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bitten-cherryThere was an interesting article in The Telegraph last Saturday about immigration appeal hearings that go ahead with no Home Office Presenting Officer (HOPO or PO) present to defend the Home Office or Entry Clearance Officer position. I’m not quite sure from where the headline came, though, as there are very, very few cases that involve failed asylum seekers in the Asylum and Immigration Tribunal. Usually one only has only one bite of the cherry, unless a fresh claim is successfully made. I may shortly do an advice page on fresh claims, now that I think of it.

In addition, the Home Office is known to try to prioritise asylum cases in allocating POs to hearings. I personally cannot remember the last time I did an asylum case with no PO present, whereas it is far from unusual at the moment to do an immigration case with no PO. They do seem to be particularly short staffed at the moment.

In immigration cases, I usually prefer there to be a PO present in court. My fear is that the immigration judge will feel he or she has to do the cross examination him or herself, which almost inevitably leads the judge ‘into the arena’, as we say. Personally participating in the proceedings inadvertently causes the judge to start seeing those proceedings from the perspective of a party. It is one thing to hear a witness fudge someone else’s imperfectly asked question; it is quite another when the bugger dodges one’s own brilliantly composed query.

Even in immigration cases I am sometimes relieved when there is no PO. POs are generally more coherent and logical than the half-wits who write most explanatory statements and asylum reasons for refusal letters. It is easy to deal with and dismiss an undefended and apparently indefensible, illogical, incomprehensible and inarticulate decision letter, but if a PO is present they will generally make a better stab at putting together some slightly more sensible reasons why the appeal should be dismissed.

Generally, I say. Some POs can be a blessing. Some are very reasonable and will either actually or effectively withdraw the nonsensical bits of a decision. Some are so aggressive and overbearing they garner much needed sympathy for the client.

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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.


9 Responses

  1. The official Home Office position is la la la la la…(fingers in ears)

    Of course being a civil servant I could not possibly comment and can only refer you to the press office.

    We really could do with more HOPOs but our 100% representation target seems to take a back seat to other priorities.

    1. Aging HOPO

      Oh dear.
      Your first few blogs had earned you some respect
      by displaying some wisdom.
      Now its vanished is a puff of HO smokescreen.
      My experience is that the HO don’t listen.
      I can give you names and letters but want anonimty.

    2. See my 1st response above which on fact is my second response directs at Mr T, not sure how I did that.

  2. The Home Office do listen to ministers though, particularly when a parliamentary question has been asked.

    But that would need someone to get their MP to ask why parts of the organisation are failing to meet the targets setout in various business plans.

    But as a responsible member of the non-political civil service I could never sugggest that someone do such a thing.

  3. FM,

    Thank you for a fairer apraisal of POs in this latest posting. Sincerely. You can imagine that particular article is doing the rounds in the Unit. I wonder if we’ll see a positive response in the form of further recruitment of POs, the CPD we are asking for and greater powers to amend decisions etc. I suspect I will share in your cynicism on these hopes and agree with Aging HOPO that the most likely response from those upon high will be la la la… la la la. Interesting article in the Mail yesterday though looks like UKBA has also upset the mayor of Calais , oops.

    1. FM,

      I echo APO’s praise of your fair handed comments in relation to PO’s (on this occasion), and am glad to see you have turned your mind and your blog to more substantial issues, and away from tittle-tattle.

      The Tribunal in AC Somalia UKAIT [2005] 00124 drew a distinction between the weight that may be attached to those granted status following a court hearing, as versus following an administrative grant.

      Not withstanding that the new asylum teams grants have to stand up to more stringent internal audit, and (in my opinion) their refusals are more cogent and well reasoned than the ‘bad old days’, AC speaks to the importance of a PO being present at a hearing, and the importance of the testing of evidence through cross examination.

      I agree entirely with your comments related to the inherent danger of the IJ ‘Entering the Arena’, but would note that this cuts both ways, only last week I had to object to a ridiculously soft IJ Re-examining an Appellant, following my cross, whilst the very experienced and competent Counsel who opposed me sat kicking her heels.


    2. I can’t tell you how profoundly I think AC is rubbish law – or perhaps, more accurately, the use to which it is put is wrong and dishonest. Why should those who were lucky enough to get asylum from the Home Office straight out be in a worse position later than those who had to appeal just because the Home Office does not bother to give a ‘reasons for grant’ letter? I understand there are internal file memos in at least some cases (which have proven very helpful when the Home Office manages to bring the old file to court – far from universal for various reasons) but these sometimes do not seem to exist and are sometimes meaningless. A refugee is a refugee is a refugee, and that ought to tell us something about (a) their reliability, it being rather rare that outright liars get status and (b) whether they would be in danger if returned.

      Most appellants’ reps don’t tend to pay a lot of attention to tribunal cases these days. The self importance and poor quality of many tribunal decisions is unappealing and the Court of Appeal and House of Lords are much better, wiser sources of authority.

      I absolutely reserve the right to engage in tittle tattle, by the way. It would be a mistake to see this blog as anything other than thinking space for the author.

    3. I have to admit that I’m in two minds about AC it has been a useful tool on a couple of occassions to enable me to convince an IJ that I should be allowed to cross examine a witness in relation to their asylum claim, they then fell apart under cross exam.

      I do though have to agree with FM that there is something inherently unfair in someone being disadvantaged because the caseowner was to lazy to write up a detailed summary of why they accepted the claim, luckily though with the new caseowner system this should no longer be a problem (as it is compulsory as far as I am aware).

      Keep up with the tittle tattle its your blog so you can say whatever you like. I though appreciate having somewhere where we can openly express our opinions without fear of repercussions(unless of course you have worked out who any of us are).

      On an unrelated point, damn, Bruce Grobbelar is sexy.

    4. I don’t think you’ll find any real criticism of HOPOs as a group on this blog, from me at least. The post that seems to have offended some POs was about the Home Office generally, and Home Office institutional mentality – of which I am severely critical. I’m really not quite sure how or why it was read as an attack on POs.