The Civil Justice Council Report on the impact of COVID-19 on Civil Court Users was published last week. It highlights the limitations on the delivery of civil justice via remote hearings. In light of that, the Garden Court Immigration Team has been continuing its strategic thinking on fair preparation of appeals. This briefing reflects on the temporary changes to the Immigration and Asylum Chamber of the First-tier and Upper Tribunals, in the context of statutory appeals and judicial reviews, and reflects on the practical issues facing immigration advisors and representatives.
Overview of the procedural changes
The Pilot Practice Direction
On 19 March 2020, the Senior President of the Tribunals, Sir Ernest Ryder, published a new pilot practice direction, Contingency Arrangements in the First-tier and the Upper Tribunal, pursuant to section 2 of the Tribunals, Courts and Enforcement Act 2007.
It has been issued initially on a provisional basis of six months, although it may be reviewed or indeed revoked, at any time, should it become inappropriate or unnecessary. It applies generally across all chambers of the First-tier and Upper Tribunals.
The key points are:
- Decisions on papers without a hearing – where a Chamber’s procedure rule allows for decisions on the papers, these appear to be encouraged, subject to three caveats: (i) the overriding objective; (ii) the relevant procedure rules on notice and consent; and (iii) most importantly, the parties’ rights protected by the ECHR;
- Triage – all jurisdictions are being encouraged to triage their caseload, and to try, where possible, to make decisions on papers.
- Hearings – where it is reasonably practicable and in accordance with the overriding objective, hearings should be heard remotely. Provision is also made for hearings in a party’s absence, where a party fails to attend without an application to adjourn made in advance.
- General impact of COVID-19 on compliance issues: Tribunals are to have regard to the impact of COVID-19 when considering applications for extensions of time for compliance with directions and the postponement of hearings, insofar as is compatible with the effective administration of justice.
The First-tier Tribunal
On 23 March 2020, the President of the FtT, Mr Clements, published the Presidential Practice Statement Note 1 of 2020: Arrangements During the COVID-19 Arrangements During the COVID-19 Pandemic. It shall remain in force for as long as the general Pilot Practice Direction remains in force, unless it is revoked or amended at an earlier date.
As a result, with the exception of HR/EEA appeals, all appeals to the First-tier Tribunal must be commenced using the online procedure unless it is not possible to do so. If an appellant cannot commence an appeal using the online procedure, they can file an appeal in the usual way, but need to give reasons at the same time, explaining why it has not been possible to do so. This will be important for those who are unable to access stable internet connection or are unrepresented. In those cases, the Tribunal may give onward case management directions on how best the appeal can proceed, including without a hearing.
In addition, the 2014 Tribunal Procedure rules have been amended by the Tribunal (Procedure) (Coronavirus) (Amendment) Rules 2020. A new rule 4A has been inserted into the Rules, which empowers the FtT to make a decision which disposes of proceedings without a hearing where:
- The matter is urgent;
- It is not reasonably practicable for there to be a hearing (including a remote hearing by telephone or video); and
- It is in the interests of justice to do so.
In addition, provision is made for widening of circumstances when hearings may be held in private (new rule 27(2A)) and recording of remote hearings (new rule 27A).
On 15 April 2020, the Tribunals Judiciary published a short document, ‘Help for users,’ setting out the main operational updates for the First-tier Tribunal. This is available on the judiciary.uk website here. It is likely these pages will be updated regularly, so users should keep an eye out for any updates or changes.
The present position is:
- All substantive appeals have been adjourned to a date to be fixed and standard directions have been issued for Case Management Reviews with a view to facilitating remote hearings where applicable in due course;
- Work is being carried out to expand the online digital process introduced nationally before the pandemic for protection and revocation appeals to all new appeals as quickly as possible. Further updates will be provided as new appeal types are introduced.
- Bail is being listed as normal remotely, either by telephone or video conference. In a bid to avoid unnecessary hearings, FtT Judges are issuing ‘minded to grant’ notices, where applicable.
