bristol: University of Bristol, Faculty of Law, 2001) pp 67, 68.

40. Kaja v Secretary of State for the Home Department [1995] Imm AR 1 at 8.

41. Karanakaran v Secretary of State for the Home Department [2000] 3 All ER 449 at 479, per Sedley LJ.

42. Asylum and Immigration (Treatment of Claimants, etc) Act, 2004, s 8. See also the Immigration (Claimant's Credibility) Regulations 2004, SI 2004/3263.

43. For instance, the accuracy of the Home Office's Country Information reports is particularly contested: see Immigration Advisory Service Home Office Country Assessments: An Analysis (London: IAS, 2003). At the same time, the IAT has frequently expressed concerns that expert evidence regarding conditions in countries producing asylum applicants is not always wholly objective: see eg Slimani v Secretary of State for the Home Department (starred determination) [2001] 01TH00092.

44. N v Secretary of State for the Home Department [2004] 1 WLR 1182 at 1201, per Laws LJ.

45. Secretary of State for the Home Department v Qosja [2002] UKIAT00756, para 8. See also Secretary of State for the Home Department v SF (Article 3 -prison conditions) Iran CG [2002] UKIAT00973. An appellant whose asylum and art 3 appeals have been dismissed may nevertheless argue that removal would contravene the right to family life under art 8; in such a case, the appellate authority must assess whether the case is so exceptional on its particular facts that the requirements of proportionality demand a decision in the appellant's favour notwithstanding that they do not qualify to remain under the Immigration Rules: see Huang, Abu-Qulbain and Kashmiri v Secretary of State for the Home Department [2005] EWCA Civ 105.

46. Saad, Diriye and Osorio v Secretary of State for the Home Department [2002] Imm AR 471 at 479, per Lord Philips MR.

47. The issue is complicated by the fact that the success rate on appeal differs by nationality. In 2003, eg, the highest success rate on appeal was 38% for Sudanese and Somali nationals whereas the lowest success rate on appeal was 3% for Indian nationals.

48. The IAT's practice of promulgating country guideline determinations has been explicitly encouraged and endorsed by the higher courts in light of inconsistent IAT determinations assessing country conditions. See Manzeke v Secretary of State for the Home Department [1997] Imm AR 524 at 529, per Lord Woolf MR; S v Secretary of State for the Home Department [2002] INLR 416 at 435436, per Laws LJ; Shirazi v Secretary of State for the Home Department [2004] 2 All ER 602 at 61 1, per Sedley LJ. For a critique of country guideline determinations, see Immigration Advisory Service Country Guideline cases: benign and practical? (London: IAS, 2005).

49. Secretary of State for the Home Department v VL (risk-failed asylum-seekers) Democratic Republic of Congo CG [2004] UKIAT00007. As of April 2005, there were 299 current country guideline determinations.

50. FS v Secretary of State for the Home Department (Iran-Christian converts) Iran CG [2004] UKIAT00303, para 6.

51. DK v Secretary of State for the Home Department (return-ethic Serb-upheld SK -accommodation) Croatia CG [2003] UKIAT00153, para 8.

52. LT v Secretary of State for the Home Department (internal flight-registration system) Turkey CG [2004] UKIAT00175, para 3.

53. Secretary of State for the Home Department v BD (application of SK and DK) Croatia CG (starred determination) [2004] Imm AR 226 at 244.

54. A Good ‘“Undoubtedly An Expert”? Anthropologists in British Asylum Courts’ (2004) 10 Journal of the RoyalAnthropology Institute 113; A Good ‘Expert Evidence in Asylum and Human Rights Appeals: an Expert's View’ (2004) 16 IJRL 358. In response, the Tribunal has questioned whether the reports of many country experts are objective and impartial: see J Barnes ‘Expert Evidence-The Judicial Perception in Asylum and Human Rights Appeals’ (2004) 16 IJRL 349.

