ASYLUM APPEALS UNDER THE NATIONALITY, IMMIGRATION AND ASYLUM ACT 2002-NEW SYSTEM, NEW PROBLEMS

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1 ASYLUM APPEALS UNDER THE NATIONALITY, IMMIGRATION AND ASYLUM ACT 2002-NEW SYSTEM, NEW PROBLEMS Scott Blair, Advocate BACKGROUND Asylum law has, until fairly recently, been the province of a very few specialist practitioners in Scotland. However the policy of the Government to disperse asylum-seekers away from the south-east of England and in particular to Scotland has meant that there has been a sharp increase in the number of practitioners becoming involved in this area and having to get on the steep learning curve of substantive asylum law and having to familiarise themselves with the Byzantine complexity of asylum appeals procedure. There has been a related increase in the number of petitions for judicial review brought in the Court of Session of refusals of asylum appeals. Asylum law is very complicated. It is constantly changing as a result of caselaw or legislative action. It requires an understanding of the United Nations Convention on the Refugees 1950 and as an international treaty attention must also be paid to decisions of the Canadian, Australian and American courts to fully understand the relevant law. Moreover as asylum claims often also raise questions under the European Convention on Human Rights ("ECHR"), a knowledge of the law of that Convention is needed. The United Kingdom asylum appellate authorities issue thousands of determinations each year. By contrast in a year the Court of Session might issue opinions in a couple of hundred cases at most. The subject matter of asylum law is fraught. Wrong decisions can cause families to be separated. Rejected applicants might be returned to the risk of persecution or torture or even death. It follows that it is of the essence of protection under both Refugee Convention and ECHR that the procedures by which claims are determined must be both fair and afford strict scrutiny of refusal decisions. Just as many of these new practitioners were coming to grips with the complexities of existing law and procedure in the Immigration and Asylum Act 1999, the Nationality, Immigration and Asylum Act 2002 was enacted. HISTORY OF ASYLUM APPEALS The two tier system of adjudicator and Immigration Appeals Tribunal has existed since 1969 but it was only with the introduction of asylum appeals in 1993 (Asylum and Immigration Appeals Act 1993 s. 8) that their role came under such close legal and political scrutiny. Asylum appeals account for the bulk of the workload of the system. The introduction of human rights appeals ( under section 65 of the 1999 Act and Based on alleged breaches of the ECHR ) has added to the workload. In relation to the latter, the Home Office has commented in the White Paper which preceded the 2002 Act that they have "led to the appeal System becoming clogged up and unable to deal effectively with the new appeals in a timely way"(home Office White Paper, Safe Borders, Safe Havens : Integration with Diversity in Modern Britain, Cm (2002), para Hereafter "White Paper"). The growth in the number Page 1 of 10

2 of appeals and the resultant delays in the determination of appeals ( the appellate authorities strive to clear 65% of appeals through both tiers in at most four months ) has given rise to much concern. Some might therefore question why appeals are necessary. Immigration control might be said to be an issue for the executive arm of government. However it is generally accepted that first instance decision making by the Home Office, whilst improving, is generally of low quality. As asylum becomes an increasingly bitter political issue the need for procedural protection independent of the executive arm of government has never been greater. Moreover as the refusal of an asylum application may clearly have very serious consequences for the applicant, the United Kingdom would run the serious risk of being in breach of international law under the Refugee Convention and both national and international law under the ECHR if it failed to have in place adequate procedural safeguards which were designed to prevent the return of applicants to territories where they ran the risk of serious harm or even death. The Leggatt Report (Tribunals for Users : One System, One Service : Report of the Review of Tribunals by Sir Andrew Leggatt ( London, Lord Chancellors Department, 2001), Part II.) suggested that asylum appeals had become imbued with a culture of pervasive challenge. The Home Office regards continued challenge as an abuse of the system but other groups see it as evidence of a need for deficiencies in initial decision-making and the adjudication process itself with much of the blame for error and delay lying at the door of the Home Office. Delay by the Home Office has itself been the subject of judicial challenge. For example in Nori v. Secretary