The new Immigration and Asylum Bill, a broken time machine

‘We all have our time machines, don’t we? Those that take us back are memories’, once wrote the science fiction novelist, H. G. Wells. [1]

In the case of the Government, memories of the adjudicator system are insufficient. Instead, the Immigration and Asylum Bill, introduced on 30 June 2026, [2] is intended to transport us to the time before the Tribunal system was unified and reformed two decades ago. However, it is not possible to turn back time. Thus, a new body, at great (but presently incalculable) public expense, must be formed, new adjudicators and staff recruited, and new estates and contractual arrangements secured. This resurrection of adjudicators siphons off immigration and asylum, marks it as an exception, not to enable judgment by one’s peers, but to deny castaways judicial time. This has clear rule of law implications. For employing even A.V. Dicey’s orthodox conception:

‘every man, whatever be his rank or condition, is subject to the ordinary law of the realm and amenable to the jurisdiction of the ordinary tribunals’. [3]

After a costly period of unclear scale or duration during which the two appeals bodies will run in tandem, [4] the Government would completely do away with our current specialist and expert First-tier Tribunal (Immigration and Asylum Chamber) and have it wholly replaced by the new Independent Immigration Appeals Authority (IIAA).

The IIAA will decide immigration bail applications and determine and publish appeal decisions, not only in relation to asylum, but across human rights, EEA and EU citizens’ rights, and deprivation of citizenship. [5]

Where it errs, the only options will be for either side to ask adjudicators to review the decision, for the adjudicators to do so of their own accord, or to seek permission to appeal to the Upper Tribunal. [6] As for the former, there is always the risk, after a decision has crystallised, ‘human nature being what it is, the decision-maker may unconsciously and in good faith tend to be defensive over the decision to which he or she has previously come’, [7] particularly if without the legal or judicial training and experience necessary to approach the matter with an open mind. Any concerns the legal community had, [8] regarding salaried First-tier Tribunal judges deciding permission applications against their own decisions, are only multiplied when one imagines non-judges undertaking this task. This places great responsibility on the shoulders of a judge of the Upper Tribunal, to recognise every error pleaded. If they and the adjudicators fail to do so, despite the very real human consequences, there is intended to be no further recourse: judicial review is unavailable, even for challenging preliminary, procedural, and ancillary matters. This reduces the possibility of curing a deficiency in the effectiveness of an adjudicator’s remedy, to a breach of human rights, through the aggregate effect of remedies under domestic law. [9]

Through the years we have seen a backlog created by poor policies (such as inadmissibility and an increased standard of proof creating backlogs in the protection system), [10] the unavailability of lawyers to robustly present cases to ensure the correct decision is made the first time, and decisions of varying quality from a revolving door of Home Office caseworkers trained in weeks on matters that legal professionals learn and practice for years. This is compounded by an increasingly complicated legal and policy landscape across immigration rules that are complexified and leave individuals at risk of falling back on their human rights; deprivation of citizenship, refugee, and human rights law reformulated in statute and case law; and a post-Brexit regime in which the judiciary has said they, like Alice in Wonderland, fall down a rabbit hole and stumble ‘across a circular race, with the Eaglet exclaiming: ‘Speak English!... I don’t know the meaning of half of those long words, and what’s more, I don’t believe you do either!’. [11]

Under the last Government, the Home Office’s backlog was displaced to the First-tier Tribunal, in an asylum clearance exercise that saw tens of thousands of refusals. [12] Now, it is to be displaced from the First-tier Tribunal to the IIAA, and, thereafter, either back to the First-tier Tribunal if all fails to go to plan, [13] or to the Upper Tribunal. The Bill would eradicate a Chamber of the Tribunal, in the hopes of medicating a symptom, deflecting from unaddressed root causes.

