Immigration Appeals (Hansard, 8 July 1986)

§ Mr. David Clelland (Tyne Bridge)

Tonight I raise a matter that concerns justice, fairness and equality of treatment under the law. The subject affects an often already disadvantaged minority — those who have applied to come to our country to live and who want to be a part of our community. At a time when the world is concerned about the inhumanity and injustice of apartheid in South Africa, and when our Prime Minister has appealed for a measure of equality in that troubled country—even though she refuses to back up her words with deeds—I draw attention to a glaring anomaly in our own system. It is an anomaly that the Government have the power to correct. I hope that the Minister of State, Home Office—the hon. and learned Member for Ribble Valley (Mr. Waddington)— will tell us that he will give sympathetic consideration to it.

To illustrate the nature of the problem, I shall tell the House a story about a little boy — a nine-year-old youngster alone in Bangladesh. It is also a story about injustice and the increasing inaccessibility of a fair hearing to an ever-growing number of ordinary men and women. If my experience is any indication of the problem, there can be very few hon. Members who have not had, at some point, a request from a constituent for help in an immigration case. I have already dealt with quite a number of cases in what is a relatively short time representing the people of Tyne Bridge.

The small boy in this case, Bablus Muskad, is the son of Abdul Muskad, a British resident since 1957, and Mala Bibi Muskad, Abdul's first wife. Bablus, like Abdul's other children, was born in Bangladesh, where his father went for long periods, whilst retaining his British citizenship. Mr. Muskad applied in 1979 for his second wife, Gulnahar Bibi Muskad, and her two children, to join him in England. Bablus was not included in that application, because his mother was still alive. Sadly, by the time the application came through, Mala Bibi had died. Naturally, Gulnahar looked after little Bablus who was only three and a half at the time, with her other children after Mala Bibi's death.

The family arrived in England in 1983 and immediately applied for Bablus to join them. His first interview with the authorities was, of course, in Bangladesh. He was asked many questions about his relationship with Gulnahar and her two sons, Bablus's stepbrothers. The eight-year-old, like eight-year-olds the world over, was confused and imprecise about these relationships. He called Gulnahar his mother and said that his stepbrother was his brother. They were understandable mistakes, given that Gulnahar had looked after Bablus since he could speak.

Many people might find it incredible that those mistakes by an eight-year-old were enough to make the interviewing authorities reject his application to join his father and the stepmother who had cared for him for so long. Bablus was left with a loose network of aunts and uncles, some of whom he did not know, to look after him.

Of course, Mr. Muskad lost no time in appealing against the decision. He was lucky enough to be advised by the family services unit in Newcastle, but it soon found that to take the appeal to tribunal meant that he, together 283 with any other members of his family who were going to give evidence, would have have to travel to Leeds, where the newly centralised immigration appeals office for the whole of the north of England is based.

The catch about this system of appeal is that each appellant has to pay his own costs. There is no provision in this tribunal, as there is in industrial tribunals and employment tribunals, for appellants to reclaim travel costs or other expenses. In this case, Mr. Muskad first had to go down to Leeds, with one of his sons to act as interpreter, to see the United Kingdom immigration advisory service. He had to go back a second time with Gulnahar and another son for a further visit. Then, since of course the onus is on the appellant to produce as much corroborative evidence as possible, all four members of the family went to Leeds to give evidence to the tribunal.

This particular story has a happy ending—for those hon. Members whose hearts have not been hardened by over exposure to Thatcherism. The Muskad family won their case and Bablus has now been united with his father and stepmother. But that decision took nine return journeys to Leeds at considerable cost to the family and, of course, there are other costs to take into account, such as the travel cost of the family services worker, who helped and advised the Muskad family through the maze of legality.

Even so, Mr. Muskad got off lightly. The adjudicator could have decided, as often happens, that further inquiries should be made in Bangladesh. The hearing would then have been adjourned until a future date when the family would have had to go down to Leeds yet again. If the appeal had been unsuccessful, Mr. Muskad would probably have had to go down to London, again with his family—for the burden of proof rests squarely upon the appellant—but at an even greater cost.

Bablus Muskad's case highlights a glaring failure in the legal appeal system to meet the needs of those men and women who rely on it.

The legal system has recognised that there is a need for appellants to be able to claim some expenses. In social security appeal tribunals, medical appeal tribunals and industrial tribunals the appellant can not only claim travel expenses but loss of earnings—for himself and for the witnesses he calls to support him. Legal aid has recently been extended to include patients appearing before mental health review tribunals. Ironically, had Mr. Muskad been a convicted criminal, appearing before a prison board, he would probably have been able to claim legal aid.

In most other tribunals there is provision for the legitimate expenses of claimants and witnesses whose evidence is material to the case to be met from public funds, although not those of their legal representatives. But there is no provision for this in these immigration appeal cases. It goes without saying that the attendance of witnesses in most immigration appeals is crucial, given that the onus of proof is always on the appellant and that the appellant's case will be that much stronger if corroborated by the evidence of other witnesses.

It is easy to see how the expenses involved in travelling, subsistence and loss of earnings can run into hundreds of pounds. What sort of legal system is it that first weaves a web of complexity around itself and then adds an extra layer of financial cost? A Newcastle solicitor recently wrote to me saying: 284 there is no doubt that extreme hardship is caused to many claimants, and it is not unfair to conclude that there are certainly a number of cases in our experience where, because of the distance involved in getting to Leeds and the time that that involves — and the expense that our costs and the travel costs involve — some people decide that it is not worth going through with the system. If that is the case, then of course it is a strong indictment of the system, because there is no point at all in having a system of judicial review of cases of this nature which is not effectively and realistically accessible to the parties who are expected to use it. By definition, these are not simple, straightforward cases. They are highly complex and are of the utmost importance to the individuals concerned, as they deal with their liberty to remain here or ability to bring their families to this country.

