First Fundamental Review of the First-tier Tribunal (IAC)
HM Courts and Tribunals Service have recently published their findings from a Fundamental Review of the First-Tier Immigration and Asylum Chamber. This has been conducted differently to previous reviews, having been undertaken by both the judicial and administrative arms of the First Tier Tribunal (IAC)
Previous reviews of the Immigration Appellate Authority and the Asylum and Immigration Tribunal have focused upon four themes: (1) decision making and determination of appeals, (2) case management, (3) listing, and (4) compliance with directions. In this review, these were once again identified as the areas which would have the biggest impact upon a more effective and efficient delivery of justice for all parties involved.
The Fundamental Review recommends the use of “Structured Decision Making” for both oral and written judgments as is practised in, notably, the Employment Tribunal and supported for all jurisdictions by the Judicial College. This is a methodological order of dealing with issues, linked with the ability to incorporate other documents by reference, rather than by citing them in detail in the body of the decision. Where appropriate, full oral reasoned judgments are recommended with a record of the decision (without reasons) to follow, stating the outcome and any costs awards, with a right for parties to apply for a transcript of the judgment and, where required, the full proceedings.
While recognising that a cultural change would be required in order to reduce adjournments and postponements of hearings, the review group recommends the introduction of a pre-hearing reply process for all asylum and in-country appeals leading to identification of whether a case management review hearing would be needed on all case types. The broad concept is that an appellant would prepare a full appeal bundle which would be passed to the Home Office to consider and decide whether to contest the appeal before the appeal is listed. However, concerns have been expressed by the Immigration Law Practitioner’s Association that this could lead to delays in the resolution of appeals while the Home Office ‘sits on the appeal bundles’.
The review group found no evidence that there had been any improvement to the quality and efficiency of determinations as a result of the current listing points system, introduced following the conclusions of the reviews in 2007. In recommending replacing the current listing system with a system of “effective listing”, the review group proposes that time spent writing up would be more accurately accounted for by way of case managed time estimates tailored to the particular case (to include time for an oral reasoned judgment where appropriate) rather than a conglomerate list. A further recommendation is to move away from listing all appeals at 10am to individually timed cases listed in a day and to consider, albeit with caution, allocating more cases to float lists.
The introduction of new powers in the procedural rules to drive better compliance with judicial directions by having cost awards or strike out powers is also recommended, together with the use of an enhanced case management review process and judicial/administrative monitoring to better ensure compliance with directions and reduce the volume of adjournments and postponements.
The report of the review group was written prior to the announcement in the Queen’s speech of a new Immigration Bill which suggests that the future work of the FtT(IAC) will focus more heavily on appeals relating to international protection and human rights issues, which are more complex in terms of being “fact-heavy” and raising multiple legal issues. Nonetheless, if the recommendations are implemented as envisaged, not only is there expected to be a monetary saving made even with a decreasing work load for the current judiciary, but users of the appeals system are likely to benefit by a more efficient process.
