Welcome to this afternoon’s session of the Justice Committee; we are starting slightly later than usual. This is an important session looking at the Immigration and Asylum Bill, which has its Second Reading in the House of Commons next Monday. I will ask our witnesses to introduce themselves in a moment, but first, the members of our Committee and those guesting on the Committee from the Home Affairs Committee and the Joint Committee on Human Rights will make their declarations of interest.

I am a solicitor with a current practising certificate. My full declarations are on the Register, but the most pertinent are that I am a member of various trade unions and that I chair the all-party parliamentary group on access to justice.

I am the Member for Bridgwater. I am a former solicitor, and my interests are on the Register.

I am the Member of Parliament for Lewisham East. My full interests are on the Register, and I am a member of a union.

I am the Member of Parliament for Solihull West and Shirley. I am a practicing barrister with a current practising certificate. My interests are on the register, but I should disclose that I undertook work for Bindmans when I was in practice at the Bar, albeit not in the field of immigration.

I am the Member of Parliament for Wolverhampton West. I am a solicitor but not practising. I am a member of the GMB Trade Union Central Executive Council and a member and officer of various APPGs. For the purposes of today’s session, my brother is a retired deputy judge of the upper tribunal and is currently a fee-paid immigration judge of the first-tier tribunal and professor at the Royal King’s College.

I am the Chair of the Committee and Member of Parliament for Hammersmith and Chiswick. I am a non-practising barrister. I am a member of the GMB and Unite trade unions, and I am a patron of two justice-related charities: the Upper Room for Ex-Offenders and the Hammersmith and Fulham Law Centre.

I am the MP for Mid Dorset and North Poole. My interests are as per the Register, but none are relevant to this Committee.

I am also a former solicitor, but I do not practise. I am a member of the GMB and Unison unions.

I am the Member of Parliament for Folkestone and Hythe. I am also an associate tenant at Doughty Street Chambers. I hold a current practising certificate as a barrister. My office receives support from the Refugee, Asylum and Migration Policy Project. Before being elected, one of the areas I practised in was immigration and asylum law where I accepted instructions from Bindmans. I was also formerly in chambers with Nadine Finch.

I am the MP for Sunderland Central and a member of the Home Affairs Committee. My interests are all on my declaration of interests: there is nothing particularly relevant to bring to attention today.

We have taken up most of the time so far with the declaration of interests. Would the witnesses briefly introduce themselves, and tell us in particular about their experience of immigration appeals?

I am a professor of administrative law at King’s College London. My research expertise is in administrative justice systems: I have done many empirical studies of how the tribunal system works, both in immigration and asylum and more broadly across the administrative justice system.

I am a former salaried judge in the upper tribunal; previously, I was a part-time first-tier tribunal judge from 2006 to 2015. As well as being a judge, I was previously a barrister in immigration. Alongside that, I have published research—mainly about trafficked people and unaccompanied minors—for the European Commission, the UN and the Council of Baltic Sea States.

I am a solicitor at Bindmans. I am here representing the Law Society immigration law committee. I have been a solicitor for 40-odd years, and I have always practised in immigration, nationality and asylum.

Thank you for your time in attending today. I am very happy to hear from any of you on any of the questions that we ask, but you need not feel obliged to answer every single question. I will start with a couple of general matters. In February this year, the Committee visited Taylor House to hear from judges and staff working in the first-tier tribunal immigration and asylum chamber about the pressures they are under and how the system is working. From your experience, how do you assess that the current asylum appeal system is working?

When I was a part-time first-tier judge, I sat in Taylor House and in Hatton Cross. There is always pressure because you have one day sitting and one day writing up, and the cases are very varied, but I am not sure that the pressure now is only about the work. As people will know from looking at the media, social media and even some political statements, immigration judges and immigration barristers are seen to be overly on the side of the appellants. That is particularly the case on social media, and some first-tier and upper-tier judges who allow appeals have found themselves in The Sun; that has happened to me twice. Some on the upper tribunal sitting in Manchester have had panic buttons put in their houses by the police. One woman I know has taken to wearing a disguise when she goes to court. It is not just about the pressure of work; it is also that there has not been sufficient intellectual and practical protection for judges, because this is a very highly contended issue. In terms of recruitment to the first-tier, it is probably one of the reasons why not so many people are applying as they might like. Some of those who apply to work part-time in the first-tier also sit as barristers, but for others it is their only income, so they usually welcome an increase in sitting days. During covid, the first-tier went digital more than the upper tier, which was a good thing and could be exploited further. Professor Tomlinson’s research indicates that the delay has a ripple effect. My experience of being a barrister—and a judge from 2006—is that there is a certain time inconsistency in how the immigration service delivers decisions. Notably during the Rwanda debate, it virtually stopped making decisions. During covid, Home Office staff were sent back home without any files, so their decisions did not keep pace with the ability of the appellate authorities to make decisions. I had a few digital hearings in the upper tribunal where the Home Office had absolutely no files and no record of the appellant. There are lots of things that could be done to improve the present system. As a judge, I have not seen the evidence that it would be sensible—economically, politically or on behalf of the people using the service—to tear everything up, make hundreds of judges redundant and start a new system that has not even been piloted and for which there is no research to show that it would work. It is a huge undertaking and I cannot understand why we are not starting from what is already quite a good system that could be improved.

As you have raised that point, the Home Secretary told us earlier this year that the scale and nature of the current asylum appeals caseload cannot be sustainably managed within the statutory and structural limits of the FtTIAC. It sounds as though you do not agree with that, but perhaps the others could address that point directly.

I do not agree with that. First, in the first-tier tribunal there is currently a backlog of 60 weeks to wait for a hearing. That is simply not acceptable from anyone’s perspective, including the appellants: it is just too long to wait. They are very vulnerable people on the whole and, of course, the delay adds to the asylum budget. There appears to be limited capacity in the first-tier tribunal but in my opinion, the problem starts much earlier with Home Office decision making, which is simply not good enough. The Home Office’s own transparency data most recently said that only 52% of initial decisions met its quality standard. The National Audit Office said that 43% of sampled decisions in the year ending May 2025 contained significant errors. That is astonishing: it is not surprising that 45% of decisions—from the tribunal’s own statistics—are overturned. If there was robust, sustainable decision making, with robust advice given by people like me—as solicitors give to their clients—fewer appeals would go forward. Secondly, and related to that, an efficient appeal system is predicated on good legal advice, but we have a significant advice desert in England and Wales. Law Society research on this issue found that 63% of people had no access to local legal aid. If people are unrepresented, we will have less complete evidence put before the IIAA. There will be a lack of clarity in written arguments and oral submissions on very complex law and policy, and I suspect that will lead to longer, not shorter hearings, which is an avoidable delay. The explanatory note to the Bill said that there was a goal of ensuring that there is sufficient access to legal advisers and legal aid at an early stage, which is admirable and the Law Society welcomes that, but there were no plans for ensuring that this would happen. Without investment in legal aid, the IIAA will have the same problem of unrepresented appellants. Merely stating that an appellant has to sign a piece of paper to say that they have been asked whether they have legal advice or not will not magic up more lawyers who are prepared to undertake legal aid. It just will not. There are pressures on the first-tier tribunal, but they also go back to the initial decision making.

