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(December 2004)
I am writing with the response of the Council on Tribunals to the Department for Constitutional Affairs Consultation Paper: Asylum and Immigration Tribunal Procedure Rules, and Judicial Titles Order.
Council members were grateful for the opportunity to discuss these proposals at the various consultation events presented by the DCA. Members of the Council or its secretariat were present at the events in London, Edinburgh and Manchester.
The Council's comments broadly follow the sequence of the Questionnaire, but the Council has not attempted to answer every question. The Council also makes a number of more general comments. These relate to issues that are not specifically part of this consultation exercise but were raised during the recent DCA consultation events where comment was invited.
Whilst recognising that the suggested provision for CMRs is not part of this consultation exercise, the Council would like to make some general comments arising from members' attendance at the consultation events. The Council welcomes the suggested introduction of a case management review. However, whilst strongly supporting the enhancement of case management powers, the Council has a number of concerns surrounding the operation of the CMR. The Council would wish to see it provided that both parties are bound by decisions of the CMR and should not be able to bring in any new issues at the substantive hearing. The Council is particularly concerned at the very short time limits suggested for conducting the CMRs and believes that these time limits will lead to many requests for adjournments and a lower quality of decision making. Specifically, the very short time limit between beginning an application and the hearing of a review would be inadequate to consider the issues fully and to obtain the necessary information, particularly the obtaining of expert evidence. The suggested 30 minute time limit for the CMR is too short and will prove inadequate for a proper consideration of the issues, particularly in those cases where interpreters are required. Finally, the Council believes that provisions governing the operation of CMRs should be contained in the Procedure Rules themselves and not Practice Directions.
The Council's view is that better quality decision making at first instance, speedier and better preparation of appeal papers by the Home Office, and the presence of a well-briefed Home Officer Presenting Officer at every hearing, would all increase the efficiency of the AIT and enhance fairness at the same time. On a number of recent visits the Council has been aware of the difficulties caused for adjudicators, the IAT, and appellants by either the absence of the HOPO or the late delivery of appeal papers by the Home Office. The Council notes with approval the DCA's aspiration to have Home Office Presenting Officers present at every hearing of the new tribunal.
The creation of the single tier AIT makes it increasingly important for there to be clarity and transparency in establishing and defining the basis on which a panel is constituted. The Council believes that this should include a procedure to allow representations from both parties as to the panel's constitution. Despite the government's view that, in future, panels consisting of single legal members will hear the majority of cases, the Council approves of the retention of non-legal members and would wish to encourage their use in the new AIT. The Council would wish to see clarity on this matter in the Procedure Rules, as this is lacking in the 2004 Act.
It is expected that in future asylum appeals, the Tribunal will send its written determination to the respondent. It was made clear to the Council at the consultation events that as a consequence it was expected that "Chinese walls" would operate within the Home Office, with determinations being sent to the Immigration Service and not to the HOPO in the individual case. The Council has considerable doubt as to whether the provisions relating to the operation of "Chinese walls" within the Home Office could operate effectively, if at all. The Council also notes, from consultation events, that there are no "Chinese walls" currently operating in the Home Office.
Question 1 The Council is in favour of lodging appeals directly with the Tribunal. This will emphasise the Tribunal's independence. It will also remedy the previous difficulties encountered following the filing of an appeal with the Home Office when an application may have been retained for an indefinite period.
Question 4 The Council is in favour of this provision.
Question 5 The Council welcomes the removal of the closure date mechanism, which it considered came close to fettering judicial discretion. However, whilst conscious of the need to limit adjournments where possible, the Council is concerned that a rule designed simply to prevent repeat adjournments may operate unfairly in individual cases and remove a necessary element of judicial flexibility.
Question 6 The Council is of the view that, given the complex nature of immigration and asylum appeals, all of the proposed time limits in the Rules are unfair and potentially unworkable in a significant proportion of cases. The Council believes that there should be a commitment to review all of the time limits after they have come into operation, and to publish the results of the review. Shortening time limits increases the risk of injustice. It is unclear that even the very best administrative arrangements can ensure that all appellants are treated fairly, as opposed to efficiently. In contrast, the time limit for service of the determination (within 28 days) seems excessively long in comparison with the other, more restricted, time frames contained in the Rules.
Questions 11 and 12 - The Council has generally been unreceptive to suggestions for using the title "judge" with regard to tribunal members. The Council considers the proposed judicial titles to be too formal.
The Council hopes these comments will be helpful.
