Justice Committee

Tuesday 7th July 2026

(began 1 month, 4 weeks ago)

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None Portrait Speaker 13
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I mean, I can go first, if you like. I when I was a part time first year, I did actually sit in Taylor House and also in Hatton Cross. And there is always the pressure because you have one day sitting and you have one day writing up. And the cases are very varied. Um, but actually I'm not sure the pressure now is just about the work because as people will know from looking at the media, social media, um, and even. Some political statements, um, immigration.

Judges as well as immigration barristers are seen to be. Overly on the side of the appellants. Um, and it's particularly the case on social media that some judges, first tier and upper tier who allow appeals find themselves in the sun. I found myself in the sun twice. Um, and also some of the upper tribunal sitting in Manchester now have um panic buttons in their houses which are put there by the police. And one woman I know um has taken to wearing a kind of disguise when she goes to court.

So it's not just the pressure of work, it's also that there hasn't been sufficient. I suppose protection in an intellectual and also a practical way of the judges, because it is a very highly contended issue. And I think talking about recruitment the first year, I think that is probably one of the reasons why they're not getting as many people applying as they might want to. Having said that, when people do apply and are part time people in the first year, some of them also sit as barristers, but some of them just sit, although they're part time, technically, they do sit only in that jurisdiction.

That's their only income. And those people actually usually welcome an increase in sitting days, because that's their only income. Um. I think also there's been a change in the first tier more than the upper tribunal. During Covid. They went really digital, which was a good thing. And more could be exploited about that. I think, um, Professor Tomlinson's research indicates that delay is a kind of ripple effect. And my experience of being a judge from 2006 and being a barrister, is that there's a certain.

Time inconsistency in the Immigration Service, in how it delivers decisions notably. Um, during the Rwanda debate, they virtually stopped making decisions. Covid, their decisions were very. Pace with the ability of the appellate authorities to make decisions because they said the Home Office people back home without any files. And I actually, as an upper tribunal had a few digital hearings when the Home Office had absolutely no files and no record of the. Um, so I think there's lots of things that could be done to improve the present system.

And I suppose as a judge. I just haven't seen the evidence as a judge that it would be sensible economically or politically or in behalf of the people using the service to actually tear everything up, make hundreds of judges redundant, and start a new system which hasn't even been piloted. And there's no research to show it's work. It's a huge undertaking, and I can't really understand why we aren't starting from what's already a. Quite good system which could be improved.
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None Portrait Speaker 14
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Well, I don't agree with that. Um, I think the first thing to say is that backlog of 60 weeks to wait for your hearing, which is what it is currently in the first tier tribunal, is simply not acceptable. And it's not acceptable from everybody's perspective, but including the appellants, it's just too long to wait. They're very vulnerable people on the whole. And of course, the delay adds to the asylum budget. Um, there appears to be limited capacity in the first tier tribunal, but in my opinion, the problem starts much earlier.

Um, the problem is home office decision making, which is just simply not good enough. Um only the Home Office's own transparency data. The most recent said that 52% of initial decisions only met their quality standard. Um the National Audit Office said sampled 43% of sample decisions in the year ending May 25th, contained significant errors, 43%. That's astonishing. So it's not surprising that 45% of appeals are overturned by decisions I should say are overturned by the first tier tribunal.

And that's from the tribunals own statistics. Um, if there was robust, sustainable decision making, there would be robust advice given by people like me by solicitors to their clients and fewer appeals would go forward. Um, the, a second related problem, which is that an efficient appeals system is predicated on good legal advice. And we have a very significant advice. Desert in in England and Wales, um, the Law Society undertook some research and found that there was an advice desert of 63% of people had no access to local legal aid.

Um. If people are unrepresented. I think we will have less complete evidence put before the I a there. Will be a lack of clarity in written arguments and oral submissions on very complex law and policy, and I suspect it will lead to longer hearings, not shorter hearings, which is an avoidable delay. Um, the explanatory note to the bill did say that there was a goal of ensuring sufficient access to legal advisers and legal aid at an early stage, which is admirable.