Can I push back on that? I have the right figures here. The backlog of appeal cases has gone up almost fivefold in the last three years, from about 31,000 to 152,000. Presumably, a lot of that is due to faster or more decision making in the Home Office. Does that not imply that there is greater efficiency at the adjudicator stage and therefore that attention has now switched to making the first-tier tribunal more efficient, either by giving it more resources or through an alternative mechanism?

I would welcome more resources all round, but please remember that Government policy changes. It flips all the time, with asylum in particular. In December 2022, the Government were committing to clearing the legacy backlog of wait-pending asylum applications within a year, and that resulted in four times as many asylum decisions in 2023 as in 2022; that was one surge. Then the Illegal Migration Act 2023 paused all decision making regarding those who arrived after March 2023. It was not resumed until over a year later, in July 2024, and then there was another surge of decisions and therefore appeals. It is very hard for the tribunal to predict those surges and have enough judges on tap to process appeals through the system.

It would be helpful to take a step back and look at the data on what is happening. We have seen a significant uptick in the backlog at the immigration tribunal generally but also particularly in asylum appeals. I should note—I can answer questions on this later if that would be helpful—that we are seeing similar increases in demand across the tribunal system. In a sense, this is an asylum and immigration issue, but it is also a tribunals-wide problem. The asylum appeals backlog has obviously risen significantly to around 87,000 or so. In terms of what is driving that demand, my recent analysis with a colleague at the Institute for Fiscal Studies—it was published today—looks at a period of time, and the details are in the paper that has been shared with the Committee. I should add that this is the best analysis we can do on the available data. We see that there are two main drivers of demand: first, the increase in initial asylum claims is, as you would expect, mechanically turning into more appeals downstream. Secondly, as was mentioned, there have been changes in the pace of Home Office decision making around initial asylum determinations. If you have stop-start decision making—particularly if you pause and then accelerate through a backlog—that is potentially a good thing for the Home Office in terms of clearing its backlog, but the effect you see in the data is that, in part, the backlog from the Home Office is reassigned to the tribunal at a later stage. That is the predicament we are in now. The effects are manifold, including on the timing of appeals; currently, they are taking up to 61 weeks on average to clear, and we anticipate that this figure will go up, because it is based on cases that entered the system some time ago, so we can expect more delay. I also want to speak to the interesting and important point that was raised on resourcing, in terms of judicial recruitment. I have read the Home Secretary’s letter raising the point about whether this system can be delivered within the current statutory framework. There are obviously questions about exactly how we interpret the statutory framework and so on, but the crux of the issue—as I understand it—is resourcing in terms of not just money, but the recruitment of judicial capacity. In a sense, recruiting judges is a particularly difficult thing to do: they are highly qualified people, you have to find people willing to come forward, there are burdens of office and so on. We did a counterfactual in our IFS paper, and we found that there would need to have been a 35% increase in judicial sitting days to offset the backlog over the period we examined. That is a relatively significant increase in judicial resourcing. I have not seen anything from the Home Office or the MOJ about whether they are capable of recruiting at that level or not, or whether that has been tried, but it seems an important point on which there could be further analysis.

I want to follow up on this theme. As I understand it, the MOJ has just finished a recruitment exercise for first-tier tribunal judges; I think the positions were salaried, not part-time. I wonder whether the information on how many were recruited is in the public domain. If so, where and what is the best analysis of the extent to which the MOJ can, in truth, meet the demand? That is, first—I do not know if you agree with this—on the basis of the current consequence of clearing the Rwanda backlog, and secondly, on the basis that asylum demand continues to be as it is.

I tried to find that information and could not. All I could find is that it recruited 70 judges last year. A lot of the statistics apply to all the tribunals; it may be possible for some of you to narrow them down to immigration and asylum, but I could not. Obviously, that is very relevant.

I have not seen the exact evidence. It would be very helpful in relation to this Bill if the Home Office or the Ministry of Justice brought forward more evidence on this in a clear way and in relation to this particular tribunal. Part of the dynamic is that you are recruiting from a specialist pool of people. That is challenging generally, but it is plausible that if you recruit from that pool, you may remove people who are actively representing in that particular area of practice. That may have a knock-on effect on how quickly hearings can get listed and so on. I am not saying that is the case; I am just saying there is a plausible dynamic there. When we are thinking about judicial resource in the sense that we currently are in the first-tier tribunal, we need to think of that in terms of the wider ecosystem as well as just getting people on to the bench.

The tribunal was opened up a few years ago, so if you were sitting as an immigration judge you could ask to sit on, say, special needs. During and since covid, I know quite a few judges who have moved from the immigration tribunal because they found it easier—in terms of what people say to them—to sit on special needs, which is a very well-run tribunal. There is some loss of people who have been appointed as immigration judges, because they are moving elsewhere for different reasons and that needs to be looked at.

Ms Stanley, you mentioned that poor decision-making by the Home Office was leading to delays. What is the cause, or the problem that results in poor decision making by the Home Office?

It is probably about recruitment initially. It is not necessarily an attractive part of the civil service to join; it is quite distressing reading all these stories and trying to make a decision, so I imagine they have difficulties recruiting, but you will have to ask the Home Office about that. Then there is very poor training. Refusal letters are way too long: it is clear that a button has been pressed to push out word-processed paragraphs one after another, creating a response that is totally inadequate and fails to narrow down or look at the issues. I suspect that is due to recruitment failures but I cannot be sure. However, I am certain it is a training issue, which is why we should be training and supporting those people.

Given that there is no apparent requirement for these people to be legally qualified, it seems likely that the most obvious pool of candidates for the new jobs is from Home Office employees who are currently doing casework. Do you have a view on whether that is a likely outcome, and do you think that would be a successful way to proceed?

From my perspective, I would say that it would be totally inappropriate for anyone who is involved in the decision-making process not only at the Home Office, but potentially UKVI and the police—they also have a lot to do with migration—to switch without a lengthy period of reflection beforehand. That is my opinion, not that of the Law Society.

I have never thought about this but I would not welcome it. There are a few ex-Home Office presenting officers who have become judges. A couple of them sit in the upper tribunal and they have been fairly successful, but I am sure they were from a different entrance. One of the problems with the Home Office is that over the years it has put people into lower categories of pay or upper categories of pay and that has been quite confusing. I know that many civil servants refuse to do their rotation into the Home Office: it is not a happy Department for some people. Alison and I both started a long time ago, and years ago there used to be teams, either by country or by group, such as students. That was a better way of working because the Home Office caseworkers got some experience, and it was easier for them to understand the law, and so on. But that does not seem to happen now; it is just firefighting. When it came to Brexit and it suddenly realised there were all these EU nationals that it did not know what to do with, everyone went to work in that team. Sometimes everyone would go to work in another team. They do not build up experience, and they do not build up any team spirit. There are a lot of things that are wrong, which is probably why it is such an unproductive Department.

I have a slightly different view on this point. If you are moving away from a judicial system to a system of adjudicators, the essential point is that you are trying to loosen the qualifications required to resource the issue that we were talking about earlier. From what I have understood from the policy documents in the Bill, there could be a broad range of potential candidates within that category of people. I would not necessarily assume that people are going to be moving, but asylum decision making is a very difficult job, and I imagine there are people who could contribute great value by moving across from one to the other in an appropriate way, with appropriate training. More broadly, it is a question of their suitability for the adjudication workforce; whether they have critical analysis skills, whether they are good at weighing up evidence, and so on.

