The government is badly rattled on immigration. It knows that its perceived inability either to curb rampant asylum abuses or smartly deport those who ought not to be here amounts to an electoral threat.
Over this Bank Holiday weekend the Home Office announced yet another scheme to deal with the matter. Currently anyone refused asylum or faced with removal can appeal to a court, namely the Immigration and Asylum division of the First-tier Tribunal, and from there (with permission) to another court, the Upper Tribunal. Even the first appeal can take over a year; and since, with a few exceptions, a person cannot be removed while an appeal is pending, the expense to the public of accommodating them meanwhile is prodigious. The government’s proposed solution involves eventually transferring immigration appeals from the First-tier Tribunal to specialist panels of professional adjudicators armed with powers to prioritise asylum seekers in hotels and criminals served with deportation orders.
Details of the new plan are sketchy. Without more detail it is hard to know for certain if it will work. But the signs are not good.
One point is that removing the First-tier Tribunal from the loop is of itself no big deal. Unless the new adjudication panels can adopt a much more summary procedure than the tribunal – something that would be fraught with human rights issues – hiving off immigration hearings to them looks like little more than bureaucratic reshuffling. The real game here is the numbers game. Unless many more adjudicators are appointed, which would blow a big hole in already shaky national finances, the time taken to hear appeals is unlikely to be much reduced.
Secondly, delay is not the only difficulty. When immigration appeals do reach court, there is a notable tendency of some immigration judges to be, shall we say, generous. Nearly half of the appeals made to the First-tier Tribunal are granted; furthermore, as papers like the Telegraph have repeatedly pointed out, successful appellants seem regularly to have been allowed to stay on thoroughly undeserving and insubstantial grounds.
This is not that surprising. The European human rights calculus on which many of these decisions depend is imprecise, affording a good deal of latitude; and the immigration judges who take these decisions are largely drawn from a pool of migration lawyers who tend on balance to be pro-immigration and liberal-leaning.
The government certainly hints that taking immigration decisions away from arguably over-liberal First-tier Tribunal judges will alleviate the problem. But will it? For one thing, who will be on the new commission of professional adjudicators? Will it be a case of the current immigration and asylum judges – who will otherwise have nothing to do – merely transferring to the new body and wearing a different wig as adjudicators? If so, the problem will remain. On the other hand, replacing them wholesale raises its own difficulties. Would there be enough high-calibre immigration lawyers available? Furthermore, presumably any replacements could not simply be apparatchiks who could be better trusted to take the Home Office line. Adjudicators, after all, are meant to be impartial; and if they are seen to be in the Home Office’s pocket, then the government lays itself wide open to European Court of Human Rights (ECHR) attack based on the right of immigration appellants to a hearing by an impartial tribunal.
And indeed, although the government dare not say as much, the ECHR is the central difficulty. Article 8, on family life, and Article 3, on inhuman treatment, lie behind a great many of the judicial blocks on deportation; and any new body of adjudicators would continue to have to apply them. Yet the interpretation of the ECHR lies with the Human Rights Court in Strasbourg. It is not in the gift of HM government; and whether we are talking First-tier Tribunal judges or new-style immigration adjudicators, any hint that ministers would like the ECHR interpreted in a more pro-Home Office way is likely to be repulsed, very understandably, as attempted political interference in the judicial process.
It is becoming increasingly clear that the immigration crisis cannot be solved unless the government is prepared to legislate in ways that possibly break the ECHR, to brazen it out with Strasbourg, and in the last resort to confirm that it will back proper border control over continued ECHR membership. Anything short of that, including the kind of rearrangement of the immigration appeals machinery now proposed, will be seen by electors as mere bureaucratic tinkering, concerned more with appearances than any serious attempt to deal with migration on the ground.
For the moment this is impossible, so long as Keir Starmer and the Attorney-General, Lord Hermer, regard adherence to the ECHR as an uncrossable red line. But they need to think again. If they do not, the electoral threat we mentioned at the beginning of this article will come to get them. The choice is theirs.
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