of State for the Home Department ( [2002] UKIAT 01887) the IAT described a delay of 12 months to interview an asylum applicant after their initial. Incorrect refusal on grounds of non-compliance "as yet another example of Home Office incompetence and delay, creating an obstacle to the proper and speedy determination of a claim. " It is against this background that the 2002 Act falls to be examined. What is surprising is that further reform should be needed to soon after the overhaul of asylum appeals in the Immigration and Asylum Act That Act had sought to establish a "firm bit fair" approach to asylum appeals but even on the admission of the Home Office the provisions of the Act "have not always been easy to understand " (White Paper, para. 4.61). In September 2002 the target of removal of failed asylum seekers per year was described as very ambitious ( ( House of Commons Home Affairs Committee Border Controls ( HC 163 ) first report, para. 69 ) but was later accepted to be "massively over-ambitious" (House of Commons Home Affairs Committee, Minutes of Evidence, September 18, 2002 (HC 1186-I), Q. 85 Rt Hon. David Blunkett MP, Secretary of State for the Home Department ). The policy was abandoned. As the Home Secretary has described the decision-making and appeals process to be " the longest, most prevaricating process that anyone has ever devised" it comes as no surprise, that in light of the failure to meet removal targets, that further reform of the appeals process should be seen as the next means by which targets might be met. Page 2 of 10

3 ASYLUM AND HUMAN RIGHTS APPEALS The new appeal system is designed to ensure finality in decision-making. Sections 82 and 84 are key provisions. Section 82 sets out all of the types of immigration decisions against which an appeal can be brought including the refusal of leave to enter, entry clearance, of a certificate of entitlement, the refusal to vary leave to enter or remain, the revocation of indefinite leave to enter or remain, and removal and deportation from the United Kingdom. The grounds of appeal are contained in section 84. An appeal can only be brought on one or more of the following grounds : that a decision was not taken in accordance with the Immigration Rules, was unlawful under race relations legislation, the Human Rights Act, EU law or the Refugee Convention, was not otherwise in accordance with law ; or that the person taking the decision should have exercised differently a discretion conferred by the Immigration Rules. It had generally been accepted that to be effective, a right of appeal against the refusal of refugee status had to be exercised within this country. Under the 2002 Act, the Home Office, can in a variety of cases require that any appeal is exercised from outside this country. In terms of section 94(2) an appeal may not be brought if the Home Office certifies that their asylum or human rights claim is clearly unfounded. Section 94(3) states that if the Home Office is satisfied that the applicant is entitled to reside in one of the ten EU accession states, then their claim will be certified as unfounded unless it is satisfied that it is not clearly unfounded. These are listed in section 94(4) as Cyprus, Czech Republic, Estonia, Hungary, Latvia, Lithuania, Malta, Poland, Slovak Republic and Slovenia Section 94(7) provides that if the Home Office certifies that it proposes to remove someone to a country of which they are not a national and there is no reason to believe that their human rights will be breached, then the individual may not appeal. At first this provision appears to be draconian. The effect is tempered by virtue of section 94(8) which provides that the country specified in the certificate is not to be regarded as a place where the person's life or liberty will be threatened under the Refugee Convention or a place from which they will be sent to another country other than in accordance with the Refugee Convention. In addition section 96 provides that an appeal may not be brought against a decision if it is certified that the person concerned was notified of a right of appeal against a previous decision and that the present claim has been made in order to delay removal and serves no other legitimate purpose. As has been pointed out (R. Thomas, Immigration appeals overhauled again [2003] P.L. 260 ) there are real difficulties with these provisions on matters of principle. For one on the face of it the ambiguity of these provisions would be to confer upon the Home Office the power to exclude any right of appeal, whether from inside or outside the United Kingdom, if the claim is certified as clearly unfounded. Page 3 of 10