And the Law Society welcomes that. But there are no plans for ensuring that this would would happen. And without investment in legal aid, the IIAA will have the same problem of unrepresented appellants and merely stating that an appellant has to sign a piece of paper to say that they've been asked whether they've got legal advice or not is not going to magic up some more lawyers. It just isn't. Um, that is lawyers who are prepared to undertake legal aid. So I think there are pressures on the first tier tribunal, but I think they also go back to the initial decision making.
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None Portrait Speaker 12
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Go on?I wonder if I could take a step back and look at the data on what's happening here, because I think that's quite helpful. So we have seen a significant uptick in the backlog in the immigration tribunal generally, but also particularly in asylum appeals. I should note, and I can answer other questions on this later if it'd be helpful. But we're seeing similar increases in demand in lots of tribunals across the tribunal system. So in a sense, this is an asylum and immigration issue.

In a sense. It's also a tribunals, uh, wide problem. So the asylum appeals backlog is obviously risen significantly, in particular to 87,000 or so. Um, in terms of what's driving that demand in the analysis that I recently did with a colleague at the Institute for Fiscal Studies, which was published today, we looked at a period of time, and the details are in the paper that's been shared with the committee. What we see is that there are two main drivers of that demand, and this is the best analysis we can do on the available data.

I should add. The first is the increase in initial asylum claims is mechanically turning in to more appeals. As you would expect downstream. The second is, as was mentioned earlier, um that there has been changes in pace of home office decision making around asylum, initial determinations. So if you have stop start decision making, and particularly if you pause and then accelerate through a backlog, that's potentially a good thing for the home office in terms of clearing its backlog. But the effect you see in the data is, in essence, the backlog from the Home Office is reassigned in part to the tribunal at a later stage.

So that's the predicament that we're in now. Um, the effects of that are manifold, including on um, timing of appeals. So how long they take to clear that's currently up to 61 weeks on average. And we would anticipate that figure would go up because that figure is based on cases that entered the system quite some time ago. So we'll expect more delay. I just want to speak, if I may, to the resourcing point as well in terms of judicial recruitment, which was raised.

So I think this is a really interesting and important point in this. In this debate, I read the Home Secretary's letter about whether raising the point about whether this system can be delivered within the current statutory framework. There are obviously questions about exactly how we interpret that statutory framework and so on. Um, but the crux of the issue, as I understand it is, is not just resourcing in terms of money, but in terms of the recruitment of judicial capacity. Um, and in a sense, recruiting judges is particularly difficult thing to do.

Uh, they're highly qualified people. You have to get willing people to come forward. There are burdens of office and so on. Um, and, uh, we did a counterfactual in our IFS paper and to, over the period of time we stood it to offset the backlog, the figure we produced is that it would need to be, need to have been a 35% increase in judicial sitting days. So a relatively significant increase in judicial resourcing. So I've not seen anything from the Home Office or the MoJ about whether they've been capable or not of recruiting at that level or whether they've tried to.

But for me, that seems an important point in which there could be further analysis.
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None Portrait Speaker 14
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I don't think it is.
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None Portrait Speaker 1
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I'm sorry.
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None Portrait Speaker 13
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Well. What I do know from sitting at Hatton Cross and Taylor House is that there is a lot of churn in people working at Taylor House. Because you're in the middle of Islington, it's a very expensive area. There's a lot of other job opportunities for people with administrative skills, and so people may work there, they may not like, and they go and find another job in Hatton Cross where there isn't a lot of local administrative jobs. There's a very stable staff and it shows.

Having worked in both Hatton Cross and Taylor House, I think it was a much managerially, well run place, partly because the staff are very consistent and it was a good team working there and I think. That's they could do some research on that and see what why. And also. I. When I first started at Taylor House, they had a kind of research department and a management unit, which I think have gone now. And they abolished those. But I suppose for reasons of money.

But they played a really important part. For instance, I was doing some research into unaccompanied children. This is a long time ago. And the woman who ran the research unit had actually been keeping a whole year's worth of decisions about children, which was really valuable research. So on that basis of that, we could understand what they were doing right and wrong with children. But because she was in a research unit and she was able to do that, but then they got rid of that whole unit and they got rid of some of the management units.

