CONFIDENTIAL
037102 MDHOAN 3567
IMMIGRATION APPEALS SYSTEM BEGAN IN 1969/70 WITH THE NOTION OF A QUICK HEARING BEFORE A SINGLE ADJUDICATOR: IT NOW ENCOMPASSES A TWO TIER SYSTEM WHICH TAKES AS MUCH AS THREE OR FOUR YEARS TO DELA WITH INDIVIDUAL CASES. THE PRINCIPAL FACTORS WHICH LEAD TO
DELAY ARE AS FOLLOWS:
(I) MORE THAN ONE TIER.
JUST AS THERE IS PRESSURE FOR AN APPEAL SYSTEM AGAINST NEGATIVE DECISIONS BY GOVERNMENT, SO TOO THERE WILL BE PRESSURE FOR AN APPEAL AGAINST A NEGATIVE DECISION ON FIRST HEARING, ESPECIALLY IF THAT DECISION IS TAKEN BY A SINGLE ADJUDICATOR.
(II) LEGAL REPRESENTATION AND QUASI JUDICIAL PROCEDURE. IT IS, OF COURSE, DIFFICULT TO RESIST THE NOTION OF LEGAL REPRESENTATION BEFORE AN APPEAL HEARING AND INDEED, IN THE UK, THE GOVERNMENT ACTUALLY FUNDS UKIAS TO REPRESENT APPELLANTS. THERE IS NO DOUBT, HOWEVER, THAT TO ALLOW LEGAL REPRESENTATION PLUS ALL THE TRAPPINGS OF A QUASI JUDICIAL APPROACH EG THE CALLING OF WITNESSES ETC WILL PROLONG PROCEEDINGS IMMEASURABLY. TIME HAS TO BE GIVEN FOR THE PREPARATION OF A CASE BY THE APPELLANT: SIMILARLY THE GOVERNMENT CASE HAS TO BE PREPARED AND PRESENTED BEFORE THE ADJUDICATOR. THIS IN ITSELF INVOLVES ABOUT
100 STAFF IN THE HOME OFFICE, LEAVING ASIDE ADJUDICATORS AND THEIR SUPPOR STAFF.
(III) THE DEVELOPMENT OF CASE LAW.
A FURTHER DANGER OF ELABORATED APPEALS IS THE DANGER OF THE DEVELOPMENT OF A CORPUS OF CASE LAW. THIS IS DEMONSTRATED MOST CLEARLY BY THE UK ARRANGEMENTS: EVERY DETERMINATION BY AN ADJUDICATOR OR THE TRIBUNAL CREATES NEW ARGUMENTS IN FUTURE CASES, ALL OF WHICH HAS TO BE CARRIED FORWARD IN INSTRUCTIONS TO STAFF MAKING SCREENING DECISIONS. THIS PROCESS GREATLY COMPLICATES THE DECISION-MAKING PROCESS AND IS ONE OF THE PRINCIPAL FACTORS WHY IT NOW TAKES US ABOUT 60 PER CWENT LONGER TO REACH
AN IMMIGRATION DECISION THAN THREE YEARS AGO.
(IV)
INVOLVEMENT OF NON-GOVERNMENTAL ORGANISATIONS. HONG KONG WILL FACE PRESSURE FOR UNHCR OR OTHER NON-GOVERNMENT REPRESENTATION ON A PANEL TO DECIDE THE APPEAL. THIS I WOULD AVOID AT ALL COSTS. THE SYSTEM WOULD BECOME UNWIELDY VERY QUICKLY AND THE NUMBER OF APPLICANTS WOULD OVERWHELM ANY SYSTEM WITH UNACCEPTABLY LONG DELAYS BEFORE THE APPEAL COULD BE LISTED. APART FROM THIS, PARICIPATION OF UNHCR OR OTHER AGENCIES IN THE DECISION-MAKING PROCESS HAS BEEN SHOWN TO RESULT IN AN ARTIFICIALLY HIGH RECOGNITION RATE OF REFUGEES (BELGIUM, FOR EXAMPLE, HAS RECENTLY ABANDONED UNHCR PARTICIPATION IN THE ACTUAL PROCESS). THE HARD FACT IS THAT AGENCIES INVOLVED IN REFUGEE
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