This post examines questions of accountability, transparency and oversight in the context of the UK government’s proposal for a new Independent Appeals Body for immigration and asylum decisions, replacing the existing First-tier Tribunal (Immigration and Asylum Chamber) (hereafter, FtT). It is prompted by the government’s official consultation which, amongst other things, asked:
What mechanisms should be in place for effective oversight of the new appeals body? Please include in your response whether you consider it should be subject to a regulator or an ombudsman.
This post contextualises this question within the academic literature on accountability and the existing ecosystem of accountability relationships in immigration and asylum law. Any change to the existing appeals structure will have to balance competing interests of independence, accountability, and the Home Secretary’s apparent desire for control over the mechanisms of first instance appeals. This post argues that, if the FtT is to be abolished, its replacement ought to be established as a Non-Departmental Public Body and come under the accountability remit of the Independent Chief Inspector of Borders and Immigration.
Background: immigration and asylum law appeals and consultation for change
At present, immigration, asylum, and nationality decisions are taken by UK Visas and Immigration (UKVI) which is part of the Home Office. Since 2014, appeals to the Tribunals against an unfavourable outcome are available only against decisions on “protection claims” (claims to asylum and humanitarian protection) and human rights claims, such as those based on the right to family life in Article 8 ECHR.
Most negative visa decisions may only be challenged by way of “administrative review” (conducted by a civil servant within the Home Office), and ultimately judicial review. This is because the most numerically significant kinds of visa applications (from visitors, workers, students etc) will not engage the right to family or private life for the purposes of engaging the state’s obligations under s6 of the Human Rights Act 1998 to act compatibly with the Convention.
Refusals of protection or human rights claims can be appealed to the FtT on the basis of an error on either the facts or on the law. Onward appeals to the Upper Tribunal (Immigration and Asylum Chamber) (UTIAC) are on the ground of an error of law only. The IAC sits within HM Courts & Tribunals Service (HMTCS) which administers all courts and tribunals for England and Wales, as well as for UK-wide jurisdictions (such as is the case for immigration powers). HMTCS is an executive agency sponsored by the Ministry of Justice.
The government is conducting a consultation on replacing the FtT with a new Independent Appeals Body. The clear intention is to remove first instance immigration and asylum appeals from the procedural strictures imposed by a juridical process and to widen the candidate pool for new adjudicators to include those without legal qualification or experience. Bringing first instance appeals within the purview of the Home Office, rather than the Ministry of Justice, may also provide the Home Secretary an additional level of control over – and responsibility for – appellate decisions in this politically contentious area.
The consultation explicitly envisages the retention of the role of the UTIAC for onwards appeals against decisions of the new Independent Appeals Body, on the existing ground of errors of law. The UTIAC also handles applications for judicial review against Home Office decisions which do not attract a right of appeal.
Immigration and asylum appeals are not “the determination of his civil rights and obligations or of any criminal charge against him”, for the purposes of the fair hearing guarantees of Article 6 of the ECHR. Yet the consultation evinces at least a stated recognition that any new Independent Appeals Body should seek a credible level of independence and fairness. This includes creating means of accountability, transparency, and oversight. As the consultation says:
‘Public confidence in the new appeals body will depend on clear decision-making processes, effective oversight, and a transparent framework that supports trust in outcomes. As a new appeals body exercising independent adjudicative functions, it will be important to consider what governance, scrutiny and complaints mechanisms are appropriate, whether through internal processes, external regulation or an ombudsman model.’
Establishment as a Non-Departmental Public Body
The consultation is silent on the question of the administrative nature of the new Independent Appeals Body. It is not an unreasonable reading of the tenor of the proposals that the Home Secretary may envisage bringing this new body into the structures of the Home Office. This would not be unprecedented. As well as the post-2014 institution of “administrative review” in lieu of a right of appeal to the FtT, historically, the Immigration Appeals Act 1969 provided for adjudicators as the body of first instance appeals, with an Immigration Appeals Tribunal above it whose members were appointed by the Lord Chancellor. Adjudicators were to be appointed by the Home Secretary but expected to be ‘quite independent of the Immigration Service’.
