End of the Asylum and Immigration Tribunal

Few will lament its passing, announced today by still Immigration Minister Phil Woolas. The news is far from unexpected, but the details are interesting. The plan is for the new system to be implemented by early 2010. A full consultation response has also been published.

Immigration appeals will be transferred into the unified tribunal system. A separate chamber will be created in the both the First Tier Tribunal and the Upper Chamber specifically for immigration cases. In some ways this is a shame as many representatives hoped for some new blood and fresh perspectives from non immigration judges working in other areas.

Interestingly, there will be a normal two stage appeal process between the First Tier and Upper Tribunal. An appeal goes to the First Tier to start with. If the appellant is unhappy, an application for permission to appeal to the Upper Tribunal is made, firstly to the First Tier. If the First Tier refuses permission to appeal, an application for permission to appeal can then be made to the Upper Tribunal. The Home Office sound un-enthusiastic about this system, which includes an additional stage to the old systems of immigration appeal, and say they will keep it under review.

If permission to appeal is granted by either the First Tier or Upper Tribunal, the Upper Tribunal will hold a hearing to decide whether an error of law was committed by the First Tier. If so, the Upper Tribunal can proceed to hear the case itself or can remit the case to be re-heard in the First Tier. What the consultation paper says about remittals is worth quoting:

The Government believes

that remittal may be necessary in some cases, but it

should only take place in exceptional circumstances

and no case should be remitted more than once.

However, we recognise that the Senior President of

Tribunals has the primary role in guidance on how

cases should be handled in the unified system.

“The Government believes that remittal may be necessary in some cases, but it should only take place in exceptional circumstances and no case should be remitted more than once. However, we recognise that the Senior President of Tribunals has the primary role in guidance on how cases should be handled in the unified system.”

An assurance has been given that the procedure rules (and therefore presumably practice directions) will be drafted by the normal drafting committee, not by the Home Office. This issue could well provide the first test of the tribunal’s independence. It is again worth quoting from the consultation response, which makes the following heavy-handed threat about the procedure rule drafting process:

“[The Government] has faith this will be done with full regard to the Government’s targets and policy. It is also noted that the Lord Chancellor has the power, where expedient to do so, to direct the committee to make rules necessary to achieve a certain purpose, and may disallow procedure rules made by the committee with written reasons.”

There will be no specific legislation to preclude judicial review of tribunal decisions. The consultation response says this question will be left to the courts to decide, which is welcome. If permission to appeal is refused by the Upper Tribunal, it therefore may or may not be possible to judicially review that decision. A test case will be necessary. The Home Office say they will keep this under review, which presumably means they’ll legislate if they lose the test case.

There will be an onward right of appeal to the Court of Appeal. The consultation response is silent on the critical issue of whether a public interest test will be introduced for appeals to the Court of Appeal. Any such limitation is strongly opposed by lawyers and at least some judges.

The Government is attempting to legislate to allow transfers of immigration judicial reviews from the High Court into the Upper Tribunal. However, they were defeated on this issue in the House of Lords, which I think ended up providing only for fresh claim judicial reviews to be transferred. It looks like the Home Office plan to try and push through their original amendments despite the opposition of the Lords so far.

The current appeal system is a botched mess. The new system looks more sensible, and is basically a return to the days before the Asylum and Immigration Tribunal, which can now be written off as a messy and expensive failure. The big news is the transfer of at least some judicial review cases into to the Upper Tribunal. However, there will no doubt be battles to be fought over the Court of Appeal issue, remittals, time limits for appeals and legal aid funding.

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.

Immigration ‘judges’ to lose their titles?

The government is currently consulting on yet another fundamental overhaul of the immigration appeal system. This has become a bothersomely regular occurance, taking place in 1993, 1996, 1999, 2002 and 2004, with some further tweaks in 2006 and 2007 – all through primary legislation. Every time it happens, there are a raft of legal challenges and no-one knows how the new system works properly for the first couple of years (the only couple of years in the short-lived 2002 and 2004 systems!). During this period those who decide immigration appeals somehow morphed from ‘Adjudicators’ (and a few ‘Special Adjudicators’ – they’re all ’special’ if you ask me) to ‘Immigration Judges’.

Many immigration lawyers at the time felt that, without wanting to cast unnecessary aspersions, the overall level of judicial experience, quality and rate of successful appeal of the old adjudicators did not warrant or justify the dignity of full judicial title.

Well, the government is now considering scrapping the existing Asylum and Immigration Tribunal and bringing immigration appeals (and judicial reviews) within the new two tier tribunal structure that is coming into effect later in 2008 in all other areas of tribunal work (e.g. employment, mental health, social security). On reading the consultation paper, I was rather surprised to find myself thinking that this is the best thought-through proposal I’ve seen in immigration for ages, and logically it makes a lot of sense. Undoubtedly there are very worrying aspects to it, though. For example, the idea of some of the existing Senior Immigration Judges deciding judicial review applications is deeply disturbing and the consultation suggests making the upper tier of the new tribunal system a superior court of record, making it immune to judicial review applications.

