Keir Starmer
Main Page: Keir Starmer (Labour - Holborn and St Pancras)Department Debates - View all Keir Starmer's debates with the Home Office
Immigration Bill (Third sitting)
Keir Starmer Excerpts(8 years, 6 months ago)
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Keir Starmer (Holborn and St Pancras) (Lab)
Q 192 Thank you, panel, for coming to give evidence to us this morning. I want to ask about appeals, bail and enforcement action by immigration officers, and I will take them in that order. May I start with appeals, and ask for your views on the quality of the initial decision making by the Home Office—by UK Visas and Immigration—before we get to the question of appeals?
Manjit Gill: I can say something very briefly on the quality of initial decision making; others will probably want to comment. It is perhaps the most critical feature of the problem. The quality of initial decision-making is unspeakable. About the impact of the appeal provisions on children, I have particular concerns. I speak only in my individual capacity.
You may have come across decisions of the upper tribunal, and particularly of the president, Mr Justice McCloskey. In a case called “J.O.”—I can send you copies if need be—he severely criticised how the interests of children are dealt with in decision letters. They seem simply to pay lip service to the best interest duty. He basically tore the decision-making process to pieces in his decision. I do not know what steps are being taken in the Home Office to rectify that.
As regards other decision making outside children’s cases, the tendency is to put all the burden on the appellant. I can see that the appellant or the person concerned should bear the burden—initially, at any rate—of having to say something about why they should not be deported or removed pending appeal, but more must be done in terms of the actual inquiries made by the Home Office. I had better not say any more at this stage.
Keir Starmer
Q 193 Liberty has suggested that in the period April to June 2015, 39% of immigration appeals were allowed at the first-tier tribunal. Does that chime with your experience?
Adrian Berry: Yes. The annual figure for last year was that about 40% of appeals were allowed. It was slightly higher, I think, in the two previous years. That is indicative, perhaps, of the quality of decision making, but it does not necessarily capture the whole story in relation to the reasoning and how decisions are made. Decisions may survive judicial scrutiny but none the less be poorly reasoned and have an inappropriate or insufficient grasp of the detail of an individual’s circumstances. They are a genre of their own, in literary terms. You see a formulaic approach toward the appreciation of individual people’s lives that is dispiriting, when it comes to understanding what individual consideration is actually being given.
Keir Starmer
Q 194 Thank you. Do any other panel members want to comment on that question before I move on?
Colin Yeo: There is slight variation in the figures. Different types of case have different success rates. The overall figure is about 40%; it was a little higher in some previous years. However, for example, in the managed migration statistics, it is about 42% of appeals, and it is much lower in some other kinds of case, such as deportation cases. The success rate is much lower there. That compares to a success rate, I understand—I am not a tax specialist—in tax tribunals of about 25%.
Obviously, immigration cases involve profound questions about where somebody lives, or contact between parents and children or between spouses. It is very important that those decisions are right, and the fact that there is such a high success rate on appeal, which is, realistically, the best measure we have got of such things is a real concern.
The Chair
Before we move on, I think that Craig Whittaker wants to come in on that point.
Craig Whittaker
Q 196 I understand that, but what I am trying to establish is that if it is 40% of those who apply, but the appeal process involves only 5% of all applicants, it is actually a relatively small number. I was just trying to put it into some perspective.
Colin Yeo: I do not have the statistics for that. I have never seen those statistics, either, so I cannot help the Committee. I am sorry.
Keir Starmer
Q 197 Let us move on to the question of appeal and the extension of the “remove first, appeal later” provisions, which is in the Immigration Bill. Will you give the Committee an indication of the practical differences between what is involved in appealing in country here and appealing once you have been removed, just in relation to the nuts and bolts of it? Some of us around the room are lawyers. Some of us have been involved in cases, but not everybody has, so will you give us a practical example of what actually happens if you are here, and what is envisaged, or what does happen, if you are removed, so that people get a sense of the difference between the two?
Manjit Gill: May I say something briefly on that? First, insofar as contact with your own lawyer is concerned, here, with or without the difficulties of funding—and there are enormous difficulties, as you have just heard—at least you can go and see your lawyer, and your lawyer can come and see you. You can get the witness statements sorted and give the instructions face to face. If you are having to give all those instructions from abroad, just imagine the practical difficulties and impediments to instructing your lawyer in the first place in order to prepare the case.