4 The Joint Committee on Human Rights was so concerned about this possibility that it suggested that the potential for unfairness could be resolved by re-inserting a few words to at least ensure that at least an out of country appeal remained ( Nationality, Immigration and Asylum Bill : Further Report ( HL 176, HC 1255) 23rd Report, paras ) This was rejected. More fundamentally it is unclear how an out of country appeal can in any event be regarded as a fair or adequate means by which to challenge an adverse decision on asylum or human rights. Claims for refugee status of necessity are based on the fear of persecution for one of the reasons set out in Article 1A of the Refugee Convention. Many human rights appeals are brought on the basis that removal from the United Kingdom would place the appellant at a real risk of torture or inhuman or degrading treatment contrary to Article 3 ECHR. The absolute and non-derogable nature of this right has been emphasised in a number of cases involving expulsion to a territory in which it is said that the returnee would be exposed to such a risk (Soering v. United Kingdom (1989) 11 EHRR 439 ; Cruz Varas v. Sweden (1991) 14 EHRR 1 ). The emphasis on out of country appeals is also difficult to square with the 1998 statement from the Government that :- "a right of appeal after removal is not an effective remedy. A proposal to return a person to a country in which he claimed to have a well-founded fear of persecution without a right of appeal would almost certainly be inconsistent with our international obligations " (Home office and Lord Chancellor's Department, Review of Appeals : A Consultation Paper ( London) Lord Chancellor's Department, 1998, para ) The Joint Committee on Human Rights recommended that it should not be possible to remove a person without an appeal as to do so would run the risk of violating the right to an effective remedy secured by Article 13 of the ECHR ( Joint Committee on Human Rights, Nationality, Immigration and Asylum Bill ( HL 132, HC 961 ) 17th Report, para. 98 ). Similarly the new monitor on certified claims introduced by section 111 is unlikely to be an effective remedy. Strangely, given the avowed intention of speeding up the appeals process, the Act does not attempt to oust the supervisory jurisdiction of the court to consider challenges to such certification being brought on traditional administrative law grounds. Rather than have an adjudicator decide the substance of any appeal, reliance on the certification procedure is likely to mean that more time and money is expended on judicial review proceedings aimed not at the substance of the claim for refugee status, but on the legality or reasonableness of the certification. As there are substantial grounds for argument that the grounds upon which certification of appeals as unfounded are wider than are compatible with the Refugee Convention, then judicial review of certification decisions is likely to increase. Even then it may be arguable that judicial review proceedings in themselves are inadequate if they are unable to Page 4 of 10

5 examine the substance of the underlying claim ( Conka v. Belgium (2002 ) 34 EHRR 1298 as explained by Lord Lester of Herne Hill QC, HL Deb., Vol 639, cols , October ). Other concerns over the efficacy of out of country appeals arise out of the lack of an oral hearing in the United Kingdom. As many asylum appeals turn on questions of credibility it is easy to see how the lack of an oral hearing in this country is likely to lead to the refusal of appeals brought by genuine refugees. The importance of an oral hearing in this context has been given judicial recognition ( R v. IAT, ex parte S [1998] Imm. A. R. 252 at 268 per Sullivan J ) :- "...[w]here the appellant's credibility is in issue..., it would only be in rare cases that a special adjudicator could properly be satisfied that the appeal could be disposed of justly without a hearing. " Support can also be derived from academic research into the relative success rates of oral as opposed to paper based appeal ( H. Crawley and others, Family Visitor Appeals : An Evaluation of the Decision to Appeal and Disparities in Success Rates by Appeal Type ( London, Home Office, forthcoming 2003) ). The ECHR has similarly stressed the importance of oral hearings where important personal interests are engaged under reference to Article 6 ( Schuler-Zgraggen v. Switzerland (1993) 16 EHRR 405 ). Although Article 6 has been held not to extend to the field of immigration ( Maaouia v. France (2001) 33 EHRR 42 ). In England the Court of Appeal has at least been prepared to treat asylum appeals as if the Article 6 procedural rights applied in substance ( R v. Secretary of State for the Home Department, ex parte Saleem [2001] 1 WLR 443 ). However that approach can only be taken so far and could not, for example prevail over a contrary statutory provision. In any event even if Article 6 does not apply it is suggested that an Article 6 civil right or obligation need not be engaged for procedural protection, including the right to an oral hearing, to be extended to this context. Other Convention rights might