Reading the consultation, it starts to become apparent that there is a real danger of the tail wagging the dog. The new tribunal system has been very carefully and sensibly designed, it seems, but now that immigration might be introduced into it, the government is re-evaluating all of the sensible bits. There is a risk the introduction of immigration work into the tribunal will end up ruining the tribunal process for everyone. For example, at paragraph 35 of the document, it says the government ‘remains to be convinced’ that an impartial rules committee is appropriate for deciding immigration procedure rules. What, because they might not favour the Home Office as blatently as in the existing rules, where only one of the parties gets served with the decision and then serves it on the other party in their own sweet time? Would they really have one set of rules decided by one body for immigration and another set designed by another body for everyone else? Or would they just get the immigration lot to decide the rules for everyone else as well?

Back to the title of this post. A thought occurred to me as I read through the consultation. I didn’t see anything about what the new tribunal adjudicators would be called. So I had a look around to see what the other tribunal adjudicators will be called in the new system, and found this, the government’s response to an earlier consultation:

Some of those who responded to the Consultation Document, mostly tribunal members, argued that the status of legal tribunal appointments, and therefore the quality of recruits, would be increased if some or all of them carried the title of judge. Since that title is now nearly universal in the courts, there is some force in this argument. There would, however, be several problems for the system we envisage. It would reduce the emphasis that we wish to see on tribunals doing different things from the courts, and working in different ways. In particular, it would be less easy for tribunal users to appreciate that the panel leaders have a distinctive enabling role. It is perhaps not entirely appropriate in a system which is not an adversarial one. It might also, undesirably, suggest that there is a difference in status, as well as of functions, between lawyer and expert members. For all these reasons, we consider that the use of the judicial title in tribunals is inappropriate. The title of “chairman”, now of universal application, should be regarded in tribunals as sufficient in its own right.

Borders Bill latest

I’ve updated the Borders Bill page here with a little more up to date information. This follows a Home Office press release on 25 June 2007 announcing that protection for children subject to immigration control will be enhanced. I’ve taken a look at the latest amendments tabled before the Lords, and it is difficult to see how these match up with the press release.

The Government is proposing a code of conduct for immigration officials to keep children safe from harm. Sounds pretty toothless.

Various Opposition peers are also tabling amendments to:

• Turn the proposed code of conduct into regulations, which would then be subject to judicial review and therefore provide far stronger protection.
• Remove the UK’s reservation to the 1989 UN Convention on the Rights of the Child for the purposes of exercising immigration control.
• Make Chief Immigration Officers, the National Asylum Support Service and immigration removal centres subject to section 11 of the Children Act 2004, which imposes a positive duty to ensure functions are discharged having regard to the need to safeguard and promote the welfare of children.

The Grand Committee of the House of Lords will be sitting on 2, 5, 12, 18 and 23 July 2007 to consider the Bill, after which it will probably pass into law. When the various provisions will actually become active is another question. The Government has developed a bad habit of passing laws and then sitting on its hands not implementing them for a long, long time. Or, at least, Blair’s government did.

Simplifying immigration law

The framework for immigration control is mainly contained in the Immigration Act 1971. This has been amended by major pieces of primary legislation in 1988, 1993, 1996, 1999, 2000, 2002, 2004, 2006 and probably also in 2007 by the UK Borders Bill currently before Parliament. Each Act has involved an overhaul of existing immigration law to introduce ‘essential’ new powers for ministers.

The original text of the 1971 Act has been almost entirely replaced by amendments. Then those amendments have been amended, those amendments re-amended and so on.

To make matters worse, much immigration law is contained in secondary legislation. The primary Acts of Parliament often give ministers delegated powers to make rules and regulations governing even such important matters as who is entitled to a right of appeal. The secondary legislation is if anything more incompetently drafted than the primary stuff, and often ends up needing to be amended and re-amended itself through additional sets of amending regulations.

The result is hideously complex.

To work out what is current law, all of the Acts need to be read alongside each other and cross referenced. The legislation available from the Office of Public Sector Information (previously Her Majesty’s Stationary Office) comes in unamended form and is therefore more or less useless. The Statute Law Database (first brought to my attention by Lo-Fi Librarian, thanks) will eventually incorporate all of the relevant amendments to every piece of legislation. It will be an excellent resource when completed, but the immigration legislation is still work in progress and the SLD states that certain amendments are not yet included.

I believe some of the law subscription services, like LexisNexis, include amended forms of the legislation, but these are paying services. The only cheap, up to date and portable version of the legislation is the Immigration Law Handbook edited by Margaret Phelan and Jim Gillespie. This is invaluable. However, even though a new edition is issued every year or so, it is quickly rendered out of date by various bits of legislative tinkering by the Home Office.

Immigration lawyers have been suggesting for some time that a piece of consolidating legislation would be useful, to set out all the relevant primary law in one place, replacing and fully repealing the 1971 Act. Ministers were always reluctant to undertake this mammoth legislative task, and perhaps rightly so given some of the incompetent drafting that regularly emerges from the Home Office.

Times seem to have changed, and a consultation paper has been issued. Simplifying immigration law is undoubtedly a good idea, but I fear that the opportunity will be used firstly to remove the checks and balances in the existing mess and secondly to delegate even more powers to ministers. The result could be superficially very simple, but it would hide both a complex web of constantly changing secondary legislation and a shift away from the rule of law as we currently understand it. Ministers would, for example, give and take rights of appeal as they chose and would give their minions free reign on issues like long term detention and powers of arrest.

It is good to see they are finally biting the bullet on this long overdue review, but I suspect the outcome might not be what immigration lawyers and immigrants would want.