To maintain this expectation of independence, I argue that the new Independent Appeals Body must be established as a Non-Departmental Public Body (NDPB). This should be preferred over its establishment as an Executive Agency where the Home Secretary would have much more day-to-day control over its operation. Indeed, Cabinet Office guidance would seem to suggest that an Executive Agency is inappropriate where a body requires a demonstration of political impartiality. Formation as an NDPB would ensure a balance between its operational independence (and therefore its credibility) as an impartial body conducting appeals against executive decisions, and accountability to the Home Secretary and others.
Accountability is defined in the literature as a particular form of social relationship between two bodies, an actor (who is held to account) and a forum (who holds the actor to account). Accountability is then defined as:
‘a relationship between an actor and a forum, in which the actor has an obligation to explain and to justify his or her conduct, the forum can pose questions and pass judgement, and the actor may face consequences’.
Aspects of the relationship can be informal, such as where consequences faced are (merely) in “the very fact of having to render account in front of television cameras”. Where any part of this definition is absent in a relationship between actor and forum, it means that the relationship is not one of effective accountability. This basic schema must be borne in mind when considering the development of new accountability mechanisms.
Through these proposals, the Home Secretary cannot be intending to set up a new tribunal as (a) to do so would be a redundant exercise to replace one tribunal with another, and (b) because Cabinet Office policy is that ‘all new tribunal functions must be delivered within HMCTS’. However, because the Home Secretary is not setting up a new tribunal, she is not thereby precluded by Cabinet Office policy from setting up the new Independent Appeals Body as a NDPB. If she attempts to claim that she is unable to set up the new Independent Appeals Body as a NDPB because of the policy to only create new tribunals under the auspices of HMCTS, then she is in fact creating a new tribunal which would be (a) redundant, and (b) contrary to Cabinet Office policy. The circularity of this argument means that the Home Secretary cannot be prohibited by policy from creating a replacement for the FtT as an NDPB.
Cabinet Office guidance is that a NDPB should be established where the new body can levy funds of its own and has ‘Some Operational Control Over Policy’. If the new Independent Appeals Body is envisaged to be able to charge appeals fees similar to those currently levied by the FtT, then the first of these conditions (the ability to levy funds) is met.
The new Independent Appeals Body should also have some operational control over policy, such as policy over recruitment, case management, provision of legal advice to claimants, format and location of hearings, and policies to ensure the independence and impartiality of adjudicators. The second condition for creating a new NDPB is therefore also met.
Before the extant Cabinet Office guidance on NDPBs (which precludes the creation of new tribunals outside HMCTS), older policy stated that an NDPB ‘will be the appropriate model … if a body needs to be set up to deal with appeals’. The new Independent Appeals Body would have the features of a body where a NDPB was previously recommended, specifically that it will:
- ‘have jurisdiction in a specialised field of law;
- decide the rights and obligations of private citizens towards a government department or public authority; [and,]
- [be] separate from the formal court system’
NDPBs with appellate functions meet the Home Secretary’s stated aims for creating a new body, whilst maintaining some level of operational independence. As the earlier guidance stated, ‘NDPBs are often a suitable structure for the resolution of conflicts in certain areas between the citizen and the state, or between individuals. They are generally simpler in structure, less formal and less expensive to run than the more formal parts of the court system.’
Political Accountability
The new Independent Appeals Body should therefore be established as a Non-Departmental Public Body to help secure its operational independence, and the independence and impartiality of its members. The head of this new body (ideally a senior member of the judiciary) would be appointed by the Home Secretary and politically accountable to them for the efficient and effective running of the body, and the overall quality of its decision making.
