Explaining geographic disparities in asylum appeal success rates at different hearing centres around the UK

Lead Research Organisation: University of Exeter
Department Name: Geography

Abstract

Asylum seekers who appeal against initially negative decisions are more than twice as likely to be successful if their case is heard in North London than if their case is heard in Newport or Manchester. This is true for all asylum seekers in the UK, but also applies to specific nationalities. Iranians, for example, enjoy a 34% success rate at one hearing centre and only an 18% success rate at another, Afghans' success rates vary from 31% to 17% depending upon the court, and Zimbabweans' from 54% to 22%. These geographic disparities have not been investigated in the UK because the data on appeal success rates is not publicly available. This proposal draws upon two successful freedom of information requests (FIRs) however, in order to piece together the geography of asylum appeal success rates (see Figure One, case for support).

An examination of these disparities is important for various reasons. First, asylum seekers who appeal may be facing a lottery in terms of the court that hears their case, which is arbitrary and unjust. Second, immigration law firms and their clients (such as the Legal Services Commission) may be facing an uneven landscape in terms of the degree of success they can expect in different parts of the country. Understanding this 'lawscape' will empower them with the knowledge to direct their resources more effectively. Third, official bodies with responsibility for asylum appeals, such as the Ministry of Justice and UKBA, need information and analysis in order to make a judgement about whether steps should be taken in order to improve the geographic consistency of the asylum appeal system. Fourth, the wider legal community, beyond immigration law, should be alerted to the existence and impact of geographic disparities in legal processes.

The obvious research question arising from these disparities concerns why they exist. Accepting that the discrepancies are unlikely to have occurred by chance (less than 0.01% likelihood according to statistical analysis of the FIRs), four explanations present themselves. First, there may be administrative processes that direct strong cases towards certain courts, although preliminary enquiries put to officials from UKBA, immigration judges and practising immigration lawyers do not support this explanation. Second, some asylum seekers have legal representation and others do not, and this geography of legal aid may be driving the discrepancies. In light of the 10% contraction in legal aid funding in the UK as part of recent austerity measures, this explanation seems particularly important to address. Third, different judges may be predisposed towards particular decisions. This was the finding of quantitative US-based research that demonstrated that the gender and age of immigration judges has significant impact over their decisions, underscoring the importance of investigating this set of factors in the UK case (Ramji-Nogales et al, 2009). And fourth, there may be differences in the daily practices of courts - their rhythms, cultures and routines. This set of factors, centring upon courts as distinct and non-homogenous places, remains understudied in legal geography as well as legal studies more broadly.

This research will examine the relative salience of these four groups of variables in explaining disparities in asylum appeal success rates. In so doing, the research will bring together qualitative and quantitative forms of analysis in order to generate a rich and innovative set of explanations for the disparities; constitute the first statistically informed UK-based analysis of national disparities in asylum appeals; impact upon the way policy makers, politicians and lawyers in the field of immigration law, as well as appellants, approach their activities; and have wide implications for the theoretical and empirical study of the relation between geography and law in the future.

Planned Impact

Who benefits?

Five groups will benefit from the research. First, the Ministry of Justice oversees the process of asylum appeal claims and this research will provide an insight into the variability of the process which in turn will highlight ways in which it can be made more consistent across courts and cases. Since fairness, equal opportunities, justice and the independence of judges are all central principles of the Ministry of Justice, they stand to benefit from this research in so far as it will allow them to pursue these principles further. Second, immigration law firms will benefit. The immigration law practitioners' association lists around 200 members operating in England, Wales and Scotland. Third, asylum support groups, charities and MPs/Lords with concerns for asylum seekers will benefit from the proposed research. 22 MSPs and 3 MPs have expressed their desire to see the research completed and to hear the findings of the project. This group includes representatives of two cross party asylum support groups in the Scottish Parliament and at Westminster (the Welsh Assembly was also contacted and a reponse has been promised). Baroness Bakewell, who has asked questions in the House of Lords on issues relating to immigration appeals, has also expressed her interest in the project (for all letters of support, including the Scottish Parliamentary motion in support of the project, see attachments). This group also includes the project partners on the steering committee for the project who have each pledges resources (Red Cross, Bail for Immigration Detainees and the Refugee Council), as well as the Immigration Law Practitioners' Association (Brennan, consultant, is SW head) and a range of charities and lobby groups (e.g. Refugee Action). Fourth, the research will benefit asylum seekers themselves. Fifth, a wider group of lawyers and professional legal bodies, outside immigration law, will benefit.