In a moment, we will look specifically at the adjudicators and how they differ from judges.

I want to come back to what Nadine said about the difficulties that some judges experience from the media, including having to use panic buttons and so on, and the difficulties in recruitment. Do you hold any of those views on whether there will be difficulties in recruiting adjudicators?

I personally think those issues will be inflated for adjudicators. Judges have a press office, so if you appear in a paper or are doorstepped by the media, which has happened to some people, you can phone up the digital press office, which is very good at dealing with newspapers at a senior level. The Lord Chief Justice has also made remarks to try to protect some upper tribunal judges. If those involved are just members of the public, they are much more vulnerable because they will be living in communities alongside people who have very negative views on migrants. The Lord Chief Justice pointed out that judges are vulnerable because they usually work in the same court and make the same journey from home to court. That is even more so for members of the community; since people know where they live from social media, they would be very vulnerable to pressure. I have seen it to a certain extent with other judges. It is difficult to not exaggerate. People do not like being in the media, especially with deportation cases, when there is a lot of media interest. It has had a chilling effect on some judges who I thought were pretty good before. Judges should be above it, but some feel very threatened. With ordinary people, it would be even worse.

Ministers have claimed that appeals currently being lodged late in the process can further elongate timescales. Their contention is that potential changes of process in the proposed alternative body would remove some delay. Do you see that as a key issue alongside the capacity of the current first-tier tribunal?

I have been an immigration barrister and a judge; I specialised in representing children, people who are mentally ill, and those who are particularly traumatised. From my personal experience—going way back to 2006—I cannot tell you how much the process is affected by the person’s level of trauma, their age, whether they are mentally challenged and the lack of legal aid. Trying to find someone to explain to them what they should do can take months, if not years. Those things have to be factored in. Most of these people are desperate for status and it is not in their best interest to delay. Delays arise for psychological and practical reasons. There are all kinds of factors; some are poorly advised because previous Governments let in a load of immigration advisers who were less than professionally qualified and who gave poor advice. A good legal aid system with professional lawyers available in all areas would speed things up no end. Most of the clients who came to me late had completely understandable practical reasons or psychological reasons that they had not talked about. Some people who have been tortured or sexually abused find it incredibly difficult to tell anyone what has happened; it is only when they are desperate and they see the door of the aircraft that they say something.

Are there any statistics for the number of relatively late appeals or new grounds for appeal being submitted late? Can you quantify the number of individuals who would be affected by the removal of those and their replacement? Can we distinguish a subset of children or others who are affected, versus how far this is commonly spread across the whole appeal process?

It is very difficult to tell. As Alison said, there are huge legal aid deserts across the country. It is hard to get any advice outside the main conurbations and people are relying upon relatives or someone who is a successful member of the community. You would have to have a good piece of research to work out how many of these people had legitimate reasons to delay. Obviously, some people do not have good reasons: they have decided to delay to stay here. I suspect that a lot of people have reasons but were not in a position to raise them. That would be a good piece of research, and I do not think the Home Office has done that research. I have never seen it, so I do not know the answer.

I am not aware of any good statistics, but in the qualitative research evidence, we can see both scenarios. Sometimes people delay for legitimate reasons. Then there are repeated claims; I have interviewed people who have been through a case but have had to relaunch it because the Home Office refused to implement the decision. Equally, it is true that some people might use the procedures to bring repeat claims. It is very difficult to know the extent to which those are within the system, but there is evidence that both are present.

We have dodged around a little. I am going to go back to Tony Vaughan; do you think we have covered all your questions?

I want to ask about the ability of the system to deal with demand. When we went to Taylor House, one of the impressions we had was that a lack of administrative staff and court lawyers to process the claims and issue directions was holding things up or was at least part of the reason for things being held up. It gave us a figure of tens of thousands of appeals that had been lodged in the previous nine months that were literally just sitting there because no court lawyer or administrative officer—I am not sure exactly how the division of functions works—had looked at those cases. We have talked a lot about judges, but I wonder what comments the panel might have about the extent to which more administrative and court lawyer support could go some way to cutting through this backlog.

What I know from sitting at both Hatton Cross and Taylor House is that there is a lot of churn in people working at Taylor House; it is in the middle of Islington, which is a very expensive area, and there are a lot of other job opportunities for people with administrative skills. If people do not like working at Taylor House, they can go and find another job. In Hatton Cross, where there are not many local administrative jobs, there is staff stability and it shows. Having worked at both places, Hatton Cross was managerially well run, partly because the staff were consistent and a good team worked there. Some research could be done on that to find out the reasons. When I first started at Taylor House, it had a research department and a management unit, which are gone now. I suppose they were abolished for reasons of cost, but they played an important part. For instance, a long time ago I was doing research into unaccompanied children; the woman who ran the research unit had been keeping a whole year’s worth of decisions about children, which was valuable information. On that basis we could understand what they were doing right and wrong with children. She was able to do that because she was in a research unit, but they got rid of that whole unit and some management units. It is a false economy to cut out the middle people, because you cannot expect very junior people to have a grasp of what is happening.

On a more positive note, the digitalisation of the processing of cases has been positive. There were a few hiccups initially of course, but it works pretty well. I will not go into the granular problems with it, but on the whole it is a good thing and it speeds things along. The difficulty, again, is getting someone in the Home Office to take charge of a case. That is probably to do with a lack of resources in the presenting officers unit.

It might be that administrative staff are easier to get in one place and harder to get in another place, but is there anything about the proposals that means that these factors around administrative support would somehow be better addressed in the new system versus the current system?

If I have understood the question, it is about whether you could innovate within the current statutory framework.

Why would the new system be better at addressing these particular problems than the current one?

That is a very good question. When the upper tribunal started handling immigration judicial reviews, it increasingly used lawyers who worked around the judges to help manage the cases. It had some success with that. There is certainly scope for innovation within the current framework, including through the use of technology and so on. That is definitely plausible. However, I would caution that from one perspective, the current tribunal is remarkably efficient. It gets through a lot of cases quite quickly and at quite high quality. It is difficult to miss that reality, but there is a credible argument that that is currently the case. If you have a judicial system, at some point you need a judge sitting down to deliberate about the case. How you can maximise efficiency within that model is also a point of concern.

What about it makes it efficient?

In what sense?

What feature of the tribunal makes it an efficient processor of cases, so that we can perhaps understand the criteria that we can then apply to the new system?

That was a broad question about what makes it efficient, fair and so on. I was more broadly making the point that many judges get through multiple cases a day, and given the complexity—

So expertise is the criteria?

Expertise is part of the criteria, but I would not say it is the only criteria. It is definitely part of the way the current system works. My caution is about the fact that, within the current system, it is unlikely that you would be able to maximise efficiency exponentially without more administrative support. We have to be realistic in how we view that.

There is also an issue with totally digitalising the process; a lot of people who are unrepresented are digitally excluded. They would find it impossible to cope with the pressures of digitalisation, let alone drafting an appeal, skeleton argument or whatever. So there is a pause on whether it is valuable to say that it should be totally digital.

