by Mark Henderson and Rowena Moffatt of Doughty Street Chambers
and Alison Pickup and Monika Nollet of Asylum Aid
~ Revised 2023 Edition ~
Relevant factors when advising your client
Preparing for a remote hearing
At the remote hearing
7A.1 Since the outbreak of the Covid-19 pandemic in March 2020, the Tribunal has conducted many hearings remotely. This refers to the use of video or audio platforms to conduct a hearing. Initially, these were limited to CMRHs; however, remote video conferencing technology (the Tribunal's Cloud Video Platform ('CVP')) is now more widely used in substantive hearings. It will be important to discuss the hearing options with your client and for you to take a view and advise her of the potential pit falls of having a remote hearing. She may not appreciate the potential disadvantages of a remote hearing, having never been in the position before, and it is important that her decision is fully informed and based on an understanding of all relevant considerations. In most cases, especially where credibility is in issue, you will advise her that an in-person hearing is preferable. However, for some clients and in some cases, there are advantages to a remote hearing which will change that position, providing that appropriate practical arrangements can be made. This chapter explores the considerations that may weigh for or against a remote hearing, and the practical issues that need to be addressed in order to give an appellant who is appearing remotely the best chance of success.
7A.2 Whatever your client decides, the decision of whether or not to hold a remote hearing in the Tribunal is ultimately a judicial one which should take account of the personal circumstances of the appellant in order to ensure a fair hearing and that the best evidence is given. Arguably, however, an appellant should never be forced to have a remote hearing in circumstances in which she does not consent to one (the circumstances may be different for appellants who have been removed under a s94B certificate and this is considered in chapter 3).
7A.3 In the Senior President of Tribunals' Annual Report 2022, the President of the First-tier Tribunal (IAC) acknowledged that remote hearings had enduring value, following the pandemic, and said the following on the Tribunal's ongoing use of remote hearings:
As we return to normality, or to a new normal, we find that increasing numbers of stakeholders express a wish for either an entirely remote hearing, or a hybrid hearing that allows one or more court user to attend remotely. Face to face hearings are, in my view, the default position. I accept however that hybrid or fully remote hearings may suit some, and that for some vulnerable individuals a remote hearing may offer a better opportunity to give their best evidence. There will also be occasions when to make the best use of its limited resources the Tribunal will need to list hearings before a judge sitting remotely. This is the case in many other jurisdictions.
I have also been greatly impressed over the last twelve months by the flexibility displayed by both the Tribunal and its users in a collaborative approach to accommodate those who, for whatever reason, have found themselves able to work, but unable to travel. No doubt that will continue.
It is however very clear that not everyone is always able to access a remote hearing satisfactorily, and obvious dangers to the conduct of a fair hearing arise from that. Even if a hearing has safely begun by way of a remote hearing, the Tribunal will remain vigilant to ensure that it remains a fair hearing throughout.
In short, listing decisions will continue to be driven by the circumstances of the parties rather than their representatives, and they will remain judicial decisions.
7A.4 The Tribunal may list a remote hearing for a number of reasons: ideally, this will be where your client has requested one, however, the Tribunal has been also known to list remote hearings for resource reasons such as lack of court room availability or judges able to be present face to face. The HMCTS evaluation of remote hearings during the pandemic (December 2021) identified four factors that influenced judges' decisions on whether to hold a remote hearing (across all jurisdictions). These are: likely hearing length and complexity, severity of case and therefore potential seriousness of outcome, stated preference of public users and health considerations. As will be seen below, factors of particular relevance in the IAC will relate to whether credibility is in issue and any vulnerability or medical issues.
7A.5 In general terms, the Home Office is unlikely to request that a hearing be heard remotely. This is because in the vast majority of cases, the Home Office (or its employees and agents) will not be giving evidence or calling other witnesses and it is rare that a HOPO takes on an appeal other than shortly before the hearing. As is made clear from the Senior President of Tribunals' Annual report, cited at paragraph 7A.3 above, the decision as to whether an appeal make take place remotely is driven predominantly by the circumstances of the parties rather than their representatives. Where a HOPO seeks to appear remotely, generally he will do so in a hybrid hearing, that is a hearing that is partially remote, rather than requesting that the hearing be remote in its entirety. There have been instances of a hearing being listed face to face but upon the day of the hearing, the HOPO seeks to appear remotely. Depending on your client's circumstances, you may need to object to the HOPO's remote attendance. Hybrid hearings are discussed at paragraph 7A.30.
