13 JANUARY 2004

HIS HONOUR JUDGE HENRY HODGE OBE, RT HON LORD NEWTON OF BRAINTREE OBE AND MR CHARLES BLAKE

  Q20 Peter Bottomley: I am always aware of course that it is perfectly permissible to use the expression "Migration Watch", but in our case it has always been good enough to be one of Her Majesty's ambassadors or somebody else has been good enough to be a part of the judicial system, but when one has looked to see what they have actually said and in a way the way anybody has given the answer, it is useful because it talks about dates and places and times and real influences. Is there any way that changes in the efficiency or effectiveness or economy of the judicial system can make much difference without the Home Office being able to help their own staff do better both at the time of entry and in the preparation of cases?

  His Honour Judge Hodge: Well, that is the point that Charles Blake has made and which floats around within the jurisdiction among the judiciary which is that if we were more inquisitorial rather than very court-based, as you have seen, and adversarial and "Your turn, my turn", if there were more interventionist judiciary, that might be a way forward, but at the moment I am personally sure that the way forward is high-quality decision-making by the Home Office and us getting it right first time on our appeals which means high-quality work that we do too.

  Q21 Chairman: I must say, my mercifully brief observation of some of these hearings is that they are characterised by significant periods of silence in which the adversarial parties, particularly on the Home Office side, try to work out how to respond to the point they had not thought of. Is that an unfair picture?

  Mr Blake: No, it happens. Can I just add to that another factor which is that I think many adjudicators are far from persuaded that the Home Office, and it is very easy to criticise this great, largely unreformed Department of State that is the Home Office and one must be fair in doing so, but I am troubled and our members are troubled by the question of whether entry clearance officers abroad and those who prepare decisions on appeals, particularly in asylum, but also in immigration cases largely in Croydon, but other places as well, are given any significant feedback similar to the formal training that Judge Hodge has rightly stressed is given nowadays to adjudicators. We are not sure that that happens. We cannot say we have a very perfect knowledge of the system precisely because we do not really know, but it does not cry out that that is happening.

  Chairman: That is a point we are looking at and may refer to.

  Q22 Mr Soley: Can I just clarify how conscious you are of the political importance of the argument about the success rate of appeals. It is seen in public that if an appeal succeeds, that is seen as overturning the other judgment, and I know the subtleties of this, but that is how it is seen. If, therefore, we talk about a quarter to a third of cases being overturned on appeal, that can feed two ends of a very hard argument, one of which says that we are sending people back to torture, death and human rights abuses, the other of which says that this is just a way of stringing out the appeal process in order that someone can stay in this country as an illegal immigrant a bit longer. How much do you think the statistics feed those two arguments in a way that is actually false?

  Lord Newton of Braintree: I find it very hard to say how far I think they feed the argument in a way that is false. I think that certainly from the Council on Tribunals' point of view the fundamental issue, though I accept the political importance of what you have said, is to ask whether this is a system, or two systems as it is at present, two tiers, which gives people a fair and effective hearing of their dispute with the State. I personally would not actually want to build too much on arguments based on statistics, but of course, as somebody who had a very long political career, I recognise the political point that you are making.

  His Honour Judge Hodge: Well, I do not want to, but I am going to play around with statistics a bit. I have got in front of me information of a 13-day period in which we heard 85,000 appeals, of which 65,000 were dismissed and 16,000 allowed. Now, 16,000 is around about 20%, so we were allowing about 20%, and then of all the cases, 33,000 permission applications were made, so about a third, just under a third, they try and go after the IAT and of that only about a third of those permission applications are allowed. That only leads to about 10,000 hearings or something like that and of those, about half get allowed or remitted, whatever allowed or remitted means, so I do not think it is fair to say that we are talking about a 20% success rate through the appeal system. We are talking about in fact something around 6 or 7% of cases that are changed from the time they start with us to the time they finish with the Immigration Appeal Tribunal. Now, you can argue about whether that is a good thing or a bad thing. I would have thought it was pretty likely that it would be something along those kinds of lines of figures if that did happen. Within the adjudicator tier, we obviously have some statistics and we are concerned, I am concerned as a sort of judicial manager, about how the whole system is working, but we never look at and never praise, blame or raise with our judiciary issues around the levels of grants or refusals of appeals that they make, so it does not figure in our kind of thinking about how they are doing within their work, either in their mentoring or appraisals or anything like that. We had been concerned about adjournment rates and we have brought those down very significantly over the last two and a half years. It used to be about 30% of cases were adjourned when they came before our adjudicators and it is now down to about 15% and I do not think we can get it very much lower than that because of all sorts of obvious reasons, sickness and people not turning up for one reason or another, so the success/failure issue is much more complicated than the newspapers would have us believe, in my view.

