News focus: Extra resources needed to clear legacy asylum claims backlog, judges tell MPs

The Illegal Migration Bill completed its final stages in the Commons on Wednesday. The day before, the justice select committee heard from senior judges on the practical implications of the controversial legislation for the work of the immigration and asylum tribunals.

Prime minister Rishi Sunak wants the backlog of ‘legacy’ asylum claims (claims made before 28 June 2022, when the Home Office introduced a new ‘legacy and flow’ model to improve efficiency) to be cleared by the end of this year. The backlog currently stands at just over 80,000. Can this target be achieved?

An end-to-end digital system piloted on a small scale in 2019 to reduce the number of immigration and asylum appeals was parachuted into the justice system in 2020. Applications are submitted online. Practitioners have 28 days from submitting a bundle to file an appeal skeleton argument. The Home Office then has 14 days to review the appeal and make a decision. Tribunal caseworkers manage progression of the digital bundle.

Sir Keith Lindblom, senior president of tribunals, told the committee the reformed system focuses the parties’ minds on the ‘true strengths and weaknesses’ of their case. When the system is working properly, more cases are likely to be withdrawn early, helping the backlog and improving efficiency.

'[The reforms] require the Home Office to proactively look at the detail rather than, at review stage, say “see initial decision”. It requires the Home Office, where they don’t do that, to be held to account by legal officers'

Judge Plimmer, chamber president of the first-tier tribunal

Reasonable progress is being made under the reformed system, ‘but it does depend on us having enough legal officers properly trained in sufficient numbers to manage the cases from start to finish’, Lindblom said.

Reform depends on legal officers progressing cases, but there is a resourcing issue as far as legal officers are concerned, said Judge Melanie Plimmer, chamber president of the first-tier tribunal. Judges are currently having to step into the breach and hold non-compliance hearings because legal officers do not have the time to deal with cases where parties have hit a ‘brick wall’.

Legal officers hold parties to account. The reformed system gives the Home Office a second opportunity pre-hearing to reconsider its decision, Plimmer said.

‘It requires the Home Office to proactively look at the detail rather than, at review stage, say “see initial decision”. It requires the Home Office, where they don’t do that, to be held to account by legal officers who return to them and say, “this is not a review. You’re simply relying upon the initial decision” or “you’ve not complied with directions at all, you must comply”. If those two are in place, we’re likely to see significantly increased efficiencies either through withdrawals or the narrowing of issues, so you then have shorter hearings.’

The tribunals’ resources – judiciary, administrative staff, legal officers, IT and estate – are always under pressure, Lindblom said. The Nationality and Borders Act and Illegal Migration Bill will create ‘additional pressures’.

The Illegal Migration Bill (now heading to the Lords) will see claims fast-tracked to the upper tribunal.

The upper chamber’s role and resourcing are largely directed towards appellate work. The bill would ‘reorientate’ the upper tribunal into a first-instance role, with a compulsory timescale for determination. ‘That, of course, will necessarily have its effect on the prioritisation of work,’ Lindblom said. ‘It may be that much of the work of the upper tribunal with the resources available to it will turn out to be work that is related to the new legislation.’

While the volume of work arising from the bill is unknown, ‘the judiciary will always remain willing and able to do what we can with the resources HMCTS are given’, said Mr Justice Ian Dove, chamber president of the upper tribunal.

Does the provision for first-tier tribunal judges to ‘sit up’ actually help, or create a problem in terms of the first-tier chamber’s resources? Both, Lindblom suggested: ‘You can’t have judges in two places at the same time.’

While fee-paid judges will be able to assist, ‘we need to have sufficient notice because they are, generally speaking, busy practitioners who need to then make space in their diary and know that when we book them, they will remain booked and then sit’, Dove said.

The main message coming out of the session? The tribunals will do their best, but they need more resources.

‘Without the tribunals, there would not be a fully comprehensive justice system,’ Lindblom said. ‘The tribunals provide justice, and access to justice, which the courts do not provide in a myriad of jurisdictions.’