55. D Pearl ‘Immigration and Asylum Appeals and Administrative Justice’ in Harris and Partington (eds), above n 35, p 55.

56. As the IAT explained in Oyono v Secretary of State for the Home Department [2002] UKIAT02034, para 8: ‘[a]n adjudicator who intervenes during the course of evidence is running the risk that he will be seen to be taking the side of one party or the other.’ Cf L L Fuller ‘The Forms and Limits of Adjudication’ (1978) 92 Harv LR 353 at 382–384.

57. Maaouia v France (2001) 33 EHRR 42; MNM v Secretary of State for the Home Department (starred determination) [2000] INLR 576; AM v Secretary of State for the Home Department (‘upgrade’ appeals: Art 6?)Afghanistan (staned determination) [2004] Imm AR 530.

58. See Department for Constitutional Affairs Asylum and Immigration Tribunal - Procedure Rules, and Judicial Titles Order Consultation Paper 27/04 (London: DCA, 2004); Asylum and Immigration Tribunal (Procedure) Rules 2005, SI 2005/230.

59. According to the Department for Constitutional Affairs Departmental Report 2003/04 (Cm 6210, 2004) para 2.89, the DCA shares a joint target with the Home Office to ensure that 60% of new substantive asylum applications are decided (including final appeal) within six months.

60. 415HC Official Report (6th series) cols 34–37WS, 27 November 2003; Community Legal Service (Scope) Regulations 2004, SI 2004/1055. See also House of Commons Constitutional Affairs Committee Fourth Report: Immigration and Asylum: the Government's proposed changes to publicly funded immigration and asylum work (HC 1171,2002-03).

61. See Asylum Aid and Bail for Immigration Detainees Justice Denied: Asylum and Immigration Legal Aid-A System in Crisis (London: BLD, 2005). For empirical evidence concerning the importance of representation for tribunal appellants, see Genn and Genn, above n 31.

62. R (Dirshe) v Secretary of State for the Home Department [2005] EWCA Civ 421. In R (Mapah) v Secretary of State for the Home Department [2003] Imm AR 395 the High Court had previously held that the refusal to tape-record interviews was not unfair. In the view of the Court of Appeal in Dirshe, the recent restrictions on publicly funded representation made this continuing refusal procedurally unfair.

63. See Immigration and Asylum Appeals (Fast Track Procedure) Rules 2003, SI 2003/801, under which refused claimants have two days in which to appeal as opposed to normal ten days. The legality of this scheme was upheld by the Court of Appeal in R (Refugee Legal Centre) v Secretary of State for the Home Department [2004] EWCA Civ 1481, which held that the process was not unfair so long as it operated flexibly. See now Asylum and Immigration (Fast Track Procedure) Rules 2005, SI 2005/560.

64. Nationality, Immigration and Asylum Act 2002, s 94. Applicants whose claims have been certified as clearly unfounded may challenge the legality of the certificate by way of judicial review, see ZL and VL v Secretary of State for the Home Department [2003]Imm AR 330; Atkinson v Secretary of State for the Home Department [2004] EWCA Civ 846. In R (Husan) v Secretary of State for the Home Department [2005] EWHC Admin 189, the Administrative Court declared unlawful the designation of Bangladesh as a country in which there is in general no serious risk of persecution. The Asylum and Immigration (Treatment of Claimants, etc) Act 2004, s 27 enables the Home Office to expand considerably the scope of non-suspensive appeals.

65. In 1987, responsibility for appointing adjudicators was transferred from the Home Office to (what is now) the Department for Constitutional Affairs. IAT members have always been appointed by the Lord Chancellor since the inception of the appeal system in 1969.