In children’s cases, how do you go about the process of getting an independent expert’s report? How is the child expert going to be able to assess the damage that will be caused by the separation—even a short-term separation—if the separation has already occurred? They are simply not going to be able to do it. Instead of having to prepare their reports from the point of view of prevention of harm to the child, they are going to have to do it from a removed location from the point of view of remedial action to remedy the harm that has already been done to the child by taking the father away and making him appeal from abroad.
Even if you manage all that and get to the appeal hearing itself, how are you going to give the oral evidence? A lot depends on how you come across to a court or tribunal. A lot depends on what happens in the courtroom. Here, we can all see each other and what is happening on people’s faces—who is a little bit upset, who is happy and so on. These things just do not come across when you have to do it through a video link.
Moreover, the tribunal does not allow a system of video links unless they have approved the actual source. They do not allow you to walk into an internet café or to use Skype. British embassies and high commissions simply do not provide the service. The Home Office does not pay for that service, nor does the tribunal; you yourself are going to have to pay to put in place a system whereby you can give oral evidence. There are a lot more things that I could say, but I am trying to keep it brief.
Keir Starmer
Q 198 Do any other members of the panel have any comments on the practical issues?
Adrian Berry: In addition to what Manjit has said, the difficulties include compiling exhibits, for example, behind a witness statement. If you are looking at getting reports, such as medical reports of actual treatment, or gathering documentary evidence of a life that has been led and you want to go over those documents with the individual in question, having those documents on the table in front of you, face-to-face in a live encounter, is very different.
Preparing an appeal is a rolling process. You are drafting statements and possibly re-drafting them, and looking at the statements of people writing in support and considering them against the documentary evidence that you are assembling—in a family life case, for example—and to do all that remotely is formidably difficult. In some instances, even in legal cases in the commercial court, the High Court in London has had to take evidence in Zambia, for example, for a complex commercial case, because it is difficult to do it over the internet or remotely. That sort of highlights the issue for us. If you are trying to run a case remotely about someone’s life, with a whole batch of documentary evidence that requires consideration in addition to assembling expert reports, there is a degradation of the quality of the job that you are able to do that cannot be compensated for.
Keir Starmer
Q 199 Following on from that, obviously some changes were made a year or so ago. Can the panel give us their view on the impact of the changes to “remove first, appeal later”? I think that there is an outstanding Court of Appeal case that it might be useful to know a little about.
Manjit Gill: At the moment, because there have been so few appeals, it is difficult to tell. Mr Brokenshire gave a written answer on 14 October in which he said, and he will know this far better than I do:
“From July 2014 to August 2015, more than 1,700 foreign national offenders have been removed under the deport first, appeal later powers, with many more going through the system. Of these, 426 have made an appeal against their deportation and 13 (0.7%) have been successful.”
You can see that having to go abroad and appeal from abroad inevitably results in impediments, which reduce the number of people who appeal at all and have an impact on the appeal rates of success. There may be other reasons, of course, and I fully understand that.
To answer your question, it is very difficult to tell what will happen. One thing that can be predicted with absolute certainty is that there will be even more burdens on the tribunals and even more delays in the system. At the moment, not only is the initial decision making by the Home Office bad but the tribunal system is under severe pressure. Courtrooms are being closed and not used. The number of hearings that are being run is being reduced. There have been massive delays even for in-country appeals. For out-of-country appeals, the delays are even longer. Just consider what the harm is going to be to separated families.
Moreover, this poses massive problems for the tribunals themselves. It is all very well to say that the problems caused by the new system will have to be remedied by the tribunals, but I do not know what the Minister of Justice thinks about that. Who is actually going to provide the extra money that will be needed to remedy the problems? Would it not be much simpler to speed up the appeal process in this country and let people appeal from here? If their appeals are so hopeless, they can be removed very quickly.
Colin Yeo: I acted in a relatively early case, and what happened is perhaps instructive. It was a gentleman who had committed a criminal offence, and he had received a sentence in excess of 12 months, so he fell under automatic deportation. He had been in this country since the age of six, however, and he was in his 30s. He was removed before he was able to appeal in the fairly early days of these new powers. He also had children in this country, and he had contact with those children before he was detained—before he went into prison. He also had some other children with whom he had managed to secure contact through the courts, and whom he had lost contact with because his ex-partner was unco-operative. He was simply unable to pursue an appeal. He was removed to a country far away, where he had not been since early childhood, and we simply lost contact with him.