So I think it's a false economy to cut out the middle people, because you can't expect very junior people to have a grasp of what's happening.
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None Portrait Speaker 10
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If we look at.
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None Portrait Speaker 4
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In what sense?
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None Portrait Speaker 2
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Is the criteria.
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None Portrait Speaker 6
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Well, I'll start I mean, just calling it independent. I, IAA doesn't make it so um there's very scant detail in the bill or in the explanatory note about the functioning of the iaar. Um so there's little assurance that it will in fact be independent. And of course the Home Office is a party to the appeal and. So it's essential that the IAA is clearly separated from the Home Office in its governance appointments, funding and operational control. Um, because if not, it will not be seen to be independent, even if it is.

And there are things within the bill that concern me greatly. For example, the Secretary of State can request that particular cases are or categories of cases are expedited and include a time frame to determine such request. Well, that first of all, it's one sided because the appellant can't do that. And many appellants do want to speed through the process, particularly children, particularly when family members are overseas or vulnerable people. But in addition, the fact that the Home Office can demand a time frame for a response, that to me is interfering in the operational matters of the I, IAA.

Um, a further significant problem about independence is that the Home Secretary will appoint the initial chief executive and chief appeals officer. Obviously, they do have to be appointed, um as well as the chair and the Professional Standards Office. But it would seem to me that the Chief Executive Officer and the Chief Appeals Officer should be appointed. The initial one should be appointed for a small period, only a short period, and then the chair should make a decision about whether to confirm in post or to appoint somebody else.

And that, again, would demonstrate the chair's independence. Um, I. I the other point I want to say about independence is that it's really important because independent appeals are not an obstacle to effective immigration control. They are in fact, an essential safeguard and that they ensure government decisions are accurate, lawful and capable of being implemented because that doesn't always happen. So it's very important. The primary function of this new body is to see that justice is done. But it's also, in my view that it should be seen to be done.

And I'm very concerned about the lack of independence.
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None Portrait Speaker 14
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Thank you. Does.
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None Portrait Speaker 5
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Yeah. Um, unless we're going to say that, um this new body is outside the separation of powers, um the independence of the new body is, is extremely important. But the bill, when you look at it structurally, um, shows that a real lack of independence clause one five C states that in the exercise of its functions, the a a a a a a must have regard to the fact that it's an operates as a key part of the immigration and asylum system, not as an independent body. Clause two also states UK as executive members.

The authority. Um as opposed to independent um they're not appointed by anything like a Judicial Appointments commission as Alison said there's a kind of cascade. There's I think that it said somewhere that the first two appointments are under public or in accordance with public appointments framework, but then it's a cascade and it's unclear what's the regulations. Um, in terms of the regulations, the adjudicators are brought under the purview of the Chief Inspector of UK Borders Agency, which deals with other people in the agency.

So clearly, yet again, not independent. Um and. There is no regulatory body except there is a professional standards officer within the authority. Isn't at all a, it's not the same as having a regulatory body to which you are, if you were a tribunal judge, you are the, the chief justice, you have Minister of justice. There's loads of people who are regulating your actions. And also I looked at the Bangalore principles of judicial conduct, which I think is comparable because this bill talks about independence.

But actually the principles talk about other things too, which are equally important when you're making important decisions about people's lives, torture, whatever, independence, impartiality, integrity, propriety, both individual and institutional equality, competence and diligence. Now that isn't necessarily built into just saying it's independent. And for a judge, they have an equality treatment benchbook, and they have a guide to judicial conduct. But I can't see where in this bill there's anything comparable to this. Um. And also, I say as a former judge, I find clause one for a bit surprising because it actually says, um.

The IAS primary function is with a view to ensuring the justice is done. Well, I'm surprised it has to say that on the surface of a bill, one would have thought it was implicit.
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None Portrait Speaker 14
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Thank you Jeff.
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None Portrait Speaker 5
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Actually, I heard the same thing, and I did a bit of my own research. So because I used to work for the Council of Baltic States, I do have some contacts. So I spoke to the director of the Danish Refugee Council, who put me in touch with a man who's very senior in their appellate authority. And I spoke to him yesterday and I spoke to her at the weekend. Danish Appeals Board is nothing like what's proposed here. They have three people.

