Why I Resigned

The​ plan to ‘off-shore’ asylum seekers to Rwanda was the last straw. In May 2023, I resigned as a (part-time) immigration judge after twenty years in the job. It was less a matter of conscience, more of recognition that the role had become irrevocably tainted by the politics of asylum. For years, people coming to the UK for respite from horrors in their home countries had faced increasingly oppressive measures and an ever more hostile environment, and the judicial end of the immigration and asylum system, it seemed to me, was becoming part of the stage business in a theatre of cruelty.

The new government has abandoned the Rwanda scheme but it’s too late for me to go back to judging even if I wanted to (I don’t). I look back on those years with a mixture of pride and disgust: pride that the tribunal for the most part did justice, disgust that the laws it had to apply were becoming an impediment to justice.

The First-Tier Tribunal (Immigration and Asylum) Chamber hears appeals against decisions by the Home Office brought by people who have lost claims for international protection or had their visa applications denied. It also deals with revocations of citizenship and deportations of ‘foreign criminals’. (It does not hear cases that involve national security or terrorism issues: they go to the semi-secret Special Immigration Appeals Commission.) My task as an immigration judge was to establish the facts as best I could by assessing the evidence, and then to apply the relevant law to the facts as I found them to be in each case. As long as I applied the law correctly and gave sensible reasons for findings of fact, the decisions passed muster and were not overturned on appeal. (The losing side in asylum cases, be it the appellant or the Home Office, invariably tries to appeal again, to the Upper Tribunal.)

A typical asylum case file will include a decision letter from the Home Office, which sets out the case the claimant has made and the government’s reasons for finding that it does not meet the requirements of the Refugee Convention or the European Convention on Human Rights. More often than you might think, the cut-and-paste in the decision letter goes wrong and a claimant from, say, Iraq will be told he can safely return home to Zimbabwe. The file will also contain a Country Policy and Information Note compiled by Home Office researchers from a variety of sources. These usually give reliable and insightful information about conditions in the places that asylum claimants have come from. The Upper Tribunal also produces country guidance decisions, which review the human rights in a given country and assess whether it’s safe for people to return there. These are treated as binding on decision-makers unless or until better evidence is provided. They go out of date (many are twenty years old or more) but typically provide a comprehensive survey, for example, of evidence of the dangers faced by Sri Lankan Tamils who engage in opposition politics in the UK (2021) or the risks to activists in the Democratic Republic of Congo (2023).

An appellant who has been well served by their lawyers may additionally present an independent expert report on the country they have come from. As many claimants have suffered or witnessed violence or torture they often rely on psychiatric reports. A diagnosis of PTSD may support a claim of severe past ill-treatment. The centrepiece of the appeal hearing is usually the appellant’s own evidence. The procedure telescopes the lengthier presentation of evidence in criminal courts. The appellant normally ‘adopts’ a written witness statement, with no or few additional questions from their advocate. The Home Office representative then cross-examines. Not all the Home Office representatives I saw knew how to ask questions properly, in the way that criminal advocates at least are trained to; a few appeared motivated by intense personal dislike of the appellants, and in some cases even of the judge. They are seldom trained as lawyers or advocates, though sometimes barristers are brought in. The standard of advocacy is usually well below what would be expected in the Crown Court, where I mostly work (as a barrister, not a judge).

The process is theoretically adversarial, with each side making its own case competitively until the judge decides who wins, rather than inquisitorial, with the tribunal making its own inquiry into the truth. The reality can be rather different. Appellants in asylum and other appeals are often unrepresented. The tribunal will help them to present their case as fully as possible, in order to make a fair decision on its merits. In some cases that I heard, the quality of the representation was so poor that the appellants would have been better off without a representative. That said, there are many highly motivated and skilled lawyers who specialise in asylum law and immigration law (at the money end, typically for well-funded corporate types who want visas). Most asylum claimants come here with no more than the clothes on their backs. Legal aid exists for their representation but it fattens no cats. The asylum lawyers I know do the work because they believe it needs doing, not for the money. It is truly vocational.

