The system which handles appeals against the Home Office’s asylum and immigration decisions looks set, once again, to be overhauled. If enacted, Part 1 of the Immigration and Asylum Bill would replace the existing First-tier Tribunal (Immigration and Asylum chamber) (FTIAC) with a new body known as the Independent Immigration Appeals Authority (IIAA) (clause 1). The existing jurisdictions of the FTIAC would be transferred to the IIAA meaning that, among other things, it would decide appeals against protection and human rights decisions (here, asylum appeals), immigration bail applications, challenges to citizenship deprivation and cases concerned with the application of the EU Citizen Resettlement schemes (clause 1(2)).

The reform is being promoted by the Home Secretary, Shabana Mahmood, as a common-sense response to the substantial backlog in the FTIAC. It is no secret that FTIAC is struggling to keep up with a growing case load. (The causes of which have been usefully analysed by Luca Rizzotti & Joe Tomlinson.) The result is that, in June 2026 more than 120,000 asylum appellants were awaiting a decision and parties are waiting 61 weeks, on average, for a resolution.

Broadening the Recruitment Pool

The new IIAA is pitched as a solution to this problem. In a significant shift, its adjudicators would be drawn from a wider recruitment pool than the experienced lawyers presently qualified to sit as FTIAC judges. In the new IIAA, legal experience would be a mandatory prerequisite of the appointment of ‘senior adjudicators’ (clause 2(6) and (8)) whose expertise, Mahmood says, would be utilised in cases in which it was necessary. Crucially, however, the bulk of the IIAA’s case load would be handled by ‘executive adjudicators’ who need not have any background in law (clause 2(6)). By removing adjudication from the exclusive province of lawyers, it is said, the IIAA would be able to provide a more rapid and flexible response to ‘increasing and changing demand.’

The proposal to replace the existing legally qualified FTIAC judges with a new and broader group of adjudicators is attracting resistance. Both the Immigration Law Practitioners’ Association (ILPA) and the Bar Council have expressed opposition. To these concerns, Mahmood has responded:

            To those who say such decisions can only be taken by a judge I need only point to the complex and weighty decisions taken, each and every day, by those without law degrees such as magistrates, parole board members, ombudsman, planning inspectors, and many others. You don’t have to be a judge to have good judgement.

These remarks are provocative, perhaps deliberately so. Their implication is that resistance from the legal sector stems from a lawyerly sense of superiority: the belief that good judgement can be exercised only by those with a law degree.

More problematically, Mahmood’s remarks duck the real issue. Namely, whether it is plausible to think that a new body of non-legally qualified adjudicators could be recruited and trained to a rigorous enough standard that they are able to take on the jurisdictions currently exercised by the FTIAC by late 2027 (as the Government presently proposes). It is worth highlighting how legally demanding this work is. The largest part of the FTIAC’s case load is asylum appeals. Determining these cases requires a detailed understanding of a multi-layered body of law which is both highly complex and dynamic. Given the importance of what is at stake, FTIAC judges are also required to undertake anxious scrutiny of the issues (Bugdaycay v Secretary of State for the Home Department [197] AC 514 (HL), 531), adhere to the ‘highest standards of procedural fairness’ (AM (Afghanistan) v Secretary of State for the Home Department [2017] EWCA Civ 1123, [2018] 4 W.LR. 78, [21) and, of their own initiative, identify and consider ‘obvious’ points of human rights law on which the appellant has not sought to rely (R. v Secretary of State for the Home Department, ex parte Robinson [1998] QB 929 (CA)). As noted above, FTIAC also exercises a range of other jurisdictions, each of which is characterised by its own legal complexities. Across the board FTIAC work requires the careful deployment of, what Ross Cranston, calls ‘judgecraft’: ‘the practical skills used on a daily basis as judges produce written orders, conduct hearings, find facts, make decisions, give their reasons in judgments, and perhaps provide leadership’ (see Judging (OUP 2025), chapter 5). The exercise of good ‘judgecraft’ is particularly important, and also challenging, in the FTIAC context given that appellants are frequently vulnerable and/or unrepresented by lawyers.

To brush aside the concerns of bodies like the ILPA and the Bar Council on the basis that non-lawyers can exercise good judgment therefore dodges the issue. What these organisations are highlighting is the sheer enormity of what, practically, would need to go into building the new IIAA system if it is to function remotely well. Recruitment, training, mentoring and the division of labour between senior and executive adjudicators would all need to be handled with the utmost care. If they were not, the result would be mistakes, poor quality decisions and the collapse of the Government’s rationale for creating the IIAA in the first place. Far from enabling the swifter handling of appeals, the reform would serve simply to shift the backlogs and delays into other parts of the adjudicative system, especially the Upper Tribunal, which would be tasked with determining appeals on points of law from decisions of the new IIAA (clause 7).

All of this begs the question of why the Home Secretary is presenting Parliament with this particular Bill. If the core policy aim is to broaden the recruitment pool for first-instance adjudicators this could be achieved with relative ease within the existing FTIAC structure. Working with the present system would, furthermore have very significant practical advantages. In particular, it would facilitate transition by retaining existing FTIAC judges and enable their experience to be utilised in the mentorship and training of new, non-legally trained, decision-makers.  