Many practitioners will be receiving new directions and notices from hearing centres. Practice may vary depending on the specific case, or particular hearing centre, but broadly include:
- Representatives to provide contact details to the Tribunal, including mobiles and whether they have Skype for Business (aka Microsoft Teams). Nb. Skype for Business is a premium subscription service, that differs from ordinary free Skype accounts. It may nevertheless be helpful to provide any Skype details to the Tribunal, in the event that an invite can be sent from the FtT;
- Any witness statement and evidence the Appellant wishes to rely on, as well as an Appeal Skeleton Argument, to be served in advance;
- The Respondent to then state their position in response to the Appellant’s skeleton argument;
- Where the Respondent does not respond to the Appellant’s Skeleton Argument, the FtT will assume the Respondent does not take issue with the submissions;
- The parties to make submissions on whether a hearing is necessary.
The Upper Tribunal
On 23 March 2020, the Upper Tribunal President, Mr Justice Lane, published the Presidential Guidance Note 1 of 2020: Arrangements During the COVID-19 Pandemic.
The most significant change is the change to error of law decisions without hearings, which to date, many practitioners have received ‘Note with Directions’ from the Upper Tribunal, indicating that errors of law will be suitable for decision on the papers. Key issues to give thought to are whether an error of law hearing can fairly proceed, and to what extent will oral argument assist. Oral argument can often prove the time to confront perceived weakness in a case, and to counter them, as described in Wasif v SSHD  EWCA Civ 82.
For reconsideration hearings, much of the same thinking will apply as for FtT appeals, in terms of the feasibility of a remote hearing. The Presidential Guidance acknowledges at §30:
“If it is decided that, in a case where a hearing is necessary in order to make a particular decision, there is a particular reason why a remote hearing would not be appropriate, the parties will be so informed. In such a situation, arrangements will be made for the case to proceed by means of a face to face hearing in court, with appropriate precautions to prevent the transmission of Covid-19. Where no such precautions are practicable, the case will be adjourned; but the position will be reviewed from time to time, as may be necessary.”
Remote hearings present serious challenges to access to justice. It goes without saying that international protection appeals require the highest standards of procedural fairness, but there have been hard-fought gains to protect the fundamental right to a fair hearing in the broader immigration field, which cannot be undermined now by temporary measures.
In Kiaire and Byndloss v SSHD  UKSC 42, the Supreme Court recognised [§76], in the context of human rights appeals against deportation, that for appeals to be effective they would need at least to be afforded the opportunity to give live evidence. In ‘deport first, appeal later’ context, the Court acknowledged that the giving of evidence on screen is not optimum [§67]. Indeed, the limitations of evidence by video link is one of the considerations which the Tribunal must consider when determining if an out-of-country appeal can lawfully be determined: see AJ (s 94B Kiarie and Byndloss questions) Nigeria  UKUT 0015 (IAC).
Against that context, practitioners need to be vigilant that COVID-19 does not present the opportunity for ‘mission creep,’ at the cost of basic rights of fairness.
Garden Court Chambers contributed to a rapid civil justice consultation on the impact of COVID-19 measures, which you can read here.
Key findings from the Civil Justice Council’s Report on the impact of COVID-19 on court users include:
- Technical difficulties during hearings impacted almost half of the respondents, and more so when the hearing was conducted via video, as opposed to phone;
- Remote hearings are more likely to be appropriate for interlocutory or non-contested hearings;
- Court users feel that remote hearings are worse than in person hearings and less effective;
- Remote hearings may not be cheaper to participate in – contrary to assumptions that the relative costs would be lower;
- Participants found remote hearings more tiring;
- Remote hearings present challenges for lay parties and litigants in persons. Those problems would be amplified if more vulnerable parties were required to participate remotely.
Preparation and effective participation
Preparation of appeals is obviously significantly impacted by COVID-19. On a basic level, many representatives are unable to attend their offices or are working remotely, in order to socially distance. That impacts both the ability to host attendances, building trust and rapport with clients, and practically assembling evidence.
The Helen Bamber Foundation and Freedom from Torture have jointly published an important and timely paper, ‘The Courts, Tribunals and the COVID-19 Public Health Crisis – Interim recommendation on safeguarding vulnerable people in the context of remote international protection and human trafficking/modern slavery legal casework’. Although their paper is aimed at the judiciary, as well as the Legal Aid Agency and HMCTS, it is an excellent resource for all those preparing or acting in these appeals.
