Extra judges drafted in to hear immigration appeals
Asylum backlog delays other cases for a year
Frances Gibb, Legal Editor
From The Times
December 15, 2008
Extra judges are being drafted in to deal with more than 8,000 asylum and immigration appeals a year that threaten to overload the courts.
The move is one of a series of steps to tackle the rise in appeals that have delayed other cases for a year or more.
Lord Justice May, the President of the Queens Bench Division, told The Times that as well as drafting in extra High Court judges, senior barristers and circuit judges had been appointed to sit as deputy High Court judges, doubling the normal number of judges on this work to 15.
The extra judicial manpower, which has already reduced delays, is an interim measure pending more drastic action by the Government. Ministers are expected to announce plans to move the bulk of immigration work out of the High Court altogether and into the new Tribunals Service, probably by next June.
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That will lead to High Court judges being relieved of thousands of cases a year, which will instead be heard by senior immigration judges and only occasionally, where absolutely necessary, by a High Court judge.
The rise in immigration work is partly because of the increased volume of immigration decisions made by the UK Border Agency, which is dealing with record numbers of applications. In 2006 it removed 16,330 failed asylum seekers, excluding dependants, and in 2007 deported more than 4,000 foreign prisoners.
Another factor is the Asylum and Immigration (Treatment of Claimants) Act 2004, which replaced a two-tier system of appeals with a single-tier system. The High Court therefore became the only place of appeal from a tribunal.
The volume of cases reflects that people do not accept the decision of the Asylum and Immigration Tribunal and seek to have the decision reconsidered or apply for judicial review.
A previous attempt by the Government to end the right of judicial review in immigration cases prompted widespread criticism and was thrown out of Parliament.
But this move to devolve the work to the Tribunals Service could achieve the same result, although in a way that Lord Justice May, who took up his post in October, hopes will not be controversial. He said: This was a problem in terms of work overload because important cases were not being heard promptly and we had delays of up to a year.
The emergency measures have been in place for a few months, with judges being found from other areas to tackle the backlog, he said. It was a matter of concern but it has improved.
Between December 2007 and last month, the tally of cases waiting to be dealt with was cut by about 1,100 to 3,500, although that figure does not include hundreds not yet on the list as they are awaiting final decisions.
Philip Havers, QC, a leading specialist in judicial review challenges, said: I had one case that was waiting nearly two years, involving a challenge by a doctor to the Health Service Commission. The Administrative Court was completely snowed under by immigration and asylum cases.
But the delays have improved, he said. Now he was being offered a date next month or in February for a one-day case; or from February on for a two-day case. Thats as it should be it has completely transformed.
Steps would need to be taken to ensure that the problem did not arise again, he said.
Four regional administrative courts will be set up next year in Cardiff, Birmingham, Manchester and Leeds. Although driven by a wish to move work outside London, it will also relieve immigration cases. Senior judges have described the pressure on the High Courts Administrative Court, which hears the asylum and immigration cases, as intense and given warning that it is causing unacceptable delays to the courts work.
The appeals backlog is adding to pressure on the Court of Appeal. Sir Anthony Clarke, Master of the Rolls, has said that since 2005 the Court of Appeal has had a 77 per cent rise in applications to appeal in asylum and immigration cases.
The increase has put significant pressure on the resources of the Court of Appeal both in terms of numbers of staff and lawyers who prepare the cases and in terms of judicial time, he said.
It was wholly disproportionate for such cases to be considered by the most senior judges who sit in the Court of Appeal, Sir Anthony said.
The Lord Chief Justice, then Lord Phillips of Worth Matravers, first flagged up the unacceptable delays because of the pressure of asylum and immigration work in April. In 2007, the Administrative Court received 6,694 claims for judicial review challenges to decisions by government or other public bodies. Asylum and immigration cases made up two thirds.
In addition, the court has to deal with another nearly 4,000 reconsideration cases, where asylum seekers are appealing against a refusal first by the UK Borders Agency and then by a senior immigration judge to have their case reconsidered. In all, that makes more than 8,000 cases, or two thirds of the workload of the Administrative Court. The vast majority, Lord Phillips said, were found to have no merit in law and failed.
The crisis prompted a threat last year by the Public Law Project, a group that brings judicial review cases, to ponder legal action against Jack Straw, the Justice Secretary, stating that the delays amounted to a breach of article six of the European Convention on Human Rights which guarantees an effective court system. What message does it send?
The Borders and Immigration Agency came under fire this year when it deported a terminally ill mother of two back to her native Ghana while she was receiving treatment for cancer.
Ama Sumani, 39, died in Accra just two months after being removed from a hospital in Cardiff and driven to Heathrow by immigration officials.
She was being treated at the University Hospital of Wales, when the agency discovered that her visa had run out.
The widow claimed that she could not afford treatment in Ghana and the case provoked debate over the deportation of seriously ill foreigners.
Lin Homer, the head of the Border and Immigration Agency, argued that rulings from the Lords and the European Court of Human Rights meant that immigration officers were right to deport those who were in the country illegally. She said that, although the case was heartrending, it was far from exceptional and insisted that there were thousands of migrants who would be able to argue that their health service was inferior to Britains.
Dr Barry Morgan, Archbishop of Wales, said Mrs Sumanis death would be on the conscience of this nation because we deported her when it was against every humanitarian instinct. It is never appropriate for a civilised, wealthy society to turn, literally, a sick woman out of her bed and put her on a plane to a very worrying future. What sort of moral example does that send to the rest of the world?
* Have your say
There should be no right of appeal. If an asylum application is rejected they should be removed from the country immediately. Illegal immigrants should automatically lose the right to stay & ever come here. They have broken the law entering the UK, so are automatically criminals and should go.
Donna Walker, Effingham, England
What I find disturbing about deportations is the total lack of morality in deporting men and women who have overstayed, who were trained at government expense to do a specialised job and were then deported. Why were they chosen for deportation in preference to hardened criminals and fraudsters?
Br. Michael Simons, Yardley, Birmingham, England
This is ridiculous ,asylum was concocted in the Cold War to embarrass the Russians for the few defections that could escape the Iron Curtain. Not as a means of mass immigration.
England cannot be held responsible for the health of hundreds of millions.Stupid Goverment for getting us into this mess
John L, Southport,