7A.6 The Judicial College 'Good Practice for Remote Hearings' guidance says the following of the interests that will need to be considered by the Tribunal in deciding whether or not a case should be heard remotely:
It is ultimately a balancing exercise for the judge as to whether or not a particular hearing should proceed remotely. The needs of the parties and their representatives will need to be considered alongside the importance of a speedy resolution of the issues…
7A.7 Given the importance of what is at stake for her, and the highest standards of fairness which are required in asylum and human rights appeals, it is particularly important that your client should be put in a position to take an informed view of the risks and benefits of remote hearings in her particular circumstances.
7A.8 When advising your client it is important to be aware of the general research on the effects of remote hearings on assessment of credibility and the overall outcomes of hearings: see Jo Hynes' article "Remote Hearings in the immigration tribunal: what could go wrong"). Therefore, whilst a remote hearing may enable your client's case to be heard more quickly and may be suitable for some clients and in some cases, it will be necessary to balance other important considerations which in most cases will weigh heavily in favour of a face-to-face hearing.
7A.9 Appendix E of the Equal Treatment Bench Book, which looks at remote hearings, lists examples of where a fully or partially remote hearing may be a desirable adjustment for a party or witness, which include where a witness:
• Is intimidated by court surroundings, eg because of an anxiety disorder or autism.
• Finds it difficult to travel because of a physical disability, eg which makes travelling excessively tiring or public transport difficult to use.
• Is afraid to be in the same building as another party or witness, eg in a case of sexual harassment or domestic abuse.
• Is shielding and is vulnerable, or fearful of contact with other people.
7A.10 Appendix E then considers the potential pitfalls of remote hearings including socio-economic factors (such as access to technology and a suitable environment to provide evidence remotely), difficulties for disabled people including those who have mental ill health, are cognitively impaired or neurodiverse and difficulties where English is not a first language of an appellant or witness.
7A.11 Jo Hynes' article "Remote Hearings in the immigration tribunal: what could possibly go wrong" observes that the research shows several potential negative effects from the loss of 'co-presence', that is when parties are not physically gathered in the court room. These include a higher likelihood that appellants become disengaged and disclose less information.
7A.12 Where credibility is in issue a remote hearing is, in most cases, unlikely to be appropriate. This is because the diminution of non-verbal communication in remote hearings is likely to have particular impacts on testing evidence and assessing credibility. Research from the USA dating from 2007 found that the use of video teleconferencing had a negative impact on outcomes in asylum appeals. In relation to the UK IAC, the Bail Observation Project in 2013 found that 50% of applicants heard via video link were refused bail, compared to 22% of those heard in person. It is unclear how applicable this is to the current context of protection and human rights appeals in the Tribunal and it is clearly of some vintage; however, it will be important to consider outcomes data relevant to the format of the hearing when it becomes available. It is understood that HMCTS have maintained a register of which hearings are dealt with remotely.
7A.13 In P (A Child: Remote Hearing)  EWFC 32, a family court case from relatively early in the Covid-19 pandemic, the court held that in circumstances where there were significant issues of credibility, a remote hearing would not allow effective participation and engagement between the parties with the court with the risk that the process would not be fair. Whilst arguably experience and technology to facilitate remote hearings has developed considerably since early 2020, it remains the case that there are likely to be some cases where a remote hearing will never be appropriate and could lead to the hearing being procedurally unfair.
