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End of the Asylum and Immigration Tribunal
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Few will lament its passing, announced today by still Immigration Minister Phil Woolas. The news is far from unexpected, but the details are interesting. The plan is for the new system to be implemented by early 2010. A full consultation response has also been published.
Immigration appeals will be transferred into the unified tribunal system. A separate chamber will be created in the both the First Tier Tribunal and the Upper Chamber specifically for immigration cases. In some ways this is a shame as many representatives hoped for some new blood and fresh perspectives from non immigration judges working in other areas.
Interestingly, there will be a normal two stage appeal process between the First Tier and Upper Tribunal. An appeal goes to the First Tier to start with. If the appellant is unhappy, an application for permission to appeal to the Upper Tribunal is made, firstly to the First Tier. If the First Tier refuses permission to appeal, an application for permission to appeal can then be made to the Upper Tribunal. The Home Office sound un-enthusiastic about this system, which includes an additional stage to the old systems of immigration appeal, and say they will keep it under review.
If permission to appeal is granted by either the First Tier or Upper Tribunal, the Upper Tribunal will hold a hearing to decide whether an error of law was committed by the First Tier. If so, the Upper Tribunal can proceed to hear the case itself or can remit the case to be re-heard in the First Tier. What the consultation paper says about remittals is worth quoting:
“The Government believes that remittal may be necessary in some cases, but it should only take place in exceptional circumstances and no case should be remitted more than once. However, we recognise that the Senior President of Tribunals has the primary role in guidance on how cases should be handled in the unified system.”
An assurance has been given that the procedure rules (and therefore presumably practice directions) will be drafted by the normal drafting committee, not by the Home Office. This issue could well provide the first test of the tribunal’s independence. It is again worth quoting from the consultation response, which makes the following heavy-handed threat about the procedure rule drafting process:
“[The Government] has faith this will be done with full regard to the Government’s targets and policy. It is also noted that the Lord Chancellor has the power, where expedient to do so, to direct the committee to make rules necessary to achieve a certain purpose, and may disallow procedure rules made by the committee with written reasons.”
There will be no specific legislation to preclude judicial review of tribunal decisions. The consultation response says this question will be left to the courts to decide, which is welcome. If permission to appeal is refused by the Upper Tribunal, it therefore may or may not be possible to judicially review that decision. A test case will be necessary. The Home Office say they will keep this under review, which presumably means they’ll legislate if they lose the test case.
There will be an onward right of appeal to the Court of Appeal. The consultation response is silent on the critical issue of whether a public interest test will be introduced for appeals to the Court of Appeal. Any such limitation is strongly opposed by lawyers and at least some judges.
The Government is attempting to legislate to allow transfers of immigration judicial reviews from the High Court into the Upper Tribunal. However, they were defeated on this issue in the House of Lords, which I think ended up providing only for fresh claim judicial reviews to be transferred. It looks like the Home Office plan to try and push through their original amendments despite the opposition of the Lords so far.
The current appeal system is a botched mess. The new system looks more sensible, and is basically a return to the days before the Asylum and Immigration Tribunal, which can now be written off as a messy and expensive failure. The big news is the transfer of at least some judicial review cases into to the Upper Tribunal. However, there will no doubt be battles to be fought over the Court of Appeal issue, remittals, time limits for appeals and legal aid funding.
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15 responses
2 Missing links found !
Jacqui Smith – her career could have gone down the plug hole had it not been more monkey business with her expenses. What about banning that US talk show host; the HO just can’t tolerate such intolerance (free speech). Even one of the broadsheets now think we can’t expect competance from her or her department.
and
http://www.ukba.homeoffice.gov.uk/sitecontent/documents/aboutus/consultations/closedconsultations/immigrationappeals/
Well, i wish a completely new system was invented by you, free movement.
Wouldn’t it be nice?
No . . . . . that would not be a good idea.
PO, why?
You think you would need to work harder? Like it having it easy when the system favours your side?
Smiley
Natasha,
An easy life ? Oh if only, we have a lot of resources, but manage them in an incredibly inefficient manner, which leads to a great deal of strain on staff, currently PO’s in particular (FM and the Press have dealt with this recently).
Would I put FM in charge ? Hell no, whilst FM’s skills and experience as an advocate are recognised by PO’s, they are sadly vastly outweighed by his/her total lack of a balanced and realistic perspective with regards the system as a whole; this comes from only ever having worked on one side of it (the same can be said of me).
One thing I find frustrating about FM and his chums, is that they make broad and sweeping comments about UKBA, who employ more than 25,000 staff, when they have only ever had first hand experience of perhaps a few hundred of those staff (sigh).
Does the system favour my side, well yes, in some ways, on an administrative basis yes, and that is wrong, service of decisions is a good example (why we don’t give this back to the Tribunal is a mystery to me).
PO
PO
Sounds like a “better the devil you know” argument.
I fail to see how the hundred or so people FM has contact with would not be a representative statistical sample similar in percentage as national political polls such as Mori.
You say bias and lack of understanding of the system as a whole are the two reasons. You admit bias of the HO, so it is only the latter.