A judge who comes to their national appeals court. It's a small country, so their judiciary sits across different jurisdictions. So these judges sit in ordinary appeals. But 2 or 3 days a week they. A month they may be in the Danish Appeal Immigration Appeal Board. The second one is a lawyer, a professional, fully qualified lawyer nominated by the council, the Danish Bar Association and the Law Society. Several of them, I'm told, have previously represented asylum seekers or immigrants, so they're pretty well qualified.

The third person is a civil servant from their Ministry of Refugees, Immigration and Integration Affairs. Now what the man from the um there. Appeals Board told me is that those people are nearly always lawyers because their job, their day job, when they're not in the appeal board, is as functionaries in the ministry. I've just talked about, which means they have to be very good about foreign law. So nearly all those civil servants that come into the board will also technically be they may not be practicing lawyers.

They certainly will be lawyers because they have to have a good. Idea of foreign law. So it's not true that the Danish. Um, uh, appeals board is made up of members of the public or volunteers. It's made up of actually three professionals. They also told me that some years ago, maybe 15 years ago, they did experiment with having two people on a board of seven who were just members of the public. But that didn't last because they found those people.

Now, they weren't biased in the way we might think of bias. They were biased both ways because they got overly emotionally attached to some of the appellants, whether or not they were people who were vulnerable or actually were entitled to appeals. They found those UN trained and non-lawyers made a lot of mistakes. Sometimes they would just feel really sorry for somebody. Sometimes they'd feel hostile. So it wasn't as if they were all pro appellants, but they they didn't have the grounding to actually make a good decision.

And they actually got taken off the board about, I think maybe 10 or 15 years ago. It was a bit unclear. Um, and one of the Danish Refugee Council, who are pretty well respected in Europe, said one of the things they felt about their board is, was all the board members were professional. And it showed. But if anybody needs I've got more more information.
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None Portrait Speaker 4
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Always personally, in terms of looking at comparisons in this area, it can be quite difficult because the kinds of systems and contexts that are run internationally are very, very different, operate in very different contexts. So it's very difficult to transplant systems. Not that we can't learn things from other systems, but context is very important. But I want to address your question about expertise if that's okay. Um, so I think within the current proposal, I should be really clear about this. Maybe this is the point the chair was getting at earlier.

I think the assumption is that the quality of decision making will go down at some level to allow more cases within the new model to be processed more quickly. I don't. Think so. Expertise is one feature that you would hope to see potentially within a good decision making process, and particularly within asylum process, you need a degree of expertise. It's a complex legally, it's complex factually and so on. But there are also other features of good decision making as well.

Um, so I would certainly imagine that if you move these decisions away from judges and into the adjudicator model that's being proposed, that would assume some deterioration of quality to some extent, there was a trade off there between the qualifications and the structure and what you're trying to achieve in terms of efficiency. I think that's just baked into the, um, into. The proposal, um, the evidence that I've seen and what would concern me when I look internationally is there's been quite a lot of research on the idea of legal quickening, which is particularly in asylum systems, you try to speed up the process to get things done more efficiently.

Now, what we tend to see there, even if you have still expert people, is, um, the interactions between the parties deteriorating in quality, the respect between the parties deteriorating in quality because there is less time in the system for those sorts of things. So those things would, would concern me as much as expertise as well.
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None Portrait Speaker 2
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Yes.
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None Portrait Speaker 1
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What was that?
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None Portrait Speaker 6
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If I can speak about the 24 week time frame, which was introduced in 2025, um, for those in the supported accommodation, um, that seems to me to be reasonable. And it's also preferable from the point of view of the appellant, provided it is flexible because at no point should these time frames be so inflexible that exceptions can't be made. And there can be all sorts of reasons why an appeal isn't ready to proceed. And Nadine spoke very graphically about how frequently victims of torture or children.

I have worked a lot with children. Child asylum seekers find it very difficult to um, express. What's happened to them. Um, it's also quite hard for people to talk about their history in, in the way that we demand, which is a linear style. And actually most of us couldn't do it probably if we, if we tried. Um, so some, some cases, some appeals will need longer. And it seems to me that 24 weeks is something which is admirable, and it would be something to try to go for, provided that there, there can be exceptions made.

And the other issue around that is that if you are asking for expert evidence as an appellant, that's slightly out of your control because you first of all have to get legal aid. And because it's public money, this is very proper. You have to get three quotes. You then have to go to the legal aid agency to get approval. You then instruct your your expert and they may have other things to do. They may be busy writing reports, for example, because they're frequently academics.

