1. Introduction
1.1 This paper represents the supplementary submission by Citizens Advice to the Home Affairs Committee inquiry into Asylum Applications. As such, it adds to our original submission to the inquiry, dated 21 March 2003.
1.2 In this supplementary submission, we address the following issue: delay and maladministration on the part of the Home Office IND in the processing of asylum appeals. We are prompted to do so by the oral evidence of the Immigration Minister, Beverley Hughes MP, to the Committee in March 2003 (and published on 8 May) that the Government needs to make further progress on “the time taken for the Home Office to prepare the [appeal] bundles”.
1.3 Currently, 24 of the some 530 CABx in England, Wales and Northern Ireland hold a contract in immigration with the Legal Services Commission and/or are registered at Level 3 with the Office of the Immigration Services Commissioner (OISC), and are thus able to offer advice and representation in relation to asylum and/or immigration appeals.
2. Delay in the processing of asylum appeals
2.1 Despite the very substantial increases in the resources of the Immigration Appellate Authority (IAA) in recent years, CABx continue to report instances of long delay in the processing and determination of asylum appeals. However, it is clear that responsibility for most if not all of this delay lies not with the IAA, but with the appeals support section of the Home Office’s Immigration & Nationality Directorate (IND).
2.2 Before an asylum appeal can be listed for hearing by the IAA, the appeals support section of IND must first prepare and issue, to both the IAA and the appellant, the ‘appeal bundle’ (also known as the ‘Home Office bundle’). This contains all the documents that have been considered by IND in making its decision to refuse asylum, as well as the notice of and reasons for that decision, the appellant’s notice of appeal, and the appellant’s grounds of appeal. CABx report many instances of inordinate delay in the issuing of the appeal bundle by IND. For example:
Cardiff CAB reports acting in an appeal against a refusal of asylum. The appellant lodged his appeal on 11 May 2001, but the appeals support section of IND has not yet issued the appeal bundle and, accordingly, the appeal has not yet been listed for hearing by the IAA. The same bureau further reports acting in two other asylum appeals, lodged in November 2001 and January 2002 respectively, where the appeals support section of IND has not yet issued the appeal bundle, and in another where the appellant lodged his appeal on 24 September 2001 but the appeal bundle was received from IND only on 21 May 2003.
Walthamstow CAB reports acting for an Algerian man in his appeal against a refusal of asylum. The appellant lodged his appeal on 25 May 2001, but the appeals support section of IND did not issue the appeal bundle until 16 December 2002. The appeal was heard – and allowed – by an IAA adjudicator on 3 March 2003.
In this case, the client applied for asylum on 21 July 1998. It therefore took just over four years and seven months for the authorities to resolve his asylum claim, but of this period less than three months was taken up by the IAA’s hearing and determination of his appeal against the initial refusal of his asylum claim by IND.
2.3 We note that the Court Service’s target for the timeliness of asylum appeal decisions is described in terms of elapsed time from receipt by the IAA of the appeal bundle from the appeals support section of IND, rather than from the lodging of the appeal by the appellant. For example, 42 per cent of asylum appeals received in the period April to December 2002 were determined within 17 weeks (the Court Service’s current target being 65 per cent within 17 weeks). This 17-week (or four-month) period constitutes the ‘4’ in the Government’s well-known ‘2 + 4’ formula for the final resolution of asylum claims (that is, a target of two months for an initial decision on a new asylum claim by IND, and four months for the determination of any appeal by the IAA).
2.4 On the basis of the evidence from CABx such as that cited above, we would suggest that the Government’s regular reporting of performance against this ‘2 + 4’ target (in the quarterly asylum statistics published by the Home Office) fails to give a full and accurate picture of the timeliness of the asylum appeal process as a whole. For the time taken by IND to issue the appeal bundle is not covered by either the ‘2’ or the ‘4’ of the Government’s ‘2 + 4’ formula. In short, ‘2 + 4’ does not necessarily equal ‘6’, even if the ‘2’ and ‘4’ parts of the target are met. We note that, according to a recent parliamentary answer, the average length of time between the lodging and hearing of the 19,343 substantive asylum appeals heard by the IAA during the period 1 October to 31 December 2002 was 34.1 weeks (or 7.9 months).
2.5 As the Committee will be aware, the Government has recently set a SR2002 Public Service Agreement for the Home Office and the Lord Chancellor’s Department of fully resolving (i.e. including final resolution of any appeal to the IAA) a proportion (yet to be determined) of asylum claims within six months. On the basis of our experience, we would suggest that, currently, the proportion of substantive asylum claims that go to appeal that are fully resolved within six months is extremely small. If the proportion of claims to be determined within six months that the Government eventually settles on for this new target is relatively small, then the target may well be easily met simply due to the number of refused claims that do not go to appeal (either because the appellant chooses not to lodge an appeal, or because he or she has no ‘in country’ right of appeal). In that scenario, the measurement of performance against this new target would be no more effective in giving a true picture of the timeliness of appeals than the current ‘2 + 4’ formula.