The body’s head should also be made accountable to the House of Commons Justice Select Committee. There should be statutory provision for the Committee to conduct pre-appointment scrutiny of the Home Secretary’s preferred candidate and for the Committee to wield a power of veto. Whereas the decision whether or not to make a role subject to pre-appointment scrutiny is in effect in the hands of the executive, there is no reason that Parliament cannot formally demand this through statutory enactment.
Although a formal veto is noted as not being the only mechanism of influence that committees possess over the appointment process, and the decision to take up a role in defiance of a committee’s recommendation is a personal matter for individual candidates, prior examples of individuals being appointed in spite of the advice of committees have undermined the integrity of the process of appointment and role of pre-appointment scrutiny. Post-appointment, they may be called to give evidence to the Committee on the functioning of the new appeals body, but not on the outcomes of cases.
Although not itself a juridical body, the new Independent Appeals Body should be guided by international standards for judicial independence. One such standard is that whilst judgments should be reasoned and pronounced publicly, adjudicators (or head of an appellate body) should not otherwise be obliged to justify the reasons for their judgments, including in political settings. This requirement is particularly acute in the immigration and asylum context where decisions can be individually controversial. Thus, although a new Independent Appeals Body would be subject to a range of different expectations for accountability, transparency and oversight because of the transfer of functions from HMCTS, the principles of independence afforded to judges should remain important touchstones for maintaining the balance between accountability and impartiality.
Ombuds services and regulators
That the transfer of responsibility of first instance immigration and asylum appeals from HMCTS to another body will entail different modes of accountability, transparency, and oversight is evident from the consultation’s concern for whether it ought to be subject to an ombuds service or regulator.
In the accountability and administrative justice literature, Buck, Kirkham and Thompson conceptualise the administrative justice system as comprising concentric circles radiating outwards from the initial decision-making by public bodies, out to redress mechanisms, and finally, to a “network of governance and accountability relationships”. These are bodies responsible for “getting it right”, “putting it right”, and “setting it right”.
The FtT exists within an existing ecosystem of accountability and administrative justice bodies in the immigration and asylum sphere. The published process for determining whether a new public body needs to be created asks whether it is ‘unique or something sufficiently similar already being provided elsewhere’? Where something similar exists, the preference is to link new functions to existing entities rather than create a new body. There are two existing bodies which already conduct similar functions to a regulator or ombudsman for immigration and asylum functions: the Parliamentary Health Services Ombudsman (PHSO) and the Independent Chief Inspector of Borders and Immigration (ICIBI). I argue that the ICIBI should have their statutory role (and funding) enhanced to include inspection of the functioning of the new appeals body.
“Putting it right” and ombuds services
Within the immigration and asylum sphere, the FtT sits within the realm of “putting it right”: ‘to resolve individual disputes with the view to “putting it right” where failures in administration have been identified’. This is also the realm within which ombuds services sit, and ‘the complaint-handling role remains a central feature of the ombudsman enterprise, setting it apart from other accountability institutions’. Whilst there is debate as to whether or not ombuds services ought also, or even exclusively ought to, conduct systemic investigations of maladministration in the mode of a body responsible for “setting it right”, individual complaint handling is specified in all ombuds legislation.
The consultation is clear that it is envisaged that the UTIAC would be the means of appealing decisions of the new immigration and asylum appeals body. Therefore, the creation of an ombudsman with individual appeals-handling functions would either be redundant, duplicative, or at worst counter-productive. The means of complaining to an ombuds service about an appeals body decision on the basis that “it made mistakes, acted unfairly, or didn’t follow its process when making it” (as per the PHSO’s description of its remit) would potentially make an ombuds service an additional avenue for de facto appeals.
The Parliamentary and Health Service Ombudsman (PHSO) does have responsibility for decisions taken by UK Visas and Immigration without having become the de facto appeals body in immigration and asylum law, but this is because of the existing means of tribunal appeals or administrative review on the basis of law and facts. The PHSO will refuse to decide complaints where there is an alternative, legal avenue of redress for complainants. As appeals to the Upper Tribunal are on matters of law alone, the PHSO may find it harder to resist accepting complaints on the basis that the new appeals body made a mistake on the facts.
