Martin Partington: Spotlight on the Justice System

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/