That was a result as far as the Home Office is concerned, I am sure, because he has not pursued an appeal, there is no expense there and it is another foreign criminal removed. There were some children who were profoundly affected by that, however, as was he. He had been in this country for in excess of 20 years, and he simply had no opportunity to argue his case in front of an independent judge. That is, I think, a profoundly concerning outcome. In real terms, people are just not able to pursue an independent remedy. When you have got such poor-quality decision making in the first instance, that is a real concern.
The Chair
May I just make it clear—I am sure that we have not strayed on this—that we should not be talking about any active appeals? I do not think that we were; I think they were historic appeals. We just need to bear that in mind.
Simon Hoare
Q 202 With respect, Sir, he did, through an appeal post-deportation. Whether he availed himself of that opportunity would have been entirely up to him. Correct?
Colin Yeo: In theory, yes, but in practice I think it would have been rather hard for him to pursue an appeal from a country that he didn’t know, basically.
The Chair
Order. I know that this goes right to the heart of the issue, but we have four other panel members and we have been speaking for quite a long time on this particular point. Going back to you, Mr Starmer, do you want to move on a bit?
Keir Starmer
Q 210 I have one final question, about support appeals, but I take the point, Mr Bone; if the panel members cannot deal with the question we can move on even more quickly. Asylum support provisions are being changed—specifically, the support provided after the exhaustion of the asylum process. Will panel members give an assessment of the quality of the decisions on support at the moment? Some briefings have suggested that the success rate of appeals against decisions on support was as high as 60%. Can any of the panel members deal with that? That is obviously a very high success rate; by success rate, I mean that the decision is either overturned, withdrawn or has to be retaken—in other words, the original decision is disturbed. Is that a figure that anyone can give any evidence about?
Adrian Berry: I cannot give evidence about the precise figure, but I have appeared at the Asylum Support Tribunal and conducted appeals against refusals of support. The existence of that remedy of a right of appeal is a vital safeguard. When asylum support is refused you are potentially dealing with someone literally being destitute, which is contrary to article 3 of the European convention on human rights in the sense of having a want of food, shelter and essential living needs. A vital safeguard is provided by having a merits appeal, where you can give evidence about your circumstances. Equally, the Home Office has the opportunity to present its case for why support should be refused within the statutory framework that allows you to moderate the provision of asylum support.
That is a vital safeguard. Anything that removes that right of appeal is removing not simply the idea of a right of appeal—it is a good idea to have independent judicial scrutiny of Executive decision making. It also leaves people hungry and without a roof over their head. So it is a fine example of a coincidence of social provision and proper scrutiny of Executive decision making.
Keir Starmer
Q 211 It is one thing to remove a right of appeal where there is a very low rate of success, but another to remove it where there is very high rate of success. Does the 60% rate I quoted, which has been given in papers before us, surprise you?
Adrian Berry: No, not at all. In my experience, it is usual to win them, if I may put it like that. I do not have precise statistics, but in the cases that I have been involved in before the Asylum Support Tribunal, if you have a point about the need for support, you have a point.
Keir Starmer
Q 212 Just as a general proposition, in relation to administrative decision making, a 60% success rate, or disturbance of the decision made, is very high, is it not?
Adrian Berry: Yes.
Colin Yeo: Before we move on from this topic, we have just been giving evidence, in effect, about changes that have already occurred under the 2014 Act. What is proposed in the Bill is an extension of those changes to all categories of immigration appeal. We are very concerned about that as well; it is one thing to talk about foreign criminals, risk cases and so on, as we have briefly, but it is another thing to apply that to migrants who are lawfully present in the UK. They might receive an incorrect decision from the Home Office, and we know that there is a reasonable number of those, with the appeals success rate at 40% or more. They will be forced to leave the UK for the duration of the appeal process, potentially leaving their children and spouse behind, losing their job and losing their home, only to win their appeal—if they can, despite having one hand tied behind their back in an adversarial process because they are abroad—and then be brought back. That seems to be an absurd thing to do to people who are lawfully present.
Some of the press releases from the Minister, for example, have talked about doing that to people who are unlawfully present. That is one thing, but the powers being taken in the Bill would apply that to all migrants. So it would not only be those who are unlawfully present; it would also be lawful migrants, where there is simply a mistaken decision by the Home Office. An appeal takes months at the moment—I have an appeal that has taken 18 months to get listed—and that has drastic consequences for a family in the meantime.
The Chair
Before we move on, does any other member of the Committee wish to ask a question on this particular point?