  Dr Whitehead: I too am puzzling about the significance and veracity of statistics which have been presented to us because the Home Office statistics include in the total return the cases withdrawn, whereas the Council on Tribunals, I note, as it were, withdraws the cases withdrawn before deciding which cases were determined and then produces the cases successful which, as we have understood, are not necessarily cases successful in the way they would understand it from that figure, after withdrawing the cases that have been withdrawn. Therefore, it seems to me that the Home Office statistics suggest the allowed, which again is a different method of describing cases, as being on the low side, whereas the Council on Tribunals puts them on the high side. We have also heard this morning that a much higher proportion than I had anticipated were actually what one might call circular cases, which is cases that go round and come out again roughly in the order that they originally went into the system. Would it be possible, I wonder, bearing in mind what appears to be frankly a very unsatisfactory state of affairs in terms of being able to understand what actually happens, to clarify this matter before this hearing—

  Q23 Chairman: Yes, it might be useful if you gave us a note afterwards just refining the statistics in the light of some of the things you have told us this morning.

  Lord Newton of Braintree: And we will certainly seek to do what we can to contribute to that. I must admit, I had not come along prepared for a long technical argument about the difference between one set of statistics and another, not least because I am sometimes sceptical about some of lessons that are drawn from statistics, and indeed the way in which they produce different figures if presented differently is a real classic of an art that I used to practise!

  Mr Blake: I have seen the figures in asylum appeals, and I do not know if any of these gentlemen to my right can confirm this, but they show that sometimes 50% of those refused asylum appeal in the first place because if you are looking at overall success rates and outcomes, you have to take into account the number of people who do not appeal and the number of people whose appeals fall away on the way not necessarily by consciously withdrawing the appeal, but just not turning up and never putting in any papers so that one is left with no alternative, but to dismiss the appeal. Then again of course, and I know it is not the subject of this Committee, but it has been the subject of the Home Affairs Committee, is the subject of whether people who do not appeal and drop out of the system are eventually removed, but that is another thorny, political subject which I will not take you into.

  Q24 Mrs Cryer: Given that we are moving towards a single tier of appeal and that the Bill does not require that the President of the new Tribunal should be a High Court judge as is presently the case with the Immigration Appeal Tribunal presidency, can I ask all of you whether it would undermine the status of the Tribunal if the President was not a senior judicial figure?

  His Honour Judge Hodge: Can I just say that the Government put down an amendment just recently making it clear that they intend that the President should be a High Court judge or above.

  Q25 Mrs Cryer: So my question is irrelevant in that respect?

  His Honour Judge Hodge: Well, it is not irrelevant. It highlights the fact that since the Bill was drafted, they have either changed their mind or responded to somebody, but anyway it is in there. There is a short sheet of amendments which have only very recently gone down which include that and change the review right to being a clear error of law rather than the very restrictive review that is in the Bill, so they are going to get a High Court judge, like it or not.

  Q26 Mrs Cryer: So you are all happy with that?

  Lord Newton of Braintree: Well, I have been made much happier by what Henry has said in the last few minutes because all of my instincts were to say, and I am pretty sure the Council on Tribunals, though they have not considered this particular point, would take the view that if, as was implied by your question, it ought to be a High Court judge, but I did not want to upset Henry because I have a very high regard for him.

  Mr Blake: We all have a high regard for Judge Hodge, if I may say so. Can I just say, Mrs Cryer, that there is nothing in the existing legislation that says, I think I am right, that the President has to be a High Court judge.