66. C G Blake ‘Immigration Appeals - The Need for Reform’ in A Dummett (ed) Towards a Just Immigration Policy (London: Cobden Trust, 1986) p 179. This procedure has proved particularly useful to the Home Office when it has sought to delay the determination of claims from a specific country until the conditions have improved. A specific example is provided by the Chief Adjudicator's decision to accede to a request by the Secretary of State to adjourn all Iraqi asylum appeals on the outbreak of the Iraq war in 2003. See further M Quayum and M Chatwin ‘A fair-handed approach?’ (2003) 153 NLJ 533.

67. Asylum and Immigration Tribunal (Procedure) Rules 2005, SI 2005/230, r 23(4).

68. Horvath v Secretary of State for the Home Department [1999]Imm AR 121 at 129–130.

69. National Audit Office, above n 7, p 7.

70. P Hennessy Whitehall(London: Pimlico, rev edn, 2001) p 460. For example, the decision to introduce a large-scale computer system to improve decision-making, which failed to materialise, led to the reduction of 1,200 staff. According to the House of Commons Public Administration Committee Third Report: Ombudsman Issues (HC 448, 2002–03) para 29: ‘the decision to get rid of experienced caseworkers before a system was in place verges on administrative negligence. In the current political atmosphere surrounding the question of asylum such mistakes can have especially unhappy consequences.’ Regrettably, these problems were compounded by the sudden inflow of asylum claims with the Kosovan crisis in 1999. The upshot of this was an increase in the length of the backlog of asylum claims, which peaked at 125,000 in early 2000, resulting in long delays in the processing of individual claims and the complete incapacity of the agency to manage asylum. The resultant situation was recognised by the government itself to be a ‘catastrophe’ and having to deal with it was akin to ‘trying to turn round a supertanker with a ship that was actually sinking’ (House of Commons Home Affairs Committee Second Report: Asylum Applications (HC 218-II, 2003–04) Ev 5 (Bev Hughes MP)).

71. In Secretary of State for the Home Department v Abdi [1996] Imm AR 148 the Court of Appeal held that a decision may not be in accordance with the law if taken in ignorance of an extra-statutory policy and that the appellate authority should in such circumstances remit the matter back to the Home Office. See eg Secretary of State for the Home Department v KK (under 12 policy - in country implications) Jamaica [2004] UKIAT00268; TG v Secretary of State for the Home Department (considering policies) Nigeria [2005] UKIAT00024. In a recent decision, the Administrative Court held that the failure to apply a concessionary policy could breach an individual's legitimate expectations: see R (Rarhid) v Secretary of State for the Home Department [2004]EWHC Admin 2465.

72. National Audit Office, above n 7, p 7.

73. National Audit Office, above n 7. pp 41–42, 45.

74. 416 HC Official Report (6th series) col 981w, 19 January 2004.

75. Secretary of State for the Home Department v 1A HC KD RO HG (risk - guidelines -55eparatist) Turkey CG [2003] UKIAT00034, para 46.

76. M v Secretary of State for the Home Department (Chad) [2004] UKIAT00044, para 4; MNM v Secretary of State for the Home Department (starred determination) [2000] INLR 576 at 582.

77. Surendran v Secretary of State for the Home Department [1999] (21679).

78. In Secretary of State for the Home Department v Tatar [2000] 00TH01914, paras 3–4, a Tribunal panel chaired by the then President Collins J, after detailing routine Home Office handling of appeals - ‘files are not provided, documents are not available, they do not put it evidence that they ought to put in, they fail totally to produce any skeleton arguments, the list goes on and on and the Tribunal is simply getting fed up with it’ - concluded that the Home Office does ‘not seem capable of dealing with the appeals in the manner in which they ought to be dealt with. The result is that the Tribunal is left in an impossible position’. In Secretary of State for the Home Department v Razi [2001] 01TH01836, paras 16–17 the Tribunal simply stated that ‘it is hard to imagine any other department of state in this country where such incompetence would be tolerated’ but further noted that the Home Office's failings were so severe that it ‘begins to go beyond mere institutional incompetence, into the realm of an institutional culture of disregard for adjudicators, who are the primary judicial authority in this country for making sure that immigration powers are efficiently, as well as fairly exercised’. In Benkaddouri vsecretary of state for the Home Department [2004] INLR 1 at 3 there had been ‘a disgraceful series of errors and omissions, verging on the contumacious, on the part of the Home Office’.

