20 JANUARY 2004

THE HONOURABLE MR JUSTICE OUSELEY, MISS KATE ESHUN AND MR NARESH KUMAR

  Chairman: Sir Duncan, Miss Eshun, Mr Kumar, welcome. We are very grateful to you for coming to give evidence to us. We recognise that you are members of the judiciary and we fully understand that there may be times when you might feel it inappropriate to answer a question in precisely the terms it is put to you if it affects a matter of government policy. We must first declare any relevant interests that members of the Committee may have

  Ross Cranston: I am a recorder and barrister.

  Mrs Cryer: I am on the supplemental list of Bradford magistrates.

  Keith Vaz: I am a non-practising barrister. My wife holds judicial appointment.

  Q66 Chairman: Could I start by asking you about the impact of the reforms that went through in 2002 in the Nationality, Immigration and Asylum Act. We have not had very long to work through those reforms. Do you think the 2002 Act has made the asylum and immigration appeals process more efficient?

  Sir Duncan Ouseley: If one looks at the change that is made in relation to the grounds of appeal, that has reduced the scope for rearguing matters of fact. But the tribunal had always adopted an approach in relation to those issues where it was considering the question of credibility of a claimant, that it would not interfere normally with the reasoned findings of the adjudicator, so the change, whilst seemingly fundamental, was in fact of rather less significance in practice. So far as the changes made in relation to statutory review as opposed to judicial review are concerned, the experience of the administrative court is that the number of cases where statutory review is sought has been comparatively small, but we have not yet seen in the administrative court a long enough time period where only that has been available, to be sure that the administrative court is seeing, if you like, the final figures. Undoubtedly that has removed the scope for a lot of abusive delaying tactics. Under judicial review, you applied on paper; you renewed your application orally; if refused again, you could renew before the Court of Appeal. On statutory review, there is a single application dealt with on paper by the single judge and the decision is not onward appealable. As I understand matters, the number of applications for statutory review is running at the order of 35 or so a week and they are being turned round within a week or so by the administrative courts. That undoubtedly has been an improvement at that end of the appeal process. So far as non-suspensive appeals are concerned, the difficulty there—and I think Judge Hodge touched upon this in the course of his evidence—is the actual presentation of the appeal by the person who has gone abroad. Often because they have had to go abroad, their interest in pursuing the appeal has diminished to nothingness. The circumstances in which appeals can then be pursued are actually quite difficult. If you are seeking to give evidence from abroad and there is no video link, it becomes rather like the entry clearance officers' appeals. But my understanding is that the tribunal has not had a non-suspensive appeal from an adjudicator's decision before it, so my experience of that is that it is a process that has affected a relatively small number of cases. So what you see is a number of changes, all of which from certain perspectives have brought advantages but they are not major changes to the system.

  Q67 Chairman: Is it too soon to say in some respects?

  Sir Duncan Ouseley: It is too soon to say, I think, what the long-run effect of those will be.

  Q68 Chairman: Do you think the availability of a second tier appeal has encouraged people to abuse the system in order to delay or to abscond?

  Sir Duncan Ouseley: I would have to say that, given the interest in delay which a number of claimants have, there are bound to be cases where the very existence of an appeal structure has meant that it has been abused. But I think it is important to put that in the context of what the immigration and asylum system is dealing with. It is dealing with matters where, in the end, someone's liberty, life and freedom from seriously degrading ill-treatment is at issue. It is dealing with it in an area where it may sometimes be very difficult to know whether somebody is telling the truth or not; it may be very difficult to know whether the circumstances which one is contemplating they are being returned to are ones which really are sufficiently stable for that properly to be done; and there will be large numbers of people who appeal who in fact have proper grounds for appealing. If one tries to measure it in some way, the number of cases determined by the adjudicators last year was of the order of 80,000. Quite a number of those whose appeal is rejected, make applications for leave to appeal to the tribunal, but if one looks at those who do, about one-third receive permission to appeal. That third you cannot say are abusing the system: they are all ones who have been able to demonstrate that they have an arguable point. There may well be those who do not have an arguable point but who may genuinely have thought they had an arguable point and are doing it because they have been advised, perhaps erroneously, but they have nonetheless been advised, that they have an arguable point. So the level at which abuse occurs is not easy to see, but you can be sure, I think, that where someone has been granted leave to appeal you could not say that is an abusive application. If you then look at the two-thirds that have been refused leave to appeal and ask yourself how much time has been taken up by those cases, that is, if you like, the measure of the problem of delay that is contributed to by the existence of a second tier; that is, those who make applications but are refused at the application stage. It takes longer, of course, than we would like, but nonetheless in the scheme of things it is not a very long period.

  Chairman: Mr Cranston.

  Q69 Ross Cranston: I want to concentrate on the internal appellate structure, but could I just ask you one question about statutory appeals. You say that they are running about 35 a week. How many are allowed?

  Sir Duncan Ouseley: I believe it is of the order of 25%.

  Q70 Ross Cranston: Thank you. The others may want to come in on this: what about the proposal to remove lay members?

  Sir Duncan Ouseley: I think Mr Kumar, who is a lay member, might be the person to answer.

