Missing the point

The government's 'Fair Decisions; Faster Justice' consultation paper of August 2008 promised the 'biggest shake up to our border protection and immigration system for over 45 years'.

However, the question is: has this been achieved? If not, what effort is the government making with fielding resistance to appeals by immigrants and asylum seekers, both at the Asylum and Immigration Tribunal (AIT) and in the courts, and what effect will the new Borders, Citizenship and Immigration Act 2009 (BCIA) have on the immigration system?

At the beginning of 2008, the government partially introduced the PBS to ensure that only those with the right skills or the right contribution could come to the UK to work and study. Fashioned on the Australian system, it consists of five tiers and has been at the heart of the UK's reform to immigration since its introduction.

Essentially, points are given for attributes such as age, salary and educational qualifications.

Eighteen months on, the PBS is now in full operation across four out of the five tiers, and the creation of the Migration Advisory Committee (MAC) by the government has set out to provide independent, evidence-based advice on migration to ensure the PBS is functional and working within the UK.

In August 2009, MAC issued a report which concluded: '...the committee thinks that Tier 2 is working well, but our advice to the government is that the labour market could be helped by requiring higher standards from skilled workers from outside of the EU before we allow them to work in the UK'.

Functional and working?

The government can therefore rightly argue that Tier 2, consisting of skilled workers with a job offer to fill gaps in the UK workforce, has been a success for new would-be entrants to the UK.

But while on the surface the PBS is making progress, it does not deal with asylum or other immigration categories such as family visitors.

The government's statistics, via the United Kingdom Borders Agency, reveals that there are still some 40 per cent of asylum applicants whose cases take longer than six months to be dealt with.

The latest published figures on 27 August 2009 revealed that of the 6,045 asylum applicants in the second quarter of 2009, only 60 per cent were dealt with by the Home Office within six months.

Of this 60 per cent, many will then have a right of appeal to the AIT. The statistics vary as to the success of such applicants of their claims, but the success rate at the AIT is relatively high.

The quality of the initial decision making has therefore to be investigated. Additionally, the public might be astounded to learn that there are still far too many AIT hearings at which there is a failure by the government to even field an advocate.

Judicial disquiet

There has been disquiet expressed about this by the judiciary, and this disquiet is not limited to the tribunal. In a recent decision the Court of Appeal criticised the government's approach in respect of the rights of refugees who seek to have their spouses enter the UK. In A (Afghanistan) v Secretary of State for the Housing Department (SSHD) [2009] EWCA Civ 825, the Court of Appeal allowed the refugee's appeal and Lord Justice Pill said the delay by the Home Department in instructing counsel was deplorable.

He also said: 'I am concerned by the attitude of the department not only to the particular case but to the court that is revealed by the events described... The delay has had an obvious impact on the lives of the appellant and sponsor whose appeal has been held by this court to be well founded. Moreover, the attitude to the court revealed by the above sequence of events is not an acceptable one.'

Where next?

It is clear that the government needs to do much more to have both well-trained and sufficient numbers of advocates properly instructed to appear at the tribunal and the courts. The judiciary at all levels do not seem to be impressed with the lack of effort by the government and nor would the public be.

Unfortunately, the PBS has not been the streamlined one-stop process for immigration that it appeared and many hoped that it would be.

There are three key areas for the Home Office to address. First, there are still too many Home Office decisions which are taking too long to be made. Second, there is a lack of resources at the AIT stage because there is a big shortage of Home Office presenting officers; and third, because the success rate for appellants at the AIT shows that the Home Office is making the wrong initial decision in rejecting their applications.

The new BCIA 2009 will mean a transfer of judicial review cases from the Administrative Court to the Upper Tribunal. There will therefore be more cases for the presenting officers to deal with. The government needs to make sure it funds presenting officers units adequately to ensure the government is actually heard at such appeals, or the system will continue to run ineffectively for the foreseeable future.