Revolting minions

I’ve heard a couple of reports of dissent in different ranks this week.

Firstly, I’ve heard from two separate sources that UKBA is imposing a ’success’ rate of 85% on Home Office Presenting Officers, the officials who represent UKBA in the Asylum and Immigration Tribunal. By success I mean getting the appeal dismissed. This almost unbelievable move comes as part of the move to local immigration teams, and is apparently a requirement of the new Presenting Officer roles being created.

To their credit, many Presenting Officers are reportedly appalled by this target. Around 20% of appeals are successful according to official stats, so they need to beat the average. More importantly, though, this target entirely violates their position as officers of the court with a duty to the court. It also rather seems to contradict the claims of senior UKBA officials that Presenting Officers can concede cases and issues as well as adding new ones (we see a lot of the latter, very little of the former). The target is a clear incentive to press for appeals to be dismissed, even though any given appeal may on the law deserve to be allowed. What if a Presenting Officer ends up dealing with lots of Zimbabwean and Somali cases, for example?

I’d love to see the documentary evidence if anyone wants to email it in. I’d print a physical copy then scan it to avoid any electronic traces being retained.

The other minions to whom I referred in the title of the post are, believe it or not, Senior Immigration Judges. In the new unified tribunal there are two stages of asking for permission to appeal a first instance decision. Both decisions will apparently be made by SIJs, but only certain SIJs will be nominated or selected to decide the second-stage permission applications. How will this selection process take place? Does it create two tiers of SIJs? Will it create bad blood between SIJs (no-one likes to be appealed, after all)? Does anyone else have any sympathy?

The same will apparently apply with fresh claim JRs, to be heard within the new unified tribunal. These will only be heard and decided by specially selected SIJs.

Selected by whom, one has to ask? Will Mark Ockelton be hand-picking the judges as well as selecting all the reported determinations?

PBS decision on the way

Wending my way north on the train at an ungodly hour this morning, I found my reserved seat was opposite a fellow immigration lawyer I know from times past. We had a gossip, and he tells me that he was recently at Processions House, the temporary home of the Senior Immigration Judges after the Great Fire of Field House, while a three day appeal on the Points Based System was being heard. Ian MacDonald QC was instructed, amongst others, and my friend thought that one of the panel was Hugo Storey.

It sounds like the tribunal has finally gotten around to listing a test case of some sort.

Guidance is certainly much needed, although many lawyers suspect that when it comes it will not be terribly helpful to the clients caught out by the strict and arbitrary requirements of the PBS. If a taster is needed, this unreported decision (my thanks to the reader who spotted it) suggests that at least one of the arguments commonly used to mitigate the effects of the PBS has not found favour in the senior eschelons of the now doomed Asylum and Immigration Tribunal.

One possible alternative approach worth highlighting is to make use of the 28 day concession announced by Lord Bassam at the time of the debates on the PBS in Parliament (see here at column 97-98). The Home Office will consider applications submitted within 28 days of the expiry of a person’s leave as if the application had been made in time. Well, because of section 3C of the Immigration Act 1971, if an applicant under the PBS is rejected by the Home Office and appeals, that person’s leave only expires when his or her appeal rights are exhausted. Some lawyers report that PBS applications made within 28 days of the end of the appeal process have been accepted and granted.

Whether it is financially worthwhile paying a lawyer and the hefty application fee is an open question, as no-one can predict the chances of success at the moment. It may be that such applications end up being rejected by the Home Office. The only remedy at that point would be an expensive judicial review application.

Lord Justice Carnwath spotted at Taylor House

Lord Justice Carnwath

This Hello! style headline is perhaps the clearest sign yet that the Asylum and Immigration Tribunal will be abolished and amalgamated into the unified tribunal. The Home Office planning documents now state that the AIT will be scrapped, the AIT stakeholder meetings keep getting postponed and now the President of the new unified tribunal is sitting on AIT cases. For non immigration lawyers reading this, it is completely unheard of for a Lord Justice of the Court of Appeal to be deciding visit visa appeals and the like.

I wonder what he made of his experience.

The word is that the delay in announcing the change to the unified tribunal is because the Home Office wants to make sure the new system is sufficiently streamlined. The existing tribunals structure involves a two-stage permission to appeal system (first ask the lower tier for permission, then ask the upper tier for permission) which seems likely to be dropped in immigration cases. I’ve no idea what other ’streamlining’ they have in mind. There has been an undertaking that the procedure rules for the immigration bit of the unified tribunal will be drafted by the normal drafting committee, meaning that the Home Office will not get their grubby hands on it. I’d be surprised if the Home Office was willing to abandon the asylum service provisions (Home Office gets served then serves it on the asylum seeker), so it may be that the delay is about legislating on some parts of the new process so that the procedure rules committee is prevented from meddling.

