Ministry of Justice consultation on proposals to expedite appeals by immigration detainees Law Society response

Transcription

1 Ministry of Justice consultation on proposals to expedite appeals by immigration detainees Law Society response November 2016 The Law Society 2016 Page 1 of 7

2 Introduction 1. The Law Society of England and Wales ("The Society") is the professional body for the solicitors' profession in England and Wales, representing over 160,000 registered legal practitioners. The Society represents the profession to parliament, government and regulatory bodies and has a public interest in the reform of the law. This response has been prepared by the Society s Immigration Law and Human Rights Committees. 2. The government is clearly right to seek to ensure that detained asylum appeals are decided efficiently while complying with the judgment of the Court of Appeal 1. As the Minister s foreword to the consultation says, it is in all parties interests that time in detention should not be prolonged and that the process for appealing decisions should be efficient and that it must be fair. We have carefully considered the government s proposals in the round, but believe that the proposed scheme will not meet the objective of complying with the court s judgment, and striking the correct balance between speed and efficiency and fairness and justice. 3. We say this because: (a) the proposed timetable provides insufficient time for representatives to carry out the wide range of tasks necessary to provide effective representation at an asylum appeal hearing; (b) the proposed form of case management review and the limits on judicial discretion within the Fast Track rules are insufficient as safeguards, particularly where appellants are unrepresented; (c) the availability of legal aid and fee exemptions for the expanded cohort of detainees whose appeals will be Fast Tracked under the proposals is far from certain - the right of appeal risks becoming meaningless for a proportion of detainees who wish to assert fundamental rights but cannot afford to do so; (d) insufficient regard has been given in the proposals as to how vulnerable appellants will be screened out of the proposed Fast Track appeal process despite widespread criticism of poor screening. 4. In view of these observations, our conclusions on the proposals echo those reached by the Tribunal Procedure Committee (TPC) in February 2016, discussed below. In our view, Fast Track rules are not the only or best means of achieving the government s legitimate policy aim. Instead, this could be achieved by way of efficient and targeted use of the Principal Rules. The views of the Tribunal Procedure Committee (TPC) 5. The Society s representatives met members of the TPC in January 2016 to discuss the parameters of a potential new Fast Track framework then being suggested by the Home Office in response to the Court of Appeal s judgment. Those discussions, and related Home Office correspondence with the TPC at the time, were about a timetable similar to the proposals in the current consultation with the exception that it is now proposed that the rules and proposed timetable should apply to all immigration detainees. At that time the TPC were not persuaded, in principle, of the lawfulness of an accelerated procedure and indicated that, even if they were persuaded: 1 R(Detention Action) v First Tier Tribunal (Immigration and Asylum Chamber), Upper Tribunal (Immigration and Asylum Chamber, Lord Chancellor and Secretary of State for the Home Department [2015] EWHC 1689 (admin) The Law Society 2016 Page 2 of 7

3 (a) the criteria for entry into the relevant cohort needed to be clear and workable, but no such criteria had been identified; (b) the departure from flexibility would have to be justified by evidence, but the evidence seen by the TPC did not justify doing so; and (c) it was far from certain that the Principal Rules were failing The TPC emphasised that prescriptive timetables for classes of cases prejudice the flexibility of judicial response. They also identified that this runs counter to the TPC s statutory obligations under section 22(e) TCEA 2007 which empower the TPC to assess what fairness in proceedings demands and how it can be achieved. In our view, Parliament has chosen to empower a statutorily appointed committee of judges (the TPC) to formulate rules and delegate such powers to the tribunal judiciary via those rules as it sees fit. As a matter of principle, we would discourage the removal of statutorily recognised judicial flexibility by way of parliamentary order, particularly in an area where the stakes for appellants are so high, requiring a correspondingly high standard of fairness under the law. 7. It is not for the Law Society to speak for the TPC, but it seems to us that the TPC s conclusions still hold good. The Principal Rules provide all the necessary case management tools to achieve the swift and fair determination of detained immigration appeals. For the Principal Rules to work efficiently in the context of detained casework they need only to be supported by adequate judicial and administrative resources. The significant and persistent delays in tribunal listing have inevitably prevented the Principal Rules from working efficiently with detained casework. This cannot be said to be evidence that the Principal Rules are failing, such that Fast Track rules must be adopted. Consultation questions 1. Do you agree that specific Rules are the best way to ensure an expedited appeals process for all detained appellants which is fair and just? If not, why not? 8. The series of judicial reviews brought by Detention Action and the evidence considered by both the Administrative Court and Court of Appeal demonstrated the significant risks to fairness that arise from the use of expedited timetables, whether before or during the appeal stage. The Home Office has acknowledged that wide -ranging criticism was made of the wider DFT process and the Fast Track appeal rules. In summary, these encompassed: unduly restrictive timescales and numerous practical obstacles to consultation with lawyers; similarly restrictive timescales for the preparation of cases and applications to the Tribunal; limited time to properly evidence cases and seek additional supporting evidence, including from experts; limited time to ensure that public funding was in place; poor screening out of the vulnerable and those with mental health issues, and the sub-standard application of Rule 35.The list could go on. In the view of our members and other stakeholders who met regularly with Home Office operational and legal staff following the judgment of Ouseley J 3, remedial measures had little positive impact. 9. It is in this context that the consultation paper was issued, the Fast Track having been suspended for16 months. Although the consultation paper underlines the view of the Court of Appeal that in principle, a Fast Track process was lawful, we find the view of Mr Justice Nicol to be of more assistance in answering the current question. In 2 See page 5, Letter from TPC to Rob Jones, Home Office, 12 February [2014]EWCA 2245 The Law Society 2016 Page 3 of 7