  Mr Kumar: Thank you. Mr Chairman and members, as has been said, this is a very high profile tribunal which looks at the cases of people in whose cases we have to take decisions about their lives. It is essential and of paramount importance where such decisions have to be taken that there is public credibility maintained. To ensure this to happen, I think the balance of the tribunal has to be not only right but real, in the sense, and appreciated by all parties. I think lay members have a very crucial and very important role to play in there. Their collective experience, with the knowledge and the support of the communities in which they live and, in certain cases, where they have had experiences abroad, and some in serving on benches, to bring in that experience, I believe, adds to the credibility of the tribunal.

  Q71 Ross Cranston: Could you give us a few examples, to give us a feeling for it. In terms of cases you have sat in on, has your presence made a difference in terms of the outcome, do you think?

  Mr Kumar: Yes, I would say. The very crucial and very highly sensitive area where we have to give anxious scrutiny to these cases is the assessment of facts. Where the exercise of human rights and the exercise of broad humanity is concerned, I think lay members play a very essential role, and they bring in a type of judgment which is not necessarily particularly legal. That is where I think the value of lay members remains.

  Q72 Ross Cranston: Is there an official view on the presence or absence of lay members?

  Sir Duncan Ouseley: In the sense of the tribunals having a view?

  Q73 Ross Cranston: Yes.

  Sir Duncan Ouseley: No. The position is that the tribunal as it is presently structured values the contribution which everybody makes to it.

  Mr Kumar: If I may say, Mr Chairman, I had the privilege in 1999, March, to give evidence to the then select committee which was looking at the issues of not only the Nationality and Immigration Bill as a whole but also the role of lay members. Following that evidence, I received a letter from the Lord Chancellor's Department in June 1999 which I would like to place on record for your perusal and for your consideration during your deliberations, but perhaps I might highlight one or two issues which were very clearly brought out. (Copies distributed) There the acknowledgment was of the value of lay members and their contribution and the very important role that they would play in the future. At that time the Government was firmly of the view and concluded that flexibility is one of the key features in realising its vision and that lay members provide a vital element to that flexibility. The vision they had was, as has been already outlined in this Bill, about dealing swiftly and finally with appeals, which will involve an internationally respected authority in immigration and asylum jurisprudence. I will leave it at that for your consideration.

  Q74 Ross Cranston: Is anyone proposing, apart from the Government, of course, that lay members be removed? Is there a great body of opinion out there that lay members are leading to delays or adding to the complexity of the process or whatever the arguments might be?

  Sir Duncan Ouseley: Not that I am aware of. The single tier is not being proposed in order to remove lay members. Consideration I think may have been given, at the time of the bill to which Mr Kumar is referring, as to whether lay members should continue, and, in a sense, one can see an anomaly in an appeal system which focuses on points or errors of law from adjudicators but which has lay members—potentially, on some panels a majority of lay members—involved in the process. But there has not been, so far as I am aware, pressure from, if I may put it this way, users of the tribunal or from the tribunal itself for the removal of lay members. Of course, the more members you have of different qualifications, there is a logistics, an administrative process, to setting up the panels, but that is just something that we have got used to; it is not itself the basis for removal. I think it is also fair to point out that, although we talk of points of law and errors of law, there are errors of law which can arise from the misappraisal of factual evidence, and we do consider carefully country background conditions, where we do try—we try—to achieve consistency in approach. You can argue, the lawyers could argue, whether that is truly a point of law or not, but that is one of the things we do which is not certainly a pure legal area.

  Q75 Ross Cranston: There is clear authority, is there not—for many, many years—that lack of evidence is an error of law. In that sense, I guess the lay members would still have a role, if it is an evidential issue—or could.

  Sir Duncan Ouseley: They have a role in the appraisal of the background conditions, certainly. But, if you are sitting as a panel, you participate in everything. You do not say, "That's not an issue for me," although I would expect them to follow the legal member's lead on a point of law.

  Q76 Ross Cranston: Could I just ask another more specific point about how the new system would operate in terms of producing the consistency which any system ought to produce. There is a system, as I understand it, of having starred decisions which ought to be followed. Will that sort of thing be continued?

  Sir Duncan Ouseley: Yes, in short. I have no reason to suppose that whoever runs the tribunal, if it comes about, would be able to do it effectively without having some sort of system whereby decisions made in a certain way and indicated sufficiently would become binding on every member of the tribunal, whether starred decisions, which in our jurisdiction are strictly for what might be regarded as pure points of law, or guidance cases, akin to what might be seen as the guideline sentencing cases that the Court of Appeal (Criminal Division) produces, only in our jurisdiction they would be related to, for example, whether it was safe or not to return somebody to a particular country.

  Q77 Ross Cranston: Could I finally ask an open-ended question of all of you, whether there are particular changes in terms of the appellate mechanisms proposed that you would want to see.

  Sir Duncan Ouseley: In terms of the changes we would want to see or changes to the current system forgetting the Government's current proposals?

  Q78 Ross Cranston: No, take the Government's proposals, what changes might you want to see?

  Sir Duncan Ouseley: To those proposals?

  Q79 Ross Cranston: To those proposals, yes.

  Sir Duncan Ouseley: That is very . . . There are . . .