7A.14 In R (Arman & Anor) v SSHD  EWHC 1217 (Admin), Mostyn J summarised the rapid progress both in the technology and awareness of it since the 'enforced learning process' brought about by the pandemic. He then referenced the judgment of Lieven J in another family court case, A Local Authority v Mother & Ors  EWHC 1086 (Fam), in respect of suggestions that 'receiving oral testimony remotely is somehow less empathetic or humane than would be the case if the evidence is given physically from the witness box':
27… In A Local Authority v Mother & Ors  EWHC 1086 (Fam) Lieven J identified an irony in relation to such arguments. At  - , she pointed out that FPR Part 3A and PD 3AA provide for, and regulate, the giving of evidence remotely by vulnerable witnesses. She said:
"One of the reasons that vulnerable witnesses often give evidence remotely is to protect them from the stresses of the courtroom. It may therefore be that a compromise is made for that category of witness, in order to balance fair process with the interest of the individual. However … it may also be the case that the vulnerable witness is more likely to give truthful and complete evidence if allowed to give it remotely, rather than in the witness box. So the benefit is not simply to the witness, but also potentially to the judicial process."
No one would seriously argue that to allow a vulnerable witness to give evidence remotely is unempathetic or inhumane. So why is it suggested that it is for a non-vulnerable witness?
28. As for the old chestnut that is demeanour, Lieven J's observations at  -  are highly pertinent:
"27. …Having considered the matter closely, my own view is that is not possible to say as a generality whether it is easier to tell whether a witness is telling the truth in court rather than remotely. It is clear from Re A  EWCA Civ 583 that the Court of Appeal is not saying that all fact finding cases should be adjourned because fact finding is an exercise which it is not appropriate to undertake remotely. I agree with Leggatt LJ (in R (on the application of SS (Sri Lanka) v Secretary of State for the Home Department  EWCA Civ 1391 at  – ) that demeanour will often not be a good guide to truthfulness. Some people are much better at lying than others and that will be no different whether they do so remotely or in court. Certainly, in court the demeanour of a witness, or anyone else in court, will often be more obvious to the judge, but that does not mean it will be more illuminating.
28. I was concerned that a witness might be more likely to tell the truth if they are in the witness box and feel the pressure of the courtroom, but having heard Mr Goodwin and Mr Verdan I do now accept that this could work the other way round. Some witnesses may feel less defensive and be more inclined to tell the truth in a remote hearing than when feeling somewhat intimidated in the court room setting. In the absence of empirical evidence, which would in any event be very difficult to verify, I can reach no conclusion on what forum is most likely to elicit the most truthful and/or revealing evidence.
29. For these reasons I do not think that it is possible to say as a generality that a remote hearing is less good at getting to the truth than one in a courtroom. …"
These judicial observations need to be considered against the empirical research (including that referenced by Jo Hynes) showing that regardless of whether witnesses may be more or less likely to tell the truth when giving evidence remotely, they may be less likely to be believed (see para 7A.xx above).
7A.15 Whether your client needs an interpreter is likely to be another factor to take into account in considering whether she may participate effectively in a remote hearing. If interpreters are not co-located with the appellant or witness for whom they will be interpreting, it may be more difficult to build a rapport which, in turn, may inhibit your client's willingness to disclose information or provide more expansive responses. The diminution of non-verbal communication associated with remote hearings is also likely to impact on the interaction between the interpreter and your client.
7A.16 The Judicial College guidance 'Good Practice for Remote Hearings' anticipates that the dangers of the appellant becoming marginalised in a remote hearing are higher where interpreters are used. It also observes that the lack of visual clues may make interpretation harder. Interpreters may require more breaks when interpreting remotely than in face-to-face hearings. The Equal Treatment Bench Book summarises the following potential difficulties where interpreters are used (Appendix E, p478):
• The interpreter and witness have fewer visual clues to help them understand each other.
• It is harder for a judge to notice if an interpreter is getting lost, and harder for an interpreter to jump in and say if someone is speaking too fast or not pausing at correct intervals. The interpreter cannot easily deploy non-verbal means of slowing down speakers, such as gestures and eye contact.
• In a physical courtroom, the interpreter usually sits next to witnesses as they give evidence. This serves as a visual reminder to everyone that communication must pass through the interpreter and they should slow down and pause regularly. In virtual hearings, there is not the same visual reminder.
• Interpretation is tiring anyway, requiring a high degree of concentration and very strong short-term memory. Sitting in front of a screen for prolonged periods can tire interpreters and weaken concentration.