A tangential point is that one of the reasons the tribunals work is that the judges have been solicitors or barristers, often in the same system, so they understand not just the law but the managerial routes to get to a decision. When they are doing directions, they understand the system. If people have no background in law, not only do they not understand the law, but they do not understand legal processes. Everything will slowly grind to a halt because it is a huge undertaking. To your question about the management, tribunals work well with the admin staff and with each other. That all helps the productivity that Professor Tomlinson is talking about.

To be clear about the point you just made, you are saying that the first-tier tribunal immigration and asylum chamber is very efficient, yet we are waiting over a year for cases to be heard.

I am sorry if I was not clear. I am trying to say that in a system where you have to make asylum decisions that are often evidentially complex, the tribunals make a lot of decisions. That is obviously not efficient in the sense that it is not processing the caseload required at the present moment, but that does not take away from the fact that—for a system of this sort—it is still processing a lot of decisions each day. Tribunals are much more efficient than ordinary courts, for instance.

I do not want to put words into your mouth. Is that because the judges sitting in the first-tier tribunal are efficient at managing their workload, getting through cases and managing their lists?

It is very difficult to say—it is a bit of a black box, in terms of the evidence. People can disagree about how many cases they should be getting through a day and so on, but it strikes me that they often get through a number of complex cases each day. You can debate the finer points but in many cases, they are making decisions of reasonable quality. My caution was that if you add more administrative support around that, you might see efficiency increase in terms of the amount of decisions produced per judicial sitting day, but there is a limit on the amount to which you can maximise through that route. At some point, you need a judge considering the full details of the case and making a decision.

It was said that 70 judges were recruited last year—I think there are 350 judges in total—and they are all highly qualified people. It would be conjecture, I guess, but I do not think it would be unreasonable to say that they are going to be supplemented with less qualified people. Does that raise any concerns for you?

Do you mean within the current tribunal framework, or the new adjudicator model?

You have resisted Tony Vaughan’s point, that if you could make the whole system administratively more free-flowing or more interventionist, you would clear the backlog that way. You say you need qualified judges to do that. That is not what is being proposed in this Bill.

The premise of the current model is that you have a highly qualified, legally trained individual making a decision about a case, hearing and considering the arguments. It is a form of deliberation and we place additional value on that; we put important things into such decision making structures. That is the model of decision making that we have within the first-tier tribunal at the moment. You could potentially improve the number of cases a judge can process each day within that model by having more administrative support around them, trained lawyers who deal with procedural issues, and so on. But at some point within the current model—

I understand that. I do not think you are answering the question I am asking but don’t worry because we are going on to deal with that in a moment.

Just calling it independent does not make it so. There is very scant detail in the Bill or in the explanatory notes about the functioning of the IIAA, so there is little assurance that it will in fact be independent. The Home Office is of course a party to an appeal, so it is essential that the IIAA is clearly separated from the Home Office in its governance, appointments, funding and operational control; otherwise, it will not be seen to be independent, even if it is. There are things within the Bill that are greatly concerning. For example, the Secretary of State can request that particular cases or categories of cases are expedited and can include a timeframe to determine such a request. That is one-sided because the appellant cannot do that. Many appellants—particularly children and vulnerable people, or those who have family members overseas—want to speed through the process. In addition, the fact that the Home Office can demand a timeframe for a response is an interference in the operational matters of the IIAA. A further significant problem about independence is that the Home Secretary will appoint the initial chief executive and chief appeals officer, as well as the chair and the professional standards officer. Obviously, they have to be appointed, but it would seem to me that the initial chief executive officer and chief appeals officer should be appointed for only a short period and the chair should then make a decision about whether to confirm them in post or to appoint someone else. Again, that would demonstrate the chair’s independence. Finally, independence is important because independent appeals are not an obstacle to effective immigration control. They are in fact an essential safeguard: they ensure that Government decisions are accurate and lawful and can be implemented. That does not always happen. The primary function of this new body is to see that justice is done, but in my view, it is important that it should be seen to be done, and I am very concerned about the lack of independence.

Unless we are going to say that this new body is outside the separation of powers, its independence is extremely important. When you look at the Bill, you see that, structurally, it shows a real lack of independence. Clause 1(5)(c) states that in the exercise of its functions, the IIAA “must have regard to the public interest, and in particular to the fact that the IIAA operates as a key part of the immigration and asylum system”, not as an independent body. Clause 2(1) makes it clear that adjudicators are executive members of the authority, as opposed to being independent. They are not appointed by anything like a judicial appointments commission—as Alison said, there is a cascade. It is said somewhere that the first two appointments are in accordance with the public appointments framework, but then it is a cascade and it is unclear what the regulations are. In terms of the regulations, the adjudicators are brought under the purview of the chief inspector of the UK Border Agency, who deals with other people in the agency, so clearly, yet again, they are not independent. There is no regulatory body; there is only a professional standards officer within the authority, which is not at all the same as being overseen by a regulatory body. If you are a tribunal judge or the Lord Chief Justice, you have the Ministry of Justice and loads of people are regulating your actions. I looked at the Bangalore principles of judicial conduct, which is comparable, because this Bill talks about independence. Those principles include not only independence but impartiality, integrity, propriety—both individual and institutional—equality, competence and diligence, which are all equally important when you are making decisions about the lives of people who may have been tortured and so on. They are not necessarily built into an organisation just because it has been called independent. Judges have the “Equal Treatment Bench Book” and the “Guide to Judicial Conduct”, but I cannot see anything comparable within this Bill. Finally, Clause 1(4) says: “The IIAA must exercise its primary function with a view to ensure that justice is done.” As a former judge, I am surprised that has to be said on the surface of the Bill; one would have thought it was implicit.

It is less independent than independent judges, so that is a high bar. I agree with everything that has been said but a lot of this is in the implementation and how independence is maintained in practice as well as in the legal structure.

I would assume and hope so, but again, it is about the implementation. I agree that the clause saying that justice must be done and be a priority has a symbolic rather than meaningful effect. This is about how any new organisation functions and acts independently. In terms of what worries me about independence within the IIAA, there are not only concerns about the overarching architecture but the particular powers around expediting cases when that organisation is set up and running. That will be where controversies may arise, if cases are being dealt with independently.

The Home Secretary often refers to Denmark as a model that we need to replicate. I read that the Danish appeals system has judges in it. Is it true that this adjudicator body will not only be less independent but will lack the fundamental expertise that a system such as Denmark’s and most other countries across Europe have?

I heard the same thing, and I did a bit of my own research. I used to work for the Council of the Baltic Sea States, so I have some contacts. I spoke to the director of the Danish Refugee Council, who put me in touch with a man who is very senior in its appellate authority. I spoke to him yesterday and I spoke to her at the weekend. The Danish appeals board is nothing like what is proposed here. It has three people. First, there is a judge who comes from its national appeals court. It is a small country, so its judiciary sits across different jurisdictions. These judges sit on ordinary appeals, but two or three days a month they may be on the Danish Immigration Appeals Board. Secondly, there is a professional fully qualified lawyer nominated by the council of the Danish Bar and Law Society. I am told that several of them have previously represented asylum seekers or immigrants, so they are pretty well qualified. Thirdly, there is a civil servant from its Ministry of Immigration and Integration. The man from its appeals board told me that those people are nearly always lawyers, because when they are not on the appeals board, their day jobs are as functionaries in the Ministry I have just talked about, which means they have to be very good on foreign law. Nearly all those civil servants who come on to the board may not be practising lawyers, but they certainly will be lawyers because they have to have a good idea of foreign law. It is not true that the Danish appeals board is made up of members of the public or volunteers; it is actually made up of three professionals. They also told me that some years ago—maybe 15 years ago—they experimented with having two people on the board of seven who were just members of the public. However, that did not last because they found those people were biased. They were not biased in the way we might think of bias; they were biased in both ways. They got overly emotionally attached to some appellants, whether they were people who were vulnerable or actually were entitled to appeals. They found those untrained and non-lawyers made a lot of mistakes. Sometimes they would just feel really sorry for somebody; sometimes they would feel hostile. It was not as if they were all pro-appellant, but they did not have the grounding to actually make a good decision. They were taken off the board maybe 10 or 15 years ago—it is a bit unclear. The Danish Refugee Council, which is pretty well respected in Europe, said one of the things that it felt about its board was that all the board members were professional, and it showed. I have more information about that if anybody needs it.

