Staying powers

Immigration tribunal judges reverse at least half of the decisions made by the Home Office. It follows that the closure of all but a few hearing centres due to the pandemic is having a disproportionate effect on appellants – asylum-seekers and other migrants who are often among the most vulnerable in society.

The First-tier Tribunal of the Immigration and Asylum Chamber (FTT) hears appeals against decisions by the Home Office on permission to stay in the UK, deportation from the UK, or clearance to enter the country.

As Mark Symes, an immigration barrister at Garden Court Chambers (GCC), observes: ‘Immigration appeals generally involve issues of great personal importance. They determine whether a vulnerable child or parent can join family in the UK, or whether an asylum seeker will be recognised as a refugee, or whether serious accusations about a person’s good character or honesty will bring to an end a lengthy period of lawful residence that would otherwise have led to settlement here.’

But why is the Home Office seemingly indifferent to this grim record? Adrian Berry, chair of the Immigration Law Practitioners’ Association (ILPA), cites the lack of ‘a proper costs regime’, which disincentivises the department from paying ‘more attention to making better decisions in the first place’.

Then, of course, there is the government’s broad stance on immigration and asylum policy.

Immigration appeals generally involve issues of great personal importance. They determine whether a vulnerable child or parent can join family in the UK

Mark Symes, Garden Court Chambers

An independent review of the Windrush scandal, commissioned in 2018 by the then home secretary Sajid Javid and led by constabulary inspector Wendy Williams, recommended that the Home Office ‘undertake a full review and evaluation of the hostile/compliant environment policy and measures – individually and cumulatively’.

The report, published in March, noted how ‘the term “hostile environment” has been controversial in the department, and in time it has been “softened” to become the “compliant environment”’, suggesting a change in semantics rather than a true change of approach.

Cases heard by the FTT – mainly appeals on human rights, refugee status or European Union law grounds – reflect the focus of government policy. Berry, also a barrister at GCC, says that these ‘are all things that the Home Office are taking a particular stance on’ and ‘sometimes they are effectively throwing the ball over to the judges.

‘The Home Office end up losing and they blame the judges for applying the law, which is very unfair,’ Berry adds.

The number of appeals has been declining since the Immigration Act 2014, which reduced rights of appeal from 17 to just four. The FTT received around 44,000 cases in 2018/19, compared with nearly 92,000 and 105,000 in 2014/15 and 2013/14, respectively.

Instead, a right of administrative review (AR) was introduced, consisting of an internal review by the Home Office of an application’s refusal. The percentage of successful ARs is low: 3.4% and 6.8% respectively for ‘in-country’ and ‘at the border’ decisions, according to the latest data from the Independent Chief Inspector of Borders and Immigration. For overseas AR decisions, 21% of decisions were overturned when challenged.

The pandemic has put these and other failings under the spotlight. The start of the lockdown on 24 March meant that all appeal hearings listed for March, April and May were adjourned and converted to case management review hearings (CMRH), to be held via telephone or Skype ‘in all but exceptional circumstances’. The CMRHs were to determine whether a remote hearing or a decision without a hearing would be appropriate for each adjourned appeal.

In a six-month ‘pilot practice direction’ issued on 19 March, Sir Ernest Ryder, the senior president of tribunals, said: ‘The normal arrangement in all tribunals is now remote hearings and decision-making online or by telephone conferencing, video or Skype.’

Chris Cole, a partner and head of immigration at Parker Rhodes Hickmotts in Rotherham, says: ‘The main impact is delay, with effectively all cases having been adjourned until the end of May – and beyond most likely.’

Diana Baxter, a partner at Wesley Gryk Solicitors concurs, adding: ‘A limited number of more straightforward cases may be suitable for online management and hearings but, more likely, given the current circumstances under which both appellants are residing and representatives are working, a large proportion may well need to be adjourned until social distancing rules are relaxed.’

Since appellants’ grounds for appeal were reduced by the 2014 act, most appeals now relate to ‘complex’ protection and human rights issues, Baxter explains.

‘Persevering with virtual hearings in such complex cases, and where appellants, witnesses and representatives may be restricted to environments that are not conducive to this, raises a real risk of miscarriages of justice with long-lasting effects,’ she warns.

Writing to FTT president Michael Clements on 27 March, bar chair Amanda Pinto QC described the new arrangements as ‘unworkable’.

