Home Office Presenting Officers are civil servants who represent the government in immigration appeals. Last month we ran an article by an anonymous HOPO describing how the immigration system looks from that side of the fence and inviting questions by readers. Here are the answers. Thanks to everyone who sent in a question; as there were a great many queries we unfortunately couldn’t answer them all.

Appeals

Q: Why is it in some cases (like mine) does a Presenting Officer not turn up to represent the Home Office? We suffered a lot of expense (much more than the hearing fee! but travel, lawyer, barrister and hotel costs) and stress preparing for this only for no one to turn up and no bundle to be submitted by the Home Office either. We waited 7 months for this appeal, living in separate countries, why did no one turn up? Wouldn’t it have been fairer and less wastage of public funds for the hearing to have just been withdrawn / overturned sooner?

A: The phenomenon of ‘No PO’ hearings — those without a Presenting Officer — is largely down to staffing levels. In some hearing centres there are (or at least there were pre-Covid) more court lists each day than there are Presenting Officers available. Although this issue is sometimes remedied by the Home Office instructing barristers to appear for it, what often happens is a manager will look through the lists and decide which of them can be unrepresented. They will make some cases a priority (asylum, TOIEC, deportations), but ‘simpler’ human rights or EEA cases (e.g. which largely turn on whether documents have been submitted) can go without a Presenting Officer.

In terms of whether the case should have been withdrawn sooner, anyone seeing the documents you submit more than a couple of days before the hearing is also relatively new. Unless evidence is sent to the dedicated reviews inbox, nobody sees it until the Presenting Officer is preparing for the hearing.

Q. If the Home Office know they are losing about half of their appeals, have any of their employees had updated training in order to advise them on not appearing to defend pointless appeals?

A. The number of appeals allowed doesn’t necessarily mean the original decisions are always poor.

I’ll give an example of a sham marriage case. It’s deemed a sham marriage because the couple failed to attend their marriage interview twice, didn’t put any utility bills or proof of cohabitation in with their original application, and only provided their appeal bundle to the Home Office yesterday so it hasn’t made its way to court yet. They have brought witnesses along to court, as well as four years’ worth of bills, joint bank statements and family photos.

The bundle is only 100 pages long, so the judge gives me 30 mins to go through it. It’s obvious to me the relationship is genuine, and had I got the bundle on time, I’d have withdrawn this. I can’t get a senior caseworker on the phone to approve the withdrawal because they’re in a meeting. My only option is to be as brief as I can in submissions. The appeal is allowed.

Many cases are like that; there is limited evidence provided with the original application and limited time in which I can see the evidence in order to withdraw the decision. Hopefully the new Reform system will fix that problem, as will the new culture of “sustainability reviews” conducted internally. 

Q: When the Presenting Officer sends the asylum seeker’s file back to the asylum unit to decide it again or to look at the new evidence, what does that mean?

A. This will ordinarily mean there is a good chance the adverse decision will be withdrawn. It could also be that the new evidence touches on an issue that the Presenting Officer hasn’t been given a ‘line to take’ on. For example, the appellant could have presented evidence showing they criticise their government on social media. This is probably the most common post-refusal issue in asylum appeals. With some countries (Iran, for example), the Home Office position is if that criticism was known to the authorities, persecution would be the result upon return. There are other countries, however, where the issue is not as clear-cut.

These are the kind of cases which would be sent back to the Asylum Unit – to give them a chance to form a view of the evidence and give the Presenting Officer an argument to run in court, or to withdraw the decision. But it could also mean that the refusal decision was so flawed, it needs to be written again.

Children

Q: The Secretary of State is required to fully consider any impact on children when making a decision on the grant of leave or to settle an appeal. In your experience, have you seen this requirement implemented meaningfully in any case you were charged with representing? In what way(s) and to what end was this due diligence carried out?

A. In my experience, adequate section 55 considerations are few and far between. Most refusal letters will include a standard paragraph covering the best interests of “any relevant child”, irrespective of whether any children are actually affected by the decision.