How will they benefit?

The Ministry of Justice will benefit because the findings will allow them to put in place policies that will ensure a fairer and more just treatment of asylum appeals, thereby fulfilling their mandate. For example, the research may cause the Ministry to review the methods used to promote consistency and share best practice across courts or regional asylum teams (who make initial decisions on asylum claims). It may also cause the Ministry to examine the information and training that is available to specific groups of judges and/or Home Office presenting officers.

Immigration law firms will become empowered with knowledge about the conditions under which asylum appeals are likely to be successful. This will allow them to shift resources into productive channels and be informed about strategies that could lead to successful outcomes e.g. the research will be able to identify the optimal approach of the lawyer, location of hearing and length of representation, all of which the firms have partial control over.

Asylum support groups and charities, cross-party parliamentary groups concerned with asylum seekers and ministers with a concern for asylum will benefit by being able to use well-informed, statistically accurate research to support their interactions with a range of professional and statutory bodies, including the Minister for Immigration, the United Kingdom Border Agency (UKBA), the Legal Services Commission (LSC) and other members of Parliament, in order to promote actions that lead to a more consistent asylum appeal system.

Asylum seekers may benefit if their appeal cases can be constructed in the light of richer knowledge of the asylum appeal system. They will also be treated in a fairer and more consistent manner as a result of the execution of this research.

A wider group of non-immigration law firms and professional legal bodies will benefit from the research if factors are identified that are i) related to the outcome of court processes but ii) are not specific to immigration.
 
Description This research project has developed a clearer understanding of legal exclusion, demonstrating that luck, uncertainty and dislocation play important roles in the ability of vulnerable groups such as asylum seekers and refugees to effectively access justice. The project has also developed a new way to understand systems of incarceration, focusing on the connections between institutions such as schools, prisons, hospitals and detention centres, rather than on the institutions themselves (which tends to produce an inhibited view of the flow of people, objects and practices between them). Thirdly, the project has employed statistical methods to examine the uses to which judges put their in-court procedural judicial discretion. The data shows that various factors are significantly correlated with the in-court behaviour of judges: from the timing of the hearings to characteristics of the litigants themselves. Fourthly, the project has developed insights into the role that distance plays in the regulation of human movement, noting how both proximity and remoteness can be conducive to exclusion.

A particularly noteworthy new methodology that has been developed concerns the surveying of large numbers of court or tribunal hearings in order to discern patterns in the behaviour of legal adjudicators. Most research that involves in-person observations of legal processes has been qualitative in nature to date, but the approach taken in this project has combined qualitative (ethnographies) and quantitative (survey) elements to develop this field. The findings open up the question of whether the sorts of phenomena found in the specific area of asylum and immigration tribunals in the UK that were observed in this project are reproduced in contexts outside these spheres: such as other countries or other areas of law.

Noteworthy research partnerships that have been developed through the life of the grant include a Europe-wide network of scholars who have studied asylum determination procedures in Europe ethnographically. This network will lead to an edited book entitled 'Asylum Determination in Europe: Ethnographic Perspectives' to be published by Palgrave. It will be the first book to bring together such detailed ethnographies of asylum determination.

The project has also already underpinned significant impact. Evidence from this project helped secure a High Court judgment that the Detained Fast Track (DFT) appeals process was unfair and unlawful. The Detained Fast Track was a system for speedy determination of asylum claims. The judgment was later upheld by the Court of Appeal, leading the government to suspend the entire DFT system in July 2015. Consequently, more than 300 asylum seekers in the fast-track process were released from detention. Any future British scheme to speed up the asylum process would have to meet stringent conditions, including setting clear and workable criteria for who goes onto the Fast Track, providing evidence to justify constraints on judges' powers to set timescales case-by-case, and providing evidence that the current approach is not working.