To find out what an appellant’s case actually is when they are poorly represented or on their own, the judge has to intervene, without taking sides or appearing to do so. It’s a fine line. I was sometimes tempted to ask the obviously vital question that had been missed – a temptation I had to resist so as not to overstep the proper limits of judicial impartiality.

When I started, the old guard of judges – ‘immigration adjudicators’ as they were then known – included a few dinosaurs who scarcely bothered to disguise their xenophobic views. Recently and under more enlightened leadership, fairness and independence have regained their place as the pre-eminent values. The overtly or covertly racist comments I sometimes heard in the judges’ corridor would not be tolerated now. At least not by me.

I found the work fascinating. There was so much to learn about the experiences of people who had made their way here in hope of safety or a better life. It was humbling to hear what they had escaped from and how they had made it here, and what they had gone through to get here, a place of hoped-for safety. Not all asylum claimants told the truth – though many did – and we had to make fine judgments about a person who had told palpable lies: was it because their whole claim was untrue, or were they desperately adding untrue embellishments to a fundamentally truthful account? Memory holes are common with PTSD and yet the complaint that an account is ‘inconsistent’ is a reason the Home Office often gives for refusing a claim.

In asylum cases in particular, the tribunal process seems an effective and fair mechanism for correcting bad official decisions. While the Home Office, the politicians and the media obsess over numbers, the judges in the tribunal have to look individuals in the face and assess their unique stories. As a part-time judge, I was able to avoid the case-hardening that was discernible even in some of the best full-time members of the tribunal. I had room to do what judges are meant to do: apply their judgment to the evidence they receive and determine the result by impartially applying the law. The tribunal requires every decision to be written and fully reasoned, with an outline of the factual findings and an explanation of how the decision was reached. I didn’t always get it right – some of my decisions were overturned by the Upper Tribunal. But that’s par for the course for any judge.

When weighing up whether to quit or continue as a judge, I asked myself whether my own heritage, as the child and grandchild of refugees from Hitler’s Germany, was exerting an inapt emotional pull. The knowledge of what my mother and grandparents went through, with the law converted into an instrument of persecution, planted in me the belief that a proper system of justice is indispensable to a free and civilised society. Working as a criminal barrister for 38 years has taught me that a well-ordered trial process, in which the court gets all the relevant evidence (and none that’s irrelevant), can achieve just results which command respect from winners and losers – and from the world at large. The method is dialectical: opposing cases are presented and critiqued, then independently scrutinised. It’s a human construct, populated by humans, and therefore fallible and in need of constant upkeep. The method keeps the process honest.

In both the areas of law that I know, I trusted the process and trusted myself to be objective. I can leave my own feelings out of account when acting as advocate or judge. By May 2023 I no longer trusted the law that applies to asylum cases. The Rwanda scheme aside, the law had itself increasingly operated – where it operated at all – in ways that are fundamentally unfair. According to official statistics, between 2004 and 2021, about a third of asylum appeals were successful. In the last year on record, to March 2023, 53 per cent succeeded. That tells you how unreliable the initial Home Office refusal decisions were. The last government’s answer was to stop appeals happening at all. Under the paradoxically named Illegal Migration Act, which came into force in 2023, the law simply excludes anyone who has entered the UK ‘illegally’ (meaning without a visa) from claiming asylum – anyone except children, and that concession was made grudgingly after a fight. Under the act, the home secretary has a legal duty to ‘remove’ anyone who comes to the UK ‘in breach of immigration control’, by whatever mode of travel. They must then be removed to their home country or to a safe third country. The act gives the home secretary power, if not an absolute obligation, to detain all such people until they can be removed. The only exceptions are unaccompanied children under eighteen, though they can be thrown out when they turn eighteen. There is no appeal, no recourse to a second look at the Home Office’s decision.

