The UK government certainly has a problem with asylum seekers. But neither of the initiatives it has announced during the past week suggests it has a solution.
The Bell Hotel
Things began to go wrong last Tuesday when a High Court judge granted Epping Forest District Council “interim relief” — a temporary injunction — against Somani Hotels Ltd, owner of the Bell Hotel on the outskirts of Epping, Essex. Mr Justice Eyre explained his reasons in a lengthy written judgment.
Somani Hotels had planning permission to operate the premises as a hotel. Since April, however, the Bell Hotel has been used to accommodate asylum seekers. The district council regards this is a material change of use for which Somani needed further permission. As no such permission has been granted, the council argued that it was unlawful to use the premises for these purposes.
Somani does not accept that using its hotel to house asylum seekers is a change of use, still less a material one. But the company acknowledged that the council had raised a serious issue that needed to be decided by the courts.
That issue will take some time to resolve. All that Eyre had to decide last week was whether Somani could continue to house asylum seekers at the Bell in the meantime.
Whether or not a court will grant interim relief depends on what’s called the balance of convenience. In this case, the judge’s aim was to minimise the risk of injustice when weighing up the public interest in the enforcement of planning controls against what he called the public policy objective of accommodating destitute asylum seekers.
After considering those and other factors, Eyre concluded that “the risk of injustice is greater if that relief were to be refused and an injunction is ultimately found to be appropriate than if the relief were to be granted and the court ultimately decides not to grant an injunction”.
Somani was ordered to clear the hotel of asylum seekers by 12 September.
Government appeal
Last week, the security minister Dan Jarvis said the government would appeal against Eyre’s decision. But how could it do that when the home secretary was not a party to the litigation?
It turned out that Yvette Cooper is seeking to challenge Eyre’s refusal to allow her to intervene in the case. The judge gave no reasons for that refusal in the judgment he delivered on 19 August, though he did explain why Epping Forest council was under no obligation to sue CTM (North) Ltd, the company that acted as the Home Office’s agent in arranging the asylum seekeers’ accommodation.
As expected, Somani is also seeking to appeal against the interim injunction.
There is no word on when their applications will be heard but we can be confident that the Home Office and the hotel owner will be hoping for a ruling from the Court of Appeal before the injunction is due to take effect.
Other councils are said to be taking legal advice. Clearly, the Home Office would not want them to follow Epping’s lead. But Eyre’s ruling does not mean that all decisions would go the same way. As the judge said,
the outcome of this application turns on technical issues about the rules of planning law and on the application of the established principles governing the circumstances in which a court should grant or refuse interim relief.
It will be seen from the analysis I set out below that the application of those rules and principles to particular circumstances is acutely fact-sensitive.
So although other courts may choose to follow Eyre’s reasoning, his judgment is not a binding precedent.
Tribunals replaced
The government’s second announcement is much more controversial. It involves the creation of a “new independent body to deal with asylum appeals made up of independent professional adjudicators”.
According to the Home Office, “the new body will be fully independent of government with safeguards to ensure high standards”. Its “independent professionally trained adjudicators” will focus on asylum appeals. The body “will allow capacity to be surged so cases can be cleared”.
We do, of course, have names for bodies whose members are independent and professionally trained adjudicators. We call them “courts” or “tribunals”. Indeed, we already have tribunals that hear asylum claims. So will this new body also be a tribunal?
If so, why not call it that? If not, one can only assume that minsters are seeking to by-pass existing judicial structures.
And that’s just what the Sunday Times was told:
The main tribunal courts used by failed refugees to challenge Home Office decisions are to be phased out and replaced by a fast-track system under plans to be announced by ministers within weeks.
A commission of professional adjudicators will rapidly assess appeals by migrants and determine whether the Home Office’s decision to refuse them asylum and deport them should be upheld.
Replacing tribunals with something else is consistent with the home secretary’s statement yesterday. Cooper said:
We inherited an asylum system in complete chaos with a soaring backlog of asylum cases and a broken appeals system with thousands of people in the system for years on end. That is why we are taking practical steps to fix the foundations and restore control and order to the system.
We are determined to substantially reduce the number of people in the asylum system as part of our plan to end asylum hotels…
But we cannot carry on with these completely unacceptable delays in appeals as a result of the system we have inherited which mean that failed asylum seekers stay in the system for years on end at huge cost to the taxpayer.
Overhauling the appeals system so that it is swift, fair and independent, with high standards in place, is a central part of our plan for change.
And just to put the matter beyond doubt, the Home Office said that
lessons are also being learned from other European countries who have faster appeal systems including countries which run independent appeal bodies rather than absorbing appeals entirely into the main courts and judicial systems.
Comment
There’s nothing wrong with setting up a specialist judicial body to decide cases of a particular type. One example is the Investigatory Powers Tribunal, which decides claims against the security services. You don’t even have to call such a body a tribunal: the Special Immigration Appeals Commission is a “superior court of record” — though that wasn’t the original plan.
But if decisions are not taken by a court then they can be reviewed by a court. That is the principle our judges have always managed to uphold. And that is what article 6 of the human rights convention requires:
In the determination of his civil rights and obligations… everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law.
That principle is unaffected by a government review of article 8 — the right to respect for private and family life — which today’s Times says is not expected to report until “late in the autumn”.
It has proved possible in the past to limit the availability of judicial review by preventing a “second bite at the cherry”. But attempts by parliament to oust the courts’ jurisdiction entirely in contentious areas of law have never been entirely successful.
We all want cases to be dealt with promptly. The government says it has increased the number of sitting days in the First-tier Tribunal to ensure it operates at maximum capacity when deciding asylum cases. But, according to the Home Office, the tribunal “cannot keep up with fluctuating and increasing demand”.
You would have thought a one-off tribunal would have less flexibility to deal with fluctuations than a system of tribunals dealing with many different types of case. But why would a new body get through any more appeals than the current system? Where are these “independent professionally trained adjudicators” going to come from if not from the existing tribunals and the dwindling band of immigration practitioners?
Or is the idea that these adjudicators will be “professionally trained” — but not legal professionals themselves? Might they be recruited from the very Home Office officials whose decisions are currently being overturned by the tribunals?
We should suspend judgement until the government tells us how it plans to square the circle. So far, though, it has not come up with a convincing answer.
For doesn't reason I have absolutely no doubt whatsoever that no matter how little housing, money, food, water, no matter how few jobs, school places the boats won't be smashed. The asylum seekers will not be removed. And the longer they stay, the more children they have, the more power they will yield.
Don't get me wrong! I'd be fine with that if I knew that I'd be welcomed as an equal in the countries they hail from. I wouldn't be. Im Jewish for a start, and female, and past my childbearing years. I'm also mouthy and not wearing a hijab or anything else dictated by long haired men in pyjamas.
They are determined to convert the world and anyone who doesn't realise that needs an intensive wake up call.
Australia had a major problem with asylum seekers during when John Howard was Prime Minister. (He was PM from 1996 to 2007, when a Labour Government was elected.)
Asylum seekers were coming by boat from Indonesia. My recollection is that Howard wanted to send a strong message to people smugglers who were profiting from their plight by selling them passage on the boats. So, in about 2001 Howard introduced a 'turn back the boats' policy with the intention that over time asylum seekers would learn that it was useless to pay people smugglers, so they wouldn't do so and the boats would stop coming. Turning back the boats caused a major political scandal so this approach was abandoned.
Next, the Australian Government established offshore facilities for asylum seeker detention while their applications for asylum were being processed. That cause a different major political scandal. Over time, these facilities were closed down. What happens now, I don't know, not least because I left Australia many years ago and no longer follow what's happening there.