item0081A  1110, 1111

Executive Challenge

Part of letter to Home Secretary Charles Clarke, about asylum administration

At present, you have a two-stage quasi-judicial process. The Home Office first hears the evidence (at an "Interview") and then proceeds to an administrative decision, a few days later.  Sometimes the interviewing officer also takes the administrative decision, sometimes not.  There is then, within ten working days, a right of appeal to an "independent judge", a lawyer who sits with the full solemnity of a "Court" (Asylum & Immigration Tribunal), addressed by two lawyers, one for the Home Office, and one for the asylum-seeking Appellant. 

Now, with your new Legal Aid rules cutting swathes through the provision of legal representation, as many as half of the asylum-seekers who come before the Tribunal have no legal representative.  It is true that the "Judges" (as they have been known since 1 April 2005, formerly "Adjudicators) are independent; but they are constrained by their commissions simply to apply to each case the same Immigration Rules and other principles that are binding upon the Home Office itself - they are effectively operating as sub-contract administrators, usually at a significantly higher level of ability.  They are less powerful, in that they ahve no discretion to make decisions "outside the Rules", in the exercise of a residual open-ended discretion.  And the appeal process requires the participation of three lawyers, if it is operate fairly.  Our adversarial system of justice works well, if the adversaries are legally represented before the Judge.

This two-stage process, however, combining low-grade "cheap" salaried administrators with a higher-paid trio of lawyers at the first "appellate" instance is proving cumbersome and ineffective, particularly without proper legal representation for asylum-seekers.  Legal representation was formerly withdrawn from the Home Office Interview, in April 2004, and the withdrawal of Legal Aid has proceeded remorselessly.  This has knocked the stuffing out of the underlying system of administration.  It is also very difficult for asylum-seekers to understand the process: the Judges are universally perceived as Home Office stooges, with some functional justification - for they are indeed acting simply as high-grade administrators.  The parphernalia and language of "court proceedings" is mere superficial (though expensive) flummery.  And in a cruel administrative faux pas, the Judges' verdicts are delivered to the asylum-seeker in an envelope post-marked "The Home Office", which confirms the stooge image.

It would be better to create an honest and open single-instance decision-making process, with appeal to the Asylum & Immigration Tribunal only on a point of law.  A more senior civil servant (alternatively, out-sourced professionals sitting as Administrators, like planning inspectors or Immigration Judges) representing/embodying the Home Office - should take  a single administrative decision, following a hearing at which (a) the facts would be investigated (cf the present Home Office "Interview") and (b) the legal arguments would be canvassed.  The asylum-applicant would be legally represented at both phases of this process: both phases of many cases could be despatched in half-a-day, giving the applicant the satisfaction of being represented "before" the Home Office, and his lawyer would also be able to give a convincing explanation of the decision, particularly if adverse.

An appeal would lie against this decision only for error of law, as is already the case for first-instance Tribunal decisions, with a further appeal for error of law to the High Court (Administrative Division).  Such appeals appear arguable in less than 20% cases.

This solution would therefore conflate the two present administrative instances, and locate the new decision-making process within the Home Office, where is widely believed to reside in any event.  There would be a huge saving in Legal Aid costs, and if every applicant had a legal representative before the Home Office Decision-Maker, the sense of justice and of civil justice would be greatly enhanced. The attempt to create a complex two-stage executive/judicial process has been a failure, and it would better to design a new form of hybrid process.

• That is my proposal

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Your rules for the withdrawal of Asylum Benefit are draconian, deeply unjust and inhumane. Asylum-seekers find that they are plunged into destitution quite arbitrarily, if for any reason a trigger deadline is passed - even if the fault is not theirs, but that of their legal representatives.  With the two five-day appeal periods (which you deliberately introduced in April 2005, to make the system nastier still) if the appeal is not lodged literally by 5.00 pm on the fifth day, Asylum Benefit is withdrawn, often with the most distressing consequences.  If the appeal is lodged even 60 minutes late, Asylum Benefit is lost. Even if the appeal case subsequently proceeds, it is virtually impossible to secure the reinstatement of the NASS Benefit.

What do you think?  Drop me a line