assist. Both Article 3 and 13 have procedural content independent of Article 6 ( see most recently the successful ECHR application from Scotland of E and others v. United Kingdom (2003) 36 EHRR 519 and also in the specific context of asylum, Jabari v. Turkey [2001] INLR 136 ) and it is certainly arguable that claims to protection under these Articles may generate the right to an oral hearing. It would after all be paradoxical if a run of the mill dispute over compensation for a minor personal injury or action for debt in the small claims court attracted greater protection from the legal system than a case which might involve the right not to tortured or degraded. As a high proportion of appeals are allowed ( approximately one in five based on the last available figures for 2001, Asylum Statistics United Kingdom 2001, London, Home Office 2002 ), it is possible that appellants who qualify for refugee status or who require ECHR protection could lose their appeals under the new system there is a real risk that the United Kingdom will be there placed in breach of international law. Page 5 of 10

6 DESIGNATED SAFE COUNTRIES There has been a turn-around in relation to the use of so-called "white lists" of designated safe countries. Whilst in 1998 the Government rejected the use of such a country wide approach as unfair ( Home Office, Firmer, Faster, Fairer-A Modern Approach to Immigration and Asylum, Cm (1998), para ). However as we have seen the 2002 Act has reversed this policy by creating a new white list in relation to the EU accession states. Applicants from such states will have their claims certified unless they can show their claims to be not clearly unfounded. Whilst the government tried to justify the list on the basis that it would assist in the early weeding out unmeritorious claims to the benefit of meritorious claims, it is by no means certain that conditions in many of the accession states are such that such a blanket approach is justified or proportionate. As recently as 2002 the European Commission found that discrimination against the Roma people was still widespread in the Czech Republic ( 2002 Regular Report toward Accession : Czech Republic, SEC , p. 30). Poland too has been found to lack sufficient protection for Jews subjected to anti- Semitic attacks ( R ( On the Application of Bodzek ) v. Special Adjudicator [2002] EWHC Admin 1525). The Secretary of State can by order add new countries to the list if he is satisfied that there is in general no serious risk of persecution and that removal to that state would not in general contravene the ECHR. Although the Act sets up a new Advisory Panel on Country Information under section 142 there is, strangely, no obligation to consult the Panel before so doing. Such an order would however be amenable to judicial review ( R v. Secretary of State for the Home Department, ex parte Javed [2001] Imm. A.R Pakistan order unlawful ; R v. Secretary of State for the Home Department, ex parte Balwinder Singh [2001] EWHC Admin 925 -India order lawful ). IMMIGRATION APPEAL TRIBUNAL The Act makes changes in relation to the IAT. These changes do not go as far as the initial proposals. The history of the IAT has been a troubled one. For one it is sometimes said that the mix of lay and legal members at the level of a second tier appeal Tribunal in an area of law of particular difficulty is anomalous. There has also been criticism of the varying and inconsistent jurisprudence which has in the past been produced by different panels of the Tribunal. Equally whilst it is acknowledged that the IAT is a repository of expertise in a difficult field, the Courts have not failed to criticise it (Koller v. Secretary of State for the Home Department [2001] EWCA Civ 1267 "some panels of the IAT must be of uncertain quality ") whilst acknowledging the difficulties within which it operates ( Kacaj v. Secretary of State for the Home Department [2002] EWCA Civ 314 "there was no doubt that the task Page 6 of 10

7 of the Tribunal is amongst the most challenging in the legal world. Moreover it works under huge pressures " ). In light of some of these concerns, even before the 2002 Act steps had been taken to formalise the IAT. Although a proposal to remove lay members was dropped during the passage of the Bill leading to the 1999 Act was dropped the professional nature of the Tribunal was emphasised when in 2000, Mr Justice Collins was appointed to be the President of the IAT, a development which has now been put on a statutory footing in the 2002 Act.