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Virtually Judging Immigration Hearings

Imagine your case management hearing in the Immigration and Asylum Chamber taking place in a fully virtual courtroom, a Microsoft built prototype. Well, it is a possibility come this October. Home Office Presenting Officers or opposing counsel, Judges, HMCTS staff, your barrister and/or solicitor will all appear remotely by audio or video conference. It’s likely to be less intimidating than you might imagine: video links and telephone conference technology have been well tested in legal cases across the jurisdiction. These virtual hearings will apparently only take place where the tribunal considers that it is in the interests of justice. Unfortunately, as this is a pilot scheme, if you are chosen, you may end up being the subject of its testing phase.

What happens at CMR Hearings?

The Immigration Tribunal often arranges Case Management Review (‘CMR’) Hearings where the Immigration Judge, Appellant, his or her representative and the Secretary of State for the Home Department’s representative attend to discuss any preparations required for the hearing. While there are few of these hearings, paragraph 7.2 of the relevant Practice Direction relates their significance:

It is important that the parties and their representatives understand that a CMR hearing is a hearing in the appeal and that the appeal may be determined under the relevant Procedure Rules if a party does not appear and is not represented at that hearing.

At the end of the CMR hearing, the Tribunal will give parties any further written directions and also written confirmation of any issues that were agreed at the hearing and any concessions made at the hearing by any party.

When will it be deemed to be “in the interests of justice”?

HMCTS states, ‘We will not mandate virtual hearings – these will only take place where the court or tribunal considers that it is in the interests of justice’. Extrapolating from the Criminal law context (and section 51 of the Criminal Justice Act 2003), a court can only authorise a live link if it is in the interests of the effective or efficient administration of justice for the witness to give evidence by way of live link, which is determined by consideration of all circumstances of the case and the following non-exhaustive matters:

  • the availability of the witness;
  • the need for the witness to attend in person;
  • the importance of the witness’s evidence to the proceedings;
  • the views of the witness;
  • the suitability of the facilities at the place where the witness would give evidence through a live link;
  • whether a direction might tend to inhibit any party to the proceedings from effectively testing the witness’s evidence.

Hopefully, guidance on the the interests of justice requirement for fully virtual court hearings is forthcoming.

What services will be accessible?

HMCTS claim to be looking at interactions that currently take place before and after the hearing to make sure they are replicated and if possible, enhanced. In the February 2017 Post-consultation report, it is similarly stated that the digitising of HMCTS’ services will not remove users’ right to representation: they are put in place to help unrepresented appellants and litigants in person successfully navigate digital processes only.

Hopefully this suggests that facilities will be present for conferences with clients and communication with opposing counsel before and after the case management hearings in the Immigration Tribunal, particularly given that these two issues already arose in the Outcome evaluation for the partially virtual criminal court pilot.

A matter of convenience or justice?

Many of these courtroom advances stem from the Prisons and Courts Bill, which was most recently in the Committee Stage of the House of Commons on 20 April 2017, at which point it was dropped in advance of Parliament’s dissolution in June. However, the Queen’s recent Speech spelled its revival: ‘Legislation will also be introduced to modernise the courts system and to help reduce motor insurance premiums’.

Fiona Rutherford stated in her blog post that she and her HMCTS team are ‘revisiting our fundamental assumptions about how justice can best be served to the people that need it, in a modern era’. To do this, a substantial sum of more than £1 billion has been invested to modernise the court system. The Transforming Our Justice System lists three core principles: Just, Proportionate, Accessible.

These principles are compressed into the following definitions in HMCTS’ infographic, Justice mattersHow our change programme will make services better for everyone who uses them:

  • Just – the independent judiciary are supported by processes that are modern, transparent and consistent
  • Proportionate – the cost, speed and complexity are appropriate to the nature of the case
  • Accessible – affordable, intelligible and available for use by all

Thankfully, the virtual court hearings have not been announced to extend beyond case management in the Immigration and Asylum Context. The infographic states that ‘We will deliver justice online and via video-links so that for a boundary dispute or a small money claim there’s usually no need to go to a physical court’ and that they will ‘create online hearing centres to handle the least serious cases’. Based on these examples, the cost and speed savings are unlikely to be proportionate to the complexity of immigration cases and may have fair trial implications.

Rather than the fairness of the hearing, at the forefront of HMCTS’ agenda seems to be a balance between expense and convenience on the one hand and the gravitas of the physical court on the other.

Fiona Rutherford states that it is, ‘absolutely right that we retain the full majesty of the physical courtroom for the most complex and serious cases, such as criminal trials and sentencing’. Whether the courts’ majesty is an aid or impairment in immigration proceedings is up for debate, as is the currency of oral advocacy and its requisite persuasiveness in modernity – in the age of virtual courts. As an indication, the pilot test results of video links from police stations had Magistrates and District judges voicing concerns over the difficulty of a variety of issues: the court’s ability to impose its authority on defendants not in the courtroom; the impact of technical problems on the court’s efficiency and negative impressions this might have on participants and observers of the judicial process.

Thrown into the joint vision statement one will find aphorisms such as ‘justice delayed is justice denied’. The abovementioned infographic remarks that ‘Historically, the question “Where will justice be delivered?” had only one answer: in court’. These aphorisms hint at more important underlying questions about where and when justice ought to be done, whether it is seen to be done, and about the trade-off between “just”, “proportionate” and “accessible”. Afterall, can the immigration litigant have justice without fairness?

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