Asylum Aid s Submission to the Home Office/UK Border Agency Consultation: Immigration Appeals

Asylum Aid s Submission to the Home Office/UK Border Agency Consultation: Immigration Appeals

About Asylum Aid Asylum Aid is an independent, national charity working to secure protection for people seeking refuge in the UK from persecution and human rights abuses abroad. We provide free legal advice and representation to the most vulnerable and excluded asylum seekers, and lobby and campaign for an asylum system based on inviolable human rights principles. The Refugee Women s Resource Project (RWRP) at Asylum Aid strives to obtain protection, respect and security for women seeking asylum in the UK by providing specialist advice, research and resources on asylum issues for women. Asylum Aid was runner up in the Liberty and Justice Human Rights Awards 2007. Contact Information For further information on the issues covered by this document, please contact: Nick Oakeshott, Casework Manager: Email: nicko@asylumaid.org.uk Tel: 020 7354 9631 ext: 205 Further information about Asylum Aid and RWRP s policy work is available from our website: www.asylumaid.org.uk

1. Asylum Aid welcomes the opportunity to respond to the proposals relating to Immigration Appeals contained within the consultation document. 2. Asylum Aid will comment on the most important questions that arise after making a number of preliminary observations. Preliminary Observations 3. Asylum Aid is deeply concerned about both the origins of the consultation document and its source. 4. The proposals in a consultation document stem from the recommendations of a small working group. The group was jointly chaired by Lord Justice Richards, a Court of Appeal Judge, and Lin Homer, Chief Executive of the UK Border Agency 1 2. The interim report of that working group, disclosed as a result of a Freedom of Information Act request, reveals that it was attended by an UKBA Director 3 who has overall responsibility for asylum matters, and a representative 4 from the Treasury Solicitor whose team routinely represents the Secretary of State for the Home Department in the Administrative Court and, in cases of importance, before the Asylum and Immigration Tribunal 5. There was no representation from either the non-governmental organisations which are concerned with the welfare and protection of rights of asylum seekers or from the lawyers who provide legal representation to asylum seekers. 5. We believe that this process has resulted in the proposed reforms to the appeals system being focused on achieving limited policy goals, to the exclusion of others. As a result the proposals are unbalanced. This can be seen in the two primary justifications that the consultation document puts forward for the proposals. The first is the UKBA completion target, which stems from UKBA s Public Service Agreement targets 6 and which aims to conclude an increasing proportion of new asylum cases within six months through either a grant of leave or the removal of the applicant from the UK. The second is the Administrative Court s concern about its workload resulting from reconsideration applications, reportedly often considered unmeritorious, against decisions of the Asylum and Immigration Tribunal or applications for Judicial Review in the context of the 1 Hereafter UKBA 2 Paragraph v of the Forward to the Consultation Document 3 Mr Matthew Coates 4 Mr Lee John-Charles 5 Hereafter AIT 6 See paragraphs 12 to 14 of the Consultation Document

imminent removal of asylum seekers who contend that there is new evidence in their case which should be considered by the Asylum and Immigration Tribunal 7. 6. The result is that Asylum Aid and other members of civil society s concerns about the asylum appeals system have been excluded from consideration in the formation of this policy. For example, after an extensive investigation in respect of the UK s asylum system, the Independent Asylum Commission recently made numerous recommendations relevant to asylum appeals. The recommendations included that no asylum claimant should ever, for want of affordable representation, appear before an asylum tribunal unrepresented, that the approach to credibility by the decision makers and the tribunal should be further considered and that the impact of fast track procedures on the quality of decision making should be examined and the results of this research should be used to inform future policy around fast-track procedures 8. These recommendations are directly relevant to the conduct of asylum appeals and yet, as a result of the process that led to the consultation document, they have been excluded from any consideration. 7. By way of further example, Asylum Aid has recently launched The rights of women seeking asylum: a Charter. 112 organisations have already endorsed the document. One of the rights identified is that women seeking asylum have the right to have their protection claims determined by an asylum system in the UK that is informed, in all aspects of its policy and operations, by a thorough understanding of the particular forms of persecution and human rights abuses that women experience because of their gender and of their particular needs as women. In 2006, the Asylum and Immigration Tribunal withdrew the Immigration Appeals Authority s Gender Guidelines without a comparable replacement. Asylum Aid s Refugee Women Resource Project continues to raise this issue because we fear that the women s asylum appeals are being considered without the appropriate guidance, risking errors. Once again, this consideration has been excluded from the formation of the policy upon which the Home Office are now consulting. 8. This concern is not rhetorical. Asylum Aid is of the view that where the Home Office and the Ministry of Justice consider issues raised by the voluntary sector, which are based in its expertise, more effective policy can result which heightens the protection of asylum seekers and refugees in the UK. A recent example is the UKBA and Legal Services 7 Paragraph 9 of the Consultation Document and paragraph 3 of the Interim Report of Working Group on immigration work in the Administrative Court 8 Saving Sanctuary: The Independent Asylum Commission s First Report on Conclusions and Recommendations 3.9.1. 3.9.8 and 3.9.12