7A.17 Problems may also arise with the interpretation of submissions. Whereas in a physical court room simultaneous translation at the back of the courtroom is a standard practice, this poses more challenges in a remote hearing. In these circumstances, providing submissions in short bursts to enable interpretation to take place may be necessary to ensure your client's comprehension of the submissions made for and against her case. Alternatively, a separate telephone call can be set up between the interpreter and the appellant, who remain muted on the CVP hearing, to allow simultaneous interpretation of submissions to take place. In circumstances where the judge objects to these approaches, you should hold a conference directly following the hearing with an interpreter to enable your client to understand the case that has been put.
7A.18 In situations where interpreters are not used but the witness is speaking English as a foreign language, the Equal Treatment Bench Book and the Judicial College 'Good Practice for Remote Hearings' caution judges as to the increased cognitive load that the specific technological lexicon used in remote hearings may cause. The 'Good Practice for Remote Hearings' guidance says:
Where interpreters are not used, but individuals are speaking English as a second language, use of technological vocabulary (mute, mic etc); the increased cognitive load of thinking about operating technology as well as language; minor loss of sound or voice distortion, fewer visual cues, could all create difficulties in understanding. Thought must be given to reliable ways of assisting and checking understanding.
7A.19 There are also certain cases where a remote hearing will not be appropriate due to the vulnerabilities of your client, in particular due to her age or mental or physical impairment or ill health. A 2018 consultation response from the Magistrates Association also shows that the loss of co-presence makes it more difficult for judges to identify when an appellant or witness is having difficulties understanding or needs a break. An evaluation by the Equality and Human Rights Commission on remote hearings ('Inclusive justice: A system designed for all', April 2020), found that opportunities to identify impairments and make adjustments may be reduced when a vulnerable witness appears remotely.
7A.20 Where you suspect that your client's vulnerabilities mean that a remote hearing will not be appropriate, it will be useful to seek further evidence on the question of the nature of the hearing. This may be from a treating mental health professional or, if you have already instructed an expert to prepare a medico legal report you should ask your expert to comment additionally on the question of whether a remote hearing would be appropriate in your client's case.
7A.21 The Equal Treatment Bench Book, Appendix E (at para 20), provides examples of a number of specific difficulties arising from remote hearings for people with mental impairments:
• Attending court can be particularly tiring anyway for someone with certain mental impairments. The additional concentration required for a remote hearing may make this even more exhausting.
• A person with severe anxiety may feel even more worried about managing technology.
• A person with severe dyslexia might find it difficult to operate the technology, process the additional information at speed, and maintain attention.
• Inability to see the whole 'room' and everyone who is at the hearing can cause anxiety for those with a mental health or neurodiverse condition.
• An autistic person may experience sensory overload from having to stare at a computer screen for prolonged periods.
• A sudden loss of contact by a party 'dropping out' of a hearing can be immensely stressful for participants who may believe that it is in some way their fault or that the judge blames them in some way for this.
• It can be much harder for a judge to identify that a party or witness has mental ill health, where this has not been disclosed.
7A.22 Conversely, however, there may be cases where specific aspects of your client's vulnerability militate in favour of a remote hearing. There is no 'one-size-fits-all' approach to the decision on remote hearings and you will need to take detailed instructions on the question. This was recognised in the HMCTS research report on remote hearings during the pandemic which observed that some court users interviewed said that remote hearings should not be used for vulnerable groups whereas others said that remote hearings worked well for some clients with certain mental health conditions and disabilities. That in certain circumstances appearing remotely may assist vulnerable witnesses has been recognised judicially as observed by Lieven J in A Local Authority v Mother & Ors  EWHC 1086 (Fam) (see para 7A.14 above).
7A.23 If your client's vulnerabilities mean that it is in her best interests to give her evidence remotely, it will be important for her to have you or a trusted support worker with her whilst appearing remotely at the hearing. This will be important both to enable your client to feel supported to give her best evidence but also, given the difficulties of non-verbal communication in remote hearings, to observe and monitor her mental state and well-being throughout the process. If there is a risk that your client may dissociate, you will need to be vigilant for that or other signs of distress that will require a pause in proceedings. If your client's advocate is appearing separately, it will be necessary to have a means of communicating with them, by text message or email, as agreed in advance, in case your client requires a break.
