Sweeping changes to immigration appeals system

In its consultation document entitled Fair decisions; faster justice (dated 21-8-2008) the UKBA has indicated its determination to tackle what it sees as “the heavy burden being placed upon the higher courts by the immigration system”

The government indicated its concerns in this area in its Green Paper entitled Path to Citizenship, introducing the consultation period prior to the publishing of its Immigration and Citizenship Bill.

The current system takes the following shape:

i) appeal to Asylum and Immigration Tribunal following immigration decision (these take several forms, including refusal of leave to enter the UK, decision to remove a person from the UK, refusal to vary a persons’ leave to remain in the UK, as well as the refusal to issue entry clearance to someone wishing to come to the UK to visit a member of his or her family or to settle in the UK as a dependant family member).

ii) if the appeal is unsuccessful the Appellant can apply to the Asylum and Immigration Tribunal for “reconsideration” of its decision.

iii) if the Tribunal refuses to make an order for the reconsideration of the appeal, the Appellant can apply to the Administrative Court for an order.  This is effectively a review of the decision referred to in (ii) above.  

The government sees stage (iii) as being too vulnerable to exploitation by those who make applications to the Administrative Court for the sole reason of delaying their removal from the UK.  The proposed reforms will effectively abolish Appellant’s rights to review by a body separate from the Asylum and Immigration Tribunal (or its replacement following the implementation of the measures proposed in the consultation document).  

The document points out that there is a 14 day time limit within which an appeal must be lodged against a decision taken by the Secretary of State, then a limit of 28 days within which that appeal must be heard, then a limit of 14 days within  which the Immigration Judge must write his or her determination.   So the whole of the initial process must be completed within a maximum of 56 days.  

There are then 7 days within which any application for reconsideration must be made to the Asylum and Immigration Tribunal, which itself must determine the application within 14 days.  So the initial reconsideration process takes a maximum of 21 days.  

If a Senior Immigration Judge refuses to make an order for reconsideration the Appellant then has 7 days within which he or she can make an application to the Administrative Court.  But after that there is no time limit within which the Administrative Court must reach its decision and, according to the consultation document the Court is so burdened with applications of this kind that it is currently typically taking 63 days to resolve them.  Its decision on these applications is final and is not subject to any further review.  

(The focus of the consultation document is upon the effect of the current system upon “expulsion” decisions – appeals against decisions to refuse entry clearance do not presumably concern the government because they do not have the alleged effect (of frustrating the Appellant’s removal from the UK) which is ascribed to appeals against expulsion decisions).  

What is proposed in Fair decisions; faster justice is not simply tinkering with the existing appeals structure.  Instead an entirely new Tribunal is to be created, in line with the model structure of Tribunals contained in the Tribunals, Courts and Enforcement Act 2007.  

This is disorientating to say the least.  The Tribunals, Courts and Enforcement Act 2007 creates both a First tier Tribunal and an Upper Tribunal, which of course is an entirely different model from that of the single tier Asylum and Immigration Tribunal, established in April 2005 by the Asylum and Immigration (Treatment of Claimants, etc) Act 2004.  

The 2004 Act itself did away with the two tier Immigration Appellate Authority, which had been in existence since the Immigration Appeals Act 1969.  Under that system, appeals were heard by Adjudicators.  It was possible to apply for permission to appeal to the Immigration Appeal Tribunal against determinations issued by Adjudicators.  If the Tribunal granted permission to appeal it could allow or dismiss the appeal itself, but more frequently it simply remitted the appeal for hearing by an Adjudicator different from the one who had initially determined the appeal.  

The 2004 Act brought in the current appeals regime, which has now been in force for more than three years.  It seems that the government is now proposing to bring back a two-tier system.  

It appears that now that everyone has got used both to this concept of reconsideration and to a single tier appeal system; it is to be replaced by a system made up of two Tiers.  Furthermore, as the consultation document makes clear - “reconsideration” will also disappear, and as was the case with the pre 2005 Immigration Appellate Authority, it will be possible to apply for permission to appeal from the determination of the First-tier Tribunal to the Upper Tribunal.  

How is this going to achieve the government’s aims? The answer is in the personnel of the proposed Upper Tribunal.  They will be:

“High Court judges, senior immigration judges and other senior judges from the courts and tribunals in all parts of the United Kingdom.”

The government states that due to its expertise it has been advised that decisions taken by the Upper Tribunal will not be subject to judicial review “except in the most exceptional circumstances.”
Further the Senior President of Tribunals, Lord Justice Carnwarth, who presides over the Upper Tribunal, has indicated that he would support the bringing forward of legislation which will give the Upper Tribunal’s decisions the same status as decisions taken by judges in the High Court.  

Further still the Upper Tribunal already has the power to exercise judicial review jurisdiction.  At the moment immigration decisions are specifically barred from being susceptible to this jurisdiction and must be considered by the Administrative Court.  The government plans to get rid of the bar to transferring judicial review applications from the Administrative Court to the Upper Tribunal.  

How will the new Upper Tribunal consider applications for permission to appeal to it from the First-tier Tribunal?  The consultation document indicates that:

“It is for consideration whether permission applications should always be dealt with on paper [this is the current regime both with regard to applications made to the Asylum and Immigration Tribunal for reconsideration and for applications to the Administrative Court] whether there should be a right to a permission hearing, or whether an intermediate position should be adopted whereby a hearing may take place if directed by a judge (but not at the request of either of the parties).”

The possibility of an oral hearing for permission to appeal to the Upper Tribunal is interesting.  The right to such a (comparable) hearing has certainly not existed for many many years - if indeed it ever did.  Of course the right to an oral hearing of an application for judicial review of a refusal by what was the Immigration Appeal Tribunal of permission to appeal to itself from an Adjudicator's determination was only got rid of in 2003 when statutory review replaced judicial review  (Nationality Immigration and Asylum Act 2002 section 101 (2)).      

The document points out that existing legislation – again the Tribunals, Courts and Enforcement Act 2007 – will enable the government simply to transfer the Asylum and Immigration Tribunal and all of its personnel into the new tribunal structure without primary legislation.  The changes could come into force as soon as June of next year.