Does this mean that there will start to be costs awards in immigration cases? A two-edged sword if ever there was one, but perhaps the only way to make the Home Office start to comply with directions, something they are notoriously poor at right now.

Free Movement to apply for Home Office job

Someone brought this job advert to my attention. It’s been fun writing this blog and representing immigrants and asylum seekers, but duty calls. You have to be part of it to change it, as Steve Cohen undoubtedly would not have said.

Free Movement, post recruitment

I’m confident I’ll get the job and very much look forward to working with ’strategic policy colleagues and process owners to deliver efficiency improvements across the policy and operational policy environment in line with the UKBA Business Plan’. I already see the Refugee Convention and human rights as ‘products’, by which I assume it is meant to be bought, sold, withdrawn, exchanged or returned at will. I reckon I’m ‘able to manage change effectively, identifying resistance’ and all that (it’s futile, we’ve often found). Actually, I’ve often favourably compared the Home Office to The Borg. Favourably to The Borg, naturally.

I can certainly ‘build on Litigation and Appeals stakeholder engagement with the Judiciary, the MoJ, Legal Services Commissions, OISC and the AIT’. I’ll build on it, alright. I’ll make sure I have no overall idea of what I’m building, make it up as I go along, rush the whole thing through and construct the most hideously deformed, deranged legal architecture known to bureaucracy! It will be the legal equivalent of Milton Keynes.

Actually, there’s not much to do on that last front, it’s pretty much sorted already. All it needs is another Bill.

I’m already thoroughly familiar with and therefore ready to ‘implement and further refine the strategy to minimise the adverse impact of litigation across the Agency and deliver savings on litigation costs’: ignore any adverse cases and do nothing. To be honest, though, I’m not sure this strategy can be any further refined, the Home Office is already flawless in its execution. I also know what they mean by ‘aligns policy and delivery with clear communications objectives’: do what the spin doctors tell me then make up a spurious excuse for it afterwards.

There’s not much in the job description on upholding the rule of law, I noticed, though. Perhaps that means they’ve got an internal candidate in mind?

Steve Cohen

I was very sad to hear that Steve Cohen has died. Some of the obituaries that have been published so far can be found here:

Indymedia London

Red Pepper

Institute of Race Relations

Steve Cohen was one of the legendary giants of immigration law. I never met him nor did I know him personally. He sounds like he was irascible and challenging as a person (and probably would have been happy to be described as such), but his enormous contribution to the immigration debate and to the lives of those he helped is undoubted. He founded the Greater Manchester Immigration Aid Unit (GMIAU) and was a very serious proponent of the no borders philosophy. I have read Deportation Is Freedom and found it enlightening and intellectually challenging. I would recommend it to anyone with more than a passing interest in immigration controls.

He also co-authored the No One Is Illegal Manifesto in 2003. It is a short document but I will include an extract for easy reference:

“Many of those critical of controls believe that such controls can somehow be sanitized, be rendered fair, be made non-racist. Even socialists are sometimes reluctant to raise the demand for the abolition of all immigration controls or to take this demand to its logical conclusions, in case this alienates potential allies against the abuses that follow from them. The result is that the argument against controls is simply not presented. Many people, perhaps most fair-minded people, if they are presented with the case, do agree that in principle immigration controls are wrong, but may also believe that to argue for their abolition is unrealistic.

But ideas matter and so too does the struggle for ideas. Wrong ideas can at best lead to confusion and dead-ends and at worst collusion with the present system. It is our position — a position which denies anyone is illegal, a position that is for a world without borders — that immigration restrictions can never be rendered fair or non-racist. This is for the following reasons. First controls are inherently racist in that they are based on the crudest of all nationalisms — namely the assertion that the British have a franchise on Britain. Second they are only explicable by racism. Their imposition is a result of and is a victory for racist, proto-fascist and actual fascist organizations. It is impossible to see how legislation brought into being by such means, legislation accompanied by the most vile racist imagery and assumptions, can ever be reconfigured and rendered “fair”. Third the demand for “fair” controls simply ignores the link between immigration controls and welfare entitlements. This link is itself intrinsically unfair — and racist. Finally controls can never be “fair” to those who remain subject to them.

The demand for no controls — based on the assertion that no one is illegal — is frequently derided as utopian and is compared adversely to the “realism” of arguing for fair controls. However this stands political reality on its head. The struggle against the totality of controls is certainly uphill — it may well require a revolution. However the achievement of fair immigration restrictions — that is the transformation of immigration controls into their opposite — would require a miracle.”

