by Mark Henderson and Rowena Moffatt of Doughty Street Chambers
and Alison Pickup of the Public Law Project
~ Revised 2021 Edition ~
27.1 The point at which the appellant's bundle must be filed and served depends on when the appeal was lodged. For those appeals lodged on or after 22 June 2020, the three sets of standard directions annexed to the Presidential Practice Statement No 2 of 2020 apply. These all require you to file and serve (or, for those cases under the reform procedure 'upload' onto the MyHMCTS platform) the appellant's bundle not later than 28 days after receipt of the Respondent's bundle, or 42 days after the appeal is lodged, whichever is the later. For legacy cases, that is, those lodged before 22 June 2020, the standard directions require the appellant's bundle to be filed and served not later than five working days before the full hearing. In both cases, the standard directions require the bundle to be paginated and indexed.
8.1 The parties must take all reasonably practicable steps to act in accordance with paragraph 8.2 to 8.6 in the preparation of trial bundles for hearings before the Tribunal.
8.2 The best practice for the preparation of bundles is as follows:-
(a) all documents must be relevant, be presented in logical order and be legible;
(b) where the document is not in the English language, a typed translation of the document signed by the translator, and certifying that the translation is accurate, must be inserted in the bundle next to the copy of the original document, together with details of the identity and qualifications of the translator;
(c) if it is necessary to include a lengthy document, that part of the document on which reliance is placed should, unless the passages are outlined in any skeleton argument, be highlighted or clearly identified by reference to page and/or paragraph number;
(d) bundles submitted must have an index showing the page numbers of each document in the bundle;
(e) the skeleton argument or written submission should define and confine the areas at issue in a numbered list of brief points and each point should refer to any documentation in the bundle on which the appellant proposes to rely (together with its page number);
(f) where reliance is placed on a particular case or text, photocopies of the case or text must be provided in full for the Tribunal and the other party; and
(g) large bundles should be contained in a ring binder or lever arch file, capable of lying flat when opened.
8.3 The Tribunal recognises the constraints on those representing the parties in appeals in relation to the preparation of trial bundles and this Practice Direction does not therefore make it mandatory in every case that bundles in exactly the form prescribed must be prepared. Where the issues are particularly complex it is of the highest importance that comprehensive bundles are prepared. If parties to appeals fail in individual cases to present documentation in a way which complies with the direction, it will be for the Tribunal to deal with any such issue.
8.4 Much evidence in immigration and asylum appeals is in documentary form. Representatives preparing bundles need to be aware of the position of the Tribunal, which may be coming to the case for the first time. The better a bundle has been prepared, the greater it will assist the Tribunal. Bundles should contain all the documents that the Tribunal will require to enable it to reach a decision without the need to refer to any other file or document. The Tribunal will not be assisted by repetitious, outdated or irrelevant material.
8.5 It may not be practical in many appeals to require there to be an agreed trial bundle but it nevertheless remains vital that the parties inform each other at an early stage of all and any documentation upon which they intend to rely.
8.6 The parties cannot rely on the Tribunal having any prior familiarity with any country information or background reports in relation to the case in question. If either party wishes to rely on such country or background information, copies of the relevant documentation must be provided.
27.3 The Tribunal will appreciate some sort of order in the compilation of the bundle. Separate out evidence which is specific to your client from the general background evidence. It is usually a good idea to put witness statements first, as you and the Tribunal will normally need to refer to these first in the course of the hearing. Any documents exhibited or referred to by a witness should come next after their witness statement. Other documents should be presented thematically (e.g. medical evidence, other expert evidence, documents) and/or in chronological order.
27.4 The bigger the bundle, the more important that it is properly presented. If you want the Tribunal to accept that a large bundle is carefully chosen rather than thrown together, help yourself by exhibiting care in its presentation. Always ensure that the pages and the pagination are legible. It creates an even better impression if you put it in a good condition ring binder with tabs dividing discrete sections accompanied by a detailed index. This will also comply with the Practice Direction (para 8(2)(g)). A large pile of papers held together by one treasury tag is cheaper to produce but far less easy for the Tribunal to use.
27.4A You may wish to consider creating standard country bundles which can be supplemented with more specific reports in light of the fixed fee regime. The Tribunal has agreed in general to look sympathetically at steps to meet the challenges of the fixed fee regime. However, it is important that these are kept up to date and that older reports which are no longer relevant are removed. You should also use particular care in copying a standard bundle to ensure that each page and the pagination remain clearly legible.
