Monday, 20 June 2011
The Mail today has a story about judges complaining about lengthy, expensive and unjustified appeals against unfavourable immigration judgements.

Judges launch scathing attack on the 'abusive' way migrants exploit appeals and say most cases have no merit

By JAMES SLACK

Last updated at 10:09 AM on 20th June 2011

Judges have made an unprecedented attack on the ‘wholly abusive’ way that immigrants are exploiting the British legal system.

The Judges Council said that, for some types of appeal, a staggering 85 per cent of cases did not have any ‘merit’.

They have either been ‘dreamt up’ by lawyers seeking to line their own pockets, or are a blatant last-ditch attempt to stop deportations taking place.

Many – including appeals made by foreign criminals – are brought under the controversial Article 8 of Labour’s Human Rights Act – the ‘right to a family and private life’.

And despite the rampant exploitation of the system, the taxpayer is writing legal cheques worth £12million a year for immigration cases. Effectively – and farcically – the British Government is picking up the bill for the thwarting of its own attempts to control immigration.

In a single year, the public funded a staggering 37,300 immigration appeals, according to Ministry of Justice figures seen by the Mail. It is the equivalent of more than 100 cases every day.

Justice officials say the legal aid is being spent on ‘advice on how to get a visa to enter the UK, or how to avoid being deported once they’re here’.

It includes advice to immigrants from Europe looking to work in Britain, and migrants from outside Europe who want to study, get work experience or join their families who have emigrated to the UK.

In a devastating letter to Justice Secretary Kenneth Clarke, the Judges Council of England and Wales – which speaks for the judiciary – paints a picture of appalling abuse. The judges say that, out of 12,500 judicial review claim forms issued in the Administrative Court in 2010, about 7,500 concerned asylum or immigration.

The claims have been considered – and dismissed – by the Secretary of State and at least one immigration tribunal, making the judicial review a ‘second or sometimes the third or fourth bite of the cherry’.

The judges’ letter to Mr Clarke goes on: ‘Most claims fail, most of the claims which fail are without merit, and many are wholly abusive of the court’s process.

‘When the claim itself is publicly funded, two sets of publicly funded costs will be incurred – all irrecoverable. No-one derives any legitimate benefit from this litigation.
‘The intervention of publicly funded lawyers does not reduce the number of unmeritorious claims of this type to the extent that might be expected. Bad claims are advanced by publicly funded lawyers as well as by litigants in person – albeit litigants in person are responsible for a greater proportion of hopeless cases. Often, bad claims are advanced by lawyers which an individual would not have thought of for himself.’

One senior immigration judge, Sir Anthony May, said most claims he heard were the third or fourth time a person had been to a tribunal. They are brought by failed asylum seekers trying to block their removal at the last minute.

Sir Anthony said: ‘Sometimes we have to deal with 20 or even more such applications every day when there is a chartered flight going out of Gatwick, Stansted or wherever it is. Let us say that 85 per cent of them – that is a figure I rather pluck out of the air but it is of that order – are of no merit.’


But this state of affairs exists precisely because the judges insisted in the past that judicial review should still apply to asylum and immigration decisions. In 2004, Labour planned to exempt such decisions from judicial review using a so-called "ouster" clause in the the Asylum and Immigration Bill that was then working its way through parliament. The judges kicked up an enormous fuss about it. They even spoke of simply defying the will of parliament if the measure was enacted:

The Home Office is talking tough, but in the department of constitutional affairs the realisation is dawning that the judges have a potential weapon of mass destruction. The fear is that they could invoke what the Liberal Democrat peer and QC Lord Goodhart called the "nuclear option"- refusing to enforce the clause and allowing cases to go the high court nevertheless. "Some judges have been talking about it," he told BBC Radio 4's World at One yesterday.


Removing judicial review of immigration judgements would, it was said, provoke "the gravest constitutional clash this country has seen for more than 300 years". The Conservatives supported the judges in their agitation and in the end Labour backed down and removed these sections from the bill.

So the judges fought tooth and nail to preserve their right to intervene in asylum and immigration cases and now complain that the vast majority of them are unjustified and a waste of time and money. Of course they are. That was the whole point of introducing the limitation in the first place.

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