Commission joint Early Legal Advice Pilot in Solihull. The fact that proposals for the reform of the appeals system fail to take into account civil society s concerns means that, if implemented, they are likely to produce imbalanced and limited reforms of the asylum appeals system. Asylum Aid recognises that the proposed reforms may offer limited improvement in some areas but they are likely to put in further jeopardy the rights of asylum seekers in others. A more holistic consideration of the asylum system is required when contemplating revision of the appellate structure and procedures. 9. Turning to the issue of the source of the consultation document, this can be dealt with shortly. Asylum Aid considers that it is both inappropriate and of concern that a consultation document about the future of immigration appeals has been issued by the Home Office. It is the government department which is the respondent in immigration and asylum appeals. It is crucial that the judicial bodies that consider appeals against the refusal of asylum or the lawfulness of any decision to remove are independent from the department of government whose decisions are scrutinised. The origins of the consultation document imply that the interests of the Home Office are being prioritised in the proposed reform of the immigration appeals system. This is of particular concern given that asylum has been a hotly disputed political area and the legal protections that asylum seekers receive, particularly in respect of the appeals procedure, have been significantly eroded over the last 6 years. Asylum Aid considers that the Ministry of Justice should be the government department that owns policy in respect of the immigration appeals system, and consultation should be conducted by the Ministry and not by the Home Office. Should the Asylum and Immigration Tribunal be brought within the common framework for tribunals? If so, what form should the new system take? 10.Asylum Aid is of the view that, in principle, the business of the AIT ought to be brought within the common framework for tribunals. The current system for AIT reconsideration and onward appeals is complex. It results from a compromise that attempted to ensure that immigrants and asylum seekers constitutional rights of access to the High Court and Court of Appeal were maintained in the face of government proposals to attempt to remove them in the Asylum and Immigration (Treatment of Claimants) Bill 2003. Simplification would be beneficial. 11.However, Asylum Aid considers that bringing the AIT s work into the common framework of Tribunals should not be achieved at the expense of the protection of constitutional or human rights of asylum seekers and refugees. Rather, this reform should improve standards of fairness for asylum seekers by reference to the standards applied in other areas of tribunal practice. In particular, primary legislation that