In summary, this research project has delivered a series of intellectual, methodological and practical insights, and opened up a set of pertinent research questions going forward.
Exploitation Route The findings are likely to be of use to immigration law practitioners as well as her majesty's courts and tribunals service and the ministry of justice. For immigration law practitioners, for example, a deeper understanding of the dynamics of legal exclusion may be useful for developing and targeting the scarce resources that they command. And for her majesty's courts and tribunals service and the ministry of justice, the patterns in judicial in-court behavioural discretion that the project has identified will be useful for improving the accessibility of court and tribunal procedures to vulnerable groups in a cost effective way. Upon publication of the quantitative work (currently accepted with minor revisions to Social & Legal studies) the research team will disseminate to both these groups through policy briefs. Moreover, 'Justice', an all-party law reform and human rights organisation working to strengthen the justice system in the United Kingdom, and which aims to act as 'the conscience of the legal profession', may be an appropriate avenue for further dissemination of the research findings. Contact has already been made with the charity.
Sectors Government, Democracy and Justice

 
Description Evidence from this project helped secure a High Court judgment to halt unfair fast-tracking of asylum claims. The Detained Fast Track (DFT) appeals process was judged to be unfair and unlawful, a judgment was later upheld by the Court of Appeal, leading the government to suspend the entire DFT system in July 2015. After the suspension of the DFT, more than 300 asylum seekers in the fast-track process were released from detention, 200 of whom had already had their claims for asylum rejected - giving them more time to prepare their asylum cases. Due to the Court of Appeal's ruling, any future Home Office scheme to speed up the asylum process would have to meet stringent conditions, including setting clear and workable criteria for who goes onto the Fast Track, providing evidence to justify constraints on judges' powers to set timescales case-by-case, and providing evidence that the current approach is not working. "It seems highly unlikely that the Home Office will be able to reintroduce a Fast Track in anything close to its previous form, so Nick Gill's research has very probably contributed to the end of this unfair system" Jerome Phelps, Director of the charity Detention Action, said. The Detained Fast Track (DFT) system, introduced by the government in 2003, kept asylum seekers in detention while a decision on their case was speeded through by the Home Office. The system was intended for use in what were considered the most straightforward cases with the aim being to handle a case in a matter of days, when the usual timescale was typically many months. By 2013, more than 4,300 asylum cases were determined by the fast-track route. Many of these were far too complex for that process. A close study of more than 60 DFT cases, including case observations by project researcher Dr Rebecca Rotter, made it clear that the system was not allowing detainees sufficient time to make their case properly. Applicants often did not understand the process they were going through or why they were in detention, nor the legal rights available to them, and struggled to find legal representation before their hearings. The consequences of making a wrong decision on an asylum claim could be catastrophic and lead to someone forcibly returned to face torture or violence. Working with Jerome Phelps, Director of Detention Action, and The Migrants' Law Project (which represented Detention Action in the High Court and the Court of Appeal), the project was able to provide evidence to Detention Action's case against the DFT. This evidence helped convince senior judges that asylum seekers faced real and not just theoretical difficulties in making their case, and that the fast-track process was ultimately 'structurally unfair'. The project was shortlisted for an ESRC impact award in 2016: see http://www.esrc.ac.uk/news-events-and-publications/impact-case-studies/halting-unfair-fast-tracking-of-asylum-claims/ Further work to secure impact from the project is continuing via membership of the charity JUSTICE's Working Party on Immigration and Asylum Determination Reform, due to publish in early 2018.
First Year Of Impact 2015
Impact Types Policy & public services

 
Description Interdisciplinary Perspectives on European Asylum Appeals
Amount £7,250 (GBP)
Organisation University of Exeter 
Sector Academic/University
Country United Kingdom
Start 07/2014 
End 01/2015
 
Description Starting Grant
Amount € 1,252,067 (EUR)
Organisation European Research Council (ERC) 
Sector Public
Country European Union (EU)
Start 09/2016 
End 08/2021
 
Description A Legal Lottery? What drives asylum appeal success at immigration courts? 
Form Of Engagement Activity A talk or presentation
Part Of Official Scheme? No
Primary Audience
Results and Impact Invited Presenter, Exeter Initiative for Statistics and its Applications (ExIStA) General Event, Exeter University.
Year(s) Of Engagement Activity 2014
 
