Immigration: rule of law concerns raised over UK asylum appeals plan
The Home Office headquarters in Westminster, London. Alex Segre - stock.adobe.com
The UK government is set to establish a new independent body within the Home Office to determine asylum appeals. The changes are aimed at reducing a large case backlog. According to the Migration Observatory, approximately 80,000 asylum appeals were pending at the appeals court at the end of 2025.
The proposals – included in the recently tabled Immigration and Asylum Bill – would replace the First-Tier Tribunal (Immigration and Asylum Chamber) with the Independent Immigration Appeals Authority. The government has indicated that decisions made by the body could still be reviewed by a higher court if there is a suspected error on a legal basis.
The plans to restructure the asylum appeals process have prompted the Bar Council of England and Wales and lawmakers in the House of Lords – including a former Court of Appeal judge – to raise rule of law concerns related to due process and independent decision-making. ‘The Bar Council warns that having adjudicators with no legal qualification deciding appeals increases the risk of material legal error in the decisions made,’ the organisation says.
The government says the body would be staffed by ‘independent appointed adjudicators’ who will have a broad range of skills and backgrounds, ‘with safeguards to ensure the highest standards.’ The Secretary of State would initially appoint the senior management of the panel, including the Chief Appeals Officer and the Chief Executive.
Ian McDougall, an officer of the IBA Rule of Law Forum, says the ability of individuals to appeal decisions made by the body to a higher court represents an important safeguard against its perceived non-independence. However, the additional cost required for an appeal undermines access to justice. ‘If you make it more difficult for people to access the remedy they are after then you’re weakening the rule of law,’ he says.
If an individual’s removed to a country where they fear persecution, it’s imperative that the necessary time and care’s taken to ensure the decision was fair
Zeena Luchowa
Partner, Laura Devine Immigration
Zeena Luchowa, a partner at Laura Devine Immigration, says it is important to contextualise the right for individuals to challenge a decision by the appeals body with the inadequate access to legal aid that exists for individuals. ‘There are already capacity issues for those who wish to access legal support. A new system may lead to additional work and further challenges,’ she says.
The UN Refugee Agency has called on the government to ensure it upholds the rule of law and maintains the fairness, efficiency and integrity of the asylum system in the creation of the new appeals body. The UN agency says improvement by the Home Office to the quality of decision-making in the first instance ‘is the most effective means of reducing unnecessary appeals, and, in turn, minimising pressure on the appellate bodies.’
The quality of initial decision-making by the Home Office is a known major issue. A report published by the Independent Chief Inspector of Borders and Immigration in June found that over 75 per cent of asylum cases were being decided without sufficient evidence and that quality targets for both interviews and decisions had not been met by key decision-making units for two years. Nicolas Rollason, the Head of Business Immigration at Kingsley Napley, says the government must raise the standard of initial decision making by the Home Office rather than introduce measures to overhaul the asylum appeals system. ‘Often these cases are conceded on day one in court by Home Office officials because they realise they can’t defend their decision,’ he says.
The Home Office told Global Insight: ‘Our new independent appeals body will ensure claims are heard swiftly, put a stop to repeated bogus appeals, and speed up the removal of foreign criminals and failed asylum seekers. Those with a legitimate claim will get a fair and independent hearing. Those found to have no right to be in this country will be swiftly removed.’
A spokesperson for the department added, in response to the report by the Chief Inspector of Borders and Immigration, that its findings are based on a sample of 47 asylum cases and its own assessment of nearly 4,000 cases ‘shows 97% of decisions are considered correct’.
Another concern raised by lawmakers over the proposed creation of the appeals body is the lack of legal qualifications required for the independent adjudicators. The government states in the Immigration and Asylum Bill that only senior adjudicators, the Professional Standards Officer, the Chief Executive and Chief Appeals Officer will need legal qualifications. It is not clear how many senior adjudicators will be appointed to the panel.
McDougall believes that the decision to appoint non-legal professionals to the appeals body isn’t necessarily a rule of law issue but stresses that these individuals must be given appropriate legal direction. The government says the Chief Appeals Officer will be responsible for overseeing the quality of decisions made by the adjudicators. They must be legally qualified in the UK and have practised law for at least five years.
Luchowa says the plan for the adjudicators in the appeals body to operate similarly to a magistrate is misguided because it doesn’t account for the complexities of immigration law. ‘It would be incorrect to assume that an appeals process from a different area of law can and should be adopted for immigration; immigration requirements and process change frequently – it’s often seen as a reactive area of law,’ she says.
Luchowa adds that the priority of the appeals body shouldn’t be speed, but the quality of decisions made. ‘In a case where an individual is removed to a country where they fear that they will face persecution, it is imperative that the necessary time and care is taken to ensure the decision was fair and correct as the consequences of getting this wrong could be life-endangering.’