That would be very helpful. It sounds like exactly the situation we need to know about, because it sounds a lot more expert than even our current system.

Yes, it is.

To have it as a comparison is perhaps not the right approach. I did not know whether anyone else on the panel had any experience or knowledge about systems in other countries. I read about Australia, for example. It had tried an expedited refugee review process, and that was abolished because it did not afford due fairness. I don’t know whether the panel has any observations about whether there are examples from our law where we tried to speed things up a bit too fast and then the system did not accept it.

It can be quite difficult when looking at comparisons in this area because the kinds of systems and contexts that are run internationally are very, very different and operate in very different contexts. It is very difficult to transplant systems. It is not that we cannot learn things from other systems, but context is very important. I want to address your question about expertise, if that is okay. I should be really clear about this, and maybe this is the point the Chair was getting at earlier. Within the current proposal, the assumption is that the quality of decision making will go down at some level to allow more cases within the new model to be processed more quickly. Expertise is one feature that you would hope to see potentially within a good decision-making process. Particularly within an asylum process, you need a degree of expertise. It is complex legally, factually and so on. However, there are also other features of good decision making. If you moved these decisions away from judges and into the adjudicator model that is being proposed, that would assume deterioration of quality to some extent. There is a trade-off between the qualifications and structure, and what you are trying to achieve in terms of efficiency. That is just baked into the proposal. This is what would concern me from the evidence I have seen and when I look internationally. There has been quite a lot of research on the idea of legal quickening, which is when, particularly in asylum systems, you try to speed up the process to get things done more efficiently. We tend to see that even if you still have expert people, the interactions and respect between the parties deteriorate in quality because there is less time in the system for those sorts of things. Those things would concern me as much as expertise.

Clause 8 of the Bill grants the Secretary of State a power to set time periods for when the new body must decide on appeals. I just wanted to know how those time periods might affect the quality of decision-making. I know that we have already passed a law to say that in accommodated cases, the tribunal must decide them within six months, which is a lot quicker than under previous systems, such as the detained fast track where there were very short periods of time. A six-month timeframe in accommodated cases will be a push, but it seems to me that that is something that has already been there. If the Secretary of State is actually given the power to set time periods when the tribunal or authority must decide on appeals, what thoughts do you have about that as an expanded power?

If I can speak about the 24-week timeframe, which was introduced in 2025 for those in the supported accommodation, that seems reasonable to me. It is also preferable from the point of view of the appellant, provided that it is flexible, because at no point should these timeframes be so inflexible that exceptions cannot be made. There can be all sorts of reasons why an appeal is not ready to proceed. Nadine spoke very graphically about how frequently victims of torture or children—I have worked a lot with child asylum seekers—find it very difficult to express what has happened to them. It is also quite hard for people to talk about their history in the way that we demand, which is a linear style. Actually, most of us could not do it properly if we tried. Some appeals will need longer. It seems to me that 24 weeks is something admirable and it would be something to try to go for, provided that exceptions can be made. The other issue around that is that if you are asking for expert evidence as an appellant, it is slightly out of your control. You first have to get legal aid and because it is public money, this is very proper. You have to get three quotes, you then have to go to the Legal Aid Agency to get approval, and you then instruct your expert. They may have other things to do. They may be busy writing reports, for example, because they are frequently academics. It is important that we do not lose justice just because of speed.

Would you have any further comment about the ability of the Secretary of State to set time periods that are even more stringent than the six months we already have in statute, which I suspect is the direction here?

Yes, I suspect that that is the direction of travel too. It is potentially dangerous for the reasons I have just said. It is not easy to prepare an appeal in less than six months. It is asking for trouble and numerous adjournment requests if you cannot hit that timeframe.

From the perspective of the judge, what is it about a compressed timeframe that may affect decision quality?

People misunderstand the amount of evidence that judges rely upon. In the upper tribunal, judges are looking at error of law, but error of law depends upon how you apply that law to the evidence. Some cases I found most difficult as a judge were when I actually thought that some appeals could have been won if there had been sufficient evidence. That is a time issue. Maybe they needed more time to find an expert; maybe a child had not been able to give the full evidence; or maybe they just had a poor representative and they should have had another one. Evidence cannot just be turned on and off like a tap in some things. The issue about having time limits really strikes at judicial independence as well. Let’s say that I, as a judge, had a really good idea that this child could have something very dynamic, yet as an adjudicator I was being told in the new system that I had run out of time. What do I do as the ultimate decision maker? Do I just accept that? Do I just say, “Okay, I’m going to forget why I have to be impartial and completely fair”? Do I just accept that because some person in procedure has told me that I have run out of time? That is a real problem. I also worry about the bail hearings, and I talked about habeas corpus. Lots and lots of cases about how long you can detain people will cut across this. Okay, they say that after so and so, there is a time limit for bail hearings, but what about all the other case law we have about detention and habeas corpus? One other thing that worries me about this particular clause is that it is aimed at adjudicators who are non-professionals, yet we ask them to apply concepts such as “reasonably practicable” and “in the interests of justice”. Those are terms of art that judges and lawyers learn to understand. They are difficult for lots of judges and lawyers, but I cannot see how a layperson could fully understand how they should be applied. I query what “In the interests of justice” means in this clause. Does it just mean speed and costs overall, or does it mean the interests of justice for every person who comes through the system?

I have two brief points on this question. First, you cannot legislate system capacity into existence. Whether the system gets through those cases in part depends on whether the capacity, required expertise and all those things that we have been talking about are there. Otherwise, you are just going to have breached statutory deadlines. Secondly, from a decision-making quality perspective, if you move to this sort of system that is being proposed with quicker decision making, you would expect to see a move from a more deliberative form of decision making to decision making that is more based on heuristics—we have to make more decisions more quickly so we try to process things more quickly. You would therefore potentially see a higher rate of errors in appeal decision making.

Just for the record, I see Nadine Finch nodding her head. Is that your view as well?

That is correct, yes.

Ms Finch, you referred specifically to various terms of art that lawyers use. That got me thinking about the complexity of immigration law. My experience of immigration law and looking at it for a constituent—I am not an immigration practitioner; I was just trying to assess some fairly basic stuff—was that it looked really, really complicated. It was a business that did not understand it, and I struggled. How much of immigration law that would be looked at here is currently in statute? How much of it is contained in case law and so would not be clear from reading a statute? What do you think is the likelihood of a non-legally qualified person being able to make accurate decisions in line with the law?