79. Beteringhe v Secretary of State for the Home Department [1999] 18120; Secretaty of State for the Home Departmenr v Gjurgjei, Hoxha and Mersin [2001] 01TH00197: Secretary of State for the Home Department v Shafiei [2002] UKIAT05409.

80. Shala v Secretary of State for the Home Department [2003] INLR 349. This is not an isolated example. In Secretary of State for the Home Department v Wachai [2002] UKIAT06682, the IAT rejected a Home Office appeal against allowing a family to remain under art 8 in light of the unexplained delay in reaching a decision: ‘… the Home Office cannot now be allowed to excuse their own inaction, in taking such inexplicably slow steps over the years to decide the future of a family with young children, in terms of the legitimate purpose of maintaining an effective system of immigration control, which they themselves so signally failed to secure.’ Subsequent cases have emphasised that Shala depended on its own unusual set of facts and was not intended as a general encouragement to the appellate authorities to compensate for delays by the Home Office: see DM v Secretary of State for the Home Department (proportionality-Article 8)Croaria (starred determination) [2004] Imm AR 211; Janjanin and Musanovic v Secretay of State for the Home Department [2004] Imm AR 264.

81. See eg Dahmani v Secretary of State for the Home Department [2003] Imm AR 479; R (nine Nepalese asylum seekers) v Immigration Appeal Tribunal [2003] EWCA Civ 1892. In R (Pharis) v Secretary of State for the Home Department [2004] 3 All ER 310 at 313 Brooke LJ stated that: ‘[e]xperience has shown that the practice of pursuing a further appeal to this court in a judicial review matter in the immigration and asylum field has given rise to very serious abuse, with appellants pursuing wholly unmeritorious appeals simply to delay the time when they are to be deported.’

82. House of Commons Constitutional Affairs Committee Second Report: Asylum and Immigration Appeals (HC 211-II, 2003–04) Ev 200.

83. In 1998, the Lord Chancellor's Advisory Committee on Legal Education and Conduct Improving the Quality of Immigration Advice and Representation: A Report (1998) para 2.32 noted that ‘[t]here is considerable concern within the Immigration Appellate Authorities and many immigration advice agencies about the quality of representation at immigration appeals and, especially, asylum appeals.’ A recurrent problem has been that of discontinuous representation whereby different representatives will provide initial advice and assistance to those who represent claimants at the appeal hearing.

84. IS v Secretary of State for the Home Department (concession made by representative) Sierra Leone [2005] UKIAT00009, para 15. In Devaseelan v Secretary of State for the Home Department (starred determination) [2003] Imm AR 1 at 14 the Tribunal noted: ‘an increasing tendency to suggest that unfavourable decisions by Adjudicators are brought about by error or incompetence on the part of representatives. New representatives blame old representatives, sometimes representatives blame themselves for prolonging the litigation by their inadequacy (without, of course, offering the public any compensation for the wrong that from which they have profited by fees).’

85. The Immigration and Asylum Act 1999, s 83(3) established the Office of the Immigration Services Commissioner ‘to promote good practice by those who provide immigration advice or immigration services’. The Asylum and Immigration (Treatment of Claimants, etc) Act 2004, ss 37–41 strengthens the powers of the Immigration Services Commissioner.

86. Kneebone, S ‘the Refugee Review Tribunal and the Assessment of Credibility: an Inquisitorial Role?’ (1998) 5 Australian Journal of Administrative Law 78.

87. J Hathaway Rebuilding Trust - Report of the Review of Fundamental Justice in Information Gathering and Dissemination at the Immigration and Refugee Board of Canada (1993) p 6.

