Fining migrants
Wanted: new adjudicators with no experience or qualifications
Adjudicators with no legal qualifications will have the power to charge migrants and their representatives unspecified fees if they waste the resources of a new appeals body by acting improperly, unreasonably or negligently, the government is proposing.
Its Immigration and Asylum Bill, published yesterday, would create an organisation to be called the Independent Immigration Appeals Authority, referred to in the bill as the IIAA. This would be a “body corporate” — a corporation, rather than a court. It would take over immigration and asylum appeals currently heard by the first-tier tribunal, part of the courts and tribunals service.
The IIAA will employ an unspecified number of adjudicators, to be appointed by its chief executive. Adjudicators will be appointed on merit after a fair and open competition and undergo training but neither the adjudicators nor the chief executive need have legal or any other qualifications.
Senior adjudicators will need to be legally qualified, however, as will a professional standards officer and a chief appeals officer working for the new body.
Though the IIAA will be independent of the government, the home secretary will be able to ask it to expedite particular cases. It will have only limited powers to refuse.
Clause 10 of the new bill — which creates the power to charge for wasted resources — has been copied across from section 80 of the Nationality and Borders Act 2022. But there are two important differences:
The powers in the earlier legislation are exercisable only by legally-qualified tribunal judges.
Section 80 has never been brought into effect, so no wasted resources orders have been made under its provisions.
Wasted resources orders require a penalty to be paid to the government, like a fine. They are not to be confused with wasted costs orders, under which one party may be ordered to reimburse another party for legal work unnecessarily done.
Clause 10 says a person may be found to have acted improperly, unreasonably or negligently for the purpose of the wasted resources jurisdiction “by reason of having failed to act in a particular way”. What that means is not explained.
The bill’s explanatory notes say merely that the clause provides a “proportionate mechanism for the IIAA to respond where poor conduct by a party or representative creates avoidable delay or unnecessary work, while leaving the detailed operation and safeguards to be set out by the IIAA procedure rules board in its procedure rules”.
It’s not known why the earlier legislation was not brought into effect. But the provision is clearly intended to deter parties and their representatives from acting unreasonably and punish them if they do. The level of charges will not be set until after the legislation has been passed.
The IIAA “must exercise its primary function” — deciding specified appeals — “with a view to ensuring that justice is done”. It will be able to review its own decisions on its own initiative or on an application by a party — the applicant or the secretary of state — but only once. A party may appeal to the Upper Tribunal, with permission, but only on a point of law.
Comment
Questions have already been asked about the people who will apply for appointment as adjudicators. Will they be people who think there too many immigrants in the country? Or people from minority groups who think there should be more?
The Home Office is apparently looking for the sort of people who volunteer as magistrates, which will make it even harder for the Ministry of Justice to find the number of new magistrates needed under the Courts and Tribunals Bill. Unlike magistrates, the new adjudicators will be paid.
In the House of Lords on Monday, Baroness Deech KC (hon) argued that current tribunal judges — and the new adjudicators — should be “made to list their financial interests and any controversial, or even uncontroversial, organisations that they have joined”. Lord Pannick KC said he did not understand why the current arrangements for appointing tribunal judges were now considered inadequate.
“We are looking at widening the pool,” the minister replied. The bill requires adjudicators to declare any conflict of interest which is likely to affect their work prejudicially.
Article 8
Part 2 of the new bill deals with article 8 of the human rights convention, which protects private and family life. If the bill is passed, a new section 117AA of the Nationality, Immigration and Asylum Act 2022 will say that “a person’s family life for the purposes of article 8 is normally limited to their core cohabiting family”, as defined.
The government argues that these reforms will ensure that courts, tribunals and adjudicators operating in the UK will apply article 8 in line with the principles currently operated by the human rights court in Strasbourg.
The explanatory notes say the bill aims to establish “a firm but fair immigration system”.
Court of Appeal judges have described the immigration rules as 'Byzantine', even 'a disgrace'. If they find them hard to understand, how are the new non-lawyer adjudicators supposed to? A better answer is to train the Home Office decision makers to make better decisions, to reduce the number of appeals. Instead, expect more bad decisions by adjudicators and more appeals from them.
You may have been charitable, but this proposed scheme seems troubling.
It seems to deviate from what English justice has — rightly — always been.
The scheme deserves serious scrutiny.