When the Home Secretary makes statements about ‘fat cat’ lawyers and dodgy immigration lawyers milking the system, he is not talking about the lawyers who advise on immigration in his own office. There are 13 lawyers in the Home Office Legal Adviser’s team who solely advise the Immigration and Nationality Directorate (IND). Their job is not primarily to defend decisions to refuse asylum, although advising on who qualifies as a refugee is part of their role. It is also to enable the IND to implement Government policy by making sure that the necessary laws are in place and are properly applied.
With constant political pressure on the Government to reduce the number of unfounded asylum applications and to achieve a higher proportion of removals of those whose claims are refused, immigration law has never had a higher profile. It is a
fast-developing and frequently controversial area of legal work.
The Home Office’s immigration lawyers are fully employed on a wide range of issues. These include the operational (such as negotiating with the French government on the implementation of juxtaposed immigration controls in France to identify those who are not admissible to the UK before they cross the Channel) to issues of policy (such as the extent to which the appeals process can be accelerated while still remaining a fair and an effective remedy). A key role of the Government lawyer is to turn policy into law.
The Nationality, Immigration and Asylum Act 2002 (the 2002 act) contained measures aimed specifically at reducing the number of unfounded asylum claims. These included the provisions on non-suspensive appeals (NSAs). An NSA allows clearly unfounded asylum and/or human rights claims to be certified as such. Where certified, the unsuccessful claimant will be removed and will only be entitled to appeal from outside the UK. This reverses the usual position where removal of an unsuccessful claimant is suspended until the claimant has exhausted all of their rights of appeal. To date there have been more than 300 claims refused under NSAs.
The 2002 act also enables the designation of countries in which there is no serious risk of persecution (to the satisfaction of the Home Secretary) and that removal to those countries would not in general contravene the UK’s human rights obligations. The effect of such a designation is that, where an asylum and/or human rights claim of someone entitled to reside in that country is refused, the claim will be certified as clearly unfounded unless the decision-maker is satisfied that it is not.
The involvement of the Home Office’s immigration lawyers in NSAs began with the development of the policy, which raised complex legal issues from the start. Always with an eye to the fact that what starts as a policy idea may be turned into law, and will inevitably be subject to challenge, the in-house Government lawyer must advise on effective but lawful ways to achieve the broad policy aims of reducing the number of unfounded asylum claims. The ability of an asylum seeker to remain in the UK while their unfounded claim was decided, and then while they pursued a hopeless appeal, was seen as a clear incentive to bringing an unfounded claim. Detailed legal advice was needed on the possibility of removing UK-based appeal rights from particular claims, while ensuring that the proposals would not lead to a breach of the Refugee Convention or the European Convention on Human Rights.
From policy to legislation
Once the policy to prevent in-country appeals in ‘clearly unfounded’ cases (and to provide for a designated list of countries that are generally regarded as ‘safe’) has become concrete, and has been approved at ministerial level, the role of the lawyer is to instruct parliamentary counsel (who are responsible for drafting legislation) on what changes to the existing law are required to implement the policy.
Home Office lawyers act as the conduit between IND policy staff and parliamentary counsel, explaining how the policy is intended to work to the latter and the parliamentary counsel’s drafting techniques to the former (an example of the confusion that can arise can be seen in the extensive debate in the House of Lords about the 2002 act and why the words “clearly unfounded” are used, when previous legislation used the words “manifestly unfounded”).
The 2002 act was introduced as a bill into Parliament in early 2002. The clauses dealing with clearly unfounded claims were not there at that stage, but were introduced by way of a Government amendment at a later stage in the summer of 2002. During its passage through both the Commons and the Lords, the lawyer who had worked on the instructions on the clauses was responsible for keeping the relevant minister briefed on the meaning of them and for providing the minister with the legal advice needed to respond to questions on them. Their input at that stage was through briefing meetings and attendance in the ‘official’s box’ in both Houses during the debates to deal with any questions that had not been anticipated in the careful briefing sessions.
From legislation to implementation
The IND and the Lord Chancellor’s Department (as it then was) established a joint project board to put in place the practical measures needed across the asylum system to implement these NSA provisions, and also to consider whether the existing appeal procedures could be accelerated. The different policy and operational units within the IND, as well as Home Office lawyers, the Treasury Solicitor’s Department and various other interested parties, were represented on that board. Home Office lawyers also worked closely with Treasury solicitors in identifying possible areas of challenge and preparing handling arrangements in advance. This close liaison between advisory and drafting lawyers and those handling the litigation has continued to operate in dealing with the judicial reviews (about 40 so far) that have been brought.
The first list of countries to which failed claimants could be returned before they have appealed were listed on the face of the bill. This provision came into force when the 2002 act received royal assent on 7 November 2002. The list consisted of 10 of the countries that are on course to join the EU in 2004. This meant that the practical measures for implementation had to be agreed and ready to operate at the same time as work on the final draft of the clauses in the bill were ongoing. The Home Office lawyers’ role included advising on policies and procedures and training senior caseworkers to operate the certification process.
The 2002 act contains a power for the Home Secretary to add further countries to the list by way of secondary legislation, provided that any such country met the two-limb test: that in general there was no serious risk of persecution and that removal to that country would not in general contravene any UK human rights obligations. The power provides that any extension to the list will be in the form of a statutory instrument subject to the affirmative resolution procedure, which means that it must be debated and approved in its entirety by both the Commons and the Lords.
Ministers have so far extended the list on two occasions. Implementation of these decisions drew heavily upon the in-house legal team. The two-limb test is a legal one and, assisted by international reports into the relevant countries and the case law, a detailed analysis has to be carried out to determine whether a particular country meets that test. A Home Office lawyer then drafts the statutory instrument and attends the debates in Parliament to assist with any legal questions arising.
From legislation to litigation
Decisions made on asylum claims relating to the designated countries are subject to expedited procedures, so that unsuccessful claimants may be removed within a matter of days of their arrival in the UK. Since these claimants can only appeal from outside the UK, their only means of challenging a refusal before removal is to lodge an application for judicial review.
It was (rightly) anticipated that there would be judicial reviews of NSAs. The number of judicial reviews, however, has been fewer that anticipated. They have varied from attacks on the decision-making procedures, through challenges to the Home Secretary’s decision to designate a specific country to the decision to certify in a particular case. None of the judicial reviews decided have to date been successful. The careful planning of STANA (superfast-track and non-suspensive appeals), and the early involvement of lawyers in developing not just the policy but the practical implementation of it, was a crucial element in ensuring the success of the policy.
Up to now, the designation of countries under the 2002 act has achieved its aims. It has resulted in a significant fall in the number of asylum seekers from the designated countries. The in-house legal team in the Home Office and the litigators in the Treasury Solicitor’s Department, both part of the Government Legal Service, have been critical in delivering successfully this aspect of the Government’s immigration policy.