88. Leggatt, above n 3, paras.7.2-7.6. Such an approach is more accurately described as ‘interventionist’ or ‘enabling’ rather than ‘inquisitorial’ as this assumes that the tribunal takes full control of the proceedings. See C Harlow ‘The ECHR and Administrative Justice’ in Partington (ed), above n 40, pp 52–53.

89. K v Secretan of State for the Home Department (Côte d'Ivoire) [2004] UKIAT00061, paras 42–45.

90. M v Secretary of State for the Home Department (Chad) [2004] UKIAT00044, para 16; Secretary of State for the Home Department v LK (adjudicators: ‘anxious scrutiny’ - public interest) Democratic Republic of Congo [2004] UKIAT00308, para 7.

91. WN v Secretary of State for the Home Department (Surendrun-credibility-new evidence) Democratic Republic of Congo [2004] UKIAT00213, para 39. See also SW v Secretary of State for the Home Department (adjudicator's questions) Somalia [2005] UKIAT00037.

92. H Genn ‘Tribunals and Informal Justice’ (1993) 56 MLR 393.

93. Home Office Asylum Statistics 2000–2004. These figures exclude dependants. The number of initial decisions and appeals in a particular year do not necessarily relate to the claims lodged in the same year.

94. Home Office and Lord Chancellor's Department Review of Appeals: A Consultation Paper (London: Home Office and LCD, 1998) paras 5.3-5.4.

95. For instance, in its 1998 and 2002 White Papers Fairer, Faster and Firmer - A Modern Approach to Immigration and Asylum (Cm 4018, 1998) para 7.18 and Secure Borders, Safe Haven: Integration with Diversity in Modern Britain (Cm 5387, 2002) para 4.66, the Home Office affirmed the need for an enhanced IAT.

96. Ali Haddad v Secretary of State for the Home Department (starred determination) [2000] INLR 117 at 118. As of April 2005, the IAT had promulgated 39 starred determinations since the introduction of the starring system in 2000.

97. In 2004, the IAT was composed of a President, Deputy-President, 26 full-time Vice- Presidents, 50 part-time legally qualified Chairpersons and 60 lay members. In 2003–04, IAT Vice-Presidents spent one week in four determining 120 applications for permission to appeal.

98. Home Office Asylum Statistics 2003, Table 7.2.

99. According to Sir Andrew Collins in oral evidence before the Constitutional Affairs Committee, above n 83, Ev 33.

100. Immigration and Asylum Act 1999, Sch 4, para 22.

101. Subesh, Suthan, Nagulananthan and Vanniyasingam v Secretary of State for the Home Department [2004] Imm AR 112 at 132, per Laws LJ.

102. Nationality, Immigration and Asylum Act 2002, s 101(1); CA v Secretary of State for the Home Department [2004] INLR 453; AG v Secretary of State for the Home Department (Turkey -CA-fresh evidence) [2005] UKIAT00014, para 7.

103. See eg Oleed v Secretary of State for the Home Department [2003] Imm AR 499; Koci v Secretary of State for the Home Department [2003] EWCA Civ 1507; Vijayanth v Secretary of State for the Home Department [2004] EWCA Civ 1161; Nirmalanathan v Secretary of State for the Home Department [2004] EWCA Civ 1380; Pisa v Secretary of State for the Home Department [2004] EWCA Civ 1443; Ndlovu v Secretary of State for the Home Department [2004] EWCA Civ 1567. The number of appeals from substantive IAT determinations to the Court of Appeal has in recent years comprised a significant part of the Court of Appeal's caseload when compared with other tribunal systems; in 2004, the Court of Appeal disposed of 133 appeals against IAT determinations compared with 16 appeals against the Social Security Commissioners: Department for Constitutional Affairs Judicial Statistics Annual Report 2004 (Cm 6565, 2005).