  His Honour Judge Hodge: It does in the 2002 legislation.

  Mr Blake: Well, then I stand corrected, but I might add that if we do move to the single tier that is envisaged in the Bill as amended and re-amended or not, there will be a high premium placed on what I might call the "managerial skills" of the High Court judge who was appointed. It is not a matter in which High Court judges have traditionally been trained or had to act, but we concede, and Mr Cranston, I am sure, will be familiar with this, that in the administrative court what used to be the Crown Office judicial review, the judicial management has been a great success and it has been throughout, I think it is fair to say, the system of civil litigation since the reforms inaugurated by Lord Woolf, but the new President will have to be as good a manager, I venture to say, as a judicial figure.

  Lord Newton of Braintree: Could I just add, Chairman, and in a way this picks up a point I made earlier on, leaving aside questions of personality, so to speak, it is clear that quite a large responsibility would rest on the President of the new Tribunal because of the review proposals, and whether you call it a second tier within the system is a purely semantic point, but whatever you call it and however it works, it is going to be a big job to make sure that it works well and fairly, and I think that does point to a High Court judge.

  Q27 Mrs Cryer: Can I ask all of you whether you have any concerns about the proposal that the majority of appeals will be heard by a single judge?

  Mr Blake: Can I start off answering that as representing the people who, if that is the position, will have to decide them. In this jurisdiction we have a system really rather dissimilar from all other tribunals, as Lord Newton will confirm, where you often get a lawyer chairman and one or two lay members. The adjudicators at the moment sit entirely on their own. There is provision for a number of adjudicators to be brought together, two or three, but I do not think that has been exercised since Judge Hodge became Chief Adjudicator. It was exercised in a number of important cases about Afghanistan, the people who hijacked the aircraft to Stansted. I think there are mixed feelings about this. Many adjudicators find the task of fact-finding extremely difficult and onerous. We are all trained lawyers but, and this is a matter we have been discussing with Judge Hodge, the training in what I might call fact-handling, and that is a bit of shorthand for a complex array of disciplines and learnings in the law of evidence, training in fact-handling is complicated and difficult and many of us think there is room for a bit more of it. Whether adjudicators would like to sit with one or two other members, I am not so sure. I think it would lengthen the hearings and lengthen the time taken to write decisions because they have to be circulated and that sort of thing, so I think if people come into this jurisdiction, they must expect that they will have to sit for long periods on their own and work things out with perhaps the addition of some training, as I have indicated.

  Lord Newton of Braintree: Historically the Council on Tribunals has always been very supportive of panels and lay members, but I think it would be fair to say that it has placed rather less weight on this in recent times and I do not think we have sought, though this could go back before my time, but I do not recall us having made a big issue of it in respect of the adjudicators. The point I think I would want to make, however, alongside re-endorsing, as it were, some of the points Henry Hodge made earlier on about the need for good training, support, mentoring and information if you are going to have that situation, is that I would be much more unhappy and I think the Council would be much more unhappy if the reviews were even on the basis proposed, so if it was to go from one single judge to another single judge, I think Henry in his earlier comments indicated that one of the lines of thought is the possibility of a panel and I think I would want to suggest that that probably would be the right way if we are going to have this internal review arrangement.

  Q28 Chairman: Looking further at that internal review arrangement, you spoke about the grounds for the Government being willing to amend the basis for that, but can you say a little more about it?

  His Honour Judge Hodge: I think this has been tabled very, very recently, towards the end of last week. The grounds for review are going to be "a request that the Tribunal's decision would have been different, but for a clear error of law by the Tribunal identified in the request for the review". The current Bill says, "mistake of statute" effectively which is really incredibly limited, whereas this says, "a clear error of law identified in the request for the review", which is quite wide. What "a clear error of law" means as opposed to "error of law", Chairman, your guess is as good as mine.

  Q29 Chairman: Does that redrafting reflect advice you have been given or meet concerns that you have expressed adequately?

