Legal 8.2

An Update on the Immigration Appeals System

1. A summary of the way the appeals system works under the provisions of the Asylum and Immigration (Treatment of Claimants etc.) Act 2004 appears in another paper on this website, "The Immigration Appeals System revised". Section 26 of the Act brought the new single tier appellate system into operation with effect from 4 April 2005. The main statutory provisions regulating asylum and immigration appeals are contained in Part V, sections 81 - 108 of the Nationality, Immigration and Asylum Act 2002, sections which were extensively amended by the 2004 Act.

2. In principle the single tier Asylum and Immigration Tribunal (AIT) created by the 2004 Act replaced the previous two tier appeal system, consisting of an initial appeal to an adjudicator followed by a further possible appeal to the Immigration Appeal Tribunal. When the Bill which became the 2004 Act was first introduced in Parliament it contained what became known as an ouster clause, i.e. a clause which barred any possible appeal or judicial review beyond the new Tribunal to the High Court. It was the original intention of the government that the AIT should have the power to review its own decisions and that there should be no recourse to the higher courts by way of appeal, judicial review or otherwise from any decision of the AIT. This would have given the AIT a unique position among the UK's many administrative tribunals, set up over the years to perform a variety of functions under Acts of Parliament. This ouster clause aroused considerable opposition in the House of Lords and much adverse comment elsewhere. The government backed down and the Bill was amended to provide for a special form of review of cases by the High Court in England and Wales, the Court of Session in Scotland and the High Court of Northern Ireland for that province, on the grounds that the AIT made an error of law. An application for review seeks an order requiring the AIT to reconsider its decision on the appeal and is to be determined only on the basis of written submissions, so no oral hearings, and the High Court's decision will be final, subject however to the possibility of a further appeal to the Court of Appeal or the corresponding courts in Scotland and Northern Ireland.

3. Appended to this paper are two flow charts showing how the new appeals system works as contrasted with the old one.

Comments by two High Court judges

4. In January 2006 two High Court judges gave evidence to a session of the Home Affairs Select Committee of the House of Commons in which they were very critical of the working of the revised appeal system. One of them Sir Henry Hodge (Mr Justice Hodge) is the current President of the Asylum and Immigration Tribunal and was Chief Adjudicator under the old system. The other, Sir Andrew Collins (Mr Justice Collins) was President of the previous Immigration Appeal Tribunal and is now a senior judge in the High Court with responsibility for cases on asylum and immigration matters which come before that court. Sir Andrew Collins in particular was sceptical as to whether the avowed purpose of the 2004 Act, to create a single tier appeal system, had been achieved. I quote from the transcript of his evidence:
We have reason to believe that, there have been some improvements in the disposal of appeals, but largely because of severe cutbacks in legal aid available to appellants. According to our information the High Court judges who have to deal with applications for reconsideration may often have little or no knowledge of immigration and may therefore tend to err on the side of caution by granting reconsideration.

5. At the hearing before the Select Committee Sir Henry Hodge took a rather more optimistic view than Sir Andrew Collins:
Some cheer may be derived from the fact that Sir Henry, as President of the AIT, is more closely in touch with what is happening day by day than Sir Andrew.

6. The session before the Select Committee ranged over a number of other matters and the two judges expressed the frustration commonly felt by themselves and their fellow immigration judges at the failure to remove many asylum seekers who have appealed unsuccessfully and have no legal right to remain in the United Kingdom. Sir Henry Hodge alluded to the problem of persuading many countries to take back their nationals, particularly if they had destroyed their passports before arrival in the United Kingdom. He felt that much more effort was needed on the part of the Home Office and Foreign Office to improve the rate of removals.

7. Sir Andrew Collins was asked why so many appellants in asylum cases applied for judicial review. He replied that in many cases the motive was delay, so that the appellant could stay longer in the United Kingdom while proceedings were pending:
In what we may politely refer to as the immigration industry there is an unwillingness to accept that asylum seekers are for the most part not genuine and are in fact economic migrants seeking to improve their lot by making claims for asylum which are not based on any fear of persecution in their countries of origin and which in the end fail. In 2004 75% of asylum applications and appeals failed.

APPENDIX

IMMIGRATION APPEALS
DIAGRAMS OF OLD AND NEW SYSTEMS

Abbreviations
AIT - Asylum and Immigration Tribunal - (established 4 April 2005)
AITC - Asylum and Immigration (Treatment of Claimants etc.) Act 2004
IAT - Immigration Appeal Tribunal - (abolished 3 April 2005)
IND - Immigration and Nationality Directorate (part of Home Office)
JR - Judicial Review - (a High Court function)
NIAA- Nationality, Immigration and Asylum Act 2002

View OLD SYSTEM UP TO 3 APRIL 2005
View NEW SYSTEM AS FROM 4 APRIL 2005


Harry Mitchell QC

15 February, 2006