As for the future of First-tier Tribunal (IAC) judges, they hold lifetime appointments and are liable to be paid their salaries and pensions. They may be reassigned to other chambers, hear cases in the Upper Tribunal (of which they are judges), [14] or may opt to be appointed as adjudicators. What is clear is that those who choose to be involved in the new appellate body may form a minority of experienced legal professionals, among a sea of junior or non-lawyers. Where a judge must have at least five years of post-qualification experience, [15] and be appointed in a rigorous merit-based competition by an independent commission, [16] senior adjudicators likely to be responsible for training and case allocation require a mere two years, and executive adjudicators none at all. [17] They will be appointed by the Chief Executive, who may be an unqualified person appointed either by the Secretary of State, or by the Chair who is in turn appointed by the Secretary of State. [18] Where there was judicial independence from there is now appointment and involvement by the Secretary of State.

One of the key issues in Sir Andrew Leggatt’s 2001 report, which led to the enactment of the Courts, Tribunals and Enforcement Act 2007 and to the creation of the current Tribunal system, was the need for structural independence. The recommendation was a unitary Tribunals Service within the Lord Chancellor’s department, ensuring the tribunals’ independence from the Government departments which sponsored them and had an interest in the outcome of the cases they determined. [19] With the Secretary of State responsible by statute for the appointment of its non-executive members, the title ‘Independent’ echoes hollow: a not-so-subtle attempt to convince it is something it is not, much like the Secretary of State’s assertion that Executive appointments do not inherently undermine independence, in the ECHR Memorandum. [20] We would suggest ‘Atavistic’ as a more apt alternative.

Clause 9 is most unorthodox in empowering the Secretary of State to request that the IIAA decide an appeal or bail application or take any other steps in the proceedings by a date specified in the request. Given that the Secretary of State (for the Home Department) will, inevitably, be one of the parties to the proceedings, and the IIAA has broad powers in connection with its primary function, [21] there is no need for such requests to have statutory footing. More concerningly, the Bill empowers the Secretary of State to make regulations setting out the process for an expedition request. [22] This includes the time period within which the IIAA must decide the request and the information it must give to the Secretary of State when doing so.

Effectively, the Bill authorises the regulation of one (significant) aspect of the appellate body’s process by one of the parties to the proceedings. It is unclear whether, within this process, appellants and bail applicants will be on notice of such a request, have a meaningful opportunity to oppose it, or an effective avenue for challenging a decision on expedition in advance of a substantive decision being made, in view of the complete ouster of judicial review. [23] Not only does this undermine the IIAA’s independence, it casts doubt on its ability to operate fairly and justly. ‘Justice and fairness should not be sacrificed on the altar of speed and efficiency’ [24] was the principle behind the Court of Appeal’s judgment that the Fast Track Rules 2014 [25] were ultra vires.

In that context, it is worth noting the contrast in the wording of section 22(4) of the Tribunals, Courts and Enforcement Act 2007, with that of Clause 4(5) of the Bill, which dictates how the power to make procedure rules will be exercised by the Tribunal and the IIAA, respectively. The former requires that the power be exercised ‘with a view to securing’ the relevant objectives. The latter requires that the IIAA Procedure Rules Board ‘have regard to the desirability of securing the objectives’, a suspiciously watered down duty of means vs a duty of results. One is left to wonder whether this was done with a view to preventing a vires challenge against future IIAA Procedure Rules? [26] Only time will tell. If so, it would be yet another attempt to limit the courts’ supervision, instead of heeding their lessons.

Adjudicators, without a grain of legal experience, may also be given extensive powers to restrict fresh applications (where a previous one relating to the same matter has been made), order hearings without notice to one party at the request of the other, and charge costs and fees, including for acting improperly, unreasonably, or negligently.

In Australia, the recruitment of adjudicators with insufficient legal qualifications or experience ‘contributed to significant delays in the determination of appeals and to the growth of the appeals backlog’ leading it to abolish both its Immigration Assessment Authority (IAA) and the Administrative Appeals Tribunal (AAT). [27] It is unclear whether like Magistrates’ courts, huge volumes of lawyers and law officers must be drawn from the pool of specialist immigration and asylum lawyers, to help unqualified adjudicators understand the law and undertake the complex task before them. If so, that will only further decimate a dwindling legal aid community, in desperate need of better pay and work conditions, resulting in fewer appellants with legal representation and more individuals unable to respond to new claim notices in a timely manner, and at risk of being disbelieved and subject to an expedited process for that reason. [28]