7A.24 If your client is a minor and if she has a good relationship with her social worker, it may be useful to obtain the views of Social Services about how evidence should be given based on their experiences of your client's ability to participate effectively or otherwise in video conferencing. Your minor client's social worker should also be sitting next to your client when she is giving evidence remotely.
7A.25 If your client has elected to have a remote hearing, it will be important to request one, providing brief reasons, as soon as possible and, in cases under the MyHMCTS procedure, this will be prior to the case being listed.
7A.26 If you have not requested a remote hearing on behalf of your client but the hearing is listed as remote, you will need to advise your client as to the potential risks and potential advantages of a remote hearing (see above). If the listing decision is made with substantial notice, it may be possible for the Tribunal convert it into an in person hearing if you and your client are of the view that her best evidence would be given by attending a hearing in person.
7A.27 However, in circumstances where the Tribunal indicates that a hearing has been listed remotely due to a shortage of Tribunal space or judicial capacity, it will be necessary to apply to adjourn the hearing to a new date. Chapter 8 considers the generic factors to take into account when applying to adjourn a substantive hearing. In respect of your specific arguments where the adjournment application relates to a listing of a remote hearing where your client does not consent, it will be important to argue that it is in the interests of justice for your client (and any of her witnesses) to have the opportunity of providing their best evidence, explaining why a remote hearing would not permit this in your client's specific circumstances.
7A.28 A refusal to adjourn in these circumstances may give grounds of appeal on the basis of procedural unfairness and so will be important to renew any refused application to adjourn at the outset of the remote hearing.
7A.29 Substantive hearings should never take place via telephone hearing (as distinct from a video hearing on CVP or equivalent), but the format may be appropriate for purely procedural hearings including CMRs, although under the reform MyHMCTS procedure these are relatively uncommon. If the CMR is likely to involve significant argument and contested issues you should object to any suggestion that this could take place satisfactorily by telephone.
7A.31 A hybrid hearing is likely to be of most use to your client in circumstances where one or more of her witnesses are unable to attend the hearing in person with the effect that, in the absence of their ability to give evidence remotely, they would be unable to give evidence at all. In circumstances where a witness for your client's case is unable to attend the hearing in person due to, for example, geographical distance, work or childcare responsibilities, but is able to attend remotely, you will need to apply to the Tribunal to permit them to give evidence remotely. In general terms, where the request is reasonable, the Tribunal will enable a hybrid hearing.
7A.32 In circumstances in which witnesses are based outside of the UK, it is necessary to obtain judicial permission for them to appear remotely in your client's hearing, which involves demonstrating that there is no legal or diplomatic objection to a witness giving evidence from abroad in the Tribunal: see Agbabiaka (evidence from abroad; Nare guidance)  UKUT 286 (IAC) and the procedure as set out in Presidential Guidance Note No 4 of 2022 as discussed in Chapter 15.
7A.33 There may be other, rare, circumstances in which you may seek to apply to permit your client or a witness to give evidence remotely in a hybrid hearing. This may be, for example, where due to illness shortly before the hearing your client can no longer attend in person to give her evidence. Consider, however, whether an adjournment in these circumstances might better protect your client's interests, notwithstanding the inevitable delay that this would cause.
7A.34 A hybrid hearing where the judge and/or HOPO appear remotely is unlikely to be beneficial to your client – in particular if the judge is not present the dangers arising from the loss of co-location outlined above will apply in the same way as in a fully remote hearing. You will need to be ready to object to a hybrid hearing taking place in these circumstances. The Equal Treatment Bench Book, at Appendix E, acknowledges the need for particular care to be taken in respect of hybrid hearings to ensure that the arrangements are not procedurally unfair. To that end, it suggests that requiring parties to attend the courtroom in person in circumstances where their representatives are only able to attend remotely is likely to be unfair and observes that '[i]t may also be unsatisfactory for one side to attend in person while the other side attends remotely' (Appendix E, para 31). However, it is worth considering that a situation in which the HOPO appears remotely may be welcomed by your client, who may be relieved not to have to face the Home Office in person. It may also not be disadvantageous strategically for your client to face a remote HOPO whilst all other participants appear in person.