104. Arshad v Secretary of State for the Home Department [2001] EWCA Civ 587 at [20], per Laws LJ.

105. ‘P’ and ‘M’ v Secretary of State for the Home Department [2004] EWCA Civ 1640 at [36], per Lord Woolf.

106. Thomas, above n 17, at 506–509.

107. Special Standing Committee on the Immigration and Asylum Bill 1999, col 1413, 11 May 1999 (Mike O'Brien MP, Minister of State).

108. Nationality, Immigration and Asylum Act 2002, s 101(2). See also R (‘M’ and ‘G’) v Immigration Appeal Tribunal and the Secretary of State for the Home Department [2005] 2 All ER 165. In 2003, the Administrative Court disposed of 320 applications for statutory review under the 2002 Act of which 61 were allowed and 259 dismissed; in 2004, 1, 731 statutory review applications had been disposed of, 311 of which were allowed and 1,420 were dismissed. The introduction of statutory review was in part responsible for the reduction in the volume of judicial review claims from 5,949 in 2003 to 4,207 in 2004. See Department for Constitutional Affairs, above nn 4 and 104.

109. See Department for Constitutional Affairs Asylum and Immigration Tribunal - Procedure Rules, and Judicial Titles Order Consultation Paper 21/04 (London: DCA, 2004); the Asylum and Immigration Tribunal (Procedure) Rules 2005, SI 2005/230. For the change in judicial titles, see Asylum and Immigration Tribunal (Judicial Titles) Order 2005, SI 2005/227. One uncertain issue concerns the future role of the 60 lay members who previously sat on IAT appeal panels: as the IAT determined appeals from legally qualified adjudicators, the presence of lay members appeared anomalous. During the debates over the 2004 Act, the government resisted Lords amendments that the majority of appeals be determined by a three-person panel-legally qualified member and two lay members-because of the resource implications.

110. Asylum and Immigration (Treatment of Claimants, etc) Act 2004, s 26, inserting new s 103A into the Nationality, Immigration and Asylum Act 2002. See also CPR 54.28-54.35.

111. Asylum and Immigration (Treatment of Claimants, etc) Act 2004, s 26, inserting news 103C into the Nationality, Immigration and Asylum Act 2002.

112. 660 HL Official Report (5th series) col 1996, 4 May 2004.

113. On social security appeals, see N Wikeley ‘Burying Bell: Managing the Judicialisation of Social Security Tribunals’ (2000) 63 MLR 475; D Bonner ‘From whence the Social Security Commissioners? The creation of the National Insurance Commissioner and the Industrial Injuries Commissioner’ (2002) 9 JSSL 11.

114. The Department of Health Improving Mental Health Law: Towards a New Mental Heath Act (London, DoH, 2004) p 34 proposes to establish a Mental Health Appeal Tribunal to determine appeals on a point of law from Mental Health Review Tribunals and thereby provide a further specialist forum to ensure the law is applied correctly.

115. Department for Constitutional Affairs, above n 3, paras 7.14-7.21.

116. On proportionate dispute resolution, see Department for Constitutional Affairs, above n 3, paras 2.1-2.13.

117. Asylum and Immigration (Treatment of Claimants, etc) Act 2004, s 26, inserting new s 103E into the Nationality, Immigration and Asylum Act 2002.

118. Lord Falconer, Speech to the Immigration Appellate Authority Residential Conference, 28 June 2004.

119. Asylum and Immigration (Treatment of Claimants, etc) Act 2004, Sch 1, para 3(1)(c)(i).

120. See A Le Sueur ‘Three strikes and it's out? The UK government's strategy to oust judicial review from immigration and asylum decision-making’ [2004] PL 225.

121. Opposition to the ouster clause came from: parliamentary select committees, including the House of Commons Constitutional Affairs Select Committee, above n 83, ch 6; and the Joint Committee on Human Rights Fifth Report: Asylum and Immigration (Treatment of Claimants, etc)Bill (HL35 HC 304,2003-04); members of the House of Lords; the judiciary, see Lord Woolf ‘The Rule of Law and a Change in the Constitution’ [2004] CLJ 317; and the legal profession. The ouster clause was itself approved by the House of Commons: see 418 HC Official Report (6th series) cols 661–708, 1 March 2004. For an assessment of this episode see R Rawlings ‘Review, Revenge and Retreat’ (2005) 68 MLR 378.

