Pressure points in the justice system – Part 2
In the third of four articles on access to justice in an age of austerity, Ellie Palmer and Laura Wrixon, of the Law School at the University of Essex, focus on immigration and welfare benefits justice, the impact of removing large areas of both from the scope of legal aid and changes to the tribunal system. The article reviews the findings of the fourth in a series of Economic and Social Research Council (ESRC) seminars, in which practitioners and academics assessed pressures on the system and discussed possible solutions.1See ‘Access to justice in an age of austerity’, April 2013 Legal Action 14 and ‘Pressure points in the justice system – Part 1’, May 2013 Legal Action 11.
The fourth seminar took place on 11 May 2012. It focused on tribunal justice, its relationship with the administrative justice system more broadly, and the synergies and tensions between tribunals, administrative courts and appellate courts. As in earlier seminars, participants had the benefit of first-hand accounts and evidence-based presentations by members of the judiciary, specialist practitioners, policymakers and academics. Improvements in original decision making and the possibilities of more directional, inquisitorial and managerial styles of judging (including country guidance on case-law and training by specialist tribunal judges) were discussed as possible solutions.
Immigration justice under review: can the system deliver?
In the first session, Mr Justice Blake, President of the Immigration and Asylum Chamber of the Upper Tribunal provided an authoritative review of the aims of the Upper Tribunal designated in the Tribunals, Courts and Enforcement Act (TCEA) 2007, its achievements to date and its potential to deliver justice in face of future obstacles.
He noted the primary aim of the Upper Tribunal: ie, to develop a body of high-quality case-law on a range of issues, and to assist decision makers and First-tier Tribunal judges, by ensuring ‘an appropriate degree of consistency in approach at appellate level’. A key measure of the Upper Tribunal’s success would be the ability to ‘reduce the pressure on the Administrative Court and the Court of Appeal by significantly reducing the number of flawed decisions’.
On jurisdictional issues, Mr Justice Blake observed that previously, under the one-tier system, decisions could not be remade on appeal and had to be sent back to the Asylum and Immigration Tribunal (AIT) for reconsideration. This resulted in a considerable backlog of work in both the AIT and the High Court. Furthermore, the Court of Appeal had hitherto been drawn into asylum and immigration appeals (often involving large groups of claimants), requiring difficult factual and other assessments to be made. It had therefore been envisaged that bringing immigration and asylum into the Upper Tribunal would speed up the throughput of cases. To this end, the TCEA had provided for mandatory transfer of certain classes of judicial review cases from the High Court to the Upper Tribunal (TCEA s15), and for discretionary transfers (TCEA s19), ultimately interpreted to include those where part of the consideration was to make an assessment of the impact of fresh material on an appeal previously rejected by the immigration judge.2TCEA s19: condition 4: ‘the application does not call into question any decision made under (a) the Immigration Acts, (b) the British Nationality Act 1981 … (c) any instrument having effect under [those Acts].’
However, Mr Justice Blake regretted that despite a relatively ‘modest and undemanding’ test for ‘fresh material’, the aim of enabling the Upper Tribunal to hear cases more expeditiously than the Administrative Court had, to some extent, been thwarted by the Court of Appeal decision in (1) R (BA (Nigeria)) v Secretary of State for the Home Department (2) R (PE (Cameroon)) v (1) Secretary of State for the Home Department (2) Asylum and Immigration Tribunal
 EWCA Civ 119, 26 February 2009 (upheld by the Supreme Court in  UKSC 7, 26 November 2009).
However, on a more positive note, he presented statistics on numbers of applications that had been processed by the First-tier Tribunal and the Upper Tribunal in the past two years, illustrating that the Upper Tribunal only remits one per cent of cases back to the First-tier Tribunal (as opposed to 30–40 per cent under the previous system) although the remaking of First-tier Tribunal decisions leaves those decisions open to judicial review by the Court of Appeal.
Turning finally to obstacles that may be faced by the Upper Tribunal in the future, Mr Justice Blake was clear that, in the face of an increasing caseload in the Administrative Court (most of which are immigration-based in content), expert tribunals must guide the direction of cases. By contrast with the passive style of adjudication associated with common law courts, immigration tribunal judges have responsibilities to bring expertise and experience to bear on problems, and to ensure that underlying principles are followed. One solution suggested was the creation of country guidance, so that, in complex immigration cases, the distillation of their expertise would be available to everyone across the country, independent of geography and funding. Mr Justice Blake suggested that moving adjudication, in accordance with condition 4, from the Administrative Court to the Upper Tribunal would be a positive step.3See note 2.