2.5 In this context, we further note that, between 1 January 2000 and 31 December 2002, a total of 170,055 asylum appeals were lodged (with the asylum support section of IND) by appellants, but only 140,965 appeals were forwarded to the IAA by the asylum support section of IND. During the same period, the IAA disposed of 127,215 of appeals. In other words, over this three-year period the backlog of unheard asylum appeals grew by 42,840, less the (unreported) number of appeals conceded by IND without ever being forwarded to the IAA.
2.6 In our view, the quarterly asylum statistics published by the Home Office should include figures for the number of appeals so conceded by IND, as well as for the timeliness of the issuing of asylum appeal bundles by IND.
2.7 Furthermore, we believe that the Government should set and monitor a realistic but meaningful target for the timeliness of the issuing of asylum appeal bundles by IND. For, as the Immigration Minister has emphasised, such targets “play an important part in driving up performance”. Clearly, this target should be balanced with those for other stages of the asylum process. In our view, the Home Office has in recent years focussed most of its attention on the timeliness of initial decisions (that is, the ‘2’ part of the ‘2 + 4’ formula), whilst neglecting the timeliness of the issuing of appeal bundles by the appeals support section of IND – to the detriment of the overall timeliness of the appeal process.
2.8 If targets are to be set – and we believe that realistic but meaningful targets play a valuable part in the allocation of resources, and the driving up of performance – then they should be set for all stages of the asylum process, not just for selected stages of the process. It goes without saying that all such targets should be rational and achievable.
3. Maladministration in the processing of appeals
3.1 Of course, where such delay in the issuing of the appeal bundle occurs, it is not unusual for the appellant to change address and/or legal representative during the waiting period. And CABx report many instances of a failure on the part of IND to record (and act upon) such a change in address and/or legal representative during the period prior to the issuing of the appeal bundle, leading to the appeal bundle being sent to an old address (or the wrong representative) and thus to the appeal being listed and heard by the IAA without the appellant and/or representative ever being informed.
3.2 In most such cases, this requires an otherwise unnecessary further appeal to the Immigration Appeal Tribunal (IAT) to secure a re-hearing of the appellant’s original appeal by an IAA adjudicator. For example:
Oxford CAB reports acting for a Kenyan man in his appeal against a refusal of asylum. The bureau submitted the Notice of Appeal on 9 May 2001 and, in the process, notified IND of the appellant’s change of address and change of representative. On 9 August 2002 the bureau wrote to IND to notify it of the appellant’s further change of address.
However, on 29 September 2002 the bureau discovered that the appeal had been heard and, in the appellant’s absence, dismissed by the IAA on 27 August 2002. The bureau was subsequently informed by the IAA that the appeal bundle had been sent by IND to the appellant’s original address, and to his previous representative.
On 1 October, the bureau submitted an application for leave to appeal to the IAT, but on 9 October this was dismissed for being out of time (by the time that the bureau discovered that the appeal had been heard in August, the deadline for any further appeal to the IAT had already passed). On 11 October, the bureau therefore submitted further representations to the IAT, requesting a re-hearing of the original appeal. On 15 January 2003, in the light of these representations, the IAT remitted the appellant’s original appeal back to an adjudicator for re-hearing.
On 14 April 2003, the bureau received notice from the IAA that the re-hearing of the appeal has been listed for 5 August 2003 – nearly 12 months after the original hearing. As the bureau notes in its report to Citizens Advice, “the client’s waiting time in the asylum process has been greatly extended by IND’s failure to record his change of details, and he has found this extremely stressful”.
3.3 Other problems reported by CABx include the loss within IND of correspondence and/or original documents (and even of entire files), and delay in the issuing by IND of status documentation following a successful appeal to the IAA.
4. Concluding remarks
4.1 The asylum appeals system has benefited greatly from substantial increases in the human and other resources of the IAA in recent years. However, these advances have, to a considerable extent, been offset by serious and seemingly systemic failings in the performance of the appeals support section of the Home Office IND.
4.2 We believe that the Government needs to take a more holistic (or ‘joined up’) approach to the setting of targets, the monitoring of performance against those targets, and the allocation of resources to ensure compliance. Most importantly, in our view, the Government needs to set and monitor a meaningful timeliness target for the preparation of appeal bundles by the Home Office IND, and to allocate resources to ensure compliance with that target.
4.3 Currently, the Government’s reporting of performance against its ‘2 + 4’ formula for the resolution of asylum claims fails to reflect the often lengthy period between the lodging of the appeal by the appellant and the issuing of the appeal bundle by IND, as this period is included in neither the ‘2’ nor the ‘4’. We are concerned that the new, six-month target for the final resolution of a (yet to be determined) proportion of asylum claims may prove to be no more effective in this regard.
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