This seems to me to be a serious attack on the rule of law as it puts the decision-making beyond any independent scrutiny by a court. The decisions are not trivial. As one of the judges who trained me in 2003 said, if you get it wrong, the appellant is at risk of being packed off ‘home’ to torture and death. It is intolerable that no one is allowed to make life and death decisions for people who happen to cross the border without a visa. Denying asylum claimants the right to an independent decision by a tribunal is the opposite of what I consider the most basic legal right. Laws that are unjust are not worth serving. An asylum and immigration tribunal that can only handle appeals by people who have entered the UK by legal means is not worth the name. How can an endangered person, surrounded by enemies, safely apply for a visa and get past the border guards at the airport?

Before the election, Keir Starmer said that he would restore appeal rights. Yvette Cooper, now home secretary, was reported last year saying she didn’t rule out off-shoring asylum cases: it just wouldn’t be to Rwanda. Recently, Starmer was said to have shown interest in the Italian government’s policy of unloading asylum seekers on Albania. No legislative proposals have followed, yet. Labour, in its manifesto, pledged to ‘go after the criminal gangs’ which bring people to the UK in small boats. A new Border Security Command will have ‘counter-terrorism style powers’. There will be more co-operation with international law enforcement. ‘Labour will turn the page and restore order to the asylum system so that it operates swiftly, firmly and fairly; and the rules are properly enforced.’ They will also ‘increase the number of safe countries that failed asylum seekers can swiftly be sent back to’. That does not mean that they will find ways to make unsafe countries safe: it means they will produce a list of countries that they say are safe.

The Rwanda Act nominated Rwanda as a safe third country. It proclaimed that ‘this Act gives effect to the judgment of Parliament that the Republic of Rwanda is a safe country … every decision-maker must conclusively treat the Republic of Rwanda as a safe country.’ No real judgment by a judge was allowed. ‘Decision-makers’ expressly include judges as well as Home Office asylum staff.

The Home Office has long had a ‘white list’ of countries it regards as safe. A person claiming they cannot return to one of them may have their claim ‘certified’ by the secretary of state, which has the effect of barring an appeal – if the certificate is upheld. Certification can be challenged by judicial review, if the home secretary’s decision is considered to have been ‘irrational’, meaning it fell outside her discretion or she failed to consider all and only the relevant issues. The policy is intended to prevent obviously meritless claims from countries with tolerable human rights records from clogging up the system. Unlike the Rwanda Act, it does not supplant judicial discretion with nonsensical, inaccurate, irreversible legislative diktat, intended to wash the UK’s hands of responsibility.

The last Labour government was not immune to legislative overreach: in a 2004 act, judges were told that specified forms of conduct by claimants obliged decision-makers to find that their credibility was ‘damaged’ – no ifs or buts. It left no room for a judge to say that a claimant who destroyed a travel document (one of the actions specified) did so for a credible reason, such as because their traffickers ordered them to. The Supreme Court did not like the provision and decided that it was necessary to understand ‘damaged’ as meaning ‘potentially damaged’, thus returning the question to the proper arena, where the judge can decide whether the claimant’s conduct affected their credibility and, if so, to what extent.

Lawyers are accustomed to necessary items of legal fiction. They are mostly harmless and sensible. No one is deceived. It is a convenience. A banal and useful example is the treatment of inanimate corporations as legal persons which have rights and obligations of their own, apart from the people who comprise or control them. The requirement that decision-makers must treat Rwanda as a safe country wasn’t just a fiction, but a piece of magical thinking. The proposition that a country is incontrovertibly safe by reason of a statement by the UK Parliament does not stand up to scrutiny. This was Alice in Wonderland stuff, except it matters in the real world. The mere prospect of going to ‘safe’ Rwanda has already caused people who ought to be able to make a proper asylum claim to go underground, or fall into the hands of modern slavers, or be triggered into psychiatric illness.

I left the tribunal with sadness. The other judges were supportive and always ready to help with tricky questions of law (and asylum and immigration law is often tricky). The work was valuable and engrossing. But there came a point.