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Immigration ‘judges’ to lose their titles?


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The government is currently consulting on yet another fundamental overhaul of the immigration appeal system. This has become a bothersomely regular occurance, taking place in 1993, 1996, 1999, 2002 and 2004, with some further tweaks in 2006 and 2007 – all through primary legislation. Every time it happens, there are a raft of legal challenges and no-one knows how the new system works properly for the first couple of years (the only couple of years in the short-lived 2002 and 2004 systems!). During this period those who decide immigration appeals somehow morphed from ‘Adjudicators’ (and a few ‘Special Adjudicators’ – they’re all ‘special’ if you ask me) to ‘Immigration Judges’.

Many immigration lawyers at the time felt that, without wanting to cast unnecessary aspersions, the overall level of judicial experience, quality and rate of successful appeal of the old adjudicators did not warrant or justify the dignity of full judicial title.

Well, the government is now considering scrapping the existing Asylum and Immigration Tribunal and bringing immigration appeals (and judicial reviews) within the new two tier tribunal structure that is coming into effect later in 2008 in all other areas of tribunal work (e.g. employment, mental health, social security). On reading the consultation paper, I was rather surprised to find myself thinking that this is the best thought-through proposal I’ve seen in immigration for ages, and logically it makes a lot of sense. Undoubtedly there are very worrying aspects to it, though. For example, the idea of some of the existing Senior Immigration Judges deciding judicial review applications is deeply disturbing and the consultation suggests making the upper tier of the new tribunal system a superior court of record, making it immune to judicial review applications.

Reading the consultation, it starts to become apparent that there is a real danger of the tail wagging the dog. The new tribunal system has been very carefully and sensibly designed, it seems, but now that immigration might be introduced into it, the government is re-evaluating all of the sensible bits. There is a risk the introduction of immigration work into the tribunal will end up ruining the tribunal process for everyone. For example, at paragraph 35 of the document, it says the government ‘remains to be convinced’ that an impartial rules committee is appropriate for deciding immigration procedure rules. What, because they might not favour the Home Office as blatently as in the existing rules, where only one of the parties gets served with the decision and then serves it on the other party in their own sweet time? Would they really have one set of rules decided by one body for immigration and another set designed by another body for everyone else? Or would they just get the immigration lot to decide the rules for everyone else as well?

Back to the title of this post. A thought occurred to me as I read through the consultation. I didn’t see anything about what the new tribunal adjudicators would be called. So I had a look around to see what the other tribunal adjudicators will be called in the new system, and found this, the government’s response to an earlier consultation:

Some of those who responded to the Consultation Document, mostly tribunal members, argued that the status of legal tribunal appointments, and therefore the quality of recruits, would be increased if some or all of them carried the title of judge. Since that title is now nearly universal in the courts, there is some force in this argument. There would, however, be several problems for the system we envisage. It would reduce the emphasis that we wish to see on tribunals doing different things from the courts, and working in different ways. In particular, it would be less easy for tribunal users to appreciate that the panel leaders have a distinctive enabling role. It is perhaps not entirely appropriate in a system which is not an adversarial one. It might also, undesirably, suggest that there is a difference in status, as well as of functions, between lawyer and expert members. For all these reasons, we consider that the use of the judicial title in tribunals is inappropriate. The title of “chairman”, now of universal application, should be regarded in tribunals as sufficient in its own right.

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The Free Movement blog was founded in 2007 by Colin Yeo, a barrister at Garden Court Chambers specialising in immigration law. The blog provides updates and commentary on immigration and asylum law by a variety of authors.