There is a strong argument in favour of extending legal aid to this increasingly complex area. The absence of aid has far-reaching consequences, for instance for the appellants' representatives who must also travel to Leeds or London with a properly prepared brief.

In April of this year I had some correspondence with the Lord Chancellor about the current study and review of the legal aid scheme. The noble and learned Lord stressed the Government's commitment to an effective legal aid scheme. That being so, it is time they drew immigration appeals into the network of assistance.

The transfer of the immigration appeals office to central offices in Leeds was, I gather, one of the earliest steps towards the centralisation of Government Departments to cut costs. As is often the case, any saving for the Government purse has resulted in ordinary people having to dig deeper into their pockets. While the Home Office is not famed for handing out money, there is a real need for appellants before immigration appeal tribunals to have at least some access to public funds for the repayment of travel expenses.

In April last I asked the Home Secretary if he will make funds available for the purpose of providing travel expenses for persons involved in immigrant appeal hearings. The Minister of State, not a man to mince words or to use two words where one will do, replied: No". — [Official Report, 17 April 1986; Vol. 95, c. 466–7.] Though that may have been a factual answer, I had hoped for a more considered and comprehensive one. Hence tonight's debate, which gives the hon. and learned Gentleman the opportunity to give a considered and comprehensive answer.

In the light of what I have said and in the interests of fairness and natural justice, I hope that the Minister's answer tonight will be to the effect that the Government intend to extend the payment of expenses to immigration appeal tribunals.

§ The Minister of State, Home Office (Mr. David Waddington)

The hon. Member for Tyne Bridge (Mr. Clelland) has raised an important point, though he rather spoilt his argument by raising some blatantly party political issues, including at one point making a sneering reference to what he called Thatcherism.

The system to which he is drawing attention has been in existence since the immigration appeals system was created, and therefore any criticisms he has of it would have been just as appropriate in the days of the last Labour Government. So it is nonsensical and rather childish of 285 him to try to turn this into a party political issue. It is, nevertheless, an important issue, and he questions whether legal aid should be available in immigration appeals.

I remind the hon. Gentleman that the Wilson committee, which recommended the setting up of an appeals system, was of the opinion that if the legal aid scheme was extended to tribunals in general, immigration appeals could no doubt be brought within the scope of that extension, but there were no good grounds for giving priority in respect of immigration appeals. I am bound to say that we see no reason to dissent from that view. I shall explain why.

There is no provision in the Immigration Act 1971 for the payment of expenses to people attending hearings before the appellate authorities, but section 23 of the Act provides for a grant to be made to a voluntary organisation that provides advice or assistance to persons having a right of appeal under the Act. Such a grant is made to the United Kingdom immigrants advisory service, which provides a free service advising appellants about their appeals and representing them at appeal hearings. The grant this year is £870,000. We are grateful to UKIAS for undertaking that work.

Most appeals are heard initially before independent adjudicators. Adjudicators sit not only in London but in Manchester, Birmingham and Leeds, to make it easier for appellants and sponsors who live in the north and the midlands to attend hearings. They also sit in Edinburgh, Glasgow, Belfast, Bristol, Cardiff and Southampton. It should therefore be possible for people to attend a hearing centre within reasonable distance of their home. Furthermore, the procedural rules allow for an appeal to be transferred from one adjudicator to another, and that provision can be and has been used to make it easier for an appellant or a witness to attend an appeal hearing. The Immigration Appeal Tribunal, which in the main hears appeals from an adjudicator's decision sits only in London, but the tribunal normally relies on documentary evidence and oral submissions from the appellant's and respondent's representatives, so it is not usually necessary for an appellant or his sponsor to attend the hearing in person.

Rule 27 of the procedure rules provides for the appellate authorities to issue a witness summons, but subject to the caveat that no person shall be required to travel —that is, made to travel against his will—more than 10 miles from his place of residence unless the 286 necessary expenses of his attendance are paid. If the decision to summons a witness is solely that of the appellate authority because, for instance, it is felt that a particular person's evidence is essential to fair determination of the appeal, the expenses are paid by the appellate authority. If the summons is issued at the request of either party to the appeal, responsibility for payment then falls on that party. If either party feels it necessary to support its case by calling witnesses but without the formality of seeking a witness summons, the payment of expenses is a matter between the party and the witness.

If an appellant or a witness were to suffer considerable financial loss because of a serious mistake by the home Office or the appellate authority in connection with the appeal proceedings, consideration would be given to the provision of an ex gratia payment. But the mistake would have to be a serious one, that is, more than just an inadvertent error. Loss caused by the adjournment of a hearing would not qualify unless the adjournment itself was caused by serious error. That is in line with the practice of the courts where costs of adjournments are included in the overall costs of the parties to the action. Within the immigration appeals system, each party bears its own costs but, as I said at the beginning, a free advisory service and free representation is provided to minimise the costs faced by a person appearing before the appellate authorities. That was not thought unfair by the previous Administration. We do not think it unfair now.

The hon. Gentleman mentioned a particular case. I cannot comment on it because I did not have notice of the fact that he would mention it and I have no notes about the case before me, but it was an illustration of the fact that there is an appellate authority which can review the decisions of entry clearance officers. In that case, an adjudicator reviewed the decision of an entry clearance officer and allowed entry to the person concerned. Therefore, that was an illustration of the system working, not an illustration of it not working. I do not think that I can comment further on the case.

Once again, I am greatful to the hon. Gentleman for allowing me at least to make clear how the system works and how it has worked, under the previous Labour Government and this Government since it was devised.

Question put and agreed to.

Adjourned accordingly at twenty minutes to Twelve o'clock.