Asylum seekers win right to stay because of 'shambolic' immigration hearings

Hundreds of appeal hearings are going ahead without a representative from the Home Office to defend its original decision to deny asylum.  

Immigration lawyers admitted that the situation is helping their clients to win cases they might otherwise have lost.  

The disclosure could help explain why the percentage of asylum seekers winning their appeals has risen from 17 per cent in 2005 to 25 per cent for the third quarter of 2008.

Opposition politicians criticised the "shambolic" and "bizarre" situation in which asylum appellants are not properly cross-examined.

Over the last two weeks, reporters from this newspaper attended 25 hearings around the country. At 24 of them, no Home Office Presenting Officer (Hopo) – who is tasked with putting the department’s case before the immigration judge – was present.

In the one remaining hearing, the officer turned up late and admitted that she was unprepared.

Senior sources close to the hearings have said the Home Office is failing to properly defend about a third of cases which come to appeal.

One court official, who asked not to be named, said: "It is becoming a common problem. There is a shortage of qualified staff so cases have to go ahead without anyone to present the Home Office’s case and defend the original decision."

This failure is of benefit to those making the appeal, according to lawyers. Annette Elder, a partner with the firm Elder Rahimi, which represents five to 10 appellants each week, said: "Frankly, it does make our job easier.

"It is hard to say whether we have won a case because a Hopo hasn’t been present. But if someone isn’t being cross-examined then their chances of success have to improve. There is less chance of any errors in their case being exposed. There are days when you are relieved there is no one from the Home Office."

Another immigration lawyer, who asked not to be named, said: "I know there are occasions when we have won because the Home Office hasn’t turned up."

"It has happened when we have had immigration cases when the appellant has been accused of using false documents. The Home Office has not been there to prove that claim and has not provided any evidence to back it up. We have won automatically because of that."

The Home Office representative is supposed to defend the department’s original decision, cross-examine the appellant and provide guidance for the presiding judge.

The Asylum and Immigration Tribunal (AIT) service website advises those who have instigated appeals that a Hopo will be present.

But in all but one of the cases attended by Sunday Telegraph reporters, the judge – who often only receives the files a few hours before the hearing – was forced to try to make sense of the case alone.

Reporters attended hearings at Taylor House in Islington, London; Bennett House in Stoke-on-Trent, Staffs; and Sheldon Court in Birmingham.

During a morning session at Taylor House last Tuesday, one judge informed the appellants in three separate hearings: "There is nobody here from the Home Office so there will be no cross-examination. I may ask some questions for clarification."

At a hearing in Stoke last Wednesday, a judge was told that the Home Office representative had been absent for two hearings because he was working on another case in the same building. The judge simply remarked: "It’s always a juggling act."

A lawyer representing an appellant told the court: "I have evidence today which the Home Office could have challenged but they have chosen not to turn up."

Judges who preside over the hearings are forced to make decisions based on what they hear and on the "skeletal" refusal letter submitted by the Home Office in advance.

In the one case where a Home Office representative did turn up – at Taylor House in Islington – the official arrived late, telling the judge that she had just dropped her children off at school and she had no idea she was due in court until she had been contacted by the office. The case, already 45 minutes late, was adjourned for a further 15 minutes so the officer, who had to apologise for her casual dress, could finish reading the case files.

The judge made four separate interventions about the relevancy of her line of questioning. The officer later had to withdraw a crucial part of the Home Office’s case against the Iranian national because she could not prove it.

Chris Grayling, the shadow home secretary, condemned the Home Office’s failure to staff the individual hearings.

"I think it is a shambolic situation. The Home Office keeps talking about tightening the system but clearly the reality is the opposite," he said.

"They need to get to grips with the situation. I think in the case of the Home Office, the culture of chaos starts at the top.

"Ultimately, it is the job of the Home Secretary and her ministerial team to set the right expectations for the department. Clearly that is not happening."

Chris Huhne, the Liberal Democrat home affairs spokesman, said: "It looks as if the Home Office tribunal system is in a state of some chaos. The failure of the Home Office to field representatives inevitably means an appellant’s case is not properly cross examined.

"The real concerns that the immigration officer may have had, and which led to the original decision, are not been given their day in court. I think it’s bizarre that the judge isn’t given advance notice of whether the Hopo will be present. At least then they would be aware that they had to study the files in depth."

Civil liberty campaigners also criticised the lack of Home Office representation, saying it caused problems for the appellant.

A spokesman for the tribunal service said: "We do not collect data on Home Office representation at Asylum and Immigration Tribunal hearings. We are aware that there are times when hearings are conducted without a Home Office official present. There is no requirement on the Home Office to send a representative. Therefore, it is up to their discretion."

A spokesman for the UK Border Agency said: "Public protection and harm reduction remains our primary consideration when deciding on whether or not a case should be represented. Only a very small percentage of AIT hearings are not attended by a presenting officer and the figure of one in three is unfounded.

"We have said we will target the most harmful people first and part of this is about making sure that we focus our resources on defending the right cases in court. Team managers carefully scrutinise and identify suitable cases to proceed without representation.

"In these few cases where an officer is not present, the immigration judge, if not deciding to adjourn the appeal, will determine the appeal in accordance with their power under the Nationality, Immigration and Asylum Act 2002 on the evidence before him." Telegraph (UK)