122. Asylum and Immigration (Treatment of Claimants, etc) Act 2004, s 26, inserting new s 103A(3) into the Nationality, Immigration and Asylum Act 2002.

123. Asylum and Immigration (Fast Track Time Limits) Order 2005, SI 2005/561.

124. Asylum and Immigration (Treatment of Claimants, etc) Act 2004, s 26, inserting new s 103A(2) and (5) into the Nationality, Immigration and Asylum Act 2002. An interim transitional mechanism will operate under which review applications will initially be determined by senior immigration judges (formerly IAT Vice-Presidents) to ensure that the Administrative Court is not overwhelmed by the number of review applications. This interim filter is to operate until the volume of challenges diminishes. See Asylum and Immigration (Treatment of Claimants, etc) Act 2004, Sch 2, para 30.

125. Asylum and Immigration Tribunal (Procedure) Rules 2005, SI 2005/230, r 31(2).

126. Normal judicial review procedure includes: a time limit of three months; an initial paper consideration to determine whether or not the claim should be granted permission to proceed; a right to renew this application orally if refused on the papers; a right of appeal against the refusal of permission to the Court of Appeal; a full oral hearing of the substantive issue; and then a right of appeal, with permission, to the Court of Appeal. See M Fordham ‘Judicial Review: the new rules’ [2001] PL 4.

127. P Cane ‘Understanding Judicial Review and its Impact’ in M Hertogh and S Halliday (eds) Judicial Review a d Bureaucratic Impact: International and Interdisciplinary Perspectives (Cambridge: Cambridge University Press, 2004) pp 18–19.

128. See R (‘M’ and ‘G’) v Immigration Appeal Tribunal and the Secretary of State for the Home Department [2005] 2 All ER 165.

129. Asylum and Immigration (Treatment of Claimants, etc) Act 2004, s 26, inserting new s 103D into the Nationality, Immigration and Asylum Act 2002.

130. The Community Legal Service (Asylum and Immigration Appeals) Regulations 2005, SI 2005/1966.

131. Department for Constitutional Affairs The Asylum and Immigration Tribunal - The Legal Aid Arrangements for Onward Appeals Consultation Paper 30/04 (London: DCA, 2004).

132. House of Commons Constitutional Affairs Committee Fifth Report: Legal aid: asylum appeals (HC 276-II, 2004–05).

133. Above n 133, para 31.

134. These statistics do not include those claimants who return voluntarily to their country of origin. While the volume of removals is low, the Immigration Service has, however, removed some asylum appellants before the final determination of their claim in either flagrant or incompetent defiance of court injunctions not to do so: the best known example is M v Home Office [1994] 1 AC 377 but for a more recent example see R (Dhillon) v Secretary of State for the Home Department (reported in ‘Bungled deportation costs £20,000′The Times, 27 August 2004 but otherwise unreported) in which an Indian asylum claimant was returned to India despite an injunction from the Administrative Court not to do so.

135. Devaseelan v Secretary of State for the Home Department (starred determination) [2003] Imm AR 1 at 10.

136. However, in Number 19 v Secretary of State for the Home Department [2001] 01TH00093, para 44, the IAT stated that: ‘[n]ormally, the appellate authority is bound to assume that the respondent will enforce removal and that the appeals are not academic exercises.’

137. House of Commons Home Affairs Committee Asylum Removals (HC 654, 2002–03) paras 49–66. See also National Audit Office Returning failed asylum applicants (HC 76,2005-06); C Phuong ‘The removal of failed asylum seekers’ (2005) 25 LS 117.