Cohen points out how recent immigration controls and notions of nationality really are in human history. The first immigration controls were only introduced in 1905 and effective controls were not introduced until after the Second World War.

It often strikes me as absurd that the British take for granted their right to travel and live all around the world but refuse the right of reciprocation. It is difficult to see what the difference is between an English person moving to Scotland and an Icelandic or Japanese person moving there – why is one of those movements as of right, but not the other? What defines ‘English’ or ‘Japanese’? In years to come the false premise that the artificial legal contruct of ‘nationality’ is a valid way to differentiate and discriminate between one human being and another will become as unacceptable as the idea that notions of gender or race are valid justifications for the allocation of different rights and entitlements.

So long AIT and thanks for…?

It very much looks like the AIT is about to be scrapped and merged into the new unified Tribunals Service. This is something I posted on way back in September and it now looks very likely to happen.

The new system applies to all tribunal work except immigration and asylum. All of the tax, mental health, employment, social security, land and other tribunals have been combined into one structure. There is a horizontal division between the lower tribunal and the upper tier and there are also vertical divisions by specialisation, called chambers. Judicial reviews can be transferred into and out of the upper tier. Apart, that is, from immigration and asylum judicial reviews, for which there is a statutory bar to transfers. The government is currently proposing lifting that bar, and the issue has been and will be again debated in the House of Lords.

The entrails cast in the air (or settling tea leaves if you prefer) are a recent letter from the Lord Chief Justice complaining about the volume of immigration and asylum cases in the Administrative Court and proposing to shift all fresh claim judicial reviews and other JRs at the judge’s discretion into the new Upper Tier of the general tribunal. That doesn’t seem likely if immigration and asylum cases have not already been brought into it. The Government is very keen to lift the statutory bar. This is presumably for a reason: so that immigration and asylum JRs can indeed be transferred into the tribunal. An AIT stakeholder meeting was recently postponed pending an announcement on the future of the AIT.

That’s good enough for me and I am now certain that the AIT is on the way out.

The current immigration appeal system is a dog’s dinner, and transferring it into the new tribunal system would surely be neater. There would probably be new immigration chambers set up in the lower and upper bits, but one might hope that there could be something of a culture change if immigration ‘judges’ came into regular contact with other tribunal adjudicators and perhaps even sat on non immigration cases. There has also been an assurance that procedure rules for immigration and asylum cases would be made in the same way as other procedure rules, thereby perhaps ending the privileged access the Home Office has exploited in previous years.

Lots of new procedures and rules to learn all over again, the whole caboodle being turned upside down again – but perhaps these changes will stick this time. Good or bad, though, it now looks inevitable.

RLC to change name

Apparently the Refugee Legal Centre are to change their name to Refugee and Migrants’ Justice. I’m not quite sure about the plural there or the apostrophe, both are best guesses.

The name change suggests a serious change of direction for the organisation rather than just a broadening of its activities. RLC said they would start taking on immigration cases quite some time ago, and indeed have an ‘under construction’ Immigration Legal Centre section to their poor website. As far as I know they have not done so. There is little experience of immigration work in the organisation, so this wasn’t much of a surprise. The name change development suggests they intend normal immigration work to be a major area for them in the future. Some training and careful supervision may well be required to effect this without buggering up their first cases…

The name change also suggests a move to a more overt campaigning role. RLC have previously campaigned primarily through their small but very effective litigation team. Although now that Ravi Low Beer, Sonal Ghelani and Anne Singh have all left, it is far from certain that this high profile litigation will continue. Consultation responses and stakeholder engagement by RLC have always been sporadic and sometimes a bit esoteric – see RLC’s barmy response to clause 50 of the new Bill, for example. It proposes that the High Court opt-in is retained only for refugees, basically. Sod the rest of you. This suggests that something more than a name change will be needed to become an effective advocacy organisation for migrants as well as refugees.

RLC need to avoid falling into the trap of their rivals, IAS. RLC was created when the refugee department seceded from an organisation called UKIAS, the United Kingdom Immigrants’ Advice Service, in 1992. UKIAS collapsed and in 1994 was re-born as the Immigration Advisory Service. Having lost the asylum specialists, the organisation only undertook immigration work. That changed in the mid-1990s and IAS started to take on refugee cases as well, despite having no history, experience or speciality in dealing with the work. Arguably, that legacy continues despite recent very positive developments at the organisation. The lesson for RLC? Only a fool learns from his mistakes; a wise man learns from the mistakes of others.