‘We are very concerned as to how any hearings which require live evidence can be conducted remotely. The current assumption appears to be that all hearings can be conducted remotely, whereas in reality very few that require live evidence to be taken can fairly be done this way,’ Pinto said. ‘A witness’s ability to join remotely from home would be dependent on the person having the technology and understanding to do so, and raises the possibility of contamination of the evidence and breaches of confidentiality.’

Who pays for skeletons?

‘One would need a tech-savvy client who had a safe, secure and confidential place where they could communicate with us,’ says Cole. ‘Most clients live in shared [National Asylum Support Service] accommodation, without access to free Wi-Fi and precious limited data on their mobiles that is used for keeping in touch with home or such like.

‘And there is usually the added difficulty of using an interpreter remotely.’

There are adverse consequences for lawyers, too. ‘We are deeply concerned that the tribunal is now requiring a skeleton argument in all cases in advance of the appeal,’ said Pinto in her letter, written on behalf of 14 chambers. ‘If the Home Office withdraw the decision, or an appeal is successful without a hearing, there is no provision in publicly funded cases for counsel to be paid for the skeleton argument.’

‘I have spent today drafting one of those documents and who knows how that will be funded,’ says Berry, adding: ‘Clements has replied by saying that you have to look at the Legal Aid Agency if you want to get paid for a skeleton argument, but [the HMCTS and the LAA] are both limbs of the state. It is all very well changing practice direction or [issuing] new guidance, but if there is no expectation that people are going to get paid for doing the work, how realistic is it?’

Berry argues that this highlights ‘the problem with transparency and communication in the coronavirus crisis’.

Solicitors have similar concerns. Writing to the LAA on 24 April, a group of 217 immigration practitioners said that the changes to the immigration and asylum tribunal procedure ‘risk driving many law firms out of business’ and ‘will result in many more appellants appearing before the FTT unrepresented’.

The new arrangements ‘have fundamentally changed the manner in which appeals must now be prepared to a “front-loaded” model, with no funding under the current legal aid funding regime’, the UK Immigration Advisors Working Group told the LAA.

This stems from the online digital process being rolled out more widely in response to the pandemic. As Adrian Seelhoff of A.Seelhoff Solicitors, notes: ‘It has brought us to more of a crunch point with the HMCTS reform programme for appeals.’

 The Home Office process for reconsideration needs to be transparent, and it needs to be clearly identifiable and real

Muhunthan Paramesvaran, partner, Wilson Solicitors

A practice statement issued by Clements on 23 March mandates all appeals to the FTT (except for human rights and European Economic Area cases) to be lodged by using ‘the online procedure’ based on the directions issued to the firms taking part in the ‘reform online pilot’.

According to the immigration practitioners who wrote to the LAA, this involves uploading detailed witness statements, a ‘bespoke country information bundle’ and a full ‘appeal skeleton argument’ to the online portal within 28 days of receiving the ‘bulk’ CMRH directions.

These stages are mandatory before an appeal can proceed to review by the Home Office. Practitioners countered that in normal times the 28-day requirement would be ‘an insuperable challenge’, but in the current climate of social distancing, staff furloughs and lockdown, ‘it is impossible’.

‘It is unfortunate that over the past 17 months, during which the pilot was being trialled, there were no corresponding discussions between HMCTS, the LAA and stakeholders on how the scheme would operate and be funded,’ said the practitioners.

A pilot digital service and a set of pilot directions were launched in January 2019 at Taylor House (the main immigration hearing centre in London) and Manchester’s hearing centre. Six law firms submitted protection and revocation of protection appeals electronically to HMCTS and the Home Office. It was expected that through ‘effective case management’ by tribunal caseworkers, the number of cases requiring a hearing would fall.

In his letter to stakeholders on 17 April, Clements encouraged ‘all practitioners to register for the [core case data (CCD)] platform’. This case management system, developed internally by the Ministry of Justice, underpins the civil, family and tribunal reform programme. In a subsequent letter on 21 April, Clements said he had decided that, where possible, all appeals would commence using this platform ‘with effect from 4 May 2020, or such later date’ if various legal aid-related issues have not been resolved.

Clements was due to publish a new practice statement by 24 April, but this was delayed pending resolution of the legal aid issue.

Updating legal aid

On 3 April, the LAA and the Ministry of Justice stated their intention to ‘align legal aid fees for First-tier Tribunal immigration and asylum appeals with HMCTS’ move to an online system for these cases’. This requires changing legal aid regulations.

