Immigration Tribunal Appeals - A Practical Guide (4)
We recently examined in parts one, two and three of this practical guide how and on what basis you might lodge an immigration appeal. We have examined both legal and practical considerations. In this fourth post we examine other practical considerations for the presentation of an immigration appeal.
The factors and considerations below cannot be considered an exhaustive list. The approach to an appeal will depend on the individual facts and circumstances. There are practical considerations. You may need to seek specialist legal advice as the presentation of an immigration appeal will be different depending on the issues and available evidence.
Active Case Management in Immigration Appeals
There is likely to be active case management of your case, particularly with the new MyHMCTS system we reviewed in our earlier post. Active case management can lead to the making of direction to the parties, the conduct of pre-hearing reviews, or the listing of case management review hearings, which can take place in person, by video conferencing or telephone.
The purpose of active case management is to give effect to the overriding objective to deal with cases fairly and justly, which the parties must help the Immigration Tribunal to further.
It is wise to make use of the Immigration Tribunal’s active case management of appeal, to ensure that there are no unnecessary adjournment applications. If for example, you are likely to rely on and have instructed an expert, you will want to ensure the Immigration Tribunal is aware, as this will impact on any listing of an appeal.
Failure to comply could have implications in terms of costs.
It is of vital importance that the Immigration Tribunal are fully updated as to any change in contact details as notices or directions can be served in a variety of ways and will rely on the latest details on the file.
Anonymity in Immigration Appeals
At the time of lodging an immigration appeal consideration may need to be given to an application for an anonymity order. An application can be made at the time of lodging the immigration appeal and anytime thereafter. Asylum appeals are usually automatically anonymised. The Presidential Guidance Note No 2 of 2011: Anonymity Directions in the FtT(IAC) offers guidance on this matter.
It is important to consider particularly where there is particularly sensitive information relating to a person that could become apparent during the appeal process.
Special Measures in Immigration Appeals
In advance of any immigration appeal hearing, you will need to consider what perhaps if an interpreter is required, and if so what dialect.
You will need to consider if anyone giving evidence needs special arrangements to do so. You may wish to consider any additional needs for a vulnerable or a child witness. You may need to consider whether there should be a preliminary argument as to whether a witness should be treated as a vulnerable one. We examined in our earlier post what may make an appellant or witness vulnerable.
Expert Evidence in Immigration Appeals
You may wish to consider whether expert evidence is required in support of your arguments in the immigration appeal, for example an country expert report if your protection claim has been refused or an independent social worker’s report if your appeal involves arguments as to the best interests of a child, or whether it is reasonable to expect a child to leave the UK.
Experts have specific duties when it comes to preparing reports and giving their expert option. You will need to ensure they have all relevant material and that they are aware of the scope of their report.
Video Links in Immigration Appeals
It is possible to apply for witnesses or an Appellant to give evidence via video link and certainly more hearings took place during the height of the Pandemic using cloud based technology.
If evidence is to be given by video link, there are practical considerations such as an Appellant’s access to technology and where the evidence will be given from.
It is important to consider where a witness is in the world, which jurisdiction, as this may have practical and legal implications. There is guidance given in the case of Nare (evidence by electronic means) Zimbabwe [2011] UKUT 00443.
When Will the Appeal Determination be Received?
You are unlikely to get your immigration appeal decision on the day of the hearing as judgment is usually reserved. A notice of the decision including written reasons and a notification as to an onward right of appeal is promulgated thereafter and provided to each party by the Immigration Tribunal. If you are legally represented, it would usually be provided to your legal representative on record with the Immigration Tribunal.
The Immigration Tribunal may give a decision orally at a hearing, but the timeframe to exercise an onward right of appeal will only commence once written reasons for the decision are sent to the relevant party.
After I Receive My Immigration Appeal Decision
If your immigration appeal is allowed or dismissed, the relevant party may be in a position to challenge this. You may wish to seek specialist legal advice if your appeal is dismissed or there is a further challenge.
We will examine onward appeal rights and fresh applications in further posts.
Contact our Immigration Appeal Barristers
For expert advice and assistance in relation to an immigration appeal please contact our immigration appeal barristers in London on 0203 617 9173 or via the enquiry form below.
This article was co-written by Alexandra Pease and Alex Papasotiriou.