I would say that, often, appellants don’t actually provide much evidence showing the best interests of the children would be adversely impacted. It’s more ‘ipse dixit’ in the witness statements.

The exception is deportation cases, where the decisions are usually more carefully drafted. Enquiries will often be made with the relevant social services in these cases, and so a better idea of the children’s position will be provided.

The Home Office has recently conducted a review of cases involving children at/around the seven-year threshold, and these children are now being viewed in the same way as British children, i.e. that it is usually unreasonable to expect these children to leave the UK. 

Q: We would like to ask whether Presenting Officers have specific training for appeal hearings with child witnesses, or if only certain Presenting Officers can cover such appeals?

A. Any Presenting Officer can cover any hearing (with the exception of specialised cases such as Article 1F hearings).

There were previously two grades a Presenting Officer could be: either an Executive Officer or a Higher Executive Officer. The lower grade POs would not cover deportation or TOIEC cases, as they were deemed cases which could attract “media interest”. That difference no longer exists and all Presenting Officers can cover any kind of case, which would mean anyone could get a case involving a child witness.

There is a part of the Foundation PO training which covers vulnerable witnesses, though this is a cursory look at the guidelines given in the Joint Presidential Guidance Note on child and vulnerable witnesses. In part due to the lack of oversight I mentioned in my original article, there will be Presenting Officers who are more aggressive and unsympathetic. The experience any vulnerable witness has will be down to the luck of the draw, and the judge’s approach to managing the hearing. 

Outlook

Q: Does the “hostile environment” culture lead to more compassionate Home Office staff leaving, resulting in an increasing proportion of staff who support the way applicants in the system are treated?

A. Personally, I cannot think of anyone I have worked with in my years at the Home Office who has left due to a moral dilemma over their employment. The majority of my colleagues have either retired or gone on to better opportunities.

One misconception is that anyone working for the Home Office must be completely in agreement with its policies. A lot of Home Office staff have family and friends who themselves have been on the receiving end of refusal letters, or at least had to make the exorbitant payments which accompany leave to remain and naturalisation applications. I suppose one effect of that is to reinforce the idea that the immigration system has to be fair: “if my husband/wife had to meet these requirements, everyone should”.

I would also say that the majority of staff I have encountered are just doing a job and want to do that job fairly. The Wendy Williams Review has generated a lot of internal discussion and a large number of staff are concerned that the same mistakes aren’t repeated with the EU Settlement Scheme. The real issues with the Home Office lie with its politicisation and not necessarily with a lack of compassion in the people on the ground. 

Q: In your experience / opinion, does the race, heritage, culture, language, class or country of origin of the defendant appear to cause a biased outcome in some cases?

A. As with any arena, these factors will unfortunately always play a part in decision-making.

Whilst I wouldn’t say there are biased outcomes, I have seen trends which can cause judges and indeed Home Office decision-makers to become jaded. Most Presenting Officers can look at the nationality on the front of an asylum file and guess the account which will have been given. This could of course be because specific issues are more pervasive in specific cultures, but what results is a culture of disbelief, especially if you have dealt with four appeals in a week where all have been the same nationality and all given identical accounts.

In human rights cases, I have observed that these factors can sometimes play a part: a foreign wife married to a retired white English man will have an easier task in winning their appeal than a foreign wife married to a second-generation Pakistani man, for example. 

Q: My husband’s dad is British, his sister is British, I am British along with our three kids… do you really think it’s right that we have to pay such huge fees for him to stay in the country and be with his family? I would like your opinion and to get an idea of how detached you become to these decisions. Do you see beyond the decision to the lives you are affecting?

A. It’s hard to become detached from decisions. Many of my own family members have had to go through the process of applying for leave to remain and subsequent naturalisation, and that process is rarely straightforward. I know firsthand the stress, anxiety, and outright depression that engagement with the Home Office can cause.

I personally disagree with the cost of making applications and I hope they will be reviewed. What does help me sleep at night is knowing that I personally will be fair in my interactions with appellants, whether in cross-examination or in looking at decisions objectively and recommending them for withdrawal.