Black Women’s Rape Action Project and Women Against Rape have assisted rape survivors at many appeal hearings: preparing expert reports; attending as expert witnesses; accompanying women to support them at the hearing. From our experience, court procedures fall far below the standard considered acceptable in criminal or other civil courts. For example, women regularly arrive at their hearing to find it has been adjourned without notification or is unable to proceed because either there is no interpreter, or a male interpreter or an interpreter speaking the wrong language has been provided or because the Home Office Presenting Officer has not turned up.

We have also witnessed appalling sexism, racism and discrimination: at one hearing, we had to literally run into the court to stop proceedings when a severely traumatized rape survivor broke down under brutal cross-examination (see further example below). At another hearing before the same Adjudicator, a witness was cross-examined about his ability to speak English and then told by the Adjudicator that he should contact DVLC to have his driving license withdrawn because he didn’t speak English well enough.

It is widely known, although not publicly discussed, that the fate of asylum seekers is dependent on a lottery: what treatment each receives at her/his appeal hearing depends largely on which Adjudicator hears the case. In our experience, Adjudicators' lack of accountability is rarely challenged by legal representatives, although they read the court lists with baited breath to see which Adjudicator will be allocated to their client.

Adjudicators who are clearly biased and hostile are not fit to judge any case and should be reported and sacked. Procedures should make it easier for appellants to object to biased treatment and request that their case be heard by a suitable person.

The other major obstacle women face in getting a fair hearing is that of careless and even hostile legal representation. We continually find that women have been badly advised or represented by their lawyers who have been careless and negligent and have not bothered to establish all the facts of the case; have taken money from them but done nothing; have not commissioned the necessary specialist reports; have missed crucial deadlines; not ensured interpretation is available, etc. Since asylum claims often involve matters of life or death, we believe that the IAA has a responsibility to provide a fair hearing, rather than ignoring the publicly acknowledged problems with poor representation. We strongly oppose any changes to the current procedures which make it even more difficult to redress the problems caused by bad legal representation. The public must be confident that Adjudicators’ decisions reflect the merits of each individual’s case, not the quality of their legal representation.

Instead of addressing the far-reaching and entrenched discrimination in the current legislation and procedures, the Lord Chancellor's Department's proposals would further restrict the ability of asylum seekers to make their case. We are strongly opposed to these proposals as they undermine the right to protection for those fleeing torture and persecution, including rape and other sexual violence. The priority, once again, seems to be to facilitate the deportation of asylum seekers rather than to make it possible for each applicant to thoroughly present the facts of her/his case.

1. The proposed amendment at Section 37, para (4) says that "the appellate authority shall not consider any evidence which is not served in accordance with time limits unless the appellate authority is satisfied that there are good reasons to do so." As this amendment acknowledges, there are sometimes good reasons for why evidence is submitted to the court late, but this must not be left to an Adjudicator’s discretion. The Immigration Rules must direct Adjudicators that included in these "good reasons" is the difficulty of reporting rape. It is widely acknowledged that because rape is such an intensely personal and traumatic violation, it is extremely difficult for women to speak about it to anyone, especially to men in positions of authority who may be reminiscent of the rapists. The stigma, the unsympathetic, brutal and sometimes violent response from communities (and even from families) that women face as rape survivors present a very real threat and deter women from disclosing what has happened. It is not uncommon for women to be unable to disclose rape for many years after the event.

Before being referred to us, most women have been unable to give full details of the violence they experienced. The precedent established in the case of R v SSHD ex parte Ejon (QBD 1998 INLR95) accepted the findings of our report, which confirmed that the victim was "unable" rather than "unwilling" to speak about rape previously. Once women report rape, however late in the appeal process, they must be allowed time and a sympathetic environment in which to report what has happened and to get evidence about it and its impact on their lives. Failure to allow adjournments and sufficient time to gather this evidence would contravene both UNHCR guidelines and the IAA’s own Asylum Gender Guidelines. For Adjudicators to press ahead with hearings without this evidence is a denial of natural justice and would inevitably lead to appeal.

2. We oppose the amendment proposed in Section 11 (2) which "raises the test for variation in grounds of appeal to the Appellate Authority and the Tribunal". This means that once the grounds for an appeal are submitted, these could not be added to later, unless the applicant can show "special circumstances". Again, Adjudicators must be given direction as to what should be considered "special circumstances". As we have already pointed out, it is often only very late that women speak about rape. Disclosure of rape always makes a substantive difference to the asylum claim, and should therefore ALWAYS be regarded as a "special circumstance" for variation in grounds of appeal.

In relation to the proposed amendments, poor representation must be included in both "Good reasons" for late disclosure and "Special circumstances" to modify grounds for appeal.

3. We also oppose the amendment at Section 12 (1), rule 13, rule 15, rule 20(2) and rule 25, rule 30(3) and rule 31(4) which says that documents will not have to be served on both the representative and the appellant, but only on the appellant. Even though the proposal says that in practice the papers will continue to be served on both, a provision which allows for them not to be is extremely dangerous and totally unjustifiable, for the following reasons:

• Asylum seekers usually only have temporary accommodation and mail may be sent to an old address. If the letter arrives they may not understand it, especially when English is not their first language and they may not speak or read it. They may not be able to contact their lawyer quickly, even if they do the lawyer may not answer their call promptly, and they are unlikely to know the significance of legal technicalities like deadlines for appealing. Not understanding the significance of the letter can have disastrous consequences, especially because of the very limited time allowed for submission of appeals to the IAA and the IAT (12 working days).
• Rape survivors are particularly vulnerable if documents (such as determinations of appeals) are only sent to their home address. Women often have not told family members, particularly husbands about what has happened to them for fear of their reaction. A woman must have the choice if she only wants documents to go to her lawyer and not be sent to her home. Her safety may be at stake.
• Lawyers must take responsibility for keeping up with the legal deadlines of the case. That is their job. Not to send them the relevant documents relieves them of any responsibility and encourages the very negligence we and many others have complained about.

Information must continue to go to both the asylum seeker and their legal representative.

What follows is just one example of how badly rape survivors are treated by the IAA:

Black Women’s Rape Action Project
Women Against Rape

23 November 2001

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