by Mark Henderson and Rowena Moffatt of Doughty Street Chambers
and Alison Pickup of the Public Law Project
~ Revised 2021 Edition ~
Schedule of issues
Summary of the claim
Rebutting the refusal letter
Country of origin evidence
28.1 Rule 4(3)(d) allows the Tribunal to require any party to provide submissions, and rule 14(1) states that the Tribunal may give directions as to the manner in which those submissions are to be given, and the timing of the submissions, including requiring them to be provided in writing.
28.2 Para 7.5 of the Practice Directions provides that the appellant will normally be directed to provide
a skeleton argument, identifying all relevant issues including human rights claims and citing all the authorities relied upon; and
a chronology of events;
28.3 Para 8.2(e) of the Practice Directions states that
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)
28.3A For cases started on or after 22 June 2020 which have legal representation, the standard directions contained in Annexes 1 and 2 to the Presidential Practice Statement No 2 of 2020 set out more prescriptive requirements for skeleton arguments (called the 'Appeal Skeleton Argument' ('ASA') in the standard directions). The standard directions say the following on the format of the ASA:
The ASA must contain three sections: (1) a brief summary of the appellant's factual case; (2) a schedule of issues; (3) the appellant's brief submissions on those issues which should state why the appellant disagrees with the respondent' s decision with sufficient detail to enable the reasons for the challenge to be understood. A template is available online.
The ASA must:
• be concise;
• be set out in numbered paragraphs;
• engage with the decision letter under challenge;
• not include extensive quotations from documents or authorities;
• identify but not quote from any evidence or principle of law that will enable the basis of challenge to be understood.
28.3B Although the standard directions refer to an online template, there is no hyperlink and it is unclear to what this refers. A model skeleton was, however, provided to firms participating under the online reform pilot, but this does not appear to be available online.
28.3C It is understood that some Tribunal case workers are rejecting ASAs which, in their view, do not comply with the requirements in the standard directions. Most often, this will be because the author has included quotations or because the case worker considers it is overly long. Whilst there is no page limit under the standard directions, the pilot directions included a 20 page limit which, it appears, is being used by some Tribunal caseworkers as an unofficial heuristic. Even more strangely, some Tribunal case workers have rejected ASAs because they include submissions on vulnerability. Directions that are made by a Tribunal case worker can be reviewed by a judge: para 3(4) of the Procedure Rules. Where you are of the view that your ASA has been incorrectly rejected, it is advisable to apply for review by a judge, explaining the reasons why the tribunal case worker was wrong to reject it.
28.3C The Presidential Practice Statement No 2 of 2020 also contains guidance on the ASA:
(6) Where an appellant has representation by a qualified person within the meaning of s.84 of the Immigration and Asylum Act 1999 the Tribunal will accept as an Appeal Skeleton Argument ("ASA") a document that answers the following question: "Why does the appellant say that the decision of the respondent is wrong?" In answering this question, the appellant should set out concisely the reasoning in the respondent's decision letter to which objection is taken. Anything that is relevant should be identified and the answer to the question should be given with sufficient particularity to enable the respondent to conduct an effective review of the decision under appeal.
The apparent focus on what is wrong with respondent's decision in the Presidential Practice Statement No 2 of 2020 does not, however, mean that you should not address your client's positive case. Whilst you need to address the points made by the Home Office which are adverse to your client and this should direct the scope of the issues between the parties, insofar as your client's case relies heavily on medical documentary, or country evidence that was not before the Home Office, or which has not been properly considered by the Home Office, you should direct your submissions at this. A Home Office decision may be wrong, at least in part, because it did not have before it the evidence now before the Tribunal, or because it simply overlooked that evidence.
28.3D Annex 3 to the Presidential Practice Statement No 2 of 2020 provides guidance for unrepresented appellants. They are not required to provide an ASA but an Appellant's Explanation of Case which 'should contain reasons why the appellant believes the decision giving rise to the appeal is wrong.'
