Robert Thomas, Administrative Justice and Asylum Appeals: A Study of Tribunal Adjudication, Oxford: Hart Publishing, 2011, 342 pp, pb £50.00.
| Author | Rayner Thwaites |
| DOI | http://doi.org/10.1111/j.1468-2230.2012.00920.x |
| Date | 01 July 2012 |
| Published date | 01 July 2012 |
REVIEWS
Robert Thomas,Administrative Justice and Asylum Appeals: A Study of
Tribunal Adjudication, Oxford: Hart Publishing, 2011, 342 pp, pb £50.00.
This excellent work offers both a study of the asylum appeals system in the
United Kingdom and a contribution to the broader stream of scholarship on
administrative justice.As a particular ised study of asylum appeals in the United
Kingdom, the book is a highly readable account of the realities of such appeals
up to the time of writing, May 2010. It successfully performs the difficult
double act of providing both an engaging introduction to the system’s opera-
tion and considered detail and analysis of interest to those familiar with the
jurisdiction.
In its second, more general, aspect,the work is in the tradition of administrative
law as institutional design. In 1999,T. G. Ison, cautioning against the promotion
of general principles as ‘panaceas’ to the problems of the administrative state
wrote:‘What then is the best approach? I believe that the public interest is better
served if “administrative justice” is perceived, not as a subject on its own, and not
as a rationale for some controlling overlordship,but as a body of thought that can
be drawn on in the design of a particular system, such as income tax, social
security, the regulation of road transport, or occupational health.’(‘“Administra-
tive Justice”: Is it Such a Good Idea?’ in M. Harris and M. Partington (eds),
Administrative Justice in the 21st Century (Hart, 1999) 21,33) Thomas endorses this
characterisation of administrative justice (12), mindful of the inherent difficulties
and peculiarities of asylum appeals. The two aspects of the work, as a study of a
substantive area and as a contribution to the literature on administrative justice,
are interdependent.Thomas outlines the various sources of influence on asylum
appeals: the legal framework, the bureaucratic goals and methods, the political
pressures and the resourcing constraints. The study is grounded in empirical
research on the appeals process undertaken in the period 2007–9, centrally the
observation of 182 appeal hearings, 84 per cent of which were initial appeals
against refusal decisions. This was supplemented by interviews with some the
main actors involved in the appeals process: immigration judges, representatives,
country experts and others. It evidently, and extensively, draws on a much longer
period of engagement with, and scholarship on, asylum appeals.
Thomas’s inquiry concentrates on the quality of an administrative-legal
process. His concern is how best to accommodate the four ‘core values’ he
identifies as criteria for the quality of such a process: ‘its propensity to make
accurate decisions; the fairness of the procedures by which decisions are made;
the resources needed to fund the decision process;and the timeliness of decision-
making’ (12–13). Considerations of timeliness and resourcing inevitably exert a
marked influence on the system’s design and operation, and need to be factored
into an assessment of it. Further, the inclusion of ‘managerial’ as well as ‘justice’
criteria is necessar y to keep both the collective interest in policy implementation
and individual justice concerns in view. Thomas details the inevitable trade-offs
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© 2012The Authors.The Modern Law Review © 2012 The Modern Law Review Limited. (2012) 75(4) MLR 674–696
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between these core values, showing how these trade-offs inform every facet of
the appeal system’s design and operation.The guiding aspiration is not a perfect
system in the sense that ‘every claimant so entitled is granted asylum irrespective
of the costs imposed or the time taken’, but of a system ‘able to produce good
quality decisions with the limited funds available and subject to the time limits
imposed’ (283).
While Thomas eschews any express position on the broader politics,the work
is imbued with the awareness that the position of most applicants is‘an unhappy
and precarious one’ (30).Those who fear persecution and ill-treatment are, in a
perverse sense, the lucky ones as they have a good claim to asylum, while
persecution and ill-treatment are only some of the risks that applicants face on
return (30–31).
The administrative justice literature informs Thomas’s central argument,
namely that there is a need to shed the assumption that administration and
adjudication must be kept ‘wholly separate and distinct’ (293). Against such a
separation, he argues for the recognition of adjudication, or at least adjudication
by tribunals (which can substitute their own decision for that of the original
decision-maker), as a form of policy implementation. This character isation of
tribunal adjudication reflects the view, newly prominent with the 2007–8 tribu-
nal reforms in the United Kingdom, that tribunal decisions are part of the
‘delivery chain’ by which policy is implemented (10). Resistance to this charac-
terisation on the grounds that it threatens tribunal independence is misguided,
Thomas argues, since it fails to appreciate that a body can be independent and still
part of the broader policy process, in the sense that it can substitute its own
decision according to rules which embody particular policy goals (9).
The argument that adjudication constitutes a form of policy implementation
reads at times as an exercise in taking adjudication off its pedestal, at least in its
adversarial, court-centric, form. But Thomas does not deprecate adjudication.
The interest of his argument lies in the conjunction of his characterisation of
tribunal adjudication as a form of policy implementation with his appreciation of
the values of adjudication. He is clear that, for as long as we remain committed
to an individualised determination of status there will be no real alternative to
adjudication. But rather than adopt a tone of resignation, he is something of a
champion of adjudication’s virtues. He argues that difficulties that beset the
asylum appeals process are best addressed through institutional innovation, with
a particular focus on the need to remodel adjudication. The arguments for
institutional innovation are coupled with a clear affirmation of adjudication’s
merits, central among which is the way adjudication enables individuals to
participate in the implementation of government policy.
The first three chapters of the book frame the study,respectively providing a
general introduction, an outline of the nature and structure of asylum decision-
making, and an account of the resources needed to support good asylum
decision-making and the contribution of adjudication to this end. Thomas
conveys well the intractable difficulties encountered when deciding if a claimant
is entitled to refugee status. He juxtaposes the importance of accuracy to any
assessment of the quality of decision-making with the difficulty of determining
whether or not a decision was ‘accurate’. In the overwhelming majority of cases,
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© 2012 TheAuthors. The Modern Law Review © 2012The Modern Law Review Limited. 675
(2012) 75(4) MLR 674–696
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