Quality of initial decision making

1.  There are significant flaws in Home Office practice at the stage of initial decision making. This causes us great concern, not only because of the proposed removal of a tier of appeal contained in the new Asylum and Immigration (Treatment of Claimants, etc.)Bill, but also in relation to any additional restrictions placed upon the supervisory jurisdiction of the courts. (Paragraph 15)

2.  If the Home Office remains unable to ensure that Presenting Officers are present at appeals before the new Asylum and Immigration Tribunal, the judge in charge of proceedings should have the discretion to take a more actively inquisitorial approach in order to ensure that justice is done and that proceedings are conducted with necessary fairness. Such a change may have to be implemented by statute to ensure certainty. (Paragraph 30)

Proposal for a new asylum and immigration tribunal

3.  On the available evidence, we believe that the abolition of a tier of appeal cannot, in the absence of a more fundamental reform, deliver both increases in "end to end" speed and improvements in the quality of judicial decisions. (Paragraph 44)

4.  We are concerned that the limited system of review proposed is insufficient to guarantee that an appellant will receive a just determination of his application. (Paragraph 45)

5.  Accordingly, we recommend that the removal of a formal tier of appeal should not be undertaken until it can be shown that there has been a significant improvement in initial decision making and the rise in the number of successful first tier appeals has been substantially reversed. (Paragraph 46)

Review of tribunal decisions

6.  We recommend that the Bill should make clear the general circumstances in which the tribunal will hear an oral review. (Paragraph 47)

7.  There is a clear objection in principle to tribunals exercising a supervisory jurisdiction over themselves. We doubt whether this arrangement is either fair or able to be viewed as fair by those affected by the new Tribunal's decisions. In looking at these arrangements we bear in mind that they affect not just asylum cases but also visitor appeals involving family members of UK citizens. (Paragraph 52)

Jurisdiction of the courts

8.  We see no reason why the President of the Asylum and Immigration Tribunal should have the sole right to decide whether an appeal lies to a higher court or why the Court of Appeal should not be trusted with the discretion to take over particular cases if it saw fit. The procedural basis for deciding what cases the Court of Appeal should take need not be lengthy and could be carried out efficiently as a paper exercise. (Paragraph 54)

9.  The argument for removing the jurisdiction of the House of Lords cannot rest securely on the principle of removing scope for unmeritorious appeals, since few cases proceed to the highest court. The House of Lords should retain its usual overall jurisdiction in immigration cases. (Paragraph 58)

Exclusion of judicial review

10.  We are deeply concerned that the provisions of the new ouster clause are intended to prevent the courts from reviewing any deportation or removal decision; this may include cases involving serious error, for example where the wrong person has been identified for removal. (Paragraph 69)

11.  An ouster clause as extensive as the one suggested in the Bill is without precedent. As a matter of constitutional principle some form of higher judicial oversight of lower Tribunals and executive decisions should be retained. This is particularly true when life and liberty may be at stake. (Paragraph 70)

12.  The system of statutory review under the 2002 Act, which was invented to abridge the previous system of judicial review, has only been operating for a matter of months. It appears to be working. No change should be made to this system until there has been more experience of its impact. (Paragraph 71)

Non suspensive appeals

13.  We recommend that the Government investigate the fairness of the non-suspensive appeal system, given the extremely low success rate of appellants' appeals under that system. (Paragraph 81)

14.  We note that the 2002 Act makes provision for an independent monitor of non-suspensive appeals. The appointment of this person was announced on Wednesday 11 February. We recommend that the list of countries, from which the Secretary of State can certify claims as clearly unfounded, should not be extended until after the independent monitor has been consulted. (Paragraph 82)

Public funding and legal advice

15.  Evidence suggests that it will be a long time before Home Office decision making is of sufficient quality to justify the proposed reduction in pre-decision legal aid (Legal Help). It is wrong in principle and inefficient in practice to deny Legal Help to those who need it in asylum and immigration cases. (Paragraph 90)

16.  The loss of Legal Help is likely to prove a false economy, leading to greater expense on appeals. Properly directed, good quality legal advice is beneficial to all parties. (Paragraph 91)

17.  We support the removal of poor quality, backstreet immigration advisors from the system. We would welcome the implementation of robust rules and procedures to ensure that solicitors and other legal representatives are properly accredited. Under the adversarial process the system operates most fairly when both sides are represented. (Paragraph 99)

Immigration appeals

18.  In India we learnt that the ECM review was often regarded as a "rubber stamp". This process could, however, deal with some cases effectively without delay or expensive appeals. We recommend that UKvisas give further consideration to developing its use. (Paragraph 107)

19.  It is ironic in a system where appellants are accused of delaying tactics that in immigration appeals the main cause of delay has been the Government. (Paragraph 110)

Universal file number

20.  We recommend the adoption of a universal file number for each applicant in asylum and immigration cases. This number should be used to trace cases from initial application (both in-country and out of country) to final determination. (Paragraph 117)

Family visitor appeals

21.  We are concerned at the current disparity in success rates between oral appeals and appeals which have been decided only on the basis of the papers in relation to family visitors. This may indicate that there is substantial injustice done to those who decide not to opt for an oral appeal. (Paragraph 126)

22.  In order to safeguard the independence of the appeal process, we recommend that notice of appeal should not be lodged with the Home Office, but with the Immigration Appellate Authority. (Paragraph 127)

23.  We further recommend that control of bringing forward asylum and immigration cases for hearing should be a matter for the Immigration Appellate Authority, rather than the Home Office. (Paragraph 128)