Asylum and immigration tribunal procedure rules and

judicial titles order

2005

Introduction

Law Centre (NI) is a voluntary sector organisation which provides specialist legal services to advice organisation and disadvantaged individuals.  Four specialist lawyers (1 part time) carry out our immigration and asylum work and we represent at a substantial number of all appeals in Northern Ireland.  In fact, outside Law Centre (NI) there are very few experienced immigration and asylum practitioners in Northern Ireland. 

Our casework and the expertise our specialist lawyers gained during their practice inform our response.

Question 1- Do you support the change to lodging appeals directly with the Tribunal?
Do you agree with the proposed exceptions to this?
Is it helpful to have the option of lodging with the Tribunal where the
exceptions apply?

If the Appellate Authority has responsibility for the appeals then there are less likely to be lengthy delays in processing the appeal, as it is administratively more effective than the Respondent.  However, on a practical level, there would need to be sufficient resources available so as to ensure that it can effectively manage the expected number of appeals.

Question 2 - Do you agree that the respondent should provide all of the documents listed in Rule 11, or would you favour the responsibility for providing documents to rest with the appellant?
Which option do you think would best support effective handling of appeals in the timeframes envisaged in the rules?

Taking practical measures to ensure that appeals proceed efficiently is plainly in everybody’s interest.  However, the Procedure Rules as presently drafted do not effectively resolve some of the ongoing problems and are in fact likely to create further administrative difficulties.

The Respondent should continue to be responsible for providing all of the documents required for the appeal.  There would be real practical difficulties for applicants’ representatives if they were required to provide some of the documentation.  For example, applicants who were previously unrepresented or those that have been poorly represented in the past are generally unable to provide in a timely manner, if at all, a complete copy of the documents, particularly given the new timetable.  Whereas the Respondent ought to have a complete set on file.

It follows in proposing that the Respondent would only be required to serve on the applicant copies of documents which had not already been sent to the applicant is inappropriate (draft Rule 11(4)).  This will be particularly detrimental to an efficient appeal process.  For example, as presently drafted the first hearing is likely to be preoccupied with ensuring that all the parties have copies of the relevant documents, rather than trying to ensure that the appeal is determined timely, for example, by resolving any preliminary issues or agreeing what the issues to be determined are.  Especially when, as proposed, the Respondent only needs to serve the documents by 2pm the day before the first hearing.

Moreover, if the Respondent is only required to serve on the appellant the documents by 2pm the day before the first hearing, the applicant’s representative will not have sufficient time to prepare for the first hearing.

Accordingly, to ensure that an appeal can proceed in a timely way and effectively the Respondent should be responsible for ensuring that both the Tribunal and the Applicant (and, or his representative) have a complete set of the documents.  Moreover, the Respondent should be directed to ensure that these documents are served at least 48 hours before the first hearing.

Question 4 - Do you think that this provision is beneficial to all parties?

It is manifestly sensible that where the Respondent intends to withdraw a decision that the responsibility for notifying the Tribunal should lie with the Respondent.  However, there is no reasonable explanation as to why the Respondent should not also be required to give written notice, when withdrawing a decision (or give notice orally at the hearing).  In other words, 17(2) should be in the same terms as 17(1).

Question 5 - Do you think that this provision will prevent repeat adjournments?
Would you rather retain the closure date system?
Is it necessary to have either rule to limit the number, and length, of adjournments?

It is not necessary to either limit the number or length of an adjournment.  Under the present regime, adjudicators are very reluctant to adjourn hearings and would take a number of steps to ensure that an appeal does not drift through the system.  For example, adjudicators will often note on the file that any further adjournments would be inappropriate.  However, circumstances arise, which often cannot be foreseen, such that only a further adjournment would ensure a timely, just and effective disposal of the appeal.  In fact under the present system adjudicators have had to extend the closure date for precisely this reason.  It follows that determining a further adjournment request should be at the discretion of an adjudicator and it is inappropriate to retain the closure date system. Accordingly, this provision is unlikely to prevent repeat adjournments.

At the very least 21(2)(b) is otiose.  The present regime enables an adjudicator to give due weight to an earlier observation as to the need for further adjournments, but ultimately they are not bound by such an observation.

