Personal Immigration

Unacceptable delays in Tribunal appeal listing acknowledged by Senior Judiciary

Long waiting lists for the hearing of Tribunal appeals have recently become a key focal point for discussion.  Delays in listing inevitably cause added anxiety for the individuals involved and can result in families being separated for longer than they ever may have anticipated.  For some individuals there can be irreversible consequences.  

The Senior President of Tribunals’ Annual Report 2016 was recently published in February.  The report makes repeated references to the significant workload of the Tribunals and the need for reform.  

Within this report, page 34 onwards, the President of the Upper Tribunal, Immigration and Asylum Chamber, Mr Justice McCloskey reports: “The number of statutory appeals submitted to the UTIAC was expected to reduce in accordance with the reduction in work profiles for the First-tier Tribunal (“FtT”).  This reduction, however, did not materialise and receipts have remained higher than originally profiled”.  The report confirms that the number of applications for permission to appeal, where permission has been already been refused by the First-tier, remain substantial.

However, since January 2015 the “output of the Chamber in judicial review cases outstripped input for the first time since the historic transfer in November 2013”.  

The President confirms: “I continue to subscribe to the governing principles that the workloads of the Judges of this Chambers should be constantly governed by the standards of quality, expedition and fair and reasonable burden.  I consider the first of these standards is sacrosanct.  The issue of workload is, inevitably, a constant in a chambers which transacts such large volumes of work.  It is inextricably linked to the topic of judicial resources.  I am conscious that, unlike certain other chambers, we in this Chamber have no Registrars or Legal Information Officers.  We have been discussing for some time the broad subject of maximising support for Judges to enable concentration on the core judicial tasks of adjudication and decision-making”.

The President of the First-tier Tribunal, Immigration and Asylum Chamber, Judge Clements begins his report at page 74: “I begin by echoing the words of Sir Jeremy Sullivan in the foreword of last year’s Annual report of the Senior Presidents of Tribunals that “Volatile workloads, creating fluctuating pressures across the various jurisdictions are a particular characteristic of the word of Tribunals”.  Nowhere within HMCTS is this more the case than in the Immigration and Asylum Chamber.  An indication of this can be found in the figures of outstanding caseload, which in June 2015 stood at 52,991 as opposed to 43,643 one year previously and 45,043 one year before that”.

The report identifies “unacceptable delays in listing” in the third quarter of 2015.  Further hearings have been offered to try to solve this issue.  The serious problem of “boom and bust cycles” is acknowledged.  

The report continues: “in the longer term, one important element in ironing out fluctuations will be an increased facility for cross-ticketing and assignment to enable both fee-paid and salaried judicial officers to be deployed flexibly and at relatively short notice to those locations of the Judicial Family where they are most needed”.  

The report identifies the number of salaried judges lost, which have been reduced because of retirement and resignation; “the loss of an immense amount of judicial expertise and experience”.  

The report sets out the HMCTS Reform Programme with rationalisation of the Courts and Tribunals estate, a new system to deal with appeals arising out of the Supreme Court decision in The Lord Chancellor v Detention Action [2015] EWCA Civ 840, use of case management powers, increased use of information technology and it is hoped that the recording of hearings will be dealt with as part of the Reform programme.

The report acknowledges the training provided and states: “The immigration jurisdiction has always made high demands on the judiciary’s “judgecraft”.  New provisions inserted into the Nationality, Immigration and Asylum Act 2002 have substantially reduced the rights of appellants to “in country” appeal hearings.  This means that, increasingly, judges are being required to hear appeals where the appellant, having been removed from the UK, is not present in front of them.  Further, when an appellant is present, he or she may well be unrepresented.  This is of course now a widespread phenomenon throughout Courts and Tribunals, but made more difficult in the IAC by the fact that the vast majority of hearings have been conducted through interpreters”.

Running and managing the Tribunal system is not an enviable task. Hopefully some of the changes set out in the report will be implemented soon with noticeable results.  

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