Presentation made to Chief Inspector of UKBA on litigation, the law and UKBA. The presentation is somewhat critical of UKBA handling of litigation. It draws on various submissions made by the Immigration Law Practitioners Association (ILPA).

1. Litigation, the law and UKBA

3. Bad laws and policies The only way a lawyer can judge ‘good’ and ‘bad’ is by court outcomes UKBA laws and policies are dismal by this standard E.g. Metock(admittedly Ireland lost this), Pankina, Baiai, ZO (Somalia), ZN (Afghanistan), Abdi And UKBA cannot say they were not warned by ILPA – role and purpose of ‘consultation’?

4. Bad laws and policies Underlying causes? Over legislating: 1993, 1996, 1999, 2002, 2004, 2006, 2007, 2008, 2009 for major Acts, countless other statutory instruments Poor law making and legal advice: does not achieve what Govt wants it to achieve through poor conception and drafting Total absence of evidenced-based policy-making Fundamental failure to have regard to human rights law

5. Bad laws and policies Case study: language analysis UKBA’s own Interim Evaluation of 2001-2 Pilot of Language Analysis: “The pilot has not yet provided any evidence of the potential value of LA in reducing the number of fraudulent applications, or as an aid to removal” Action by UKBA: LA extended to more countries, long term contract with commercial company signed, ‘Human Provenance Project’ initiated on DNA and isotope testing

6. Bad laws and policies Case study: spouse visa age Research commissioned by Home Office suggested would harm potential victims of forced marriage Home Office already lost case of Baiai on blanket restriction on right to marry There is nothing to suggest the policy will prevent a single forced marriage

7. Bad laws and policies Case study: English language for spouse The new rules make no allowance for pre-existing and perhaps long-standing marriages Also make no allowance where there are children of a marriage The discriminatory effect of the rules is obvious There is a blanket exception for nationals of some countries irrespective of their spoken language

8. Bad laws and policies Case study: PBS and Pankina Pankinaoutcome widely considered inevitable, Home Office did not even attempt to appeal Yet temporary cap introduced by same legal means: unlawful English language requirements also: unlawful UKBA continue to apply their guidance as if it were law, leading to countless successful appeals at massive expense

9. Bad decisions on cases Tribunal outcomes: First instance appeals official data 2009 198,505 appeals determined 37% of all appeals allowed 36% of all entry clearance appeals allowed 48% of other non asylum appeals allowed In-country, e.g. PBS, switching, deportation 28% of asylum appeals allowed In all areas the percentage of allowed increased slightly from previous years

10. Bad decisions on cases Detention: e.g. LDSG assisted 188 people in 20 month period detained for 1yr+, of whom 18% were deported e.g. family detention figures from before election Wrong people and for no purpose

11. Conduct of litigation Tribunal adjournments Hansard answer on adjournments for 08-09 Total no. of adjournments: 12,063 ‘Non appearance by Presenting Officer’, ‘Home Office have not complied with directions’, ‘Home Office documents missing’, ‘Home Office reconsidering their decision’, ‘Home Office file/bundle not received’ and ‘New Home Office issue unexpectedly raised’: 2,353 Home Office direct cause: 20% High court litigation conducted similarly. See A (Afghanistan) v SSHD[2009] EWCA Civ 825

12. Conduct of litigation ZO (Somalia) after Court of Appeal outcome Conceded some claims, fought others Regularly forced to concede by pointless, expensive litigation Pankina Did not appeal But PBS decision-making entirely ignores it, leading to appeals that will inevitably succeed RN (Zimbabwe) Did not appeal, said judgment was accepted But never implemented in a single decision

13. Conduct of litigation UKBA strategies to avoid compliance Withdraw legal aid Use secret (therefore unlawful) policies Give ‘privilege’ of lawful decisions only to those with a lawyer Unlawful laws remain in place, e.g. Metock, Baiai Removals to Iraq Prolonged detention cases

14. Implementation Do nothing Metock, Baiai, ZN (Zimbabwe), Quila Change law ZN (Afghanistan), Pankina, English UK Implement effective change: HJ (Iran) only example, and even then a partial one

15. Implementation Case study: Metock Metockdecided 25 July 2008 Still no change to law (quite a few other laws have been changed in meantime) Policy belatedly changed December 2008 Ireland immediately changed same offending law UKBA appears determined to be found in breach of European law, compensation claims inevitable All appeals on this and related points succeed

16. Implementation Case study: Baiai Lost at every stage of legal process, from 10/4/06 Only now planning to implement judgment in 2011, five years later Not only delayed response to case outcomes but continued to fight all the way to Strasbourg Strasbourg case now sets precedent for compensation for all affected Nothing about the policy actually targets sham marriages, just immigrants getting married

17. Implementation Case study: RN (Zimbabwe) Home Office lost RN 19/11/08 Elected not to appeal, stated that outcome accepted This was basis of consent order disposing of another high profile legal challenge on 11/3/09 On 24/3/09 new OGN issued rejecting RN Not a single asylum seeker was granted asylum by UKBA because of RN, calling into question honesty in not appealing Very large number of appeals therefore inevitably succeed

18. Reasons for this behaviour? Can only speculate Ideology? Refusal to accept human rights laws Refusal to accept role of courts Belief that UKBA has exclusive role in guarding the public interest, and that there is no public interest in upholding the rule of law Losing some prominent cases a price worth paying for excluding those without access to a lawyer Incompetence?

19. Where lies the waste? Wasted and injured lives of those affected Pointless and avoidable litigation to prove unlawfulness in first place Of laws and policies Of individual casework decisions Pointless litigation once unlawfulness is proven in a test case but not implemented Conduct of that litigation is wasteful (delays, adjournments, late concessions) Compensation claims, especially in detention cases