A good year for IAS

The Immigration Advisory Service has been around since 1972, although, out of the ashes of the old United Kingdom Immigrants’ Advice Service, it transmogrified into its current incarnation in 1994. IAS is one of the biggest providers of immigration and asylum advice and representation, but has traditionally punched below its weight, producing few landmark cases or legal challenges. While Chief Executive Keith Best has something of a reputation for outspoken boat rocking, IAS staff have been fairly anonymous in the sector in the past.

Immigration Lawyer of the Year Kalvir Kaur

That is definitely changing. One of the biggest immigration cases this year, EB (Kosovo), was an IAS case, and the long running Zimbabwe litigation was brought to a successful conclusion by IAS. Meanwhile, the organisation has recruited some hot legal talent. The indominatable Sheona York, formerly of Hammersmith and Fulham Law Centre, will shortly be joining them as some sort of lead lawyer and Kalvir Kaur at IAS (right, flanked to the right by the severe-looking Julian Bild and to the far left by Martina Flanaghan – both very good lawyers themselves) was recently recognised as Immigration Legal Aid Lawyer of the Year for her fantastic work with children and victims of trafficking.

Hopefully all this will give IAS staff a bit more to be proud of and instill a bit of justified self confidence.

Oddly, though, IAS was recently joined by a senior secondee from the Home Office, who is helping out for a year with management processes. Bringing in help from an organisation that (a) is hardly a model of administrative efficiency and good practise and (b) is your opponent in everything you do doesn’t sound terribly self-confident.

Delays in initial asylum decisions

Apparently there are currently long waits for initial asylum interviews and decisions from the London asylum teams of UKBA. Case owner diaries are said to be full to the end of the year and it sounds as if the three month target for initial decisions is being missed.

High staff turnover may well be to blame. I’ve heard this from at least two sources now, one Home Office and one not. It sounds like quite a few case owners are moving onwards and upwards in the civil service and elsewhere, which is great news for them but leaves their remaining colleagues in a bit of a pickle. Excessive workload may also help explain why case owners are never seen in court, even in cases involving children where continuity and familiarity might be thought to be important. Part of the idea of case owners, when they were introduced, was that they would see cases from start to finish and that simply doesn’t happen.

Zimbabwe update

This post falls firmly into the ‘gossip’ category and cannot be taken as reliable because it is based on my own incomplete understanding. This is also a very fast moving situation and even if I have this right today it may well be wrong tomorrow. If anyone has further information, please leave a comment and I will update this post.

I’ve been at Field House, seat of the Senior Immigration Judges, a few times since RN became public knowledge and one of my cases was a Zimbabwean one. Rather oddly the SIJ ‘reserved’ his decision, meaning he will send it to us in writing later via the Home Office, and did not announce a decision immediately or suggest to the Home Office that they grant asylum and save the hassle of having even to write a decision himself. Still, I’m optimistic we will have won that one.

However, it seems that things have moved on a little. The tribunal and courts are talking to the policy people at the Home Office (a Ms Annetts if I heard her name correctly) and the Home Office are apparently saying they will review all Zimbabwean cases awaiting reconsideration and high court decisions with a view to deciding whether they should be granted asylum under RN. Some HOPOs are reported to be conceding cases, which I took to mean undertaking to grant asylum, although I saw one today initially saying that he could not before agreeing to do so. HOPOs have also apparently been told not to apply for adjournments on the basis that RN will be appealed. It was not clear to me from this whether there is an intention to appeal RN or not.

Irrespective of whether they appeal, all this seems to point in the direction of the Home Office actually granting asylum to Zimbabweans, rather than keeping them hanging on for any longer. Whether this turns out to be true only time will tell.

If a case has been successful and the appeal process is over, the Home Office are obliged to grant refugee status and their policy is to grant five years leave to remain. If they fail to act on their obligation an application for judicial review can be made after a reasonable time. Giving them six weeks or so is probably a minimum.

At the end of the five years there is no review of risk and as long as the refugee has not committed crimes and can pass the citizenship test, he or she will get settlement. However, the Refugee Convention itself does not require a person to be given permanent settlement in a country of refuge and its benefits can be withdrawn if the situation in the country of origin changes (Article 1C of the convention). Since 2005 this has been reflected in Home Office policy: if peace does suddenly break out in a previously war torn or unstable country, a review of all cases from that country that don’t yet have settlement can be ordered, and they can have their refugee status and leave to remain removed, with a right of appeal against that decision.

I’ve always thought that this was unlikely ever to happen as the Home Office has plenty to do already without creating more work, and the cost to the Legal Services Commission in funding all these appeals (although those with jobs would probably not be eligible) would be considerable.

But… the policy exists, and if things do settle down in Zimbabwe, one of these reviews may happen.