7A.35 You will need to consider the practicalities of your client giving evidence remotely. Discuss with your client what access she has to a good internet connection and how reliable any technology she would need to use is. Frequently clients seeking asylum will not have access to the necessary technology and, therefore, if she is to give evidence remotely, you may need to provide her access to a computer and internet connection, possibly in your offices. If Social Services are involved, they are likely to be able to provide the necessary equipment to permit your client to give evidence remotely but you should check that your client will feel comfortable with these arrangements, which will depend on her relationship with Social Services.
7A.36 Importantly, discuss what is available to your client in terms of a suitable location from which to give evidence remotely. This will need to be a private space, free from distractions or interruptions (children or other dependents, or house mates in shared accommodation) and somewhere that she will not fear being overheard, particularly if, as may be the case, she has withheld full detail of her case from others living with her.
7A.37 You will also need to ensure that your client would not be at risk or her evidence compromised in attending the hearing from home. This may particularly be the case where you suspect your client remains living in an exploitative situation, which may be particularly prevalent in cases involving human trafficking and modern slavery. Your client will need to be free to speak the truth and not fear being overheard.
7A.38 If it is not possible for your client to give evidence from home, you may want to consider whether you can facilitate this from your offices. During the pandemic, many offices were closed or did not have sufficient cleaning, space or other facilities to permit this to be undertaken safely. Additionally, clearly, it is the Tribunal's role to enable the hearing to take place rather than the legal representative's. Concerns have been raised about pressure being applied to representatives by the Tribunal to facilitate hearings from their offices. In such cases the Tribunal has invoked the obligation on the parties (and primarily in respect of appellants' representatives) in rule 2(4) of the 2014 Procedure Rules to: '(a) help the Tribunal to further the overriding objective; and (b) co-operate with the Tribunal generally' to enable appellants and witnesses to give evidence from representatives' offices. You should resist any attempt to do so: the Tribunal clearly cannot force representatives to enable hearings from their offices. Whilst you may want to facilitate a hearing where it is possible in certain cases – it may be that your client will feel more comfortable in your office if she is already familiar with it than she would at the tribunal - it will generally be more appropriate for the Tribunal to facilitate a hybrid hearing in such cases, whereby your client attends the hearing centre to give evidence, whilst some or all of the other participants attend remotely. See further para 31.19.
7A.39 If your client is in care, it may be that they can attend their social worker's offices in order to give evidence in a quiet location. You should check with your client that they would feel comfortable giving evidence at their social worker's offices (do not assume that they have disclosed their reasons for seeking asylum to their social worker). If so, then you should make contact with your client's social worker to establish what may be available - do not assume that a quiet space appropriate for evidence-giving will be available within Social Services offices.
7A.40 The Judicial College 'Good Practice for Remote Hearings' guidance advises judges to keep a neutral background when appearing remotely and not to make assumptions based on where a witness is sitting when appearing remotely from home. The advice on having a neutral background when appearing remotely is applicable to anyone participating in a remote hearing, including your client and her advocate.
7A.41 The Tribunal uses a Cloud Video Platform ('CVP') to conduct its hearings. The advantage of this is that there is no need to download any software to access the hearing, the link is all that is required. The Tribunal User Guide provides specific instructions as to the preferred browser. Notices of hearing include a test link that you can send to your client in advance of the hearing day to ensure that she can access the CVP hearing link. The hearing link is generally sent out by email a day or two in advance of the hearing.
7A.42 The User Guide provides the following guidance to participants in remote hearings:
• Make sure the device you will use works and is fully charged or plugged in, so you do not get cut off during the hearing;
• Have any documents you will need for the hearing ready beforehand;
• Be ready at least 15 minutes before the hearing;
• Dress as if you were coming to a Hearing Centre;
• Check you know how to join the hearing;
• If you are taking part in a hearing with a legal representative, agree how you will communicate confidentially during the hearing;
• Identify, if possible, a quiet location from which to call;
• Ask anyone nearby not to disturb you;
• Join the meeting without any discussion at the start and wait for the Judge to begin proceedings;
• Turn off your mobile phone (or switch it to silent);
• Place your mobile phone away from any connected speakers to limit audio interference.
