Posts Tagged ‘immigration and asylum’
Improving Immigration and Asylum procedures
Immigration and asylum is always controversial. People have strong view, both for and against current immigration policy and practice. But these policies are underpinned by a legislative framework (albeit a very complex one) and if we believe, as I do, that upholding the rule is an important societal value, then it is important that those impacted by our law on immigration and asylum should be able to rely on decisions that are made in accordance with the law, and that there should be rights of appeal where something has gone wrong.
For a number of years, however, the immigration and asylum appeals process has been under close government scrutiny. In the early part of the 21st century, the concern was with the huge numbers of immigration cases being taken on judicial review to the High Court. More recently, most of these cases were taken away from the High Court and transferred to the Immigration and Asylum chambers of the First Tier Tribunal and the Upper Tribunal.
However, numbers remained high. In this context, there were concerns that too many cases brought were unmerited, being used as a delaying tactic to postpone deportation; and that some of those providing advice and assistance in immigration cases were not providing a properly professional service.
As part of its major series of reports on the justice system, written to assist the Transformation of our Justice System programme led by HM Courts and Tribunals Service, JUSTICE, the all-party Human Rights group, has just published a report Immigration and Asylum Appeals – a Fresh Look. (I declare an interest, I was a member of the working party, chaired by Sir Ross Cranston, that wrote the report.)
In it they try to take a dispassionate look at the problems and challenges which face the immigration and asylum appeals procedure. Their approach is to look at each of the steps through which a case may go in order to identify difficulties and recommend practical change.
The report is quite detailed. In outline, it argues:
• Home Office refusal decisions The Working Party’s view is that better Home Office decision-making – with more emphasis on getting it right first time – is the key to delivering a better appellate system;
• The application process for immigration and asylum appeals. Here the working party argues that more detailed attention needs to be paid to the move to online processes. At the same time the working party addresses the issue of unsupervised, unqualified and poor quality representatives purporting to provide advice and assistance to appellants;
• Appeals against adverse decisions of the Home Office on immigration and asylum matters in the First-tier Tribunal (Immigration and Asylum Chamber). This examines the important role of tribunal case workers in moving cases forward. It also wants to see stronger judicial case management to improve tribunal efficiency.
• Hearings in the First-tier Tribunal (Immigration and Asylum Chamber) and Upper Tribunal (Immigration and Asylum Chamber). This section of the report focusses in particular on video-conferencing and video-hearings, recognising the potential advantages of these models. At the same time, the report stresses the fundamental principles that should govern any expansion in their use and where they will not be appropriate.
• Appeals to the Upper Tribunal (Immigration and Asylum Chamber), Judicial Reviewapplications and appeals to the Court of Appeal. This part of the report focusses on the multiple stages that may be gone through when seeking permission to appeal. The working party considered the tension between the important right of review in this jurisdiction and the pressure on the system that flows from too many appellate stages. While not recommending removing rights of appeal, the report outlines ways to streamline this process.
A key theme to emerge from the report is that there needs to be much better communication between the parties.The Working Party considers how this might be facilitated both at the pre-hearing stage and on a continuing informal basis.
Detailed recommendations are made on ways to improve the management of cases and to reduce the number of unnecessary appeals – to the benefit of all participants in the system and the administration of justice more generally.
The above note has been adapted from the report which is available at https://justice.org.uk/new-justice-working-party-report-on-immigration-and-asylum-appeals/
Going digital – piloting video hearings
The Transforming our Justice System reform programme has flagged the possibility of much more use of digital technology in the processing and handling of disputes. Following the announcement at the beginning of February 2018 that it is now possible to start divorce proceedings on-line (see this blog for 2 Feb 2018), we now have a new announcement about how cases might be heard using new technologies
This development, announced on 15 February 2018, concerns the piloting of video hearings in the Tax Tribunal. This initiative will be rolled out in a measured way, with potential participants being asked whether they would like their cases to be dealt with on-line.
It seems that the Tax Tribunal has been chosen for this experiment as it is presumed that many tax cases turn on rather complex points of law, rather than major disputes on questions of fact which might require the presence of parties in the same room.
This new announcement builds on another pilot, which ran in the autumn of 2017 in which a number of case management hearings in the Immigration and Asylum Chamber were dealt with through video hearings. The results of these seem to have been very positive and demonstrate that such issues can be dealt with more efficiently on-line without compromising standards of justice.
HMCTS do seem to be taking a measured approach to these developments, wanting to bring all those involved – judges, practitioners and litigants – with them, to ensure that these developments do meet user needs.
Further announcements will emerge in the months ahead.
To read more about the video Tax Hearing pilot, see https://www.gov.uk/government/news/video-hearing-pilot-launched.
For the HMCTS blog on these developments go to https://insidehmcts.blog.gov.uk/2018/02/15/video-hearings-can-make-a-difference-for-court-and-tribunal-users/
Immigration appeals and delays: On the verge of a crisis?
This links to a short blog article written by Robert Thomas, the leading academic authority on the work of Immigration Tribunals. Analysing recent (December 2016) reports from the Public Accounts Committee and the Justice Select Committee (among others), the note provides evidence that while the number of appeals are declining, the numbers of appeals already in the system awaiting a decision is actually increasing. This seems to be largely the consequence of an over-zealous reduction in the number of Tribunal Judges.