Tamana Aziz, a director and solicitor at Duncan Lewis, asks: ‘How can we work remotely and comply with the directions?’ She explains that not all the documents needed for the appeal are available online. ‘My junior solicitor was in the office today, trying to prepare the bundle, by turning it into a PDF [file] to send to the tribunal.’

Another challenge is meeting the new deadlines for sending the bundle and skeleton arguments. Aziz explains that before coronavirus, the skeleton argument was usually served on the day of the hearing and the bundle a week before.

‘We launched three adjournment applications last week [alone] because we can’t comply with [the] deadline,’ says Aziz, adding that the lockdown makes it much harder to obtain statements from appellants and witnesses, as well as expert evidence.

Aziz explains that the rationale behind the requirement is ‘to give the opportunity to the Home Office to review your case’ and ‘then decide whether they want to concede or go ahead.’

Clements said: ‘I am aware that the Home Office wishes to review cases in the light of the evidence appellants wish to rely upon, with a view to making a realistic assessment of the merits of the decision giving rise to the appeal. This too is positive.’

Muhunthan Paramesvaran, a partner at Wilson Solicitors and a member of the Law Society Immigration Committee, warns that ‘the Home Office process for reconsideration needs to be transparent, and it needs to be clearly identifiable and real. Obviously, no one wants to go to court if there is a chance that the case can be reconsidered or withdrawn with a view to a positive decision, ideally from our clients’ point of view, but there needs to be a meaningful process’.

‘The latest directions from the First-tier Tribunal envisage the parties having to agree issues before every hearing,’ Symes explains. ‘Historically, it has often been very difficult for representatives to engage meaningfully with the Home Office outside of the actual hearing process.

‘One has the impression that cases are usually allocated to the presenting officers only shortly before the hearing date’ and ‘in most cases it is only on the day of the hearing that any meaningful discussion can proceed’, says Symes, who suggests this may be down to ‘limited’ resources.

Symes says that ‘the ambition of the new procedures, to encourage some narrowing of the issues in dispute, is welcome’, and ‘the proposed exchange of pleadings in the pre-hearing process that the new standard directions envisage should assist greatly’. But he voices a concern about ‘whether the Home Office is adequately resourced to engage with these new procedures’.

The new arrangements in the Upper Tribunal of the Immigration and Asylum Chamber (UTIAC), which has cancelled all listed hearings, have also met with criticism from practitioners.

The chamber handles appeals against decisions made by the FTT on the basis of an ‘error of law’ and applications for judicial review of the Home Office’s decisions. It reviews all cases that have been granted permission to appeal, with the presumption that ‘error of law’ cases can be decided without hearings.

‘It is my understanding that the UTIAC intends to provisionally decide whether a case can be heard on the papers,’ says Paramesvaran. But he adds that while ‘in the error of law jurisdiction, the oral hearing is a very valuable tool’, these kinds of appeal do not usually require new evidence and so are ‘prime cases for being heard remotely by counsel, the judge and the Home Office’.

‘We are surprised that that has not been put forward to date,’ Paramesvaran says. Since 29 April, the chamber has been accepting all judicial review applications, including non-urgent ones, by email. Meanwhile, bail applications for people in immigration detention continue to be heard ‘successfully’ by video or through the BT Meet Me conferencing telephone call system, according to the tribunal.

The disruption is both accelerating trends and exposing weaknesses in the system. Cole says: ‘The lockdown is focusing minds and forcing the IAC to embrace technology and find more modern ways of working. This was already happening to an extent with the reform programme within the [FTT].’

But Cole contends that ‘it has always been problematic in the IAC to utilise any sort of technology, even playing different media such as CDs, DVDs and YouTube, has been almost impossible.

‘The Kiarie & Byndloss litigation has highlighted the difficulties in the IAC taking evidence by video link, let alone holding a complete remote hearing,’ says Cole, adding: ‘The IAC appears to be behind the curve with the use of online technologies and is really having to play catch-up.’

Clements sought to reassure users that ‘however a case is commenced, there will be active dialogue between the Tribunal and the parties to establish precisely what is needed to bring the appeal to completion, whether by means of a decision on the papers, a remote hearing using the Cloud Video Platform being introduced across all jurisdictions, or face-to-face hearing.