• Avoid sitting somewhere with a source of bright light behind you;
• Consider using a headset, if you have one, to avoid echoes, feedback etc;
• Mute your microphone when not speaking (and remember to unmute when speaking);
• Do not enter 'mirror screen' or 'share screen' mode, or send a document or attachment, without seeking the Judge's permission;
• Use a side panel (the instant messaging/chat facility), if available, to signify a wish to speak; and
• Re-join on same invitation link if you are cut off.
7A.43 In addition to preparing your client in respect of the location in which she will give evidence, it is necessary to prepare her to access the bundles during the appeal. Whereas in a face-to-face hearing, your client's advocate is able to assist her in locating documents she is requested to look at whilst giving evidence, in remote hearings, there will need to be more preparation of your client vis-à-vis the evidence, especially if you will not be present in the same location as her.
7A.44 In appeals under the online MyHMCTS procedure, the Tribunal will produce a composite bundle (sometimes referred to as the 'stitched bundle') which contains all the case documents including the parties' bundles and pleadings in one PDF file. If your client is able to access a large PDF file with her own computer (a mobile phone would not be suitable for this) or if you are facilitating her access, this is likely to be the best way of accessing the case papers. In cases where your client is unable to access a large composite PDF file and in legacy appeals (which do not use the online procedure), ensure that your client has both her bundle and the Home Office bundle either printed out or in PDFs that she can access. In either case, ensure that her witness statements are book marked and that she is able to navigate her way around the bundles.
7A.45 By the day of the hearing, you should have satisfied yourself in advance that your client will be in an appropriate location and that she is prepared for what to expect (see further paras 31.18-21). If, at the outset of the hearing, it transpires that your client is not in a suitable location and she is liable to be interrupted or distracted, you will need to alert the Tribunal to this and you may need to request a short adjournment whilst you communicate with your client. If, having taken instructions, there is no suitable space available on the day of the hearing for your client to give evidence, you should request an adjournment to another day.
7A.46 Your client should have undertaken a test of the CVP prior to the hearing. Generally the clerk will not open the link until some 10-15 minutes prior to the hearing. You should encourage your client to join at this time so that any technological problems stand a better chance of being resolved in advance of the start of the hearing. The Tribunal clerk will open the CVP and will be online to attempt to resolve any problems. There should also be a telephone number on the Joining Notice which participants are requested to call if they are unable to join at all. Once your client has joined the CVP, you will be able to communicate with her via that platform. It is important to remember, however, that there are likely to be other parties and their representatives present on the CVP, and possibly the HOPO. It will be inappropriate, therefore, to discuss anything relating to the case with your client on the CVP.
7A.47 Ensure, before the hearing starts if possible, that she can see and hear the other participants properly. The Tribunal clerk will be the 'host' and will be able to admit parties to the virtual hearing room. Initially when you and your client log on prior to the hearing start time, the judge is unlikely to be present. Advocates should have a means other than the CVP to contact your client. This may be via telephone directly with your client or if your client's solicitor or caseworker is next to her, communication can be facilitated that way.
7A.48 The time before the judge joins the CVP will be the only time you will have to discuss any points with the HOPO. This is unlikely to be any shorter than in face-to-face Tribunal hearings as HOPOs typically arrive in the court room no more than 10 minutes prior to the hearing. It is worthwhile introducing yourself to the HOPO prior to the hearing, even if there are no substantive issues to discuss. If you have anything you need to discuss with the HOPO, you should request his telephone number and call him separately whilst you both mute yourselves on the CVP.
7A.49 Your client is likely to be reminded at the outset that she must not record or transmit the court proceedings. The Criminal Justice Act 1925 (s.41) and the Contempt of Court Act 1981 (s.9) prohibit filming, photograph and audio recording in the courtroom. Section 85B of the Courts Act 2003 makes it both a summary offence (with a maximum sentence of two years' imprisonment) and contempt of court for a person remotely attending proceedings to make or attempt to make an unauthorised recording or transmission of an image or sound that is being transmitted to them.
7A.50 Whilst your client is giving evidence remotely, you will need to be vigilant to any problems with her comprehension as well as her well-being. Whilst the Judicial College guidance 'Good Practice for Remote Hearings' advises judges that their 'initial remarks must give the parties and their representatives confidence to explain when there are difficulties in hearing/communication generally', practice amongst judges can vary in the Tribunal and ensuring that any difficulties with communication are raised with the judge on your client's behalf forms part of your role as her advocate.