27.5 The standard directions in 'legacy' cases require a 'schedule identifying the essential passages'. This is not mentioned in the directions for appeals filed after 22 June 2020 but is likely to be of assistance to the Tribunal. Again, the bigger the bundle, the more important that you do this. The Tribunal is unlikely to read hundreds of pages in full. Indeed, you are unlikely to be inviting it to read the whole thing if you are relying only on particular passages from particular reports. It will do your prospects no harm to have your key quotations available in convenient form when he turns to write his determination. This can be either in your skeleton argument (para 28.19) or a separate schedule. You may wish to check whether the Tribunal would like to receive the schedule in electronic form to facilitate quotation.
27.6 A schedule helps demonstrate the care you have taken over the material. It is also a useful check on the relevance of your bundle. You may need to include a report which does not appear in your schedule of key passages. But its absence should lead you to double-check what purpose it is actually serving.
27.8 The standard directions for cases started on or after 22 June 2020 require the bundle to be filed and served 28 days after receipt of the Home Office bundle, or 42 days after the appeal is lodged, whichever is the later. The standard directions for legacy cases require the bundle to be served five working days before the hearing.
27.9 The 2014 Procedure Rules do not prescribe a specific sanction for a failure to serve evidence in time, unlike the previous rules, but in deciding what action to take in response to such a failure, the Tribunal will need to take account of the prejudice caused to either party by admission of the evidence, and the seriousness of the issues at stake in an asylum or human rights appeal.
It is only on rare occasions that adjudicators in my experience decline to consider late filed evidence or documents. (letter to IAS, 15th May 2003)
27.10A That approach is supported by caselaw. In AK (Admission of Evidence - Time Limits) (Iran)  UKIAT 00103, the Tribunal noted that the relevant rule provided that judges "must not consider any evidence which is filed or served late, unless he or it is satisfied that there are good reasons to do so." It held that:
The qualification contained in those closing words relates to good reasons for considering the evidence, not good reasons as to why the evidence was not filed or served in time. There is a clear public interest in ensuring that it should not be open to parties to disregard with impunity directions given by the Immigration Appellate Authority, whether by an Adjudicator or this Tribunal. The same public interest applies in ensuring that parties should not be entitled to disregard with similar impunity the requirements of the Procedure Rules.
However, the understandable desire on the part of Adjudicators and this Tribunal to enforce due compliance with such directions and provisions must be balanced against a competing requirement to ensure that justice is done in a jurisdiction in which appeals routinely require the "most anxious scrutiny" and in which the issues at stake frequently involve matters of life, limb and liberty. There is an inevitable tension between those conflicting interests.
Whilst there may be individual cases in which it would be right for an Adjudicator to exclude material, or potentially material evidence on which a party (normally the Appellant) wishes to rely by reason of the failure by that party to file or serve the evidence in time, nevertheless, as a general principle, the requirement to ensure that justice is done in appeals requiring the most anxious scrutiny, will in most cases outweigh the understandable desire on the part of the Immigration Appellate Authority to ensure that its directions and the provisions of the Procedure Rules are not flouted with impunity.
In the present instance, we are satisfied that the late evidence which the appellant sought to adduce before the adjudicator, and which the adjudicator refused to consider because it had not been filed in time, was prima facie material evidence which, if it had been considered by him, might (we put it no higher than that) have resulted in the adjudicator arriving at a different conclusion in relation to the credibility of the appellant's evidence. In the circumstances, his decision to exclude that evidence from consideration was one which he ought not to have taken. (Paras 11-14)
27.11 You should make every effort to comply so far as possible with directions, and especially to avoid having to submit material on the day of the hearing. But it is never wise to submit an unfinished statement or report purely to comply with the standard directions. This may seriously jeopardise the prospects of the appeal succeeding. If, say, your country evidence is ready a week in advance but other evidence is not ready, you can serve the bundle of country evidence with a letter explaining that the remainder of the evidence will follow as soon as possible. The submission of some material will show that you are anxious to comply with directions so far as possible. You may also ask the Tribunal for an extension to be on the safe side.
27.11A The Tribunal cannot prevent you from calling a witness whose statement was not submitted in accordance with directions. Consequently, there is little purpose in it excluding a written witness statement which is submitted late: MA (rule 51(4) - not oral evidence) Somalia  UKAIT 00079
27.11B For cases started on or after 22 June 2020, the three sets of standard directions annexed to the Presidential Practice Statement No 2 of 2020 state that any material filed and served outside the time limits in the standard directions 'may not be relied upon without leave' and that the question of the admissibility of any material provided after 5 working days prior to the hearing, including on the day of the hearing, must be dealt with by the Judge as a preliminary issue at the hearing.
