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Introduction

Last updated:
08 January 2020

Introduction by Mark Henderson

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 [2001] EWCA Civ 1196, per Dyson LJ)

The stakes in asylum and human rights appeals are higher than any other field of litigation 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 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 on-going cuts to public funding and reduction in the availability of publicly funded legal advice 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 editions, this electronic edition of the guide shows what can be done when a text is linked to a comprehensive database of legal and policy resources in EIN's website. The vast majority of references in the book can be obtained by a single click. The authors and publishers welcome comments, suggestions, and corrections and the email address to use for these is: support@ein.org.uk. These can be incorporated into the electronic text on an ongoing basis.

I would like to thank the EIN both for funding and publishing this updated electronic edition and for their previous support for the book. 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 thanks to the Public Law Project for its help with this edition as well as the 2018 edition. The previous editions would not have been published without the Nuffield Foundation's generous funding and the support of the Legal Education Foundation in 2018.

This update has been co-authored by Alison Pickup, Legal Director of the Public Law Project, and Rowena Moffatt, a colleague at Doughty Street. Further help with research for the update was provided by Ollie Persey at the Public Law Project for whose attention to detail we are indebted.

Mark Henderson
Doughty Street Chambers
January 2020

About the Authors

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 the Legal Director of the Public Law Project, a national legal charity which works to improve public decision making and facilitate access to justice. Alison is a public law barrister and prior to joining PLP in 2016 she had a wide ranging claimant practice, focusing in particular on migrants' rights. Alison regularly appeared in asylum human rights appeals in the First-tier and Upper Tribunals both while working at the Refugee Legal Centre from 2002-2006 and after joining Doughty Street Chambers in 2007.

Rowena Moffatt is a barrister at Doughty Street Chambers with a practice in public law and human rights. She specialises in immigration and asylum law as well as other areas of administrative law, including community care and age assessment judicial reviews. Rowena regularly undertakes statutory appeal work in the First-tier Tribunal and Upper Tribunal (Immigration and Asylum Chamber) as well as appeals to the higher courts. She also acts in civil damages claims, particularly for unlawful detention, and has a substantial advisory practice, including in business immigration. She has particular expertise in EU cases and is the co-author of a number of practitioner texts in her practice areas. Prior to joining Doughty Street, Rowena completed a PhD in administrative law at Oxford University and is a visiting lecturer in the area of migration law and AI.