28.4A For cases started on or after 22 June 2020, the ASA will be filed and served before the case is listed. For legacy cases, however, a practice developed of handing up a skeleton argument on the day of the hearing. It is always advisable, however, even if you cannot comply with directions, to get the skeleton into the hands of the judge in time for pre-reading. Many hearing centres cannot be relied upon to get emails and/or faxes sent the day before the hearing to the judge before the hearing starts. If you do email and/or fax it late, ensure you take copies, if your hearing is held in person. Even arriving early and asking the court clerk to hand it to the judge is preferable to handing it up at the start of the hearing. It is also useful to attempt to provide the Home Office Presenting Officer with a copy before the start of the hearing. Typically, HOPOs will arrive in the court room with little time to spare before the judge sits and so it is worthwhile going to the Home Office room in the Tribunal to hand over a copy in advance. This avoids your case having to be put back on the basis that the HOPO has not had time to read your skeleton. For remote cases where you need to file and serve a skeleton late, you may be able to obtain the judge's email in advance or, if all else fails, be sure to join the remote hearing as early as possible so you can email your skeleton to the judge's clerk.
28.4B In cases lodged on or after 22 June 2020, there may be a need to produce a further skeleton argument to respond to the Home Office review or to incorporate any submissions on further or updated evidence. Whilst there is no provision in the standard directions expressly permitting this, the Tribunal would be unlikely to refuse to admit it if it is relevant to the issues at the final hearing. Note that the provision in the standard directions for late material appears to apply to ASAs and further written submissions as well as further evidence. This means that you may need to make an application to admit any written submissions outside of the standard timeframes, including a late ASA or further submissions following the Home office review. Where a skeleton or written submissions are provided less than 5 working days before the final hearing, the judge will be required to deal with the question of its admissibility at the outset of the hearing.
28.5 Assuming a judge has done some pre-reading (i.e. read some papers before the hearing starts), sometimes he will have read the Home Office refusal letter if nothing else. While one hopes that he would discount the more outlandish points, there may be enough of substance (together with a misleading factual summary) to leave the judge with a negative impression of your case. You are not usually invited to make an opening speech. If the judge has nothing to set against the refusal letter when pre-reading, it will be closing submissions before you have the opportunity to rebut the refusal letter head-on.
28.6 If the judge has started with a negative impression of your case, that may affect his interventions during oral evidence. If his interventions leave your client and other witnesses feeling uncomfortable or believing that the judge is leaning against them, it may affect their confidence and the quality of their evidence. That in turn may influence the judge's assessment of their evidence and reinforce any negative impression. It should not, of course, happen this way. But by providing a skeleton argument, you ensure that the judge has an accurate factual summary, is alerted to the real issues, and that misleading allegations in the refusal letter are answered before they have an opportunity to infect the judge's view of your client.
28.7 To have this effect, your skeleton must stand out as a document worth the judge's attention during what may be very limited pre-reading time. In Zarour v SSHD (01/BH/00078), the Tribunal said that:
One good thing can be said about [counsel's] skeleton argument... , which is that it was short enough to make it reasonably clear how he put his case... This is usually not so with the skeleton arguments of counsel in this field, which are all too often so intolerably prolix that they may be better described as well-fleshed corpses, doing more to conceal than reveal what the case is about.
28.8 Some appeals, of course, are so complex that they require lengthy skeleton arguments. But the lengthier the skeleton, the more important it is to demonstrate to the judge how the document is directed to answering the questions that he will have to answer - and is therefore worth prioritising. If you present a 30 page skeleton consisting largely of a 'cut and paste job' of generic legal and country submissions, the likelihood is that it will not get read (and will do your client little good if it is read). Although not in the context of a statutory appeal, account should be taken of the Court of Appeal's criticism in ME (Sri Lanka) v SSHD  EWCA Civ 1486 of the use of lengthy quotation and an absence of cross referencing to documents cited.
• factual summary, highlighting matters which are relevant to the consequences of expulsion;
• schedule of the issues under appeal
• summary of your legal case ;
• response to the arguments set out in the Home Office refusal letter;
• further relevant (but not generic) legal argument;
• submissions on the expert and country evidence.
