We considered Patel’s first two changes in appeals policy in the previous blog. They were the “good faith” requirement and the “one-stop” process. Her next change unexpectedly sounds positive: “We will … [p]rovide more generous access to advice, including legal advice, to support people to raise these issues …” (Policy Statement, p. 27, see link below). Whether this is good news or not may depend on the meaning you give to “generous”. In the Act, “legal services” (basically, legal aid) for appeals are provided for people who have received Priority Removal Notices (PRNs) and wish to appeal against their deportation. Such legal services may be granted “for up to (but no more than) 7 hours”. It’s not clear why we should see this limit on legal aid as generous. There have been limits before. The ones set in 2004, were five hours for solicitors to make an initial asylum application to the Home Office for their clients and a £1,600 limit on asylum work undertaken for an appeal. When it came to appeals, solicitors had to second-guess the appeal judge and only take cases they thought stood a more than 50% chance of winning. What happened next was that solicitors were often unable to complete the necessary work within the time limit and, not surprisingly, were often unlucky at second-guessing the learned judge. They began to shut down their immigration services. In Hull, by 2006, there were no firms specialising in immigration and asylum. One asylum support centre struck an agreement with a firm in Doncaster (60 miles away) to do weekly surgeries in Hull and a solicitor in Grimsby (30 miles away) took only paying clients (Mouncer, B., Dealt with on their Merits, para. 6.4.1, pp. 140-141: https://hydra.hull.ac.uk/assets/hull:2678a/content). Unsurprisingly, there are fears of a similar outcome this time round, which would leave the most vulnerable people without representation at a crucial stage in their search for protection.
Speed is crucial under the new policy, and Patel quickly makes that clear. The “more generous access to advice” will enable people to “provide evidence as early as possible and avoid last minute claims”. Consider the following scenario: you have been give a PRN (and therefore a cut-off date after which you will be deported); you decide to appeal; you miss the cut-off date. Your appeal will then be certified as “expedited” unless it is decided that there were good reasons why you were late. Who decides whether your reasons are good? If you thought it would be a judge, you would be mistaken. It is the Home Secretary who decides. The very same Home Secretary who refused your asylum claim in the first place. There is no guidance on what constitutes a good reason. The Home Secretary will decide for herself whether she is “satisfied that there were good reasons”, but we are not privy to the workings of her mind. But once her mind has worked on your reasons and she has decided she is unsatisfied with them, she will immediately speed up your appeal: “The Secretary of State must [my italics] certify [the claimant’s] right of appeal [as an expedited appeal]” (Nationality & Borders Act 2022, s. 23 (1) (new insertion 82A (2)).
So you may get to a final, speeded-up hearing. But beware: “… cases that do proceed to a final hearing … will be shorter and more focused” (Policy Statement, p.29). Why would that be? Well, cost is still crucial: “This more efficient appeals system will ensure better value for the taxpayer, [and] free up valuable judicial time …” (ibid.). And let’s not forget the theme that permeates this new policy, the need to stop people making dangerous journeys across the Channel in order to make “unmeritorious” claims and, now, to stop them making “unmeritorious appeals that can be a way of preventing removal” (ibid.).
Expedited appeals go to the Upper Tribunal, the last port of call (or the last-chance saloon), not the First-Tier Tribunal (which examines cases in detail and may grant further leave to appeal). Expedited appeals to the Upper Tribunal must be “brought and determined more quickly” than a First-Tier appeal (Nationality & Borders Act 2022 (NBA), s.23 (1) (inserted section 82A (4)). Moreover, although your solicitor can represent you in court and be present during any interview you have with Home Office caseworkers and others, you will have to pay for these services yourself since they are not part of the “more generous” legal advice package. (See NBA, s.25 (1) (inserted section 31ZA (5)).
But even First-Tier Tribunal hearings have been speeded up: they have been “streamlined” and the aim is to “deliver an efficient and transparent service … that is simple, fair and accessible for everyone” (to use the meaningless jargon of the Policy Statement (p. 29)). Appeals will be “progressed online where appropriate” and the issues dealt with will be “narrowed” (ibid.). In the context of this new policy, our fear must be that “narrowed” means “limited”, so that you won’t be able to raise all the issues you think are relevant.
On good reasons for being late:
- we discussed in an earlier blog how experiences of torture and abuse, including sexual abuse, and other experiences in their country of origin, and on their journey to escape it, often result in trauma and mean that people are reluctant to talk about them. It is only in desperation and at the last minute that they decide to do so;
- the asylum system is complex and some delays are no doubt unavoidable. But the House of Commons Home Affairs Committee report of July 2022 also identified some avoidable and long-term problems not yet tackled, including inappropriate software, poor processes, insufficient staff, worry among staff about meeting targets, inadequate “quality assurance” for standards resulting in errors, delays and more appeals. (Committee report, para. 6, pp. 7-8: https://committees.parliament.uk/publications/23102/documents/169178/default/).
- there is sheer incompetence on the part of staff running the system, which goes back a long way. In the early 2000s, I knew a Kosovan asylum seeker who had been in the UK for more than a year but was now detained, awaiting deportation, in the Pembury Hotel in Finsbury Park, North London — the Home Office had taken over the hotel and turned it into a detention centre for these purposes. When she arrived her caseworker at the hotel, Alistair, told her that her files were missing and he had no idea where they could be or what they said about her. They were subsequently traced. They were, he finally told her, in the office in Brixton, South London. What to do? Alistair knew immediately: she must go and pick them up in Brixton and bring them back to him now. And this is what happened. Such shenanigans produce delays;
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- there is a level of disrespect for asylum seekers amounting to hostility among Home Office staff which also goes back a long way, with consequential errors and delays. One asylum seeker received a refusal letter from his caseworker but he didn’t understand it. So he asked his solicitor to explain it. The solicitor began to read the letter until she suddenly saw the words “With regard to your claim to be a national of Afghanistan, the Secretary of State thinks that this is a pile of pants” (
The Guardian
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- , 16 December 2000:
- ). It is difficult to see how any asylum claims entrusted into this caseworker’s care were being taken seriously if this was the his approach. Such an approach must certainly cause delays.
- We have discovered that the “more generous” provision of legal services, including legal aid, is nothing of the kind. We have seen how the appeals process is now shortened and speeded up to get you out of the system and out of the country as soon as possible. This is particularly so in the case of expedited appeals. We have noted that, although the Act just about allows that you might have good reasons for missing the PRN cut-off date, it is the same Home Secretary who refused your original asylum claim, not a judge, who must decide whether your reasons are acceptable or should be dismissed. And we have seen how delays on your part are considered unacceptable almost by default while delays caused by the Home Office are ignored.
- This is all for now. More later.
Policy Statement:
Nationality & Borders Act 2022:
Bob Mouncer's blog 