4 commenting on the Home Office s desire for a truncated timetable which leaves little or no discretion to judges, the judge said: From the perspective of an executive department that is a perfectly understandable objective, but it is not consistent with a procedural scheme which must give an element of priority to fairness and seeing that justice is done. On the contrary, it looks uncomfortably akin to what Sedley LJ in Refugee Legal Centre said should not happen, namely sacrificing fairness on the altar of speed and convenience Prescriptive expedited timescales prevent conscientious lawyers from carrying out their professional duties and preparing cases effectively. They also hinder judicial independence and flexibility in handling cases fairly. This is especially so where the timescales are being imposed by the respondent to the appeal, which may strengthen the appearance of bias. 11. It is for these reasons that we support the clear view of the TPC that the Principal Rules should be used to secure Home Office objectives. Those rules are ready and able to provide expedited case management if they are supported by adequate administrative and judicial resources in hearing centres. Judicial training in case management might also assist and we note the offer of the TPC to work with the Home Office to explore alternative approaches to resolve delays in processing detained casework. We are unsure as to whether this offer has been taken up. 2. Do you think that an expedited immigration appeals process should apply to all those who are detained? If not, why not? 12. No. We refer to our response to question one which deals with the desirability of expedited rules more generally. Our views do not alter on the basis of the reason why an individual is in detention. Whatever the basis for detention, the TPC correctly emphasised the real or perceived prejudice that may taint any case within a Fast Track and this will continue, notwithstanding that the Home Office has now jettisoned its earlier criteria for entry to the Fast Track, ie cases, which, in general appear to be unnecessarily late, opportunistic, abusive or highly likely to fail. 13. In any event, we are unable to answer this question without clarification of the legal aid arrangements for detainees. On the basis of the current legal aid regulations, many appellants will be ineligible for legal aid owing to their case being a non-asylum matter or because they do not fall into limited exceptions such as those that exist for trafficking victims and victims of domestic violence. 14. Based on the limited information within the consultation paper and statistics from the time when the DFT was operational, we can only assume that a large proportion of the new cohort would be unrepresented appellants who most likely would have to apply for exceptional case funding. We are aware that current times for determining these applications are lengthy (indeed, the application for funding may outlast the proposed 25-day time limit to disposal) meaning that many appellants will go unrepresented, which cannot be acceptable. The provision and accessibility of legal representation is a crucial element in assessing fairness within an expedited appeal procedure. 4 [2015] EWHC 1689 (Admin) The Law Society 2016 Page 4 of 7

