Litigation, the law and UKBA

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’?

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

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

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

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

Bad laws and policies

Case study: PBS and Pankina Pankina outcome 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

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

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

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

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

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

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

Implementation

Case study: Metock Metock decided 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

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

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

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?

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