28.9A The online pilot directions, which applied in 2019 to a small pool of cases, directed 'any advocate who prepares a skeleton argument' to have regard to what was said by Jackson LJ (with whom Lewison and Treacy LJJ agreed) in Inplayer v Thorogood  EWCA Civ 1511 at -:
52. I have protested previously about the poor quality and excessive length of some skeleton arguments in this court. On occasion the Court of Appeal has deprived successful parties of the costs of preparing their skeletons. So far, unfortunately, this message has failed to reach the profession. Mild rebukes to counsel and gentle comments in judgments have no effect whatsoever. Therefore, with regret, I must speak more bluntly.
53. The rules governing skeleton arguments … do not exist for the benefit of judges or lawyers. They exist for the benefit of litigants, namely (a) to ensure that their contentions are presented most effectively to the court and (b) to enable the court to deal with its caseload expeditiously, bearing in mind that there is always a queue of appellants and respondents waiting for their matters to be heard.
54. In essence an appellant's skeleton should provide a concise, user friendly introduction for the benefit of the three judges who will probably have had no previous involvement in the case. The skeleton should then set out the points to be argued clearly and concisely, with cross-references to relevant documents and authorities, ...
55. As anyone who has drafted skeleton arguments knows, the task is not rocket science. It just requires a few minutes clear thought and planning before you start. A good skeleton argument (of which we receive many) is a real help to judges when they are pre-reading the (usually voluminous) bundles. A bad skeleton argument simply adds to the paper jungle through which judges must hack their way in an effort to identify the issues and the competing arguments. A good skeleton argument is a real aid to the court during and after the hearing. A bad skeleton argument may be so unhelpful that the court simply proceeds on the basis of the grounds of appeal and whatever counsel says on the day.
56. The appellant's skeleton argument in this case does not comply with the rules. It is 35 pages of rambling prolixity through which the reader must struggle to track down the relevant facts, issues and arguments.
57. Although the successful appellant in this case is entitled to his costs, he will not recover the costs of the skeleton argument against the respondents to the appeal.
28.10 Given that the standard directions also require provision of written witness statements, it is unnecessary for the skeleton to reproduce a detailed account of your client's history and you should refer the Tribunal to the statements. Rather, it should start with a summary of the most material and compelling facts in your case. These should always include the main events which caused your client to flee and which give rise to her present fears. You may also highlight any unusual factors which may grab the judge's attention, such as your client's particularly prominent position, or particularly disturbing treatment at the hands of the authorities. In a straightforward case, there is no need for this factual summary to extend beyond a few paragraphs. You can also refer to your chronology.
28.10A List concisely each issue that will need to be determined by the Tribunal. These may need to be listed as alternatives. The model skeleton argument provided to firms in the pilot provides the following example:
It is submitted that the issues in dispute between the parties are as follows:
(i) Has the appellant established to the lower standard that she is a CAR national?
(ii) Has the appellant established to the lower standard that she is sought by the CAR authorities?
(iii) Has the appellant established to the lower standard that she is sought for a Convention reason?
(iv) Is the appellant's fear of prosecution rather than persecution?
(v) (In the event that consent is given for the consideration of a new matter). Would the appellant's return to the CAR be in breach of her right to a family life?
28.11 Set out concisely why your client's expulsion will violate the Refugee and/or Human Rights Convention and/or Art 15(c) of the Qualification Directive. The primary question is: what are the risks/consequences of expelling this person? Explain that in ordinary language. Then explain briefly how it will violate the UK's obligations. For example, 'The denial of medical treatment will constitute inhuman or degrading treatment (art 3) and/or a disproportionate interference with her private life in the sense of her moral and physical integrity (art 8).'
28.12 Go through the refusal letter identifying every discrete point then either accept it, dispute it, or dismiss it as irrelevant. You should not pass over points simply because they appear to be absurd. If the Home Office has dismissed the claim on unreasonable grounds, you want to emphasise that fact rather than treat it with a sort of benevolent acceptance. It does no harm to impress upon the judge that it is not acceptable for a meritorious case to be rejected on irrational grounds. The advantage of dealing with the refusal letter in detail in your skeleton argument is two-fold: it ensures that if the judge has the opportunity for pre-reading, he can immediately see how you will respond to the points raised in the refusal letter. Secondly, it ensures that the focus of your oral submissions can be on responding to points raised by the HOPO or arising out of the oral evidence, and addressing the judge's concerns (which he is more likely to be in a position to raise at the hearing if he has seen how you propose to respond to the Home Office's written case).