attempts to oust the supervisory jurisdiction of the High Court over the new Tribunal would be inappropriate, as would any increased restriction on the onward statutory right to appeal to the Court of Appeal from the Tribunal. Such measures would sacrifice the point of principle which the current compromise system was devised to ensure respect for. 12.The consultation paper proposes, in paragraph 30, that the refusal of permission to appeal from the first tier of the Tribunal to the second tier of the Tribunal will result in the statutory appeal process being brought to a close. This is of concern in that the effect of the proposal is to remove such decisions from the scope of the supervisory jurisdiction of the High Court. Although there is a welcome proposal that High Court judges will be amongst those that sit in the Upper Tribunal, it is not proposed that High Court Judges will decide on all applications for permission to appeal to the Upper Tribunal. 13.Consequently, if the proposal for a specialist chamber to consider immigration and asylum appeals is implemented, it appears likely that many of the Senior Immigration Judges who currently consider reconsideration applications made to the AIT will sit in judgment on applications for permission to appeal to the Upper Tribunal. This arrangement will mean that applicants who can presently apply to the Administrative Court to consider their application for reconsideration after it is refused by a Senior Immigration Judge will be left without a further domestic remedy. This risks placing the UK in breach of its obligations under the Refugee Convention and the European Convention on Human Rights. Between 04/04/05 and 31/03/08 1053 orders for reconsideration were made by the Administrative Court and 31% of asylum appeals after reconsideration has been ordered are allowed 9. If the proposed Tribunal system had been in operation over the last 3 years it can be estimated that up to 300 refugees or others entitled to international protection would have risked being removed from the UK to face persecution. Asylum Aid considers that this is unacceptable and underlines that the removal of High Court scrutiny in asylum appeals is not appropriate. The removal of scrutiny cannot be justified by the figure cited in paragraph 11 of the consultation document that only 2% of all asylum applicants are granted a reconsideration order by a higher court. 14.A further concern is that the Tribunals, Courts and Enforcement Act 2007, section 13(6) provides that the Lord Chancellor may order that 9 The figures provided by the Ministry of Justice as a result of a Freedom of Information Act request indicate that 1053 of 10,444 applications for reconsideration applications considered by the Administrative Court between 04/04/05 and 31/03/08 resulted in orders for reconsideration were granted. 31% of all asylum appeals where reconsideration is ordered resulted in the appeal being allowed.

permission to appeal to the Court of Appeal from the Tribunal, on a point of law, should only be granted by the Tribunal or the Court of Appeal itself if either considers: (a) that the proposed appeal would raise some important point of principle or practice, or (b) that there is some other compelling reason for the relevant appellate court to hear the appeal. Asylum Aid is concerned that, if such an order was made, it could be interpreted to mean that asylum seekers who were able to show that the new Tribunal had erred in law in their appeal, but that it did not raise some important point of principle or practice, should not be granted permission to appeal to the Court of Appeal. We hope that the government will clarify that under the proposed new Tribunal, if an asylum seeker identifies a point of law in respect of a decision of the Upper Tier, then permission to appeal will always be granted by the Tribunal or Court of Appeal. If no such clarification is provided asylum seekers who can show that the decision by the Upper Tier in their appeal contained an error of law may still face removal to persecution. 15.Asylum Aid is concerned that women asylum seekers will be particularly adversely affected by these proposed changes. The issues that their cases raise are often not properly understood by the current decision making system. Recent research undertaken by the Refugee Women s Resource Project and the Poppy Project indicates that initial decision making on the protection claims of trafficked women is still poor 10. In addition, in recent important cases considered by the Court of Appeal and House of Lords, the decisions of the AIT have been overturned on the basis that it had not provided broad enough protection of the rights of women asylum seekers 11. Asylum Aid is concerned that the Immigration and Asylum chamber of the new Tribunal, conducting its business without specialist gender guidelines, will make similar errors to its predecessor. However, under the proposed system, its errors risk remaining uncorrected because of the proposed limitations on its supervision provided by the higher courts. The proposed system risks women asylum seekers being denied the protection to which they are entitled. 16.The concerns raised about the higher courts workload arising from immigration and asylum matters, set out in paragraphs 7 to 11 of the consultation document, and UKBA s wish to limit appeal rights to free its hand to enforce removals should be considered in this context. The 10 Good Intentions: a review of the new asylum model and its impact on trafficked women claiming asylum (POPPY Project and RWRP, 2008) 11 For example AA (Uganda) v Secretary of State for the Home Department [2008] EWCA Civ 579 and Fornah v Secretary of State for the Home Department [2006] UKHL 46