(Schedule 5, para. 3. In January 2003 Ouseley J. succeeded Collins J. ) The next step on the road to a more judicial status was the introduction of starred determinations made by panels of legally qualified Vice-Presidents in cases which deal with matters of general law or principle. Adjudicators must follow starred determinations and the IAT can only depart from such a determination where it appears to have been clearly wrong. The Home Office intended to build on these developments in the proposals for reform of the IAT. The White Paper which preceded the 2002 Act had announced that the IAT would become superior court of record, would hear appeals from adjudicators solely on points of law and not in relation to any findings of fact, and there would be no scope for judicial review of IAT refusals of leave to appeal ( White Paper para ). The 2002 Act does not however fully implement these plans. The status of the IAT, whilst enhanced has not been raised to that of a court. Lay membership continues. Even although the Leggatt Report ( para, 21 ) recommended that the use of lay members brought in the expert contribution of non-lawyers too late in the process, and recommended that they should have a role at the adjudicator level, that proposal was not implemented in the 2002 Act. Under the 2002 Act and as with the 1999 Act an appeal to the IAT may be brought against the determination of an adjudicator on a point of law only ( s. 101(1) ). The Act also provides that in deciding an appeal the IAT may consider evidence about any matter which it thinks relevant to the adjudicator's decision,including evidence as to any matter which arises after the adjudicator's decision ( s. 102(2) ). This extension of jurisdiction from the 1999 Act arose to allow the IAT to take into account any change in the conditions in the country of origin. Such an approach is welcome as it should help to reduce the bringing of fresh claims for asylum based on alleged change of circumstances since the original decision. In entry clearance appeals the appeal is limited to facts in existence at the time of the original decision (ss. 88(5) and 102) ). More controversially the Act seeks to limit the ability of those who fail to obtain leave to appeal to the IAT to seek judicial review of the refusal of leave. Judicial review of refusals of leave to appeal by the IAT had become a common feature in both the Court of Session in Scotland and the High Court in England and Wales. Inevitably this drew criticism from the Home Office. For example in 1999 a Home Page 7 of 10

8 Office Minister had stated that "having a large number of unneccessary, vexatious and useless judicial reviews as we have had in the asylum system simply creates delay, expense and is counter productive"( Special Standing Committee on the Immigration and Asylum Bill 1999, col. 1413, May 11, 1999 per Mike O'Brien MP ). At roughly the same the Bowman Report had found that the Home Office settled around 85% of judicial review applications which were brought ( Review of the Crown Office List : A Report to the Lord Chancellor, London, Lord Chancellor's Department, 2000 ). The two positions are not easy to reconcile. There is no evidence to suggest that there is any abuse of the ability to seek judicial review in Scotland. Under the Act if a refusal of leave to appeal is to be challenged further then an applicant may use the procedure in section 102 to challenge the refusal of leave on a point of law alone. Notwithstanding the use of the permissive word "may" it is clear that section 102 does not mean that it is an alternative to judicial review at common law under RCS 1994 r. 58. It remains the case that other decisions of the IAT which are not refusals of leave are amenable to judicial review at common law such as for example a refusal to exercise discretion to allow an application for leave to appeal to be received although later ( for a recent example see Saied Mohammadi, 2 May 2003, unreported ) None of this might matter save that section 102 procedure is not attractive. The detailed rules on the use of the procedure are set out in Act of Sederunt (Rules of the Court of Session Amendment No. 3 ) (Applications under the Nationality, Immigration and Asylum Act 2002 ) 2003 (SSI 2003/ 223 ). These extend the provisions of Rule 41 of the Rules of the Court of Session which are concerned with various forms of statutory appeal and review. An application to the Court of Session is determined by a single judge. It is to be determined on the papers alone and in form is in the same style as existing petitions for judicial review save that the named respondent is the IAT and not the Home Secretary. There is no scope for oral argument. Again how the lack of an oral hearing sits with international law is unclear. Whilst judicial review has been held in principle to afford an effective remedy as required by Article 13 of the ECHR ( for example see Hilal v. United Kingdom (2001) 33 EHRR 2 ; Vilvarajah v. United Kingdom (1991) 14 EHRR 248 ), those judgements were made in the context of judicial review proceedings which did afford oral argument. It might be questioned whether the absence of oral argument would allow the court acting under section 102 to afford the level of anxious scrutiny of the claim as required n earlier authority (Bugdacay v. Secretary of State for the Home Department [1987] AC 514 ) and which the Strasbourg Court found to be central to the finding that judicial review was an effective remedy. Under the new Rules the material which the judge can consider is limited to that before the adjudicator or IAT, save that where the judge is satisfied that good reasons existed as to why it was not submitted to the adjudicator or tribunal. That at least is welcome. It is trite law in judicial proceedings that the court cannot take into account evidence which was not before the primary decision-maker. This new provision is closer to the approach of the European Court of Human Rights which has examined Page 8 of 10