I would say that there is zero chance at the beginning, certainly. When I was first an adjudicator in the early ’90s, as a professional barrister, there was obviously a very small Immigration Act. You could put the case law in part of a cupboard in the RCJ. Of course, there was some international law, but we had not bought into it in the UK in some ways. I cannot tell you how many Acts we have now. I cannot even name them all, and I am—

There are 14.

Thank you. We have regulations that constantly change by statutory instrument and just by announcements. With the best will in the world, most highly qualified judges cannot get their heads around some regulations without really thinking about it. Some business law is completely archaic and difficult to understand, and then you are going on to case law. Because we are a precedent-based immigration system, you have to know precedent. You have to understand how much you have to follow the decisions of the upper tribunal, how much you have to defer to the Court of Appeal, and how much country guidance from the upper tribunal you have to follow. We used to laugh in chambers because family law is a bit law-lite, let us say. Even with criminal law, as a magistrate you can go to the green book and the sentencing guidelines, and you are pretty sure you have it. I am somebody who writes books about immigration law and I would not be really sure I had it right without a lot of research, because it is so complex.

There are not just the 14 immigration Acts since the Immigration Act 1971; there is also the British Nationality Act 1981, the Modern Slavery Act 2015, European law and then Brexit law. The published guidance on which the Home Office relies and that we have to know is extraordinarily detailed and lengthy. I could not tell you how many pages it runs to because it is all online, but it is huge. There is also published policy that the Home Office relies on and we have to know, as well as case law, as you said. It is a huge body of law. It is a mistake to jog back to when the appeal system was set up back in ’69, and there was no requirement for a legal qualification. I started practising in the ’80s, and by ’87 with the development of black-letter law, case law and so on, it became clearly inadequate having non-qualified members—they were in fact adjudicators then. They stopped recruiting non-qualified people, and in 2000 it was placed in statute so that they are always qualified. There was a reason for it.

I want to touch on the impact assessment that the Government have published. I do not know whether you have read it because it is over 100 pages long, but it sets out the scale and timing of any benefits associated with this reform. It says that that remains unclear and that the associated costs are uncertain. In fact, on the costs relating to strengthening the UK’s asylum and immigration system and to modern slavery, there is a negative assessment. In other words, it will put costs up. Do you think that the proposals in the Bill will deliver on the Home Office’s aim of speeding up the process and restoring public confidence in the system?

I don’t think that we can tell. Quite clearly the Home Office does not know, because I read the impact assessment and so much is uncertain or unclear. It is quite extraordinary in an impact assessment. Nobody knows whether it is going to actually save money. I also could not see in the 100 pages of the impact assessment whether they had actually consulted their colleagues in the Ministry of Justice. That would seem to me to be hugely important. They are very likely to have some views and data about how much these changes are likely to cost.

I think that they haven’t consulted. They certainly haven’t consulted the first-tier tribunal because the president of the first-tier tribunal was on bank holiday in August when she read about the changes in The Guardian or The Observer or something. I actually phoned one and they still have not been consulted. All they have been told is that they may sit in parallel with a new system for a while. I did not read the assessment page to page, but the takeaway was, why were we going ahead? Why was there no research? If there is that level of uncertainty, which was throughout the assessment as far as I could see, surely, to be cost effective, there have to be some pilots and research.

Reading the impact assessment, it is refreshingly honest in that it is unpredictable and it is difficult to know how this is going to work out. In any scenario that I can envisage, the transition period is going to be quite a difficult one. That is going to be a big part of whether it may achieve its aims. We will not know that for some time. The way I view this overall is that what is being traded off is decision-making quality for efficiency at the base level. That is obviously a policy judgment within this context, but it would be very difficult to know whether, in terms of the implementation of this new body, it can achieve those aims because so much is going to be in the implementation.

I was wondering if I could direct my question to you, Professor Tomlinson. Do you foresee any risks and benefits of relying on the non-legally qualified decision makers to decide on asylum appeals?

There are obvious expertise losses if you are not having lawyers make decisions. The legal complexity that is rife in this area is a challenge, but I would view this as a different kind of decision-making structure. Government have to deal with lots of complex law all the time, and they do not always use legally trained decision makers. Security law for instance is very complex, but we have administrative officials making decisions. Initial asylum disseminations, which can often be correct, are done by caseworkers in the Home Office, for instance. You would lose expertise, but it is not beyond the realm of possibility that you could have a structure that worked well, where you had legal support around non-legal decision makers. That is the kind of system we used to have prior to the tribunal in its current form, but it is very difficult to implement well, and you risk trading away the justice for the individuals who are in that system. That is the big risk in that system. To answer your question directly, expertise is very important but there is a judgment call to be made by policymakers about this, as to how that matches with efficiency. I just have a final important reflection: on the efficiency side, within the current model and with no extra resourcing, the backlog is going to get bigger and bigger. The times people are waiting, which are harmful for them and for the system, are going to get longer and longer. At some point efficiency becomes a justice problem for the individuals concerned as well. There is a complex dynamic there.

Will the independent immigration appeals authority established by the Bill be sufficiently effective and independent to meet the requirements of article 13 of the European convention on human rights, the right to an effective remedy?

It will not. In the human rights assessment, the immigration service quotes three cases. Only one is directly relevant. It is true that two of those cases said that a part of a case could go ahead, but there is no case that actually looked at and compared a professionally trained system with a completely new, untried system. As we have talked about before, the lack of independence militates against article 13 compliance. There is also the interference by the Executive. We have talked about procedure rules. At the moment, procedure rules are mainly made up by the tribunal judiciary because it knows what the pinch points are in the system; it knows when procedure needs to be developed. There are some admin people involved, but the regulation is another really important part of independence, which is totally ignored. In fact, the amount of interference by the Executive in this Bill on the adjudicator is quite high. It is as though it does not really trust adjudicators to work the system, which means that they are not going to learn from their mistakes and their positives. That is very dangerous, but it also militates against being effective and independent. I would repeat many things I said about independence—it is not article 13-compliant to any extent.

It is not article 13-compliant because it is not an independent process. That is of huge concern.

There are obviously appeal routes out of the new structure, which might play into that analysis. I will defer to my colleagues here on this point. We could anticipate that there might be legal challenges to the new model if it was brought into effect.

I just wondered if I could ask about appeals against the appeals to the upper tribunal, or whether we should wait for that.

We are expecting votes in three minutes, but my understanding is that neither of the parties present is voting. There is no reason why we cannot continue, if people are happy to do that. There will be a slight interruption from bells, but we do not have to adjourn the Committee for that purpose. We do not have very many more questions, but while we have you here, it would be quite useful to pursue that.

The adjudicator to hear asylum appeals has been given various descriptions. They have been described as professional independent adjudicators, paid volunteer adjudicators and ordinary members of the public. Under the Bill, what do you consider the role of the adjudicator to be? How would you describe the adjudicator?