28.13 Some representatives deal with the refusal letter in a witness statement from the appellant. Often, there will be specific points that the appellant can make in evidence, and she should do so, and in that case your skeleton argument may simply refer the judge to the witness statement in relation to those points. Otherwise, it is your job to respond to the refusal letter. That is preferable to a witness statement purporting to be from the appellant but presenting arguments which obviously did not come from her. It also avoids the perception, often encouraged by the HOPO, that your client must personally have an answer for every allegation in the refusal letter (see also para 12.46). Many of these points will be outside of your client's knowledge and be a matter for your submissions, relying on relevant country or other expert evidence.
28.15 Do not drop standard paragraphs into every skeleton argument setting out the leading authorities on the Refugee Convention. Nothing is more likely to put the judge off reading it. The standard directions issued at some hearing centres following a CMRH or PHR state that skeleton arguments should not recite basic propositions of refugee law. If there is a specific point to make about the application of an authority to the facts of your case, then explain what it is. For example, there is little point in including lengthy quotes from Karanakaran v SSHD  EWCA Civ 11 in every skeleton. However, you might need to explain how the Karanakaran approach (which is not always fully understood) should affect the evaluation of a particular piece of evidence.
28.16 If you are advancing an unusual or difficult legal argument, then you should set it out fully on paper. If an authority is genuinely relevant, then the relevant passages should be quoted rather than simply providing the references. The citation of authorities is discussed in the following chapter.
28.17 Take a realistic view of your client's case. If the accepted evidence is that pre-trial detention is accompanied by torture, it may be unnecessary to devote substantial effort to establishing that the trial will be unfair; if you get as far as establishing pre-trial detention, you should succeed on article 3. Conversely, if the evidence concerning torture in detention is sketchy, then you may well have to establish unfair trial.
28.18 In Dominguez v SSHD (00/TH/02692), the Tribunal said that:
1) [Representatives] should take steps to acquaint themselves with any relevant human rights decisions of the Tribunal or the courts.
2) They should not embark on arguments as to the position taken by Strasbourg jurisprudence without at least some rudimentary grasp of the relevant case law. Furthermore,... argument needs to be formulated and advanced in a plausible way.
28.19 The skeleton should offer a guide to the relevance of the documentary evidence that you have submitted. Set out the most relevant propositions in the skeleton (along with page references). This avoids the judge having to note these when you make your oral submissions. A report should normally be submitted in its entirety, even if you only intend to quote a small part of it. This is one reason why bundles will often far exceed the number of pages upon which you intend to rely. Particularly if your bundle is large, it is unlikely that the judge will have an opportunity to digest it whole. A document that sets out the key extracts for your case (for example, as to the prevalence of torture) can therefore substantially add to the persuasiveness of your bundle.
28.20 If you conduct a lot of appeals from a particular country which raise common issues, you may be able to reuse much of this material. But ensure that it is focussed on the issues that actually arise. It should not look to the judge like a 'generic' submission.
28.21 The chronology will normally consist of a summary of key dates (though a very detailed chronology may assist in a complex case). The dates will normally be taken from the witness statements. It should not include any dates that will have to be established by oral evidence. (All material facts should in any event be in the witness statement.) Some representatives add a proviso to the chronology to the effect that it is their own work and not evidence (in case the HOPO tries to put a mistake in the chronology to the appellant as an inconsistent statement).
28.23 Either way, the chronology is part of your case. It should tell your client's story in a sensible, straightforward and persuasive manner. The chronology of events should make sense to the Tribunal. It should not provoke unnecessary doubts at the outset. If the chronology states '15/11/16: escaped from last detention; 28/2/17: fled the country', the judge's first thought may be that there is an unexplained delay in departure. It is better to let the judge know, however shortly, that this is not the case by inserting an entry such as '16/11/16 - 27/2/17: remained in hiding with relative while family raised money to pay agent'.