  His Honour Judge Hodge: It would not be fair to say that it has met concerns that I have expressed in relation to that, but there has been a huge amount of concern about the very narrow grounds for review. As Lord Newton said at the beginning, we are really finishing up with an internal review system which has some characteristics of a second tier, and making it wider than it currently is, making it "error of law" is something that those of us who had some consultation role before this happened were always saying was important. The most obvious thing is that it is an error if it is in fact an error of law to ignore completely some crucial fact which you ought to have covered in your decision as a judge and the Bill would not have allowed that to happen within the review process, which would have been a bad hole

  Q30 Chairman: And are written submissions as a basis adequate?

  His Honour Judge Hodge: Again they have slightly slackened—no, that is the wrong word—

  Q31 Peter Bottomley: Adjusted?

  His Honour Judge Hodge: Thank you, Mr Bottomley. The Tribunal or the review panel can in exceptional circumstances hold an oral hearing and one would expect, as we develop this policy as the whole thing goes ahead, that the President and the senior judicial officers and perhaps the procedure rules lay down the types of cases as to when that might be appropriate. What we were talking about earlier, say, you wanted to give guidance on what is happening now in Ruritania, you might say, "We are going to have an oral hearing about that so that we can hear from immigration law practitioners who know about this sort of thing and the Home Office and get a decent rounded decision".

  Q32 Chairman: Are you at all concerned that even with these adjustments, that reduced scope for correcting errors might lead to a more slipshod approach at the earlier decision-making stage?

  His Honour Judge Hodge: From my perspective, a great task, and it is almost repeating what I have said before, is to make sure that we get it right and that we are not slipshod. Now, one of the things we are talking about is having, and there is a phrase in the legislation talking about, judges with supervisory roles. We need time to do this and we need space, but we might be able to do better case management of the cases than we do at the present to make sure that the relevant case is getting in front of relevant judges, improve the discussion-making, and if we can reduce the pressure of work also, enhance the training, make sure that appraisal and mentoring systems work well and allow the judiciary to deal with, say, two cases a day as opposed to the three or four that they deal with at present, then I think there is a good chance that we will do an even better job than I think we are doing at the moment

  Q33 Andrew Rosindell: Could I ask whether you support the Government's proposal to exclude the supervisory jurisdiction of the higher courts?

  Lord Newton of Braintree: Well, the Council on Tribunals of course has submitted a supplementary memorandum to you which I am sure you will have had a chance, or at least I hope you have had a chance to look at.

  Chairman: Mr Rosindell has only just joined us, so he probably has not.

  Q34 Andrew Rosindell: Yes, this is my first meeting

  Lord Newton of Braintree: Well, in a nutshell, the Council has made clear that it is very unhappy, and I think the phrase used in the memorandum is that it is entirely wrong, that decisions of tribunals should be immune from further legal challenge. Such immunity must be detrimental to the maintenance of judicial standards in tribunals, and that is the view that the Council has committed to paper to you and I do not think I want to elaborate it particularly, but our members do feel quite strongly about that.

  His Honour Judge Hodge: The Chairman will know that there was a memorandum exchange between Sir Hayden Philips and the Lord Chief Justice, Lord Bingham, when he was in that job, about judges giving evidence to select committees and one of the things we do not do is comment on absolutely key bits of policy, so I am quiet on this subject. All I say is that if the ouster clause, as it is known in the trade, if I may call us that, if that is the result of your deliberations and the Legislature passes it, it puts an even greater premium on us getting it right and us doing a good job and we need good resources so that we can do it properly.

  Mr Blake: I respectfully agree with my learned Chief Adjudicator and especially what he said about not commenting on policy matters. It is not quite as narrow as that because there is a provision for the President, as I was saying earlier in answer to Mr Cranston, to refer key issues to the Court of Appeal. I am not quite sure how that will work, but it is there. Could I just add something, really going back to the last question, which is that Judge Hodge drew attention to the powers in the Bill to make procedure rules, conferring on members of the new Tribunal responsibility for, and the key word is, "supervising" other members and staff, but staff is a managerial one. For our part, we are a little concerned about the word "supervising"; it suggests that one judicial officer could indicate, tell or direct, to put it at its worst or lowest, highest, I do not know, some other judicial officer how to decide a particular case. I am sure that is not intended, but, as it reads, it could cover that.