The announcement that the Human Rights Group JUSTICE is embarking on a review of immigration appeals is therefore particularly welcome.
Source: Immigration appeals and delays: On the verge of a crisis?.
Fees in immigration and asylum appeals
In September 2016 I noted there the decision of the Government to introduce massive increases in the fees charged for bringing appeals to the First Tier Immigration and Asylum Chamber. They were introduced in October 2016.
On 26 November 2016, in a remarkable change of heart, the Government announced that the October increases would be scrapped and that the fee levels would revert to those in place before their introduction.
It should not be thought that the issue has entirely gone away. The Minister’s statement repeats the point that, in the Government’s view, the cost of providing court and tribunal should be broadly neutral, and that those who use them should pay more. Officials will therefore be working on new proposals, which will be set out in due course.
I think that two key questions remain unanswered:
1 Is the idea of making courts and tribunals self-financing the best basis for providing this service, particularly where what is being appealed against are decisions taken by civil servants working within the government? Is there not a public interest element – which should be funded in other ways, not by the individual – in ensuring that decisions taken by officials are right?
2 If fees are set at such a level that cases are simply not brought to the tribunal, does this not make the whole exercise self-defeating, in that no money comes into the system? In addition, if the flow of cases dries up, it is hard to argue that the impact of the fees has not interfered with access to justice.
I do hope that the nest consultation paper deals in a rather more nuanced way with these issues of principle, rather than just focusing on the narrow question of cash.
For the Minister’s statement, go to https://www.gov.uk/government/speeches/courts-and-tribunals-update
Proposed new fees for immigration and asylum cases
On 21 April 2016, the Government published a consultation paper proposing new fees for proceedings in the First-tier Tribunal (Immigration and Asylum Chamber) and Upper Tribunal (Immigration and Asylum Chamber). Following on huge rises in court fees for civil and family disputes, as well as huge increases in the fees charged in employment cases, the spotlight now falls on immigration and asylum cases.
At the heart of the government’s case for new charges is the statement:
The courts and tribunals service cost £1.8 billion in 2014-15, but only £700 million was received in income. This leaves a net cost to the taxpayer of around £1.1bn in 1 year alone.
This begs an important question: is it good policy for the justice system that its costs are met only by those who use the system, as opposed to being a collective responsibility which society as a whole should shoulder?
Whatever your answer to this question, you may be surprised at the level of fees which are now being proposed by the Government.
As the Minister stated when launching the Consultation:
We have previously consulted on plans to raise fees for proceedings in the First-tier Tribunal (Immigration and Asylum Chamber) in order to recover around 25% of the £84 million annual costs of that Chamber. Having re-assessed MOJ’s financial position following the Spending Review, we need to go much further.
The new consultation proposes increasing fees in those immigration and asylum proceedings where a fee is payable so that the fee meets the costs of those proceedings in full. (Emphasis added.)
The consequence of this policy is that it is proposed:
- To increase fees in the First-tier Tribunal from £80 to £490 for an application for a decision on the papers;
- To increase fees in the First-tier Tribunal from £140 to £800 for an application for an oral hearing.
- To introduce a new fee of £455 for an application to the First-tier Tribunal for permission to appeal to the Upper Tribunal.
The Government argues that the same principles should apply to appeals to the Upper Tribunal (Immigration and Asylum Chamber) so the consultation also seeks views on introducing fees, set at full cost recovery levels, for these proceedings.
The consultation proposes:
- a fee of £350 for an application to the Upper Tribunal for permission to appeal, where permission has been refused by the First-tier Tribunal;
- a fee of £510 for an appeal hearing where permission is granted.
The Government concedes that some applicants will face difficulties in paying these fees, so to make sure that the burden of funding the system is shared as fairly as possible it will continue to exempt from fees those in particularly vulnerable positions. This includes those who qualify for legal aid or asylum support; those who are appealing against a decision to deprive them of their citizenship; and those children bringing appeals to the tribunal who are being supported by a local authority. The Government will also extend our exemptions to protect children being housed by the local authority and the parents of children receiving local authority support. In addition, it is consulting on further extensions to the exemptions scheme in this consultation to make sure the most vulnerable are protected.
The Government claims that these proposals will raise around an additional £37 million a year.
There are at least two fundamental questions that these proposals raise.
First, as mentioned above, is the policy of full cost recovery the right one, particularly where it is decisions of the state that are being challenged. The now defunct Administrative Justice and Tribunals Council sought to establish some principles in relation the question of who should bear these cost – which included the principle that, at least to a degree the Government department that made a decision which was overturned should pay part of the cost of the appeal.
Second, the whole of the Consultation Paper is based on assumption that the introduction of these fees will have no significant impact on the numbers of cases going through the tribunal system. If, however, the impact is similar to what has happened in employment cases, there will be a significant fall in appeal numbers, which no doubt the Government would like to see but which will prevent the Ministry of Justice achieving is financial targets.
Details of the government’s proposals are set out in the consultation can be found at https://consult.justice.gov.uk/digital-communications/first-tier-tribunal-and-upper-tribunal-fees.
The consultation runs until 3 June 2016.
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