And it's, um. Important that we don't lose justice just because of speed.
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None Portrait Speaker 12
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Well.
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None Portrait Speaker 5
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I think people misunderstand the amount of evidence that judges rely upon. I mean, judges do in the in the upper tribunal, we're looking at error of law, but error of law depends upon how you apply that law to that evidence. And some of the cases I found most difficult as a judge is. I actually thought some of the appeals could have been one of. There had been sufficient evidence. And that is a time issue. It may be they needed more time to find an expert.

It may be a child hadn't been able to give the full evidence. Or maybe they just had a poor representative and they should have had another one. But evidence. Can't just be turned on and off like a tap in some things. But if I could go on slightly, the the issue about having time limits does really strike at judicial independence as well, because, say, I as a judge, had a really good idea that this child could have something very dynamic, but yet I was being told in the new system, I, as an adjudicator, was being told that I'd run out of time.

What do you do as the ultimate decision maker?Do you just accept that?Do you just say, okay, I'm going to forget my professional, my, um. Why?Why I have to be impartial or why I have to be completely fair?Do I just accept that because some person in procedure has told me that I've run out of time, and I think that's a real problem. I also worry about the bail hearings. I mean, I also talked about so bail hearings mean habeas corpus and lots and lots of cases about how long you can detain people from is going to cut across this.

So, okay, they say after so and so there's this time limit for bail hearings. But what about all the other case law we've got about detention, about habeas corpus?Um. And. One other thing that worries me about this particular clause is that it's aimed at adjudicators who are non-professionals. And yet we ask them to apply concepts such as reasonable, practical, reasonably practical in the interests of justice. Now, those are terms of art, which judges and lawyers learn to understand.

They're difficult for lots of judges and lawyers, but I can't see how a layperson could fully understand how they should be applied. Um. And also I query what justice means in this clause. Does it just means speed and costs overall for the. Or does it mean the interest of justice for every person who comes through the system?
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None Portrait Speaker 5
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Yeah.
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None Portrait Speaker 6
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And I'm. 14.
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None Portrait Speaker 1
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I actually.
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None Portrait Speaker 8
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Thank you.
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None Portrait Speaker 8
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Mr..
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None Portrait Speaker 4
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So, so I think it's there are obvious um expertise losses if you're not having lawyers make decisions, the kind of legal complexity that is rife in this area is a challenge. But in looking at the way I would view this, it's a different kind of decision making structure. So government has to deal with lots of complex law all the time. It doesn't always use legal decision makers. So security law, for instance is very, very complex. But you know, we have administrative officials making decisions.

Um, asylum, initial asylum, disseminations, which can often be correct, are done by caseworkers in the Home Office, for instance. Um, so you would lose expertise, but I don't think it's beyond the realm of possibility that you could have a structure that's, uh, that could work well where you have legal support around non-legal decision makers. And that's the kind of system that a variety of systems we used to have prior to the tribunal in its current form. Um, but it's very difficult to implement and implement well, and you risk trading away the justice for the individuals who are in that system.

That's the big that's the big risk in that system. So to answer your question directly, I think expertise is very, very important. But there's a judgment call to be made by policy makers about this. As to whether how that matches with efficiency. And on the efficiency side, the final important reflection within the current model, with no extra resourcing, this is going to get the backlog is going to get bigger and bigger. The times people are waiting, which are harmful for them, harmful for the system, are going to get longer and longer.

So at some point, efficient efficiency becomes a justice problem for the individuals concerned as well. So there's a complex dynamic there.
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None Portrait Speaker 15
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Um.
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None Portrait Speaker 13
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Anyone else?
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None Portrait Speaker 11
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Number eight.
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None Portrait Speaker 14
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I.
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None Portrait Speaker 5
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I. There's also no description of Bill about the kind of the senior adjudicator. They have adjudicators and playing adjudicators. One's presuming that the, the kind of more experienced senior adjudicators do things like case management. There's no suggestion that they would go for the very complex cases, for instance. So there's very little about how this actually runs or works. Um, and the thing as soon as I saw the bill, I looked to see what the adjudicator was going to be.