  Q35 Andrew Rosindell: Mr Blake, in the written submission of the Council of Immigration Judges, it was suggested that there should be an introduction of a reference procedure.

  Mr Blake: Yes.

  Q36 Andrew Rosindell: Could you perhaps tell the Committee what you feel the advantages are of such a procedure and does it, in your view, obviate the need for any further right of appeal of a judicial review?

  Mr Blake: Well, of course when that memorandum was written, and I think that was back in last March or April, something like that, the Government had not then said that it was going to move to a single tier and certainly no Bill had been published, so that suggestion was really advanced or proposed in the context of the existing two-tier system and it just seemed to us that there might be possibilities of identifying at an early stage, and they would be at a premium under any new system, issues about certain countries or about certain types of appeal, and they do not have to be confined to asylum appeal, but might be referred to the higher courts for a view to be taken just as I think the analogy I had in mind when I wrote that was a reference by a national court in this country to the European Court of Justice in Luxembourg of a legal issue or matter of interpretation, construction or application of a Community law. When we wrote it, we did not have in mind, I think, that it would obviate other forms of appeal and that takes me back to what Judge Hodge said about the ouster clause which is not a matter on which I would wish to comment.

  Q37 Andrew Rosindell: Finally, could I ask whether you would have preferred to see the implementation of the Government's original proposal to elevate the IAT to the status of a superior court of record?

  Mr Blake: Well, the reason for doing that and the advantage, if it be an advantage, would be that judicial review cannot lie in the High Court against another branch or body, so it is itself a superior court of record. The High Court cannot judicially review itself, putting it fairly crudely. It would have overcome the problem, if there is a problem. I think, and I may be wrong about this, but I think that may have been advanced in the context of what the Government saw as the large number of challenges to refusal by the existing Tribunal of leave to appeal to itself. It then introduced in the 2002 Act a form of statutory review which does not obviate judicial review, but it simplifies it and cuts it down, and it is done on paper only. As far as I am aware, that is working quite well. I do not know if Judge Hodge has any statistics about the number of cases that have been reviewed, but they go to the High Court on paper. The Tribunal refuses leave of appeal and says there is no point of law, or there is nothing on which you can argue, and the papers go to a High Court judge and very speedily, without oral hearings, whatever one may think of that, the Court deals with them. I gather the statistics (from what I heard from the then supervising judge at a talk he gave to the Administrative Law Bar Association some months ago) were that about 25% of the statutory reviews challenging refusal of leave to appeal were succeeding and the Tribunal was directed to grant leave to appeal. I think that may have been the context in which the Government advanced or canvassed that proposal. That has not been introduced and it is not the way it is dealt with in the Bill.

  Lord Newton of Braintree: As far as the Council on Tribunals is concerned, because we have been focussing on the proposals that are in front of us at the moment, we have not recently addressed that question, but I would hazard a guess that were the Council to be asked your question its answer would be, "Yes". I should just make it clear that the Council's position about rights of appeal to the courts on points of law is something that it has consistently over the whole of its 40-plus years' existence taken in respect of all its tribunals. Indeed, for the Council, there is an historical irony because the Act that set up the Council on Tribunals also contained provisions which stated, as we said in our memorandum, all then existing statutory provisions purporting to oust the courts' supervisory jurisdiction were deprived of that effect by the Act which set us up. In a way it is part of our history.

  Q38 Ross Cranston: Are there any other examples of this reference power—the Tribunal being able to refer matters to the Court of Appeal or the High Court?

  Lord Newton of Braintree: Not that I am immediately aware of. I have a legal adviser within earshot who might be able to jog my memory in a moment or two, but I am not immediately sure.

  Q39 Ross Cranston: He is not shouting so I suspect the answer is no.

  Lord Newton of Braintree: No, he does not know of any.

  His Honour Judge Hodge: I agree and have nothing to add.

  Mr Blake: I tried to trace this some time ago and I could not find any such provisions.