5 3. Do you have any other proposals for alternative criteria to select groups who would benefit from an expedited immigration appeal process? 15. No. For the reasons given above we do not believe that many appellants, if any, can or will benefit from an expedited immigration appeal process. 4. Do you think the introduction of an overall timeframe is preferable to specific time limits for each stage? Please give reasons for your answer. 16. We do not agree in principle with the use of generalised and restrictive timeframes but support the use of mechanisms already within the Principle Rules to shorten and/or lengthen deadlines at the request of one or either party or otherwise by exercise of judicial discretion. 5. Do you think that 25 working days is sufficient to dispose of an appeal in the First- Tier Tribunal, and a further 20 working days sufficient time to determine whether an appellant has permission to appeal to the Upper Tribunal? If not, do you have a view on how long should be allowed for an appeal to be determined in the First- Tier Tribunal and/or to determine whether an appellant has permission to appeal to the Upper Tribunal? Please give reasons for your answer. 17. What is sufficient time for the disposal of an appeal to either the First Tier Tribunal or the Upper Tribunal can only be fairly decided on the facts of a particular case. The Principal Rules allow for tailored case management that includes accelerating the pace to disposal in a manner that preserves fairness. 18. We note the consultation paper s concentration on 25-day time limit but are unaware of any research or other justification that supports the view that this specific timescale will deliver fairness and robust appeal outcomes. 6. Do you think that every appellant should have an opportunity to apply to a judge to have a case management review on the papers, with discretion for a judge to hold an oral case management review? Please give reasons for your answer. 19. No. All cases should have an automatic oral case management review with both parties in attendance. There should be no prospect of an effective hearing on the day of any case management review where an application to transfer the case out of the Fast Track may be made. We are especially concerned to make sure that the large number of unrepresented appellants are protected by active judicial oversight of their cases. That the majority of appellants do not apply for a review of their cases cannot be justification for dispensing with an automatic review. 7. Do you think the options the First-Tier Tribunal has for adjourning cases at the case management review are right? If not, what options should the First Tier Tribunal have? Please give reasons for your answer. 20. The First Tier Tribunal should be able to avail itself of all options contained in Rule 4 of the Principal Rules. The Law Society 2016 Page 5 of 7

6 8. Should appellants subject to new proposed expedited appeals process be required to pay a fee in order to bring their appeal to the Immigration and Asylum Chamber of the First Tier Tribunal? Please give reasons for your answer. 21. Given the role the of the Immigration Tribunal in resolving disputes between individuals and the State in respect of decisions which fundamentally affect an individual's family life and future, the first principle should be accessibility rather than 'full costs recovery'. 22. If detainees are to be charged fees at their current level this will have a chilling effect on the ability of prospective appellants to pursue appeals. This represents a serious denial of justice, particularly in an area in which fundamental rights, such as Articles 3 and 8 ECHR, are at stake. Moreover, it cannot be realistic or fair to expect prisoners to have access to the level of funds required for both oral and paper hearings or to be able to fund their own representation in the absence of legal aid and fee exemptions. 23. The fee waiver system is a considerable obstacle to access to justice in that substantial documentary requirements are necessary in order to apply successfully for a fee waiver or remission. Prisoners and others in detention will have real difficulty in accessing bank accounts and payment methods while in detention, even for those who have the means to pay. 9. Do you think that the Government should take a power in primary legislation to introduce and vary time limits for different types of immigration and asylum appeals? Please give reasons for your answer. 24. No. We suggest that the government uses the Principal Rules to achieve efficiencies in appeals processing. We cannot understand why the TPC as a statutory body with the delegated powers and expertise to make Tribunal Rules would be bypassed in such a manner. 10. Do you agree with the assumptions and conclusions outlined in the Impact Assessment? Please provide any empirical evidence relating to the proposals in the paper? 25. Our view of the impact assessment (IA) is that it is selective and does not inspire confidence in the rationale for implementing option 1, considering the associated risks and the unclear financial and other claimed benefits. 26. We offer the following observations: The IA (and indeed the thrust of whole consultation) is predicated on the assumption that detainees prefer a shorter detention time to the fair adjudication of their appeal. Research with detainees by Detention Action suggests quite the opposite, which mirrors the experience of our members. It is striking that the MOJ and Home Office are unable to quantify whether the proposals will increase or decrease mean detention time, considering that this is the central stated driver for the proposals along with costs savings. The IA fails to acknowledge the serious procedural disadvantage to detainees as a result of restrictions on the availability of legal aid, the potential imposition of fees and the exceptionally difficult task of obtaining exceptional case funding or a fee waiver. The Law Society 2016 Page 6 of 7

7 With regard to the costs benefit summary, it is unclear how these sums have been arrived at. We note that limited MOJ data has prevented an estimate of all the potential costs for the implementation of Option 1being produced. The assumption that the proposals will not require any additional resource from solicitors is questionable. We believe that the proposals could also lead to wider contracting issues, including exclusive contracting. The assumption that the costs of CMR hearings will be offset by a reduction in the number of bail hearings is unsupported and unlikely to materialise. FOR FURTHER INFORMATION Officer's Name Officer's Title Officer's address : Anselm Benedict : Policy Adviser (Public Law) : Anselm.Benedict@lawsociety.org.uk The Law Society 2016 Page 7 of 7