‘The Tribunal is ready to engage constructively with you in each appeal, in the light of the particular circumstances of the case. I know that judges will respond pragmatically to requests for extensions of time, or for particular directions to enable appeals to progress,’ he said.

During the lockdown, Aziz has found judges are more willing to grant extensions of time and to liaise directly with lawyers if ‘you have got a direct email for the judge.

‘Judges are sitting at home, they are free and they’d love to have a hearing because they want to work, but the problem is getting [hold of] the administrative staff,’ she says. Only ‘a small dedicated skeleton administrative staff’ are working at the FTT.

Aziz recounts how an immigration judge ‘was happy to make a decision’ on a judicial review case ‘on Good Friday, as long as we had access to our emails’.

But no amount of goodwill can prevent significant long-term disruption: ‘Delay, especially with human rights and entry clearance appeals, has been a longstanding problem with the tribunals that will only be exacerbated by this latest crisis,’ Baxter says.

‘This leaves appellants in limbo about their immigration status, with repercussions for their ability to work, rent, open a bank account, and access healthcare while their case remains pending.’

Symes highlights two main short-term problems, with possible long-term repercussions for clients and practitioners. The first is that ‘migrant appellants, many of whom inhabit the world of freelance work and zero-hour contracts, are among those worst affected by the Covid-19 pandemic. So they may struggle to afford the expense of proceeding with their immigration appeal over the lockdown period’.

The second is that ‘the new appeals directions propose additional case management steps which will not have been within the work originally contemplated when the fees were agreed for representing on appeal’, he says.

‘That work will have to be funded: either by lawyers taking a hit on fees (predominantly small law firms from BAME backgrounds) or by litigants shelling out even more money than they originally expected, when their income has never been so pressurised,’ Symes concludes.

Even before they were hit by the lockdown, practitioners were under significant strain. Paramesvaran says: ‘There is a general lack of insight into the way solicitors have to prepare appeals to deadlines and the general multitude of pressures they are under. These [issues] are exacerbated by this crisis.’

Taylor House has very small rooms, it is very hard to maintain proper social distancing in there

Adrian Berry, chair of the Immigration Law Practitioners’ Association and barrister at Garden Court Chambers

What lies ahead?

The main question now is how quickly judges will be able to go through the backlog of cases, as restrictions are unlikely to be lifted any time soon. ‘It all depends on how they can create an environment where social distancing can be maintained,’ says Berry.

He says that one aspect of immigration tribunals is that, unlike courts, rooms are small: ‘Taylor House has very small rooms, it is very hard to maintain proper social distancing in [there].’  

If social distancing measures are to be maintained ‘a decision will need to be taken as to what extent the tribunals need to function for the proper maintenance of the rule of law’, says Baxter. She argues that ‘a greater proportion of those working within the judicial system may need to be designated key workers to allow for proper, ongoing access to justice’.

While the case backlog will increase, the question is by how much. ‘You are talking about thousands of hearings that have been adjourned. How can they clear that backlog? It is going to take a year at least,’ says Aziz.

The FTT’s outstanding caseload was 19,000 at the end of December 2019. The mean time to clear appeals across all categories was 30 weeks – a reduction of nine weeks from October to December 2018.

In May last year, the Home Office dropped its six-month service standard for asylum applications ‘to concentrate on cases with acute vulnerability and those in receipt of the greatest level of support, including unaccompanied asylum-seeking children’.

Introduced in 2014, the standard aimed to process 98% of straightforward asylum claims within six months. Seelhoff notes that this decision ‘increased the backlog of the Home Office for asylum decisions by about 50% over a nine-month period, so we know that there are more cases building up waiting for decision now.

‘The pinch point is going to be Home Office capacity to make decisions, as much as it will be tribunal capacity to lift the appeals,’ he says. ‘It is a very strange and complex time and there are a lot of factors.’

‘The delays will continue and the backlog of unresolved appeals will increase,’ Cole predicts. ‘I find it hard to believe that the Immigration and Asylum Chamber will find a way to have fully contested remote hearings within the next month or two. Also, it is very likely that, even if some do take place, there will be further litigation from the losing party, who will argue that they have not had a fair hearing.

‘It is a difficult proposition for the IAC. It is totally understandable that the IAC wants to try to deal with some appeals, but this must not be forced upon appellants in a manner that could lead to unfair proceedings.’

 

Marialuisa Taddia is a freelance journalist