Question 6 - Do you think the time limits in Rule 22 and Rule 23 will contribute to the overall efficiency of the appeals process?
Do you think that the proposed times are appropriate for each stage?

Although, theoretically the proposed time limits could contribute to the overall efficiency of the appeals process, in practice such time limits are likely to lead to further delays or complications.

Although a number of asylum appeals could be determined within the proposed structure without too many difficulties, unfortunately many appeals are not straightforward and the proposed Rules could become problematic.  The issues raised on an appeal can be complex both factually and as a matter of law.  An adjudicator would be trying to balance the need for a well reasoned determination and the need for it to be determined as a matter of urgency.  In these circumstances, an adjudicator could be pressured into completing a determination without having proper regard to all the issues.  Inevitably, such a decision could require further consideration by the Tribunal, following an application for review, generating unnecessary costs and delays. 

Moreover, there is a risk of injustice, either perceived or real, but in either case the applicant could lose faith (and or confidence) in the appeal process, which would significantly undermine an applicant’s willingness to co-operate with the appeal process.

Such concerns are compounded by the proposal that the Respondent will serve the determination on the applicant. Not only are there practical concerns as to whether the Respondent’s administration could be trusted with such responsibility. In fact, this provision is at odds with the Department’s reasoning for transferring responsibility for accepting appeals to the Tribunal (see question 1 above). In this context we are all aware of the problems the Respondent can have in ensuring that all appeals are recorded and forwarded to the Tribunal.  But, more fundamentally, this proposal undermines the neutrality of the Tribunal and is wholly at odds with one of the cornerstones of an appellate process.

Question 7 - Do you agree that the Tribunal should be prevented from making a fresh decision unless it has first decided that there was a material error of law? Should the Tribunal be able to limit the issues in reconsideration in the
way proposed?
Will the proposals preventing transfer of cases help to ensure the reconsideration process delivers in a shorter timeframe?

It is wholly inappropriate for the Tribunal to first have to decide that there was a material error of law before making a fresh decision, following a review by an Immigration Judge.  On review, an Immigration Judge will generally only order reconsideration where there has been an error of law and there are real prospects of success (see Rule 27).  In other words, an Immigration Judge is usually going to have concluded that there has been a material error of law.

If, in the rare cases where an Immigration Judge has ordered a review because there is some other compelling reason why the decision should be reconsidered then it seems wholly appropriate that such reconsideration should be by way of a fresh decision.  There can be no reasonable justification for effectively enabling the Tribunal to further limit an applicant’s right of appeal, especially where an Immigration Judge has already ordered a re-consideration.  At the very least, the provision is otiose.

The proposals preventing transfer of cases may not help to ensure the reconsideration process delivers in timely manner, as this will be dependent upon how difficult it will be to constitute the Tribunals.  For example, there could be real practical difficulties when trying to constitute a panel for a hearing in Belfast.

Question 10 – Comments and suggestions on the layout and content of the new notice of appeal.

It is acknowledged that a process enabling the parties to limit the issues on an appeal would make the appeal process more effective, but the proposed appeal form is wholly inappropriate.  The draft form is cumbersome, for example, some of the grounds or responses would require significant detail and additional paper.  It will be time consuming, at a stage when the period for lodging the appeal is limited.  Very often we only receive instructions after an applicant has been refused, in these circumstances it is usually only possible to get an overview of the case.  It would simply not be practically possible to lodge extensive and detailed grounds for all of these applicants.  As such we would probably have to restrict the number of applicants we could represent at that stage of the process.  The knock on effect would be that there would be more applicants without representation at hearings heard in Northern Ireland.

However, the fundamental concern is for applicants without legal representation or those being inadequately represented.  In either scenario, the form is simply not going to be completed properly, which could plainly adversely affect the applicant’s appeal. As such the more appropriate forum for trying to agree the issues to be determined would be at the first hearing, so long as there is sufficient time for an applicant’s representative to prepare for that hearing.

Question 11 - Do you agree that both salaried and fee-paid legally qualified members of the AIT should be called Immigration Judges?

No, as it gives legitimacy to poor or inadequate decisions.

Question 12 - Do you support the titles of Immigration Judge, Designated Immigration Judge and Senior Immigration Judge?

No, the definitions are too similar and it is difficult to distinguish between a Designated Immigration Judge and a Senior Immigration Judge.