I presume therefore you have read FMs publications that display his knowledge of the system? I didn’t think so.
Hello Mr T,
The likes of MORI use methods to ensure that their sampling is representative, cross cutting & scientific. Dealing with only case owners and presenting officers is not, to use a favoured phrase of FM I think your argument is “unrealistic”.
Better the devil you no ? God no! the system is broken, on one side there is a culture of disbelief, on the other naivety.
Both sides need to move closer to the centre, stakeholder engagement is key, but at a lower, more operational, more subsidiarity based level would glean greater results, as versus the directors and chief executives of opposing bodies exchanging niceties, but doing nothing.
Our side need to develop more humanity and more cultural empathy, the other side need to accept that some times people have to be removed, and to further respect our goal of protecting the community from some very dangerous individuals.
Feel free to refer me to FM’s published works.
PO
PO
Thanks for your response.
I had to laugh though.
You said “stake holder engagement is key”. Here here, I agree.
April 2008 previous DVS email said: “Hopefully we can resolve matters to your satisfaction when you come in”.
Jan 2009 current DVS said:
“I am therefore unable to agree to your request for a meeting to discuss this application and
the **** Visa Section will no longer enter into further correspondence with you about this matter.”
My friend, things are getting worse not better.
I agree with a lot of what you say. I think my criticisms of the Home Office taken as a whole are valid, though. There is in my view an ingrained culture and I don’t like it. I’m sure there are exceptions and I meet many HOPOs who fight fair and fight the right issues (I came across one such today, who was excellent) but that doesn’t detract from my generalised criticisms.
I do have some published works, of sorts, but I don’t think it would be wise to refer anyone to them…
PO
“the other side need to accept that sometimes people have to be removed, and to further respect our goal of protecting the community from some very dangerous individuals.”
Of course, but it is being abused by the HO on a similar scale to anti-terrorism police powers. The HO stop people joining their spouse, stop children joining their parent/s, stop parents attending their child’s wedding etc. None of these people are a threat to the community; indeed their exclusion deminishes community as families are kept separated or even destroyed through divorce.
Of course, I’d like to think that I do in fact have a balanced and realistic perspective. If you think I am bad for Home Office bashing, you should meet some of my friends! I’ve always recognised the difficulties faced by the Home Office and staff, and in several different ways outside this blog I have engaged with the Home Office to try to improve things, some of which I’ve been paid for, some of which I have done in my own time. I remain highly critical of general institutional disregard for the rule of law, lack of accountability for individual staff, the culture of disbelief (the starting point is that the applicant is lying) and the Home Office’s prioritisation of removal and public opinion over international obligations and the requirements of simple humanity.
One of the things that interests me at the moment is the new Office of the Chief Inspector of UKBA. It is early days, but reports may prove very interesting.
FM
“culture of disbelief”
I remember the HO talking about finger-prints for immigrants a few years back, part of e-borders I guess. Something along the lines of Britain being targeted by criminals and terrorists.
Some high profile refusals lately involved statistics quotes. In 3 years, 3 million finger prints have highlighted 3000 criminals/terrorists Visa applications.
I make that 1 in a 1000 applicants. With approx 200 BHC’s I make that 5 per year per BHC.
I don’t know the figure, but guess for the UK with a current prison population of 70,000 and a general popultation of 60 million, that between 2 to 3 per 1000 of UK free residents would be a comparable statistic for serious criminal records.
Seems that we are being targeted by people 2-3 times more honest than the UK populous.
Is the HO having a Benjamin D’Israeli moment as part of its scare mongering and anti-terrorism policies?
I don’t think it is a terribly good idea either, I’m afraid. No one side should be writing the rules – which is what happened in the past, where the Home Office imposed various rules, such as the bizarre service rules that they almost never use.
It is pleasing to see that the normal rules committee will be writing the procedure rules, and that the Home Office seems to have backed off from traditional interference. However, it has been pointed out that the FAQs are not a promising sign, as they were obviously drafted by UKBA then signed off by the Tribunals Service, which is supposed to be independent. See Jonathan Mitchell’s blog.
I have to say I agree with a lot of what PO and FM and even Mr T have said on this post. A much nicer approach and some common ground between the two sides is reflected. Two questions though. Do any of you think the move to LIT’s Local Immigration Teams will enable better stakeholder engagement? And has my being a PO got anything to do with my ILPA membership application seeming to take an age to be processed? If FM’s genuine clients are experiencing similar delays dealing with the HO, I’m starting to have some sympathy.
It doesn’t should to me like Local Immigration Teams would lead to better stakeholder engagement. It might engage local snoops and BNP/MigrationWatch types, I suppose. A Presenting Officer applying for ILPA membership is an interesting move. I think the ILPA Articles of Association might cause problems, though. I don’t think that a HOPO would necessarily be thought to be ‘in general sympathy with the objects of the Association’ and unless he or she was a member of a professional body would appear not to qualify on that ground either I’m afraid. I can’t find the actual objects on the ILPA website, but Article 2 regarding membership is on the membership page.