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Home >> Publications >> Annual and Special Reports >> Annual Report 2005/2006 >> Policy Issues : Asylum and Immigration

Policy Issues : Asylum and Immigration

1. In last year's Annual Report we set out our concerns about how the new single tier Asylum and Immigration Tribunal (AIT), established by the Asylum and Immigration (Treatment of Claimants, etc.) Act 2004, would operate. We were particularly concerned about the very short time limits, especially for fast track appeals, and also about the availability of advice, assistance and representation following changed arrangements introduced in 2004.

2. The new Tribunal came into being on 4 April 2005. Shortly afterwards, the Government set up an interdepartmental review to:

  • consider whether the AIT is realising its primary objectives
  • make recommendations, during the course of the review and in a final report, to ensure that the AIT fully realises its primary objectives
  • identify areas where there are additional opportunities for realising the primary objectives.

For this purpose the primary objectives of the AIT were described as being to:

  • speed up the asylum and immigration appeals process
  • reduce the proportion of appeals (including onward appeals) to the AIT, the High Court and the Court of Appeal by improving the quality of decisions on applications and appeals and introducing measures to discourage appeals with little merit.

These objectives must be read in the light of the overriding objective of the statutory rules, which is "to secure that proceedings before the Tribunal are handled as fairly, quickly and efficiently as possible; and, where appropriate, that members of the Tribunal have responsibility for ensuring this, in the interests of the parties to the proceedings and in the wider public interest".

3. In December 2005 we responded to an invitation to submit evidence to the review. At this early stage, we did not consider that we were able to draw firm conclusions about how the system was operating. However, our members had in the meantime made several visits to hearings, including four visits to fast track cases. We are also represented on the AIT stakeholder group and we keep abreast of developments in other ways. In responding to the review we drew attention to the concerns we had expressed in last year's Annual Report and made the following points.

4. We were very concerned about the high proportion of cases in which appellants are not represented, particularly in fast track cases. Good representation can make a great difference to the effective working of a tribunal. But at present it seems that about a half of fast track appellants are not represented at hearings. The situation seems to have deteriorated since the changes to the funding arrangements in 2004, and that cannot be helpful to appellants or indeed the AIT judiciary.

5. This may be connected to another continuing concern, namely the extremely short time limits in the rules, not only for fast track cases but for other asylum cases too. We adhere to the view that these time limits are capable of leading to injustice. The problem is compounded if potential representatives withdraw from asylum work because they feel unable to comply with the time limits and do full justice to cases.

6. We were aware that the AIT found itself in a very difficult situation from the start because of a large backlog of cases inherited from the Home Office and Immigration Appeal Tribunal. We understand that delays in immigration appeals are lengthy but coming down. We know that the AIT is doing all it can within existing constraints to tackle its substantial work in progress. It is equally clear that it will be some time before the backlog is clear. This is another reason why it would be premature to draw firm conclusions about the operation of the new appeals system.

7. We were also aware of difficulties in the deployment of the AIT's non-legal members. As mentioned elsewhere in this report, the Department for Constitutional Affairs has embarked on a more general review of the role of non-legal members in tribunals in which we expect to play a part. The role of AIT non-legal members will be considered in the course of it.

Other matters

8. Another significant development in the course of the year was the passage of the Immigration, Asylum and Nationality Act 2006. Among other things, this measure substantially curtails rights of appeal in respect of leave to enter and leave to remain. This goes hand in hand with the Government's intention to introduce a points-based system for immigration. We expect in due course to take a close interest in seeing that the new arrangements operate fairly.

9. In the course of the coming year we intend to pursue with relevant stakeholders the issue of advice, assistance and representation in asylum and immigration appeals. In some respects there have been improvements in recent years. The regulatory system set up by the Immigration and Asylum Act 1999 seems to have largely succeeded in overcoming the problem of unscrupulous advisers. In the past year there has also been a very substantial increase in the proportion of cases in which a Home Office presenting officer appears. Another important development is the publication by the Immigration Law Practitioners' Association, in association with the Office of the Immigration Services Commissioner, of an excellent Best Practice Guide on Representation at Immigration Appeals, launched in March 2006. All these developments are very welcome. What does concern us, however, is the fact that advice, assistance and representation do not seem to be readily accessible for a substantial proportion of appellants.

10. Our ability to monitor the working of tribunals under our supervision is greatly enhanced by our representation, through our members or staff, at user and stakeholder meetings and similar gatherings. In the field of asylum and immigration, we much appreciate the fact that we are invited to meetings of the AIT Stakeholder Group. We are also very glad to be represented at meetings of the Asylum Support Adjudicators User Group and to be able to offer accommodation for those meetings at our premises in Chancery Lane. In December 2005 we were pleased to be asked to the annual conference of the Immigration Services Tribunal, where the new Immigration Services Commissioner, Suzanne McCarthy, gave an account of her first few months in office. We are keen to build on contacts of this kind, which give us an insight into users' needs that might otherwise be more difficult to obtain.