Immigration and Asylum Appeals - a Fresh Look

JUSTICE published Delivering Justice in an Age of Austerity in April 2015. Since that time, the move towards the digitisation and modernisation of courts and tribunals has gathered pace with a £1bn investment by the Government in courts and tribunals.

Following consultation with relevant stakeholders, including senior judiciary, JUSTICE set up a Working Party of its members in May 2017, to look at the determination processes in immigration and asylum cases and how these might be reformed in the context of the HM Court & Tribunal Service (HMCTS) Reform Programme.

The final report was published on 2 July 2018, introduced by the Chair of the Working Party, Sir Ross Cranston, former High Court judge, and Sir Ernest Ryder, the Senior President of Tribunals.

The challenge

It is widely recognised that there are various problems with the determination process in immigration and asylum cases: from the quality of Home Office decisions (as suggested by the high percentage of allowed appeals), through issues with the availability and quality of legal representation to inefficiencies at the appeal stage. Given the massive government investment in IT and commitment by both HMCTS and senior judiciary to do more online there is huge pressure to make a success of the court and tribunal reform initiative. JUSTICE is concerned to avoid the existing inefficient systems becoming entrenched through a mere process of automation and digitisation.

JUSTICE proposes to use this opportunity to truly innovate, to explore what ‘digital by design’ means in the context of immigration and asylum, and to recommend changes that will support a system that is both specifically tailored to working in a more digital and proactive way and which solves or ameliorates some of the existing problems.

The Working Party

The Working Party reviewed the existing operation of the Immigration and Asylum Chamber (IAC) of the First-Tier and Upper Tribunal and propose reform so as to guide, inform and assist the judiciary and HMCTS in its implementation of the HMCTS Reform Programme.

In particular, and working in consultation with user groups, HMCTS, the Ministry of Justice, the Home Office and the senior judiciary, the Working Party looked at:

• reviewing Home Office decision making with a view to getting the decision right without having to go to appeal;

• reviewing how appeals and judicial review proceedings are determined in the IAC and propose how cases might be resolved in a more efficient and fair manner;

• exploring which current issues in the determination of immigration and asylum cases, including judicial reviews in the upper tribunal, might be solved or ameliorated through the HMCTS Reform Programme; and

• identifying the kinds of difficulties that might arise when trying to digitise proceedings in the IAC and propose solutions.

The Working Party was split into three sub-groups:
1. Challenges and Opportunities in Implementing the Key Aspects of the Reform Programme in the Immigration and Asylum Chamber (IAC)
2. The 2014 Fundamental Review of the First-tier Tribunal (IAC) and Other Efficiency Proposals for the IAC
3. Home Office Processes

The Working Party was chaired by Professor Sir Ross Cranston, former Solicitor General and recently retired as Judge in Charge of the Administrative Court. The members of the Working Party were:
Diana Baxter, Solicitor
Judge Chris Buckwell, First-tier Tribunal (judicial observer)
Marian Cleghorn, Barrister
Judge Nicholas Easterman, First-tier Tribunal (judicial observer)
Michael Fordham KC
Judge Louis Kopieczek, Upper Tribunal (judicial observer)
Suzanne Lambert, Barrister
Jawaid Luqmani, Solicitor
Dr Rowena Moffat, Barrister
Sonali Naik QC
Professor Nick Gill
Professor Martin Partington CBE KC
Professor Robert Thomas
Andrew Tingley, Solicitor
Resident Judge David Zucker, First-tier Tribunal (judicial observer)

We are also very grateful to the Ministry of Justice, HMCTS and the Home Office for their attendance and contribution to the work and meetings of the Working Party. Also to Kingsley Napley who supported the Working Party.

The Working Party was administered by JUSTICE staff members Jean-Benoit Louveaux and Sarah Looney, with oversight from Jodie Blackstock, Legal Director.

The Report

With the benefit of evidence from a wide range of expert consultees, and working with the judges, HMCTS, the Ministry of Justice and the Home Office throughout, Working Party members have formulated 48 practical recommendations for change.

These include:
Better communication between the parties at the decision-making, pre-hearing and hearing stages to ensure all relevant evidence is considered.

Getting Home Office decision-making right first time and building in an effective review system as key to delivering a better appellate system.

Ensuring the move to online processes enhances rather than reduces the ability of people to participate – through clearer forms, translation, security measures and careful consideration of video hearing roll out.

Reducing unsupervised, unqualified and poor quality representatives purporting to provide advice and assistance to appellants through heightened scrutiny mechanisms.

Promoting the important role of tribunal case workers and judicial case management to improve tribunal efficiency.

Retaining rights of appeal as a fundamental safeguard but streamlining certain permission and review processes.

A high percentage of successful appeals against Home Office decisions; instances of poor-quality and exploitative representation; and the recent removal of appeal rights have put pressure on a system that is already complex and subject to frequent change.

The Working Party report also comes at a time of significant change to the justice system through the HMCTS Reform Programme, which is aimed at the modernisation and digitisation of the system. The Reform Programme is complemented by Home Office projects to improve initial decision-making, with the aim of reducing the number of unnecessary appeals.

Professor Sir Ross Cranston, Chair of the Working Party, said,“The Immigration and Asylum appeal system suffers from widely reported deficiencies and a culture of non-compliance with the rules and practice directions. This leads to high volumes of cases in the appeals system and lengthy delays. The Working Party recognised that the reforms underway present an opportunity to improve the processes, but considered that further measures are needed to effect meaningful change.”

Andrea Coomber, Director of JUSTICE, explains, “In an arena where appellants are often highly vulnerable and many cases involve fundamental and non-derogable rights, it is particularly important that our immigration and asylum appeal procedures are as fair and robust as possible. This report demonstrates that all actors involved need to improve the quality and efficiency of their processes so as to ensure that those who are entitled to remain in the UK are able to do so in a timely manner”.