The PHSO does have accountability oversight of two appeals bodies (the Appeal Officer for Community Interest Companies and the Independent Agricultural Appeals Panel), but there are no mechanisms for onwards appeals from either of these bodies and any defect in their decisions, on the facts or law, could only be challenged by way of judicial review.
Thus since both the new immigration and asylum appeals body and the PHSO sit in the same theoretical realm of “putting it right” makes it (or any other ombuds service) an inappropriate vehicle for accountability because the core functions of an ombuds service are either redundant, duplicative, or counter-productive to the new appeals body and to the role of the UTIAC.
“Setting it right” and the ICIBI
The outer layer in the typography of accountability and administrative justice, “setting it right”, is of central practical importance because:
‘the mechanisms of “getting it right” and “putting it right” will not operate successfully unless such governance and accountability relationships are also established or “set” appropriately’.
Furthermore, accountability for policy performance can help secure individual rights.
The Independent Chief Inspector of Borders and Immigration (ICIBI) is a body responsible for “setting it right” in the immigration and asylum sphere and is unique as a permanent accountability forum solely dedicated to the scrutiny of the operational (rather than policy) activities of the Home Office’s immigration and asylum functions. The ICIBI’s role was created and defined by the UK Borders Act 2007, with statutory responsibility to ‘monitor and report on the efficiency and effectiveness of the performance of functions’ and ‘services provided’ by the Home Secretary and her officials, in relation to customs, immigration, asylum and nationality.
As such, the ICIBI has a specialist topic remit, unlike the PHSO whose investigations can run across many different government areas, including business, education, energy, environment, housing, science, transport, health, benefits, and justice. The ICIBI’s investigators therefore develop unparalleled experience and expertise in the administration of immigration and asylum law and policy. Unlike an ombuds service, the ICIBI’s role is not to investigate or decide on individual complaints.
The ICIBI sits solely within the function of “setting it right” and has the expertise to include a new appeals body within its accountability relationships. The ICIBI therefore ought to be given responsibility for holding the new appeals body to account and should be given both the statutory authority and additional funding required to do so.
The UK Borders Act 2007 defines the scope of the ICIBI’s remit as covering ‘officials of the Secretary of State exercising functions relating to immigration, asylum or nationality’. It is arguable that no statutory changes would be required to the ICIBI’s remit to encompass a new Independent Appeals Body, even one set up as a Non-Departmental Public Body, as it would (a) be exercising a function relating to immigration, asylum or nationality and (b) by one of the Secretary of State’s officials under Carltona principles. However, statutory amendment would help erase any doubt and preclude the possibility of future conflict between the ICIBI and Home Secretary or others about the scope of the ICIBI’s responsibilities, one that might eventually have to be settled by way of judicial review.
Conclusion
It is not self-evident that the Immigration and Asylum Chamber of the FtT needs replacing. FtT is facing an unprecedented number of cases arriving for determination because of systemic factors outside its control, including the desertification of the legal aid sector and a collapse in the quality of decision-making at first instance by the Home Office. As the National Audit Office observed, ‘To achieve value for money in its management of asylum, the government needs to coordinate and manage across the complex end-to-end system’. Addressing the problems at the other end of the immigration and asylum system, before claims reach the appeal stage, would do much to alleviate the burden on the FtT. And if the number of individual qualified to sit in the FtT as judges is a problem, then widening the pool of qualified judges could occur within the existing system rather than requiring a complete redrafting of the nature of the appellate body.
However, should these proposals go ahead, the questions of accountability, transparency and oversight are some of the most important for ensuring that the new system is “set right” from the outset. Not only must Justice be done; it must also be seen to be done. Establishing a new Independent Appeals Body as a non-departmental public body, and subjecting it to the accountability and oversight remits of the Home Affairs Select Committee and the Independent Chief Inspector of Borders and Immigration, would go some way to ensuring a balance between accountability and independence.