Description Asylum Appeals in the UK 
Form Of Engagement Activity A talk or presentation
Part Of Official Scheme? No
Geographic Reach Local
Primary Audience Public/other audiences
Results and Impact Invited Presentation to Activist Group Bristol Defend the Asylum Seekers (Non-Academic).
Year(s) Of Engagement Activity 2014
 
Description Courtwatching: Truth, Space and Law 
Form Of Engagement Activity A talk or presentation
Part Of Official Scheme? No
Primary Audience
Results and Impact Presenter, of paper entitled 'Courtwatching: Truth, Space and Law' at a session called 'The Geography of Trials', organised by Dr Alex Jeffrey, Association of the American Geographers Conference, Los Angeles.
Year(s) Of Engagement Activity 2014
 
Description Created Video for Asylum Appellants 
Form Of Engagement Activity A broadcast e.g. TV/radio/film/podcast (other than news/press)
Part Of Official Scheme? No
Geographic Reach National
Primary Audience Other audiences
Results and Impact Created an animated film to inform asylum appellants what to expect in their hearings. Audience is prospective asylum appellants. Launched in partnership with charity Asylum Aid.
Year(s) Of Engagement Activity 2018
URL https://www.asylumaid.org.uk/goingtoappeal/
 
Description Ethnographic Research into Asylum Appeals in the UK 
Form Of Engagement Activity A talk or presentation
Part Of Official Scheme? No
Primary Audience
Results and Impact Invited Opening Speakers, Workshop on Migration & Asylum Policies in Europe organised by Carolina Kobelinsky (2012-13 Deakin Fellow of the European Studies Centres, Oxford University), Oxford University
Year(s) Of Engagement Activity 2014
 
Description Fair and Consistent? Exploring Court Based Factors in Asylum Appeal Decision Making in UK Immigration and Asylum Tribunal Hearings 
Form Of Engagement Activity A talk or presentation
Part Of Official Scheme? No
Primary Audience
Results and Impact Department of Social Anthrolpology, University of Stockholm, 'Workshop on ethnographies of border controls' Invitation only,



http://www.socant.su.se/english/about-us/events/workshop-on-ethnographies-of-border-controls-1.143067
Year(s) Of Engagement Activity 2014
 
Description From Outcomes to Process: Assessing Differences in Asylum Appeals 
Form Of Engagement Activity A talk or presentation
Part Of Official Scheme? Yes
Geographic Reach Regional
Primary Audience Policymakers/politicians
Results and Impact Invited Presenter to South West Migration Partnership, Taunton.
Year(s) Of Engagement Activity 2013
 
Description How to win an asylum appeal 
Form Of Engagement Activity A talk or presentation
Part Of Official Scheme? No
Geographic Reach Regional
Primary Audience
Results and Impact Meeting of Advice Network and Immigration Law Practitioners Association (South West) at Burgess Salmon Solicitors, Bristol Event organised by Immigration Law Practitioners' Association, South West, and Advice Netowrk

Event organised by Immigration Law Practitioners' Association, South West, and Advice Netowrk
Year(s) Of Engagement Activity 2013
 
Description Nothing Personal: Keeping Immigrants Out of Britain and Not Feeling Bad About It 
Form Of Engagement Activity A talk or presentation
Part Of Official Scheme? No
Primary Audience
Results and Impact Invited Departmental Presentation, University of Bristol Geography Department
Year(s) Of Engagement Activity 2014
 
Description Nothing Personal: Keeping Immigrants Out of Britain and Not Feeling Bad About It 
Form Of Engagement Activity A talk or presentation
Part Of Official Scheme? No
Primary Audience
Results and Impact Invited Departmental Presentation, University of Leeds Geography Department
Year(s) Of Engagement Activity 2014
 
Description The Time-Spaces of Dirty Law 
Form Of Engagement Activity A talk or presentation
Part Of Official Scheme? No
Primary Audience
Results and Impact Presenter, in Session 'Law and Geography' organised by Antonia Layard and Luke Bennett, Royal Geographical Society Annual Conference, London.
Year(s) Of Engagement Activity 2014