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Immigration Appeals and the Covid-19 Pandemic

As many readers will be aware, over the past year, the COVID-19 pandemic has caused substantial disruption to the immigration appeal process in the UK. This blog post will address the measures that have been put in place over the last year, and those currently in force.

On 19 March 2020, the Senior President of the Tribunals, Sir Ernest Ryder published a Pilot Practice Direction: Contingency Arrangements in the First-tier Tribunal and Upper Tribunal. This included a provision stating that where a Chamber’s procedure rules allowed an immigration appeal decision to be made without a hearing “decisions should usually be made in this way, provided this is in accordance with the overriding objective, the parties’ ECHR rights and the Chamber’s procedure rules about notice and consent.”

Where a hearing was necessary, when it was reasonably practicable and in accordance with the overriding objective to hear the case remotely, this should be done. Jurisdictions were also encouraged to triage their caseload. The directions also indicated a more flexible approach to late compliance with directions, stating that “Insofar as compatible with the efficient administration of justice, the tribunals will take into account the impact of the Covid-19 pandemic when considering application for the extension of time for compliance with the directions and the postponement of hearings”.

Bringing an immigration appeal

On 23 March 2020, the President of the First-tier Tribunal published the Presidential Practice Statement No 1 of 2020: Arrangements during the Covid-19 pandemic. This required that with the exception of HR/EEA appeals, all immigration appeals to the First-tier Tribunal were to be commenced using the online procedure unless it was not possible to do so.

On 11 June 2020, Presidential Practice Statement No 2 of 2020: Arrangements during the Covid-19 pandemic was published, revoking Practice Statement No 1. This required that all immigration appeals to the First-tier Tribunal be started using the reform online procedure accessed through MyHMCTS unless it is not reasonably practicable to do so. It would be deemed to not be reasonably practically to commence an appeal using this system under The Immigration (Citizens’ Rights Appeals) (EU Exit Regulations 2020), if the appellant is outside the United Kingdom or the appellant is in detention. It would further not be deemed reasonably practicable if the appellant is without representation within the meaning of s.84 of the Immigration and Asylum Act 1999, or if the Appellant’s appeal is linked to another appeal.

The Practice Statement included standard directions which would usually apply, varying depending on whether an immigration appeal was brought online using MyHMCTS, online not using MyHMCTS or when an appeal is brought without representation.

This Practice Statement No 2 remains in place. In January 2021, the First-tier Tribunal (Immigration and Asylum Chamber) User Guide – January 2021 update was published. This stated that:

“The Tribunal’s judiciary, staff, and users continue to build on their expertise with the use of remote hearing technology to maintain the administration of justice during a period of continued social distancing. Our approach will be reviewed in accordance with public health guidance in England, Wales, Scotland, and Northern Ireland recognising that restrictions may be relaxed or tightened according to circumstances.”

This guide reiterates the above requirements to lodge immigration appeals using MyHMCTS, and the circumstances when this will not apply. It further confirms that a Judge or Tribunal Caseworker will look at an immigration appeal and will either conduct a Pre-Hearing Review (PHR) or a Case Management Review Hearing (CMRH). During a PHR, the Judge or Tribunal caseworker will consider whether the immigration appeal is ready for a hearing, and during a CMRH steps will be taken to ensure that an immigration appeal is ready for a hearing. If an immigration appeal is not considered to be ready for a hearing, a Judge will issue directions. 

Mode of immigration appeal hearing 

If the immigration appeal is considered to be ready for a hearing, it will be listed as either a face to face hearing (where the Judge, parties, witnesses, representatives and interpreter attend the hearing centre), a hybrid hearing (where at least one of the attendees does not attend the hearing centre and uses remote technology, but others attend the hearing centre), or a remote hearing (where all attendees do not attend the hearing centre and use remote technology). A party will usually be given the opportunity to make representations as to any reasons that a remote hearing would not be appropriate in their circumstances.

The Tribunal Procedure (Coronavirus) (Amendment) Rules 2020 amended the 2014 Tribunal Procedure Rules. Rule 4A was inserted, which allowed the FtT to make a decision which disposes of proceedings without a hearing if:

  • The matter is urgent;
  • It is not reasonably practicable for there to be a hearing (including a hearing where the proceedings would be conducted wholly or partly as video proceedings or audio proceedings);
  • It is in the interests of justice to so. 

The Procedure Rules were further amended to allow a Tribunal to direct that a hearing be heard in private if the Tribunal directs that the proceedings are to be conducted wholly or partly as video proceedings or audio proceedings, where it is not reasonably practicable for such a hearing to be accessed in a court or tribunal venue by persons who are not parties entitled to participate in the hearing, or where a media representative is not properly able to access the proceedings remotely whilst they are taking place or such a direction is necessary to secure the proper administration of justice. In such circumstances, the Rules state that the Tribunal must direct that the hearing is recorded, if it has been directed that it will be heard in private. 

The ‘Plan for January 2021 to June 2021’

The User Guide confirms that “The Tribunal is progressing cases to final hearing and is working towards business as usual given the public health constraints.” It further confirms that the Tribunal will continue to list hearings using remote hearing technology where it is possible and desirable and in the interests of justice to do so, and in regard to face to face hearings and hybrid hearings, it is adhering to HMCTS policies and public health guidance to ensure safe use of hearing rooms and buildings. This approach will be reviewed in accordance with the public health guidance in the different parts of the United Kingdom, recognising that restrictions may be tightened or relaxed based on the circumstances.

The use of technology in First-tier Tribunal has represented a significant departure from the traditional systems in place. However, the events of the past year have accelerated steps towards digitising the appeal process, in a reform programme planned by HMCTS as early as 2016 and a pilot phase in 2019. Whilst the new system may offer benefits, a report by the Public Law Project, published in August 2020, has highlighted the need for further research into the impact on appellants who may not be able to access or benefit from the technology required for remote hearings. The question of what will constitute ‘business as usual’ after June 2021, and the long term impact of the measures put in place as a result of the pandemic, therefore remain to be seen, but it must be hoped that there will be adequate safeguards in place for appellants who cannot take advantage of the benefits offered by the online system.

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