by Mark Henderson & Alison Pickup
It has been said time and again that asylum cases call for consideration with 'the most anxious scrutiny' . . . That is not a mantra to which only lip service should be paid. It recognises the fact that what is at stake in these cases is fundamental human rights, including the right to life itself. (Sivakumar v SSHD  EWCA Civ 1196, per Dyson LJ)
The stakes in asylum and human rights appeals are higher than any other field of litigation. Since the last edition of the Best Practice Guide to Asylum and Human Rights Appeals was published, the caselaw on what 'anxious scrutiny' means in practice has continued to grow. So has the complexity of conducting appeals. Yet the exceptional stakes are matched by the exceptional political pressures both on appellants and the appeal process which hinder the effective preparation and determination of these cases.
Two themes run through this book. First, the hearing is only the end of the process. Good advocacy at the hearing can win an appeal (and bad advocacy can lose it). But it is more likely that the appeal was won or lost on the preparation beforehand. Second, the appeal system is just that, not a second round of primary decision-making. It provides a means of testing whether Home Office decisions violate the UK's international obligations. It should not be employed to shore up inadequate Home Office decision-making by drawing judges into trying to formulate a better case against the appellant than the Home Office could manage. Such a distortion of the appeal process only generates cost and delay and so provides ammunition to its detractors. The operation of this jurisdiction is also hampered by what appears to be a systemic inability on the part of the Home Office to engage in sensible negotiation to define and confine issues in advance; its propensity to present a different case at the hearing from any that was disclosed in advance; and frequent failure to comply with judicial directions. The Tribunal has on one occasion been driven to remark that the Home Office's conduct went 'beyond mere institutional incompetence, into the realm of an institutional culture of disregard' for the Tribunal.
Neither appellants nor their lawyers can force the Home Office to make quality decisions or to litigate responsibly. But the best way to counter attacks on the appeal system, and to ensure that 'the highest standards of fairness' apply in practice, is to focus attention upon the Home Office's accountability for its decisions and its conduct in an adversarial system, and to discourage judges from being drawn into acting as primary decision-makers. In the words of the Tribunal, it should be made 'perfectly clear to... the Home Office that they cannot simply leave it to [judges] to make bricks without straw on their behalf' (SSHD v Gjurgjei and Others (01/TH/00197)).
This publication deals with the conduct of asylum and human rights appeals. The text is structured in roughly chronological order, starting with the Home Office's reasons for refusal letter followed by procedure, evidence, and presentation of the appeal, and concluding with using the determination. It aims to provide the practical advice and information required to conduct each stage of the appeal according to best practice. The current edition does not deal with challenging a negative determination of the appeal as the procedures for doing so are in flux but the strength of the grounds for any challenge to the appeal determination may well depend upon how well the appeal was prepared.
The book is about practice and procedure, not substantive law. It does not purport to provide a contemporaneous statement of substantive law on any particular date. It is no substitute for the current knowledge of asylum and human rights law that any representative must acquire. On the other hand, no effort is made to artificially exclude discussion of points of substantive law where these are intrinsic to the practical conduct of the appeal. The only criterion used is what will most assist in rendering the presentation of the appeal more effective.
The aim is to be of as much use to as many practitioners as possible. Not everything will be relevant to every practitioner. Some will be embarking upon practice in the field from scratch. Others will be more experienced practitioners who have encountered a specific problem for which they want ideas quickly. Some practitioners will work only on certain aspects of the litigation. However, that makes it even more important to appreciate the process as a whole, and why choices made at one stage will reverberate many stages (and sometimes many years) down the line.
Practitioners vary in their knowledge and experience of civil litigation. Different elements of the appeal process vary in their difficulty and complexity, and the nature of this text inevitably varies accordingly. As few assumptions as possible are made about the practitioner's legal background. The book does make two assumptions: first, that the litigation is approached with a commitment which is commensurate with the issues at stake, and second, that there are adequate resources available to permit the proper conduct of the appeal. As to the second, it would be wrong to pretend that best practice could be achieved on inadequate resources. The cuts to public funding and reduction in the availability of publicly funded legal advice, marked most notably by the demise of both Refugee and Migrant Justice and the Immigration Advisory Service since the previous edition of this book, means that those resources are even more precious than before.
Social welfare and support issues for appellants are beyond the scope of this guide since they are beyond the power of the Tribunal. But dealing with such issues is not an optional extra. It is integral to best practice in the preparation of an appeal. It is facile, for example, to go to great lengths to provide a supportive environment for taking a torture survivor's statement, yet ignore her living conditions outside the interview room. The latter are likely to have the greater effect on her mental state and her ability to give instructions and to prosecute her appeal. If you are not able to provide social welfare advice, it is essential to make arrangements to ensure that your client has access to it.
As with the previous edition, this electronic edition of the book shows what can be done when a text is linked to a comprehensive database of legal and policy resources in EIN's website, which has itself been redesigned and updated since the last edition was first published. The vast majority of references in the book can be obtained by a single click. It is hoped that it will be possible to provide regular updates. Indeed, it is inevitable that the pace of change will already suggest changes to a text which has been under preparation for a period of years. The author and publishers welcome comments, suggestions, and corrections and the email address to use for these is: firstname.lastname@example.org. These can be incorporated into the electronic text on an ongoing basis.
I would like to thank the EIN both for publishing this updated electronic edition and for their previous support for the book. That proved critical to funding the last paper edition which was distributed free to all practitioners by ILPA and the Immigration Services Commissioner. Shindo Maguire, EIN's Chief Executive, is owed particular thanks for her commitment to the project of updating the text and for managing the timetable. I would also like to add to the acknowledgements of the publishers, my personal thanks to the Nuffield Foundation for their warm support. The previous editions would also not have been published without the Nuffield Foundation's generous funding.
This update has been co-authored by Alison Pickup, a colleague at Doughty Street who like so many in this field learned the skills of appellate advocacy as an appeals caseworker at what was the Refugee Legal Centre, and with reference to earlier editions of this book. It has been a busy year, and sharing the task of ensuring the text is up to date and as practical as possible has enabled this update to be completed relatively quickly.
Doughty Street Chambers
Mark Henderson is a public lawyer specialising in human rights, asylum and immigration, social welfare, and EU law. He was named Legal Aid Barrister of the Year at the 2010 Legal Aid Lawyer of the Year Awards. The citation said that "Mark is praised for his agility of intellect and encyclopaedic legal knowledge combined with his forensic attention to detail".
His work covers a wide range of judicial review and appeals at all levels of domestic courts together with the European Court of Justice (CJEU) and the European Court of Human Rights. Over the last 15 years, he has acted in numerous leading cases in human rights, asylum, immigration, and administrative law. He also acts in civil claims including false imprisonment and professional negligence. He advises solicitors on public funding and regulatory matters, including advising extensively on public procurement issues in relation to recent challenges to LSC tenders for civil contracts, and has represented solicitors at hearings of the Legal Services Commission's dispute resolution panels. He also advises and acts in more complex business immigration matters.
Alison Pickup is a public law practitioner with a wide ranging claimant practice, including in immigration and asylum, prison law, social welfare, and EU law. She also acts in civil claims for damages against public authorities, particularly unlawful detention and discrimination claims. In 2010, she was shortlisted for the Young Legal Aid Barrister of the Year award by the Legal Aid Practitioners Group.