27.11C For cases under the online reform procedure, no material will be admissible unless it has been uploaded onto the MyHMCTS platform ('provided'). The standard directions (Annex 1 to the Presidential Practice Statement No 2 of 2020) say the following as to late material:
4 Late Material
4.1 Any material provided outside the time limits may not be relied upon without leave.
4.2 Where any material is provided after 5 working days prior to the hearing, including on the day of the hearing, the Judge must deal with the admissibility of that material at the hearing as a preliminary matter.
4.3 A party may not rely on material which has not been provided.
4.4 If an application is made to admit material (a) and the material is ruled inadmissible the material shall not be uploaded, though the Judge must give reasons in the Decision and Reasons for the exclusion of that material and identify the material excluded. (b) and the material is admitted the Judge must stand the appeal down and cause the material to be uploaded as soon as reasonably practicable and will not proceed with the appeal until the material has been uploaded. The original material uploaded shall be returned to the party who provided it unless there is a good reason for not doing so.
4.5 A party may apply to adduce material after the hearing has concluded but only in exceptional circumstances. Such material will only be admissible upon application unless the Judge has directed the provision of that material. The application must be made using the online procedure, unless it is made orally at the hearing. Any material ruled admissible must be uploaded.
4.6 The Tribunal may not accept any material after the Decision and Reasons has been promulgated. This direction does not apply to any application for permission to appeal to the Upper Tribunal.
27.12 Be aware that if you submit further evidence that needs to be inserted into the bundle, nobody is likely to have done this for the Tribunal by the time the hearing starts. Time may therefore be wasted at the start of the hearing while the further material is inserted into the bundle. If there is a significant amount to be inserted at different points, it is often better to provide a separately paginated supplementary bundle.
27.13 The Home Office is represented in the majority of appeals by a presenting officer who often receives the papers a day or two before the hearing (see para 1.11). Sometimes, the HOPO will object that he is prejudiced by your having lodged material within five working days of the hearing because he has been left with insufficient time to consider it. He may argue either that it should be excluded or that he should have an adjournment. Further investigation may reveal this argument to be disingenuous. You should check with the HOPO when the entire case papers were sent to him. Traditionally, the Home Office does not normally allocate appeal files to HOPOs until the day before the hearing.
27.14 A good way of checking this is to telephone the HOPO Unit the day after you served the material on them and ask to discuss the case with the responsible HOPO. If you are told that a HOPO is yet to be allocated, or if the allocated HOPO tells you that it will be days before he picks up the file, you will be in a position to refute any subsequent claim that his lack of preparedness is the result of your late submission of evidence rather than Home Office inefficiency.
27.16 Sometimes, a judge may express concern about admitting evidence on the day of the hearing when the Home Office has chosen not to send a representative so is unaware of the evidence. In MA (Procedure Rules 48 (5) and 48 (6)) Pakistan  UKIAT 00330, the Tribunal said that
27. ... the evidence produced at the hearing by the Appellant was made available to all the parties in the sense that it was produced at the hearing and it was there for the Secretary of State's representative had there been one present to comment on it and make representations on it accordingly. In the absence of a representative of the Secretary of State at the hearing before the Adjudicator, we do not consider that the Adjudicator properly acted under Rule 48(6) in excluding consideration of the evidence produced at the hearing before him.
27.17 In SA (Absence of party - late evidence) Sri Lanka  UKIAT 00028, the Tribunal said that
... it would be wrong in principle, that a party who failed to attend either in person or by his representative before an Adjudicator, should be in a better position to resist the admission of late evidence than a party who had attended. (para 21)
27.17A Under the online reform procedure, bundles must be submitted electronically through the MyHMCTS platform and since the outbreak of the Covid-19 pandemic in March 2020, all cases in the Tribunal now require electronic filing of digital bundles where the appellant is legally represented (unrepresented appellants may be permitted to file evidence by post). This has created significant challenges for firms who did not have the digital infrastructure. Scanning paper bundles is often not efficient due to their size. Much more effective is the production of digital bundles using software such as Adobe Pro. Note that in order to enable efficient navigation of the bundle and so that everything matches, it will be necessary to either include the index within your pagination or keep it as a separate document. A hyperlinked index will be helpful to the judge and it also helps to add bookmarks to a PDF bundle so that the reader can readily skip to a particular document. Digital bundles which have been made searchable by text have significant advantages in quickly locating documents in what often are very large bundles.