9 material not before the national decision-making authorities to determine whether there was a real risk of a breach of Article 3 on expulsion ( Hilal v. United Kingdom ), save that the Strasbourg Court does not apply a test of good reason and can even consider new evidence ex proprio motu. This is a consequence of the absolute nature of Article 3. At Strasbourg it would be no answer to a claim of breach of Article 3, that the traditional domestic approach to the use of new evidence in judicial review precluded the Court of Session from hearing it. Less welcome is the fact that any application for review must be lodged no later than fourteen days after the applicant has been deemed to have received notice of the refusal of leave. Whilst that time limit can be extended there the court must be satisfied that there are exceptional circumstances. An application to extend the time limit must be made in the petition and be supported by an affidavit. It is suggested that in exercising the discretion to allow a late application, the court should not, bearing in mind the requirements of Article 3 under the ECHR and anxious scrutiny under the Refugee Convention, and adopt a narrow approach to the already high test of exceptional circumstances. A rigid adherence to time limits can of itself violate Articles 3 and 13 of the ECHR ( see Jabari v. Turkey ). Moreover if an application is rejected as out of time the court must at least give some indication of its view of the merits or otherwise of the application (see Saied Mohammadi ). There is no right of appeal from any decision. The lack of any further appeal in the United Kingdom may cause practitioners to consider making an application to the European Court of Human Rights itself as was done in Hilal. Where removal from the United Kingdom is imminent an application can be made to that Court under Rule 39 of the Rules of that Court for the grant of interim measures to require that removal be postponed pending determination of the application. This was done in Soering v. United Kingdom. One conundrum is not resolved by section 102. That is jurisdiction. In a recent decision the Court of Appeal held, as a matter of common law, that it did not have jurisdiction to determine an application for leave to appeal arising from the decision of an adjudicator sitting in Glasgow notwithstanding that the application for leave to appeal had been determined by the IAT sitting in London ( Majead, 2 April 2003). Conversely Lord Philip sitting in the Outer House appears to have held that the Court of Session has no jurisdiction to judicially review a determination of the IAT on leave because it sat in London (Tehrani, 3April, 2003 ). His approach seems wide enough to cover cases where the first instance adjudication took place in Scotland as well as England. The reclaiming motion in this case and the reports to the Inner House in another two cases are due to be heard in July. It is a pity that this important point has been left to the courts to resolve. Section 103 does however provide that appeals against substantive IAT determinations can still be brought in the Court of Session or Court of Appeal. It is understood that the IAT deems itself to be sitting in Scotland even when it takes an appeal by video link from Scotland. Page 9 of 10

10 CONCLUSION Given the current political climate reform of the system of asylum appeals was not unexpected nor is it likely to be the last reform, even in the short to medium term. Whilst the Act seeks to improve the efficiency of the system and the speed of decision-making, certain of the reforms are likely to create further costly and time-consuming litigation. Given that some of these challenges are likely to throw up issues of the fundamental compatibility of certain of the reforms with the international obligations of the United Kingdom, and given the reduced opportunities for domestic challenge, it is by no means unlikely that the resolution of such claims will require to take place before courts outwith this country, particularly the European Court of Human Rights. Only time will tell whether the 2002 Act reforms will adjudged to be both efficient and fair. Page 10 of 10