Legal representation is vital in an adversarial system. While the Home Secretary promised the Justice Committee, ‘we will ensure early legal advice is embedded as a core part’ of the asylum and appeal reforms, the Bill outlines only an evidence gathering exercise: asking whether legal advice is desired and obtained and, if it was desired and not obtained, the steps taken to obtain it. The Impact Assessment makes no promises, noting only that ‘[a]ny expansion in the scope of legal aid that the IIAA may introduce as part of its wider objectives, potentially aimed at reducing late claims and delays, would also increase associated costs’. [29] The Bill fails to embed any systemic changes to ensure the provision of legal advice and even more important legal representation, to gather and present evidence in appeals on behalf of appellants facing financial, linguistic, cultural, and ability barriers, to make written and oral submissions on complex law and policy comprehensibly and comprehensively to qualified and, even more crucially, unqualified adjudicators.

This Bill also reorients the overriding objective through regard to the public interest, particularly to the fact that the IIAA is a part of the immigration and asylum system. Thus, the emphasis may shift towards not only expediency requested by but a perspective of the public interest dictated by the Secretary of State (of the day), who pays adjudicators and sets their terms of employment and the time periods within which they must decide cases. Furthermore, the Lord Chancellor would not be required to have regard to the need to defend their independence, as he is obliged to do for judges.

Given the importance the Court attaches to the right to be free from torture, inhuman and degrading treatment, in light of the irreversible damage that may be caused if such treatment materialises, the right to an effect remedy imperatively requires independent and rigorous scrutiny of any claim. [30] The ECHR Memorandum argues that Executive appointments do not ‘inherently undermine independence’ and are ‘standard practice’ for arm’s-length public bodies (albeit not for judicial entities). [31] Nevertheless, it remains to be seen whether the safeguards, such as an appointments framework, operational staffing autonomy, an independent rule-making board, a ministerial obligation to uphold independence and not seek to influence particular decisions through special access to adjudicators, and external oversight by an inspector will suffice to secure independence and, thereby, human rights, in principle and in practice. [32]

In his speech titled ‘Judicial Independence’, on 12 September 2007, at the Commonwealth Law Conference in Nairobi, Kenya, Lord Phillips of Worth Matravers, Lord Chief Justice at the time, referred to the importance of an independent process for appointments, proper payment as a measure against corruption, and security of tenure: ‘What is essential is that the judge should not have to depend upon the decision of the executive either to obtain or to keep his office, for such dependence might incline him to favour the interests of the executive when performing his duties.’ [33]

Lord Phillips expressed his great concern at the impact of the creation of the Ministry of Justice in 2007 on court funding. The new MoJ was responsible not only for the courts and legal aid, but also for prisons and offender management. Lord Phillips considered that the courts would be in competition with prisons for funding and there may even ‘be a perception that judges were going soft on sentencing in order not to exacerbate a need for expenditure on prisons at the expense of the courts’. [34] It is not difficult to envisage how these concerns apply analogously, mutatis mutandis, and more forcefully to the IIAA, when the Bill permits the Secretary of State to provide financial assistance to the IIAA and subject it to conditions. [35] The ECHR Memorandum’s abstract safeguards appear woefully inadequate in addressing them.

At the heart of the problem with this set of appellate proposals are clear distinctions between the independence, qualifications, experience, and objectives of judges and adjudicators. At a time of authoritarian backsliding, instead of a forthright defence of immigration judges and the value they bring to our justice system, we see a diminution of their role as an initial check and balance. Although appeals and bail applications must be decided ‘with a view to ensuring that justice is done’, [36] it is trite that justice must also ‘manifestly and undoubtedly be seen to be done’. [37] This is not merely a matter of public confidence in the immigration and asylum system, in which the Government would position the appellate body, but a matter of public confidence in the justice system. It sets an uneasy precedent if one unpopular segment of society, whose rights are at stake, may be stripped of their right to a hearing before a judge, to challenge an adverse decision by those in power.

[37] R v Sussex Justices ex parte McCarthy [1924] 1 KB 256, [1923] All ER Rep 233, per Lord Hewart CJ.