I am as confused as you are about what they will actually be. I began to fill out the consultation and actually stopped halfway, but then I understood it was going to be people who had control jobs such as inspectors, police officers and customs officers. It seemed to be concentrating on the control aspect of the White Paper. However, it has morphed into members of the public. For all the reasons I said before, that would be very difficult for the members of the public as well as for the appellants. There is also no description in the Bill about the senior adjudicators. You have adjudicators and plain adjudicators. One is presuming that the more experienced senior adjudicators do things such as case management, but actually there is no suggestion that they would go for the very complex cases, for instance. There is very little about how this actually runs or works. As soon as I saw the Bill, I looked to see what the adjudicator was going to be, but there is nothing on the face of the Bill that tells me what the adjudicator is going to be. It tells me a lot about how they are going to be regulated and a lot about the system, but surely the core thing is the adjudicator. This follows on a little from Professor Tomlinson. As a judge, one day you are sitting, one day you are writing up, and it is pretty demanding. However, it depends on the type of cases. It could be an easy case, a bail hearing, or a student application. It could be something that was clearly quite easy to adjudicate, or it could be a really complex asylum case. The level of expertise of the judge plays into the speed. I know this because in 2006, I went in with a whole load of people who had been in good legal firms or good chambers, and we were much better prepared. Our productivity was probably double some other people who had never even seen an asylum claim. The speed concerns me. I am going to be slightly rude about the Home Office, but another reason is that there is a certain type of Home Office person—I do not blame them because they have no training—who thinks they have to argue every single word of the refusal letter. They also think they are in a Netflix legal drama so they put it to the appellant. That takes hours. It is not actually very productive because quite often what they are arguing has nothing to do with the kernel of the case. So it is another case management. This Bill will not help to make sure that one party to that appeal speeds up.

I would agree that it is unclear on the face of the Bill who the adjudicators are. The framing of members of the public is probably unhelpful, as I have seen in the media. I am a member of the public. It would not surprise me if ironically, this ended up being staffed mostly by people who had legal qualifications but just did not necessarily meet the appointment criteria for the judiciary. The straightforward answer is that it is unclear. There are two things I would flag as important in respect of the way the adjudicators are set up. First, decision making generally within Government is a neglected part of the civil service. It is a certain set of skills, having an attitude of mind where you are taking care about the rules but you are being critical about the evidence, and there is a range of other skills. For instance, there is no profession in the civil service that is focused on decision making, despite the fact that many civil servants are administrative decision makers. It is neglected generally. I would worry that the neglect of that skillset would carry over into an organisation such as this. I would be particularly concerned about that. Secondly, the wider point is that decision making, particularly in these sorts of structures, is in part individual but in part organisational and cultural. The Independent Chief Inspector of Borders and Immigration often flags the cultural dynamics within initial asylum casework. It would be an important point to be vigilant about if this new structure was set up, not just as to the individual decision makers and who they are, but how the culture of the organisation is developing as a whole.

The explanatory notes to the Bill actually state that the IIAA staff will be public servants as opposed to civil servants. Why is that distinction there?

Your guess is as good as mine.

I am really intrigued to listen to the concerns you are raising. Feel free to say you do not want to answer this. You are right that the Bill says that a senior adjudicator has to either be a legally qualified person or someone experienced in “law-related activities” for two years. Frankly, we have some local vigilantes who would say that they have experience in law-related activities. It could be anything. That is for a senior adjudicator. Coming off the back of the changes to jury trials, where the role of judges is being shifted with so many more people moving into the magistrates system, and here the role of judges is being moved into laypeople of some sort, are you concerned about a general de-judgification of the law? I am particularly interested in the views of Ms Finch, given your role as a judge. I am not quite sure what your title is, I apologise. And secondly, do you think this is just a reaction to the backlog? Is it reasonable to have it as a reaction to backlog, or actually is this a permanent shift in the respect and importance that we give to decision making in points of law?

I would have to say that I am a former judge—

A former judge. That is why I was not quite sure what your title was.

I have talked to lots of former and present judges, and we all feel that the status and impartiality that used to be accorded to judges have gone—not just from the media, but unfortunately, from Government. It is not just in this Bill. For instance, in the Northern Ireland Troubles Bill, the judges in the new legacy commission are not going to be appointed by the judicial appointments body; they will be appointed by the Secretary of State for Northern Ireland. That is a huge departure. The Lord Chief Justice has talked about how jury trials being taken away from judges puts the judges completely in the line of fire, because they will be the evidential and legal decision maker. Surprisingly enough, because to a certain extent juries stay secret, they have not been attacked by vigilantes. However, judges are going to be attacked because the three-year limit will bring in people who are involved in not minor crime, but, say, trafficking or conspiracies. There will be people in organised crime who will go just in front of one judge, and there will be no protection for that judge. A lot of judges I know feel like that infamous Daily Mail thing, “Enemies of the People.”

It is not just judges. There have been widely publicised attacks on solicitors who are well known for undertaking immigration work. Happily, the individuals concerned in the most notorious case have been apprehended and sentenced, but that also leads to younger people who are entering the profession being unhappy about the prospect of specialising in a truly unpopular area of law. I am not the only immigration lawyer who has been slightly circumspect in the back of taxis when I have been asked where I am going and what I do. I do not always say I am an immigration lawyer, because sometimes you get into great arguments and it can be quite aggressive. I thought it was a very interesting observation when you asked whether it is a reaction to backlog or it is anti-lawyer and anti-judge, In fact, in my experience, there has always been an anti-lawyer aspect to UKVI. It has never liked dealing with lawyers. This cuts across all parties. It has always said, “All you have to do is tell your story in asylum. All you have to do is tell your story, tell the truth, and we’ll sort it out. We’ll make the right decision. You don’t need a lawyer.” It is just not true. You need a lawyer. The anti-lawyer feeling is not new. Professor Tomlinson Can I briefly address the point on the backlogs and how this might be a response to the backlogs? This issue can be viewed from the asylum and immigration policy perspective, but it is also a Ministry of Justice and tribunals issue. The paper that was published today, which I was involved in, looks at the demand rises across the tribunals. Across the tribunal system, we are seeing surges in cases, and these issues are across that system. Since the 2007 Act was brought into force, if you look at the key reforms that have been carried out, you can almost mark them on a graph. There was a real increase in cases up to about 2013, and then we saw reforms. Lots of the immigration cases were taken out of the tribunal, so only asylum and complex cases such as human rights cases were left. Systems were brought into the DWP to keep cases out of the tribunal and have them resolved in-house before they went to the tribunal, to try to place less weight on the tribunal. The caseload went down, and then it went back up. It has just gone past that previous peak, and we are seeing reforms in immigration, SEND and so on being proposed. I would put it like this: there is another perspective where part of this is an immigration and asylum policy issue, and part of this is about what sustainable governance of the tribunal system looks like. That is an area where a lot more thought could be given.

I was just burning to ask: what is the structural thing behind the increase in the demand for tribunals generally? I have not read your report yet, forgive me.

It differs from tribunal to tribunal. There is a lot of data in the report. For instance, in asylum and immigration, as I said, what is driving the recent demand is increases in initial claims to asylum, which are then turning into more appeals, as well as the stop-start decision-making process of the Home Office. In SEND, for instance, there is more of a factor in play about how individuals in that system are responding to adverse decisions. People are perhaps becoming more aware of their rights, or they are becoming more willing to make appeals. It varies from tribunal to tribunal, but across the tribunals, we often also see policy made in Departments outside the MOJ. That has a big impact on how tribunals operate, and we can expect to see more of that. That cross-system governance is not necessarily sufficient to predict and offset these kinds of issues arising.

