Home Office Immigration Appeal Tribunal - Unrepresented Cases Legal Representative

Not showing up: sharp rise in appeals with no Home Office representative

I recently spoke with someone who had had her Leave to Remain application refused by UK Visas and Immigration, and was having hell getting the decision overturned. She had gone through a considerable amount of time and expense to put an appeal through to the First-Tier Tribunal (Immigration) and fully expected a difficult and gruelling fight at the hearing.

Much to her shock, in the end, the Home Office didn’t even bother to appoint a legal representative. His case won by default and the judge overturned the original decision to refuse her.

Regardless of your political persuasion, unrepresented hearings such as this are potentially a very bad thing. If you’re left-wing, it could mean that the Home Office – after realising they got the decision wrong the first time – are deciding to cut their losses and not appoint a representative. In addition to being a strain on the energy and resources of appellants, this suggests there may be many more people out there who lack the means to start an appeal, but who would have had the decision overturned too had they only had the resources. For right-wingers, there’s an equally unpalatable way of painting this: the people whose appeals go unchallenged potentially really shouldn’t be here. The Home Office’s failure to find representatives, as well as being a waste of taxpayers’ money, is letting these people off the hook.

Her ordeal therefore poses questions about how many other people are in the same situation. Three written parliamentary questions (see here, here and here) forced the release of some enlightening Government data on unrepresented appeals. You can find the full details in this spreadsheet.

In the two charts below, I present two sets of data, broken down by month, running from September 2012 to September 2015: the number of First-Tier Tribunal hearings which took place on the one hand; and the proportion which had no Home Office representative on the other.

Figure 1: Number of First-Tier Tribunal (Immigration) Oral Appeal Hearings, September 2012 to September 2015 (Source: WPQ 26685, 18th February 2016).

Home Office Immigration Appeal Tribunal - Number of Cases

Figure 2: Proportion of Oral Appeal Hearings where the Home Office Failed to Send a Legal Representative (Source: WPQ 26685, 18th February 2016).

Home Office Immigration Appeal Tribunal - Unrepresented Cases Legal Representative

Last year, there was a clear and marked rise in the number of unrepresented appeals up to a peak in July 2015 – when a massive one in four appeals had no representative. On the bright side, the Home Office is now starting to get a grip on things and bring the number down again, but it still means that across 2015 as a whole, over 4,100 appeals were not represented. This figure is nearly nine times higher than the same 9-month period in the previous year, when just over 400 appeals went unrepresented. We can assume it from this that roughly 3,700 extra appeals went unchallenged in the nine months to September than would have been in normal times.

How can we explain all this? It is possible that this is a human resources failure. There was a big spike in hearings in July 2015, and it is in that very same same month that unrepresented appeals reached an all-time high – the issue could be that the Home Office was struggling to find barristers to meet the increased need.

Whilst plausible, there are some arguments against this explanation. The correlation between the number of appeals heard and the percentage of unrepresented hearings is very weak (R2 = 0.26), and when you look loser at the data, it’s easy to see why. Excepting the July 2015 figure, the number of tribunal hearings in 2015 is very similar to the previous year. What’s more, the last spike in unrepresented hearings (Jan 2013) coincides with the lowest number of tribunal hearings on record.

There is a different explanation, which I alluded to earlier on in this post. A refusal to send a Home Office representative could be considered an admission that they’re going to lose the case, and they should never have made the decision in the first place. The original Home Office decision-makers were at fault, and should never have refused these people to begin with.

I’m keen to look into more detail at this alternative explanation – not just in Home Office cases, but with other public bodies too. It’s part of a collaborative project I’m currently working on (working title: “Getting it Right the First Time”) which hopes to look into how much money could be saved from the public purse in legal costs if the original decision-makers – be they Councils, UK Visas and Immigration caseworkers or otherwise – made fewer mistakes to begin with. Watch this space for more details in future.

[Image: Mr.TinDC, licensed under Creative Commons]

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