But there is nothing on the face of the bill which tells me what the dude is going to be, tells me a lot about how they're going to be regulated, and a lot about the system. But surely the core thing is the adjudicator. And I would just say a bit. Following on from Professor Tomlinson, because as. A judge you. Sit one day sitting, one day writing up and. It's pretty demanding, but it's militated by the fact that the type of cases could be an easy case, a bail hearing.

It could be a student application. It could be something which was clearly, um, quite easy to adjudicate, or it could be a really complex asylum case. And, and also, I have to say, the level of expertise of the judge plays into the speed because um. I know this because I went in, in 2006 with a whole load of people who'd been in good legal firms or good chambers, and we were much better prepared. And our productivity was probably double. So many other people had never even seen an asylum claim.

So that concerns me. The speed concerns me. Um. I'd also say one of the reasons I'm going to be slightly rude about the Home Office is that there was a certain type of home office person, and I don't blame them because I have no training. Who thinks they have to argue every single word of the refusal letter, and they also think they are in a Netflix legal drama. So they put it to the appellants and that takes hours and isn't actually very productive because quite often what they're arguing, they're putting, it's got nothing to do with the kernel of the case.

So it's another case management. And this bill will not help to make sure that one party to that appeal speeds up.
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None Portrait Speaker 15
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Thank you.
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None Portrait Speaker 4
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So I'd say I would agree it's unclear on the face of the bill who the adjudicators are. I think the framing of members of the public is probably unhelpful kind of framing. As I've seen in the media. I'm a member of the public. No. Um, so, um, it wouldn't surprise me ironically, um, if this ended up being staffed by people who had legal qualifications mostly, but just didn't necessarily meet the appointment criteria for the judiciary. Um, so it's unclear, I think is the straightforward answer.

The two things that I would flag as important though, in respect of the way the adjudicators are set up, is generally decision making within government is a neglected part of the civil service. It is a certain set of skills. Having an attitude of mind where you're taking care about the rules, but you're being critical about the evidence and a range of other skills. There is no, for instance, profession in civil service, which is focused on decision making, despite the fact many civil servants are administrative decision makers.

Um, so it's neglected generally. And I would worry that that sort of neglect of that skill set would carry over into an organisation like this. So I'd be particularly concerned about that. Um, the wider point I would make is that decision making, particularly in these sorts of structures is in part individual, but it's part organisational and cultural. And the independent chief inspector and board is an immigration often flags the cultural dynamics within initial asylum casework, and it would be an important point to be vigilant about if this new structure was set up as not just to the individual decision makers and who they are, but how the culture of the organisation is developing as a whole.
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None Portrait Speaker 1
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No, no.
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None Portrait Speaker 12
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Thank you.
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None Portrait Speaker 4
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I address the point very briefly on the backlogs and about how this might be a response to the backlog. So I think this issue can be viewed from the asylum and immigration policy perspective. But it's also administrative justice tribunals issue as well. And the paper that was that was published today, that was involved in looks at these demand rises across the tribunals. And so across the tribunal system, we're seeing surges in cases, and these issues are across that system. So when.

You look, since the 2007 act was brought into into force, if you look at the key reforms that have been carried out, you can sort of mark them on the graph almost. There was a real increase in cases around up to about 2013. And then we saw reforms, lots of immigration cases taken out of the tribunal. So only asylum and complex cases, human rights cases were left, systems brought in in the DWP to keep cases out of the tribunal and have them resolved in-house before they go to the tribunal to try to place less weight on the tribunal.

You see the caseload come down, it's gone back up and it's just gone past that previous peak, and we're seeing reforms in immigration. We're seeing reforms in Send being proposed and so on. So I would put it like this. There's another perspective where part of this is immigration and asylum policy issue. Part of this is about what does sustainable governance of the tribunal system look like. And I think that's an area where a lot more thought could be given.
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None Portrait Speaker 15
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You.
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None Portrait Speaker 4
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Generally it differs.
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None Portrait Speaker 15
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Well.
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None Portrait Speaker 15
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Jenny.
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16:21
16:21
None Portrait Speaker 2
-

Glad the judge.
16:21
16:22
16:24
16:24
16:24
16:25
16:26
16:26
16:27
16:27
This debate has concluded
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