In conclusion, he believed that the system would bed down and assist the provision of justice in the challenging times ahead.
Professor Robert Thomas, Professor of Public Law, School of Law, University of Manchester, followed. He highlighted some distinctive features of administrative justice in the UK immigration context: immigration advice is regulated and most not-for-profit providers are not permitted to give advice on complex immigration cases; the context of immigration (involving the state’s ability to control its own borders) renders the area highly political; and serious human rights issues lie at the heart of these intensely complex disputes. Moreover systemic problems of securing compliance with the law by the UK Border Agency have added to these difficulties. Professor Thomas noted that while some tribunal systems (such as social security) are moving towards an inquisitorial approach, immigration adjudication remains adversarial.
Professor Thomas expressed further concerns about the fact that the two main advice service providers in the field of immigration had collapsed and the government was proposing to restrict legal aid to asylum immigration cases. He questioned the justifications for these restrictions: that most immigration cases are straightforward; that tribunals are user friendly; and that immigration issues are not sufficiently important to justify continued legal aid funding. He also pointed to the damaging effects of the LASPO Bill (as it then was) in geographical areas where access to immigration advice is almost non-existent. The likely consequences would be an increased workload for MPs’ surgeries and a tide of unrepresented litigants. Moreover, he suggested that there would be greater recourse to judicial review, and increased applications for asylum, for which funding remains. Professor Thomas concluded by suggesting that problems in the internal immigration review system could be addressed by improving the quality of original decision-making.
Benefits at the crossroads: the time for proportionate responses
Beginning the second session, Stewart Wright, First-tier Tribunal judge and former legal officer at Child Poverty Action Group, focused on the positive aspects of the modern tribunal system. He emphasised the importance of the tribunal’s inquisitorial approach and the informality of the settings, which have become even more important in light of the growing complexity of social security law and the frequent need for expert evidence. Stewart Wright accepted that the merging of courts and tribunals (as of 1 April 2011) could improve the service.4See: www.justice.gov.uk/about/hmcts.
However, there are new problems of geographical accessibility due to widespread closures of familiar buildings, with the attendant problem that intimidating court buildings (often at a distance) are being deployed for what should be informal tribunal hearings. He also urged the retention of the ‘no costs’ scheme, which ensures that no party can have costs set against them, thereby removing some risk and improving access to the tribunal.
Like Lorna Reid (see below) and Robert Thomas, he emphasised the importance of improving first-time decision making as a way of reducing the number of appeals, noting the likelihood of their increase as stakeholders at every level grapple with obscurely drafted fundamental changes to the benefits system. Moreover, he pointed out that the current level of delays will be particularly problematic in welfare benefits decisions, the longer the delay, the less relevant the initial application being appealed would become. He hoped that these added strains on the system would finally necessitate greater training for initial decision making.
Lorna Reid, welfare benefits adviser at Islington Law Centre®, considered that access to justice in relation to the welfare system begins well before an appeal tribunal hearing. She regarded early intervention by advisers as key to assisting vulnerable civil claimants who are not only intimidated by the very idea of ‘court’, but also by the complexity of the law. An important advantage of such direct assistance can be that applicants experiencing inevitable delays and uncertainties may be persuaded not to give up before the tribunal hearing. She also considered the value of assistance with such basic needs as form-filling to be an important aspect of initial decision making in the case journey (although she conceded that, in the present climate, pressure of time can prevent the opportunity for such administrative assistance).
She outlined a number of holistic programmes run by Islington Law Centre to improve local advice services, the value of which lay in assuring local service providers (eg, housing providers) that clients were being supported to maximise income and so reduce linked problems (eg, rent arrears). There was added benefit to these systems where types of clients were monitored to inform policy concerns.
She concluded by expressing concerns about the removal of legal aid from welfare benefits appeals and the potential damage to communities if clients could not be kept above the poverty line: ill-health is proven rife among those in poverty. She suggested that a duty representative may be a solution for those no longer eligible for legal aid.