Asylum appeals and the Home Office: rewiring the relationship

It is at this point that we arrive at a much more fundamental problem with the Bill: it is not really a proposal to simply enable non-lawyers to act as adjudicators. What, at heart, it is asking Parliament to do is authorise the creation of a wholly new first-instance adjudicative body with a very different relationship with the Home Office than the existing FTIAC. The new IIAA, if the Bill is enacted, would be subject to the influence of the Home Secretary – and, it is worth stressing, all future Home Secretaries – in new, highly meaningful, and problematic, ways.

Three aspects of the Bill are particularly worth drawing out. First, if enacted the Bill would give the Home Secretary the power to appoint the officials who sit at the apex of the IIAA. In the first instance, she would appoint the four most senior officials: the Chair and Chief Executive (who would need not have any particular qualifications) and the Professional Standards Officer (PSO) and Chief Appeals Officer (CAO) (who would be required to have legal experience) (clause 2(1)-(3)). Once the IIAA was established, future Chief Executives and CAOs would be appointed by the Chair, in consultation with the PSO (clause 2(4)). This would be a significant shift from current practice, which is that the FTIAC’s senior official, the chamber president, is appointed by the Senior President of Tribunals.

Granting these powers to the Home Secretary would enable her to indirectly, but very meaningfully, influence the practices and ethos of the new IIAA. Between them, the four officials at the apex of the IIAA would exercise a range of important practical functions including appointing adjudicators (clause 2(5)), constituting the Procedure Rules Board (clause 5) and enacting the IIAA’s Procedure Rules (clause 4). Less tangibly, but in many ways more importantly, the apex officials would play significant roles in shaping the ethos of the organisation. That is, apex officials would have a strong influence on the culture in which adjudicators would carry out their work.

Secondly, and relatedly, clause 1(5)(c) of the Bill would place IIAA officials under a duty, in the exercise of their functions, to ‘have regard to the public interest, and in particular to the fact that the IIAA operates as a key part of the immigration and asylum system.’ At first sight, the language of this clause might seem to be so abstract as to make it wholly innocuous. This, however, is precisely the problem. There is no legally fixed meaning of what ‘public interest’ requires of the ‘immigration and asylum system.’ The objectives of the system, rather, are framed by the Home Secretary of the day. The practical effect of clause 1(5)(c) would therefore be to require IIAA officials – when performing important tasks such as enacting Procedure Rules, articulating practice directions, listing appeals, etc – to ‘have regard’ to how the Home Office currently understands what it means to promote the public interest in the immigration and asylum system.

Thirdly and finally, buried deep in the Schedules of the Bill is a short provision which says simply that:

          (1) The Secretary of State may provide financial assistance to the IIAA.

          (2) Financial assistance under this paragraph may be provided subject to conditions.

 The Explanatory Notes to the Bill explain that the purpose of this provision is to locate responsibility for funding the IIAA within the Home Office, as sponsoring department. This, again, would constitute a substantial shift from existing practice (which is that the FTIAC, as part of the broader tribunals structure, is funded by the Ministry of Justice) and would enable the Home Secretary to exercise considerable influence over the new IIAA. Particularly concerning is the proposal to allow the Home Secretary to impose conditions on financing. This power would open up the, far from unimaginable, possibility that a Home Secretary may seek to make funding conditional on targets of a kind which would improperly interfere with the IIAA’s ability to dedicate the time and resources needed to deliver effective justice in individual cases.

A final remark worth making is that several features of the Bill seek to obscure the extent to which the Home Secretary would exercise influence over the IIAA. As Hleb Buziuk put it in a recent insightful blog post, the Bill seeks to make the IIAA ‘independent by assertion.’ To that end, the Bill gives the new body the title ‘Independent Immigration Appeals Authority.’ Clause 1, furthermore, would require the IIAA to ‘aim to be… independent’ and Ministers of the Crown to ‘uphold the independence of the IIAA’ in particular by refraining from ‘seek[ing] to influence particular decisions… through… special access to IIAA adjudicators.’ Independence, however, is a matter of substance (not form) and of degree (not categorisation). The Bill’s repeated gestures to the importance of independence should not obscure the reality which is that this is a request to Parliament to hand the FTIAC’s jurisdictions to a body which would, in very meaningful and practical ways, be subject to the influence of Home Secretaries.

By way of conclusion, it is worth stressing that Part 1 of the Bill is directed towards a very real problem. Namely, the FTIAC’s backlog and its broader struggles to manage a highly fluctuating case law. There is a very real debate to be had about whether broadening the recruitment pool from which FTIAC judges are presently drawn can be part of a solution and, if so, whether that could best be facilitated through reforms to the existing tribunal structure. What is most important, however, is that debates about the virtues and vices of extending adjudication beyond the province of lawyers do not distract parliamentarians and commentators from seeing this Bill for what it really is. Namely, a request to Parliament to statutorily rewire the existing asylum and immigration appeals system and its relationship with the Home Office.

Joanna Bell, University of Oxford

Suggested citation: J. Bell, ‘The Immigration and Asylum Bill (Part 1): a proposal to rewire the relationship between asylum appeals and the Home Office’, U.K. Const. L. Blog (26th August 2026) (available at https://ukconstitutionallaw.org/))