Observing differences: asylum appeals in the UK

Published 28 August 2013 / By Melanie Griffiths, University of Bristol; Nick Gill, University of Exeter and Andrew Burridge, University of Exeter

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The project is examining asylum appeals at various hearing centres in the UK. These are independently-heard appeals of Home Office refusals of refugee claims, and in most cases provide the last chance for a refused asylum claim to be reconsidered. The project sprung from Freedom of Information Act request data that showed that there are differences in the outcome rates of asylum appeals heard at different hearing centres, even though the centres are supposed to treat cases in consistent ways. Outcomes varied from 42% of appeals allowed at Taylor House in London, to just 18% at Columbus House in Newport (figures for 1/6/10 to 31/3/12). Variations persist even when nationalities of appellants are accounted for and such differences seem to repeat, year on year.

appealOn the face of it, such variation is worrying. Surely asylum seekers should have the same chances of success, no matter where their appeal is held or which judge hears it? After all, in each hearing centre, the same policies and laws are being applied and the same process for the hearings should be being followed. However, might we not be equally concerned if outcome rates were very similar across judges or hearing centres? Each asylum case is meant to be judged on its own merits and legal scholars have argued that there is no ‘correct’ answer in asylum appeals. Rather, different decision-makers can legitimately reach different conclusions to the same case (Thomas 2011: 71).

Regional differences, logistics and individualism?
Even if outcome rates to asylum appeals cannot be standardised however, are there other aspects of the appeals that we can legitimately expect to be the same across centres? For example, are there regional differences in listing practices or the length of hearings? Are there variations in the quality of legal representation or expertise of interpreters? Is it easier to get a specialist barrister, or indeed any legal representation at all, at some places in the country rather than others? Are the transport links at some sites so impractical or expensive, that it prohibits witnesses from attending to give evidence and means that appellants arrive more stressed and tired?

Although there are no publically available data in the UK on the outcome rates of asylum appeals by different immigration judges, large-scale studies in other countries show significant trends according to the individual judge (e.g. Ramji-Nogales et al. 2008). Anecdotally, barristers in the UK often say that they know the outcome of an asylum appeal as soon as they see the name of the immigration judge hearing the case. Might it be the case then that the leaning of immigration judges vary according to the hearing centre? Are there particular local judicial cultures that develop in the centres as a result of the leadership of the senior immigration judge perhaps?

In order to gain better understanding of the processes at play, we have recently begun ethnographic observations of asylum appeals at different hearing centres. Although we are still at the early stages of the research, we have already observed over 50 asylum appeals, from unrepresented, illiterate teenagers, to highly educated appellants paying for specialist barristers. We have heard appeals of people who have lived in the UK for many years and have children who were born here, as well as those who arrived recently, including some being processed on the ‘detained fast-track’ (an accelerated asylum process for cases deemed to be straightforward). We have spent time in large hearing centres in London, as well as smaller ones, such as those in Newport and Harmondsworth.

We have observed judges that appear bored and unengaged, as well as those that are highly involved; judges that are friendly and kind, and others who are short-tempered and aggressive. There are judges that barely look at or speak to the appellant, and judges that take time to explain the process and assure the appellant of their independence. The size of the centres, turmoil of the waiting rooms, space for legal consultations, proximity to public transport, access to refreshments, attentiveness of clerks, nature of the Home Office presenting officers (HOPOs) and character of legal representatives also differ considerably. So, whilst on the surface the appeals are similar, held in near identical pastel blue rooms, following a formulaic structure, they are far from standardised.

How, though, do we make sense of these small and not so small differences? How do they relate to each other? What is important? And important to what and to whom? As we gain greater insight into these questions, and start to see patterns and discrepancies, we are finding that many of the differences relate to time and timings within the process, a subject that is of growing interest to migration scholars and that was recently the focus of a COMPAS blog.

The art of scheduling 
hourglassConcerns over time and speed arise frequently within the daily workings of the hearing centres. There is the fine art, for example, of predicting the complexity and length of time of appeals, with these estimations used to devise the court listings and then decide the order of hearings. For the appellants, the process is characterised by waiting, first for their case to be listed and then on the day itself. As appellants and their legal representatives congregate at hearing centre waiting rooms each morning (all cases having been listed for 10am), ushers dart in and out of the rooms, armed with clipboards and listings as they rush to locate the various people involved, ticking them off on their forms and attempting to shepherd them into the right hearing rooms, at the right time.

There are inevitably the small disasters that interrupt the process – the interpreters stuck in traffic, the legal reps who go to the wrong hearing centre, immigration detainees stuck waiting to be transported and the legal documents faxed at the last minute. There are the ‘floating’ cases that ushers must find judges and rooms for, and the barristers who risk the wrath of impatient immigration judges by consulting with their clients even after 10am has come and gone.

Inside the hearing room
Once within the hearing room, there is something of an ideal pace to the formulaically structured asylum appeals – slow and stately, but even and forward flowing. The rhythm becomes jeopardised, and frustrations provoked, when appellants speak out of turn or give long, meandering replies that only indirectly answer the question. Similarly, delays and stilted proceedings arise when legal representatives repeat their point unnecessarily often, when HOPOs are particularly pedantic, statements haven’t been translated or witnesses become emotional and require breaks.

Judges respond to these deviations from the ideal rhythm of hearings in different ways. Some patiently wait out the process, whilst others become short-tempered, berating the person causing the delay, or signalling their desire for speed by shuffling their papers, prematurely thanking the speaker or exclaiming with exasperation – as one judge did recently to a barrister - ‘You can’t possibly have anything more to say?!’

Not only are pace, delay and rhythm, issues that are frequently raised by those managing asylum appeals, it appears – at this early stage of the research – that there are centre-specific ways in which temporal concerns arise. So, for example, at the big, busy hearing centre at Hatton Cross, withdrawals and adjournments are relatively commonplace, resulting in an air of uncertainty and a requirement for flexibility. In contrast, adjournments are heavily resisted at Newport, meaning that cases will be heard even when judges are jaded after a long day or when a judge elsewhere might consider the case to be not ready for a full hearing. Taylor House suffers a considerable backlog, meaning a wait of many months for a listing, whilst appeals at Harmondsworth are all within the detained fast-track and therefore weighed down with requirements for speed. The immigration judges at Harmondsworth must work within the accelerated time frame, and appellants are often focused on trying to get their case taken out of the fast-track, so as to buy themselves more time.

The future of the project
The project remains within the first few weeks of data collection and we are still learning our way round the appeals. Of course, it is inevitable that there will be differences between individuals and centres. Our challenge will be telling what differences matter, and to what or whom. Are inconsistencies only relevant if they affect the outcome of the appeal, for example, or is it important that the process itself is felt to be fair and consistent by all those involved? As we continue our research into this realm of asylum appeals, where the most serious questions of persecution meet the ideals of justice and the practicalities of bureaucracy, we can expect the themes of fairness, time and consistency to be ones that continue to arise.

Ramji-Nogales, J., A. Schoenholtz & P. Schrag (2008). 'Refugee Roulette: Disparities in Asylum Adjudication', Stanford Law Review, 60.

Thomas, R. (2011). Administrative justice and asylum appeals: a study of tribunal adjudication, Oxford, Hart Publishing.