cardinal importance of ensuring continued respect for the UK s proud tradition of giving sanctuary to those who need it and the UK s international legal obligations under the Refugee Convention, EC Asylum Minimum Standards Directives and the European Convention of Human Rights should be given primary importance in devising any future system for the consideration of asylum appeals. 17.In Asylum Aid s experience, contrary to what is suggested in paragraph 8 of the consultation paper, it is not inevitable that asylum applicants whose claims fail will pursue every appeal right. However, it should be recognised that asylum appeals raise issues of life or death and it is therefore appropriate that high levels of procedural protections should apply. A number of government policies contribute to the fact that asylum seekers seek to challenge adverse decisions in their appeals. For example: The speed of operation of the detained fast track for determining asylum applications and appeals often results in applicants pursuing applications for reconsideration because they consider that their applications have not been dealt with fairly, often with the benefit of minimal legal representation; Limitations on legal aid and the strict application of the Controlled Legal Representation Merits Test required by the Legal Services Commission mean that many asylum applicants do not have the benefit of legal representation at any stage of their appeal. This is increasingly true in respect of reconsideration applications as Legal Services Commission providers have to conduct them under what is effectively a conditional fee; Since Exceptional Leave to Remain was abolished in 2003, the numbers of asylum seekers granted complementary protection has been reduced. As can be seen from the litigation surrounding Article 15(c) of the Qualification Directive, this means that, for example, civilians fleeing situations of armed conflict are not presently being granted protection whereas before 2003 they would often have been eligible for protection under an ELR policy. It is entirely understandable that those fearing return to the armed conflict in Somalia or South and Central Iraq would pursue appeal rights; Asylum seekers without minor dependents will lose their entitlement to asylum support and accommodation 21 days after the final determination of their appeal. As asylum seekers cannot work to support themselves some may be compelled to pursue their appeals to avoid imminent destitution. If these policies were modified, in Asylum Aid s view it is likely that the higher courts workload in this area would decrease.

Procedure Rules 18.The consultation document proposes that, unlike other Chambers of the new Tribunal, the Government will maintain the power to set the Asylum and Immigration Chamber s procedure rules and not provide for them to be made by the Tribunal Procedure Rules Committee. The reason for this is to ensure that the Procedure Rules reflect the Government s objectives. 19.Asylum Aid considers that the retention by the Government of the Procedure Rule making power for the Tribunal is inappropriate and will provide a framework for the Tribunal that will appear to be designed in the Secretary of State for the Home Department s interests. The proposal is inconsistent with the argument that the new Tribunal will be of equivalent status to the High Court, as a superior court of record. In addition, the retention of the power may breach fair trial and nondiscrimination guarantees found in the European Convention of Human Rights 12 and European Community Law rights to an effective judicial remedy and fair trial 13. Transfer of Judicial Review cases to the new Upper Tribunal 20.The proposed removal of the bar to the transfer of Judicial Review proceedings to the new Tribunal in asylum and immigration matters is premature. The consultation document itself does not envisage that this would occur immediately, but after the Upper Tier was wellestablished. The consideration of this measure by Parliament should be deferred until after any reforms in the appeal system to see whether the removal of the bar is either appropriate or necessary. In any event, as stated above, the accuracy of UKBA decision making in asylum cases remains poor. Judicial Reviews in asylum matters usually occur in the context of imminent removal of the applicant. As such they are often the final safeguard to ensure that the UK does not breach its international obligations. Asylum Aid considers that it is inappropriate to remove the consideration of such matters from the higher judiciary. 12 Articles 3, 6, 13 and 14 13 Article 47 of the Charter of Fundamental Rights of the European Union

Conclusion 21.Asylum Aid considers that many of the proposals contained within the consultation paper aim to limit the already diminished procedural rights that asylum applicants have because those rights are perceived to impede the achievement of the Border Agency s targets. This appears to be a symptom of the fact that the origin of the consultation is the Home Office rather than the Ministry of Justice. The result is that the policy considerations underlying the proposals place insufficient weight on ensuring just determination of the need for international protection. In Asylum Aid s view the positive aspects of the proposals, such as the incorporation of the AIT s work in the new Tribunal and the increased presence of High Court Judges in its upper tier, should be built upon. At the same time greater account should be taken of the rights of asylum applicants to fair status determination procedures and appeals.