ANALYSIS: The Immigration Bill suggests no change is planned in the secrecy surrounding the refugee appeals process, argues Carol Coulter
THOSE INVOLVED in the refugee system, including both those representing asylum seekers and certain members of the Refugee Appeals Tribunal, have for a number of years been seeking information on how it reaches its decision, statistics about these decisions, and the publication of rulings. At least two cases on these subjects went the whole way to the Supreme Court, with the tribunal resisting the release of information all the way, and ultimately losing in that court.
The first of these was A & Ors v the Refugee Appeals Tribunal, where eight applicants sought information on previous relevant decisions of the tribunal. This was refused and they challenged the refusal in the High Court in 2005.
Mr Justice McMenamin said in his judgment that the position of the tribunal was "unique in the common law world" and "cannot accord with the principles of natural and constitutional justice, fairness of procedure or equality of arms having regard to the importance and significance of the issues to the applicants which fall to be determined in this quasi judicial process".
He also pointed to European Court of Human Rights jurisprudence which states that judgment "shall be pronounced publicly", including in quasi-judicial proceedings like these.
The tribunal appealed this decision to the Supreme Court, which upheld the High Court decision in July 2006. Meanwhile, in March of that year, three asylum seekers went to the High Court seeking a reassignment of their cases to another tribunal member on the grounds that the record of the member to whom they had been assigned, James Nicholson, was such as to lead to a perception of bias. They produced affidavits from refugee law solicitors who said he never, in their experience, allowed an appeal, and sought statistics on his record from the tribunal.
The tribunal refused to give out such statistics, and the matter went to the Supreme Court, which ruled that the statistics and other documents should be provided. The asylum seekers obtained an order for discovery of the relevant documents. Instead of complying with the order and proceeding with the case, last December the tribunal settled by reassigning the cases.
The new Immigration Bill attempts to take into account these binding court decisions in relation to the body replacing the tribunal, the Protection Review Tribunal, but seeks to combine this with maintaining the greatest degree of secrecy possible.
In Section 95 it states that protection applicants may apply to the tribunal chairperson for the provision of "any decision of the tribunal which is legally relevant to his or her appeal".
If the chairperson is satisfied that the request is reasonable and that there is such a relevant decision, he or she will make it available to the applicant. If there is more than one such decision, "a representative sample of such decisions" will be provided. It will be a matter for the chairperson as to how this decision or decisions will be made available or published.
However, subsection 8 of this section makes it clear that publication may not take place at all, and indeed that publication of such decisions could be an offence.
It provides for the Minister for Justice, Equality and Law Reform to make regulations concerning the making available or publication of decisions. The limitations on publication that could be contained in these regulations include requiring the applicant or his or her legal representative to give an undertaking that it will only be used in the preparation of the case, and will not be published. Organisations (such as the Refugee Legal Service) to which such decisions are provided may also be asked for such an undertaking, including that the decisions will not be given legal representatives or researchers not involved in the case, and that they will not be published.
In case there is any doubt of the intention of keeping access to the decisions as restricted as possible, subsection 9 states: "Where regulations made under subsection 8 provide for an undertaking or condition of the kind referred to in paragraph (b) or (d) of that subsection, it shall be an offence to fail to comply with such an undertaking or condition."
This means that any lawyer representing an applicant who receives a relevant previous tribunal decision will be guilty of an offence if he or she shows this decision to a journalist, a researcher or, indeed, to a colleague.
If a body such as the Refugee Legal Service, whose lawyers handle the majority of appeals to the tribunal, receives a number of such decisions in the course of its collective work, it will be guilty of an offence if it conducts comparative research on these decisions. Again, colleagues within the service cannot share information that may be of use to their clients.
On the other hand, one of the most bizarre provisions of this Bill is that a lawyer representing an asylum applicant is obliged to bring to the attention of the tribunal any previous decision he or she is aware of that undermines the position of the client - that is, to argue against his own case.
It is difficult to see how these provisions accord with the jurisprudence of the European Court of Human Rights on the publication of the decisions of quasi-judicial bodies and on fair procedures.
• Carol Coulteris Legal Affairs Editor