We have one or two tidying-up questions—I appreciate you might just say “I don’t know” to some. We are interested in the IIAA and the adjudicators running alongside the first-tier tribunal. Do you think their procedures are going to be the same? Do you think the adjudicators will require a legal adviser to advise them as well?

I will jump in on that one. It will be chaotic if there are two systems running at the same time. As to whether they need a legal adviser, yes, definitely. We have all said how complex the issues involved are. I am certain that an average adjudicator will need some legal help. It would be ideal if they had a lawyer as an adjudicator, but I am not certain that is the case because in the consultation document prior to the Bill being published, they talked about social workers, probation officers and people like that, which has now morphed into the members of the public. However, they were looking at those sorts of people to become adjudicators. With the best will in the world, they do not have the same skillset. They have a very different skillset.

You are saying that it will have to work either by having a legally qualified adjudicator or a legal adviser?

A legal adviser, just like a magistrate does.

Clause 10 of the Bill would enable the IIAA to charge a participant if it considers that they acted “improperly, unreasonably or negligently.” What impact could this provision have on cases before the IIAA?

Once again, there is no detail as to how this will work. It is incredibly difficult to comment on it. There is nothing to say what safeguards will be put in place. It is unclear to me why it is there.

The problem is that most appellants are really poor. If they have legal representation or are legally aided, they are lucky. Lots of them borrow every penny they can to pay for somebody. It would be a disincentive. I do not know what the levels of sanction are going to be but certainly, if it is a high sanction, I can see people going underground and not appealing. I was interested to see that in clause 10(5), the money raised by the IIAA will go into a consolidated fund, which, as I understand it, is just a general fund and you have to apply. It is not even going into making the new authority better. It is going to go into some general Government fund.

We are nearly there. Clause 15 of the Bill would enable the Secretary of State to specify that certain cases should be decided by the first-tier tribunal rather than the IIAA. How would the establishment of the IIAA affect the role of the first-tier tribunal?

I do not understand how this would work since they are going to phase out the first-tier tribunal. The transitional period you talked about is going to be very difficult, because how are you going to retain first-tier tribunal judges to run alongside the new system? They are people who need to work, so they are going to go. Also, when you make the full-timers redundant, you are going to have to pay redundancy money and pensions. Those of you who are barristers may know that once you have been a full-time judge, you are not allowed to go back to being a solicitor or a barrister and give individual advice. It did not matter so much when my age group were judges, but for some full-time judges now in their 30s or 40s, are we saying that we will make them redundant and they will have no career? They will not be able to go back to being a solicitor or a barrister. To make hundreds of people redundant has not been thought of. I do not see how it is going to run alongside this. Anyway, Clause 15 is a mystery because you are going to abolish that tribunal, so how come you will be able to keep it and abolish it at the same time?

I just wanted to ask about the real source of my concern on this. At the moment, we have this big backlog that we need to deal with. My concern is that we are simply going to shift the backlog from the first-tier tribunal to the upper tribunal because of the problems you have described in terms of expertise. It will mean that errors are made, which will then have to be corrected in the upper tribunal. I note that there is a power of adjudicators to review, but it says that that must be by an adjudicator, so it is not necessarily going to by somebody who really knows what they are doing. What is the panel’s view on whether we are simply going to shift the backlog from one place to another?

Undoubtedly. There will be an increased workload for the upper tribunal and probably more judicial review, which is a very expensive hammer to crack what should be a relatively simple nut. It has not been thought through at all. Certainly, there is nothing in the impact assessment to suggest that they have thought about the impact on the upper tribunal.

Having been an upper tribunal judge, you get a minority of first-tier judges where you struggle to understand what their decision meant. I am glad—

That is with a judge?

Yes, with a judge sometimes. Imagine a man or woman from the street being able to apply the law to the evidence. When I had pupils, one of the hardest things was that pupils knew the evidence, they could understand what had happened and they knew the law, but actually applying the law to the evidence is a skill you have to learn. As an upper tribunal judge, you would be faced by decisions that you could say were illegal or irrational because they just did not do the job. My guess is that the vast majority of the early decisions made by people from the street will be in that category. It will be overwhelmingly difficult for the tribunal to deal with that.

I would say there is a considerable risk of the backlog being moved around the system. The recent history of immigration and asylum appeal systems is moving between decision-making structures: administrative review, judicial review and tribunals. These different pathways have evolved over time. Often you get demand peaks and then things get reformed or pressures come in. It is likely that we will see that sort of thing continue. The point I have been trying to convey in a lot of my answers is that there is a root and branch question about what a good administrative justice system looks like, from the initial decision through to judicial review and all the stages you might have in between. One of the areas where there is considerable scope for improvement is in initial decision making. We often chase things around the appeal system. That is a really important part of the system, but the actual initial decisions are of variable quality from what we can see. If you look at the Independent Chief Inspector of Borders and Immigration’s recent report on asylum casework, it is not positive at all. There is scope for improvement. Investment and improvement there could have a considerably beneficial impact across the entire system.

Just quickly, you will be aware that this Committee has also done an inquiry on the Courts and Tribunals Bill. For the Government’s proposals to succeed, we will need an additional 7,000 magistrates over the next three years. There is a difference between adjudicators and magistrates in the sense that adjudicators are going to be paid and magistrates are not, but do you foresee some competition between the recruitment of adjudicators and magistrates? My concern is where we are going to get all these people from.

An ex-upper tribunal judge sits on the committee in Oxford that recruits magistrates, and she tells me that there is a real problem recruiting magistrates. I wonder about that because it is having difficulty recruiting. Even though these adjudicators are going to be paid, we do not know what they are going to be paid. I presume they are going to not be paid very much, actually. For all the reasons we have said, recruitment is going to be difficult. We are going to have two parts of our system semi-staffed.

I am not seeing any of my colleagues indicating that they want to speak, so this really is the last question. If the IIAA is not a judicial body, at least in the conventional sense, who is holding it to account? Is it reporting to the Home Office? How do you get rid of adjudicators if they are not doing their job? Do you understand how that is going to work?

That is not clear at all in this document. It goes back to the independence or not of the IIAA because if the Home Office can terminate the contract of an adjudicator, where is the independence in that? It is party to the proceedings. This is a very good question. It has not even been thought about, or at least there is no evidence of it having been thought about within the Bill.

It is really difficult. If you look at clause 2, the chair and the professional standards officer—the people you would expect would look at the standards of the adjudicators—are non-executive members. They are going to be asked to deal with or sanction an executive member, which is what the adjudicators fall into the category of. That is probably unworkable.

If we are thinking in the framework of the new body, if we are accepting that as coming into reality, there are already measures in the Bill. There are the inspections, which would be very important for a structure such as this. There is potentially lots of good practice that we can see in other organisations, such as ombudsman organisations, around the publication of decisions, sharing of systemic feedback and so on, which could be adopted in an ideal world. You can see measures in the Bill that would potentially aid holding these adjudicators to account, but it potentially could also go further and learn from good practice that we see in other kinds of decision-making bodies that handle sensitive and complex complaints.

Thank you very much. That brings us to the end of this afternoon’s session. Can I just thank you all again for sharing your expertise with us, and particularly for attending at short notice and with relatively little notice of the subject? Thanks to everybody.