138. For instance, during 2003–44, 64% of applications received a final appeal decision within six months compared with 43% between 2001 and 2003. See National Audit Office, above n 7, p 25; Home Office Asylum Statistics 2003, p 5.

139. For instance, in 2003–04, over 80% of applications received an initial decision within two months compared with an average of 22 months in 1997. See Home Office Asylum Statistics 4th Quarter 2004 United Kingdom (2004) p 4.

140. Refugee Convention 1951, art 1C(5). While the Immigration Rules (HC 395, 1994) para 330 state that refugees will be granted limited leave to enter, the normal practice has been for the Home Office to grant indefinite leave to remain even for refugees from countries where the situation is fluid, such as Turkey and Sri Lanka. For comment by the IAT. see TJ v Secretary of State for the Home Department (risk - returns) Sir Lanka CG [2002] UKIATO1869, para 9; Secretary of State for the Home Department v IA HC KD RO HG (risk -guidelines - separatist) Turkey CG [2003] UKIAT00034, para 47. In February 2005, the Home Office Controlling our borders: Making migration work for Britain (Cm 6472, 2005) para 39, announced that refugees would in future be granted temporary rather than indefinite leave to remain while it reviews whether the country situation has improved; if the situation has not improved within five years, then they would be granted indefinite leave to remain.

141. See especially the speech by Tony Blair PM to the Labour Party Conference, 30 September 2003.

142. The decision to introduce a single tier of appeal was originally announced by the Home Secretary in Home Office press release 144/2003 ‘Asylum applications down by a third - Home Secretary welcomes significant progress’ 22 May 2003 which stated that officials had been asked to draw up further legislative measures. In October 2003, a ‘consultation letter’ comprising four substantive pages was published jointly by the Home Office and the Department for Constitutional Affairs New Legislative Proposals on Asylum Reform (London: Home Office and DCA, 2003) which allowed only three weeks for consultation as opposed to the normal 12 weeks. The Asylum and Immigration (Treatment of Claimants, etc) Bill was published in November 2003, while the response to the consultation, New Legislative Proposals on Asylum Reform: Consultation Report (London, Home Office and DCA, 2003) was published in December 2003.

143. National Audit Office, above n 7, pp 30–32.

144. Home Office press notice 295/2003 ‘Clearing the decks for tough new asylum measures - Home Secretary’ 24 October 2003.

145. National Audit Office, above n 7, pp 30–32.

146. Pardeepan v Secretary of State for the Home Department (starred determination) [2002] Imm AR 249.

147. See eg House of Commons Constitutional Affairs Select Committee, above n 83. For instance, measures introduced by the 2002 Act had only just come into force in 2003 when further reforms were announced. The Immigration and Asylum Act 2002, s 157 itself contained a ‘Henry VIII’ clause because the legislation had been so rushed that parliamentary draftsmen were unsure whether or not further modifications were required. Furthermore, the 2002 Act was not printed until three weeks after it received royal assent despite the immediate implementation the provisions concerning non-suspensive appeals: see ZL and VL v Secretary of State for the Home Department [2003] Imm AR 330 at 334–337. The tendency of government toward legislative hyperactivity and not to undertake post-legislative scrutiny is a broader problem of the law-making process: see generally House of Lords Select Committee on the Constitution Parliament and the Legislative Process (HL 173, 2003–04).

148. This was a main concern of the House of Commons Constitutional Affairs Committee, above n 83, and the House of Commons Home Affairs Committee, above n 71.

149. Department for Constitutional Affairs, above n 3.

150. Subesh, Suthan, Nagulananthan and Vanniyasingam v Secretary of State for the Home Department [2004] Imm AR 112 at 140, per Laws LJ.

* I would like to thank Charles Blake, Tony Bradley, Neville Harris and Richard Rawlings for their comments on a draft of the article. I would also like gratefully to acknowledge financial assistance from the British Academy. The usual disclaimer applies.

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