Key points made include:
- Remote means of communication – including emails, instant messaging, telephone calls and video conferencing – can be more tiring than in-person meetings. This should be borne in mind both in terms of expectations on legal professionals working on these appeals, but also importantly, for vulnerable appellants, witnesses and interpreters. Presentation and performance may be impacted, a point already identified by the Joint Presidential Guidance Note 2 of 2010.
- Remote hearings and interviews also reduce opportunities to identify when a person is struggling to participate effectively, because visual cues and full body language cues are reduced.
- When decisions get to the Tribunal or the Court, the first question should be, was the decision procedurally fair? Did the applicant have the opportunity to submit all the evidence that they required before a decision was taken? Was there a difficulty in preparing or obtaining evidence due to circumstances beyond their control e.g. ability to instruct an expert, ability to obtain translation/interpretation services? Was it possible to build up sufficient trust and rapport for a client to disclose traumatic events to a representative?
- Requests for extensions of time should be allowed – where standard timelines are not complied with due to COVID-19, these should be looked upon favourably. The Senior President of Tribunals Practice Direction supports this.
- Careful consideration should be given as to whether statutory appeals can fairly proceed – this includes the personal circumstances of the Appellants and witnesses. Many of those appearing in the Immigration and Asylum Chamber will be survivors of torture, trafficking and other forms of severe abuse. Power imbalances are likely to be amplified during remote hearings. The lack of appropriate technology, internet access, and private space for many appellants and witnesses in this jurisdiction means that they will not be able to participate effectively in a remote appeal hearing because they will not have a secure and stable connection to the hearing centre or an area which allows for appropriate privacy to ensure that they can see and hear other participants in the hearing at all times and not have the hearing be overheard by others. Risks of traumatisation may be increased. Such issues should be flagged at the case management stage, and fed back to the judiciary, either to seek an adjournment or further time for preparation.
COVID-19 also may impact on the ability to obtain expert evidence. Some medico-legal providers have indicated that their clinicians are undertaking remote assessments at this time, either through urgent desk-based reviews or telephone/video assessments. The Royal College of Psychiatrists has also published guidance on COVID-19 and remote consultations. The guidance recognises that:
“It remains the case that these consultations are limited and those with lack of digital literacy or no access to digital platforms must not be disadvantaged, nor should those who are unconfident about using the technology. Use of telephone consultations, rather than more complex video platforms may be sufficient for lower risk conversations or to ensure engagement with those who lack digital technology or skills.”
Where representatives do instruct an expert remotely to undertake an assessment, the RCP guidance provides helpful thinking in terms of preparing clients for such assessment, by checking digital literacy, access to stable internet, privacy and adequate safeguarding issues. Similar challenges are faced by other experts who usually undertake in person assessments, such as a social workers and nationality experts.
It would assist all parties if the Tribunal made greater use of its power to give indications of ‘provisional views,’ as that would materially shape how parties respond in submissions to whether hearings, remote or otherwise, are necessary. As the courts and tribunals are getting to grips to an unprecedented change in their working practices, it is inevitable that changes will need to be reviewed or modified, and lessons learned.
Revised thinking on ‘Appeal Skeleton Arguments?’
At the start of lockdown, many practitioners reported receiving directions to prepare Appeal Skeleton Arguments, in line with the ‘reform online procedure’. That, together with the funding implications, compounded by the changes to the fixed fee regime prompted many immigration barristers to adopt a position that they could not accept these instructions, unless specific provision for that work to be adequately remunerated, save in exceptional circumstances. You can read Garden Court Immigration Team’s position here.
In the last week or so, several practitioners report receiving different or amended versions from the Tribunal, which refer to there being some ‘confusion’ about the reference to skeleton arguments, and what is required is a summary of the issues in dispute. Whether this is change that will be rolled out across all hearing centres remains to be seen. There is a need for the sort of robust case management that was identified by the Court of Appeal in AM (Afghanistan) v Secretary of State for the Home Department  EWCA Civ 1123, whereby the Home Office ought to seriously review and triage decisions prior to the appeal hearing. All too often, indefensible decisions are maintained up to the day, and on the day of hearing, only for the submissions of the SSHD to be limited to ‘reliance on the Refusal Letter.’
The Garden Court immigration team stand ready to help in these cases.