The Sunday Telegraph yesterday published an article singling out three Senior Immigration Judges as being excessively lenient. I am going to more or less ignore the issue of the correctness or otherwise of the principle of singling out judges based on outcomes of their cases. It is a very difficult question. I am also, usually, going to exercise restraint and express no opinion on whether the label of leniency has been correctly applied to the judges concerned. Instead, this post looks at the evidential basis for the assertions in the article.

It would not be at all surprising if the judges in question were to receive hate mail and experience other consequences as a result of this article. This is presumably the very purpose of singling them out, naming them and providing some personal details about them. One would therefore hope that if an exercise like this were to be carried out, it would be done very carefully.

The first point to make is that Senior Immigration Judges (a courtesy title, they are in fact Judges of the Upper Tribunal) almost only ever sit on second stage appeals from a Judge of the First-tier Tribunal. Their jurisdiction is limited to errors of law. The question of whether they allow an appeal will depend on whether there was an error of law by the original judge. Disagreeing with the outcome of the case does not of itself disclose an error of law. If there is no error of law then the appeal judge must dismiss the appeal no matter what that judge might have done him or herself if hearing the appeal on its merits.

Secondly, I would not trust these journalists to read the cases and actually understand what ‘allowed’ or ‘dismissed’ means at the end of the reasons in the context of the individual case. Many of these appeals will have been appeals by the Secretary of State, because the Secretary of State has a policy of appealing every single deportation case in which the migrant succeeds at the First-tier Tribunal. When the words ‘appeal allowed’ appear at the end of the reasons, this may well mean that the Secretary of State’s appeal was allowed and therefore that the migrant had lost his or her case.

Thirdly, if the journalists only used reported cases for their sample then they are using only the very limited range of determinations considered to be important enough for the tribunal’s secretive reporting committee to have selected for public consumption.

Lastly, as Richard Moorhead points out, for the exercise to be done in any meaningful way it would have to be done FAR more carefully than seems likely from the article and the sample size involved is so small that it is meaningless in a statistical sense.

The article isn’t really about statistics, though, it is about foreign criminals and the allegedly soft class of judges who allow them to stay in the UK. The named individuals have just been unlucky enough to be caught in crossfire, their names thrown up randomly by a hopelessly flawed witch hunt.

It is impossible to tell how the ‘research’ was carried out because the journalists do not say. As Richard Moorhead has said over on the UK Human Rights Blog in a comment, it is unlikely that the research was carried out in a remotely rigorous academic fashion. The most likely possibilities are (1) simply looking at the online repositories of reported immigration cases, either on BAILII or the tribunal website, (2) looking at the unreported archive of cases stored on the tribunal website (3) popping down to the Supreme Court library at which all Upper Tribunal determinations are still, I think, lodged, or (4) using a Freedom of Information request for case law rather than statistics. The tribunal has claimed not to keep any statistics on individual judges (other than their ‘performance’ in dismissing adjournment requests) and the way the article is written suggests that it is based on a case trawl rather than on statistical data.

Research options (2) and (4) seem most likely. Let us assume for arguments sake that a newspaper that regularly runs anti human rights stories was seeking to name and shame some immigration judges no matter how tenuous the basis for doing so. Let us also assume that one of the journalists has poor form for legal reporting. Little time would have been invested in the exercise. Let us also assume for present purposes that the journalists themselves carried out the research, although it is equally if not more likely that the information was handed to them by another organisation such as Migration Watch UK or an MP’s intern.

If anyone wanted to carry out this research properly, they would need access to all the determinations of the First-tier Tribunal. For the reasons above, determinations of the Upper Tribunal relied on in the article are basically worthless for its purported purpose.  To criticise the research methods misses the point, though: it is a shoddy exercise in politics and intimidation.