Mark Symes and Peter Jorro, of the Garden Court Chambers Immigration Team, are doing three FREE 90-minute seminars to celebrate the launch of their Second Edition Immigration Appeals and Remedies Handbook.
The following blog post is by Mark Symes.
My Garden Court colleague Peter Jorro and I spent some months recently working on the 2nd edition of our book: Symes and Jorro Immigration Appeals and Remedies Handbook. Pete and I first worked together at the Refugee Legal Centre in the 1990s; over time we have both specialised in all aspects of immigration appeals and judicial review work.
We’ve learned a lot during our joint half-century of arguing points of law and this book is our contribution to the casework of our many colleagues in the immigration legal world. As Upper Tribunal President Lane kindly puts it in his generous Foreword: “An invaluable work for all who practice in the field of immigration law”; lending his voice to the opinion of his predecessor Mr Justice McCloskey, who wrote of the first edition that it was “Invaluable…to the armoury of all…a compulsory addition to the library of every immigration judge and practitioner”.
To bring attention to the new 2nd edition we are speaking together at three sessions dealing with various aspects of modern appeals work. Delegates will get the chance to ask any questions of their own about current issues in immigration proceedings. Essentially we will cover three of the main areas of interest: appeals in the First-tier Tribunal, appeals and JRs in the Upper Tribunal, and remote hearings. You can see the detailed programme here.
In our first session this week, covering the First-tier Tribunal, we will look at a few of the areas which have developed since the first edition (published April 2015). In our careers, we’ve seen first instance appeals in all their incarnations: hearings before Adjudicators, Special Adjudicators, the Appellate Authority, the Asylum and Immigration Tribunal, and eventually the current First-tier Tribunal Immigration and Asylum Chamber.
We have now lived with the modern rights and grounds of appeal for more than half a decade. The era of the one-stop appeal seems largely past (though it lives on in the Upper Tribunal due to the set-up of Part 5 of the NIAA 2002). Where issues have not been considered in a Home Office refusal letter, the provisions addressing “new matters” require the SSHD's consent for further issues to be raised, even including the birth of a child if the possibility was not ventilated in the underlying application. The grounds of appeal are distinctly narrower than their predecessors, limited as they are to Refugee and Human Rights Convention issues only. The “not in accordance with the law” ground of appeal, sometimes a valuable remedy for imperfectly considered cases, has been missed. It might be thought that it would remain available as an operative part of the ECHR Art 8 enquiry, but that possibility has not so far taken root.
The burden of proof might be thought a simple issue. But it can switch between the parties and is particularly complex where the general refusal reasons are in play, where the SSHD must first raise a prima facie case of dishonesty or poor immigration history which, if an Appellant discharges their own onus to put forward an adequate explanation, then puts the burden back upon the decision-maker. The doctrine of “he who asserts must prove” is another complication. So too must the SSHD prove facts that are particularly within her own knowledge, such as the precise reasons underlying why an application was deemed invalid.
We have long had two different systems for appeals involving EEA issues: back in 2015 appeals generally arose under the NIAA 2002, thereafter increasingly only under the EEA Regs 2016 as the modern system kicked in. EU law will cast its long shadow over future appeals for a long time to come: not only is there a significant backlog of conventional appeals under the EEA Regs 2016, but “Citizens Rights” appeals are moving through the system involving challenges to settled and pre-settled status decisions. These appeals are reminiscent of the old-style NIAA 2002 system with its web of immigration decisions and diverse grounds of appeal, including EU law grounds based on the Withdrawal Agreement itself.
Over time differing views have been expressed as to whether the FTT should ever adopt an inquisitorial approach to what can often seem like hard-fought adversarial proceedings. The higher courts have sometimes spoken of an inquisitorial aspect to the process and at times the need to secure the best interests of the child, an integral part of the ECHR Art 8 exercise, has been seen as extending to the Tribunal's own pursuit of critical information. Another vexed issue has been disclosure: the UT’s perception of the ambit of the SSHD's duty to disclose information has varied over time, and notwithstanding that First-tier Tribunal appeals are in one sense an aspect of public law, there is currently a distinction seen between the SSHD's disclosure obligations in statutory appeals vis-á-vis judicial review claims.
Anyway, the taster above will hopefully whet your appetite for our upcoming talks, and, better still from our perspective, encourage you to invest in the book.