7A.51 If you are not physically present with your client and there is no one next to her whilst she gives evidence, you will need to pay particular attention to your client's presentation on screen and advocate for breaks on her behalf if you suspect these are needed. If this is the case, use any such break to communicate with your client and check her understanding. In many protection appeals it is likely to be appropriate that your client is accompanied by you or a support worker whilst she gives evidence and in this case, if you are not the advocate, your role will be to communicate any difficulties your client may be having to her advocate in a timely manner.
7A.52 The Judicial College 'Good Practice for Remote Hearings' guidance advises judges to provide more time for breaks and cautions against extending hours to get hearings completed. It says:
…[Extending hours] will be exhausting for everyone, and may be particularly problematic for litigants in person, those speaking English as a second language and people with a range of mental or physical impairments who find the process particularly tiring.
Remember that people in difficulty may say they are willing to continue, out of a sense of deference, unassertiveness or anxiety to get the hearing over with, when in reality their ability to give or absorb evidence has become impaired by tiredness
7A.53 It will be for you to recognise when, despite her agreement to continue, it is not in your client's best interests to do so because she is overtired or otherwise not in a position to give her best evidence. In such cases you will need to request a break to take instructions to advise your client.
7A.54 At the end of a remote hearing, it is best practice to hold a short conference remotely to debrief your client as to the proceedings and to check her understanding of the next steps in the process. The guidance at para 39.23-26 applies equally to remote hearings. The end of a remote hearing can feel particularly abrupt and isolating, so it is particularly important to make contact with your client to discuss how the case went and check on her wellbeing, just as you would if you were physically in the same location.
7A.55 From 28 June 2022, courts and tribunals have had powers to allow reporters and other members of the public to observe hearings remotely. Section 198 of the Police, Crime, Sentencing and Courts Act 2022 inserted s.865A into the Courts Act 2003 and the regime is implemented by the Remote Observation and Recording (Courts and Tribunals) Regulations 2022. These provisions repeal and replace temporary regulations that permitted remote observation of hearings during the Covid-19 pandemic.
7A.56 The power allows courts and tribunals to direct the remote observation of persons not participating in a hearing two ways. First, by direction to 'premises' designated by the Lord Chancellor as live-streaming premises, which the Practice Guidance on remote observation to judges (which is listed on the First-tier Tribunal website) states may be used in a case that generates a high level of public interest to enable proceedings to be watched from a second court room. The second type of direction will be more commonly used and permits individuals to attend remotely. This requires those who want to watch or listen to identify themselves to the court or tribunal by providing their full name and email address beforehand, unless the court or tribunal dispenses with this requirement. The decision to permit remote observation is a judicial one.
7A.57 The Regulations impose two threshold conditions for the making of a direction to permit remote attendance of members of the public: first, that it is in the interests of justice to do so; and secondly that there is capacity and technological capability to enable transmission and it would not create an unreasonable administrative burden: regulation 3. Regulation 4 then provides a list of mandatory considerations which judges should take into account. These include (and are not limited to) the need for open justice; the timing of the request; resources; and any impact which the making or withholding of such a direction, or its terms, might have upon (i) the content and quality of the evidence; (ii) public understanding; (iii) the ability of the media and public to observe and scrutinise; and (iv) the safety and right to privacy of any person involved with the proceedings.
7A.58 A direction permitting remote observation may also provide limitations on who can watch or listen. The Practice Guidance on remote observation to judges says the following on the types of conditions or limitations on access that directions could include:
Conditions could, where appropriate, include deadlines by which to apply for access, restrictions on the numbers given access, or enhanced requirements for identification to enable the court to be confident that a person seeking remote access will not risk impeding or prejudicing the administration of justice. The requirement that those who wish to observe remotely must identify themselves remotely cannot be relaxed, but the court could expressly dispense with the default requirement for names and email addresses - for instance, where a family group attends from home. In such cases those wishing to observe remotely must identify themselves by other means.
7A.59 Any derogations from open justice, such as when a hearing takes place in camera, will apply equally to remote observers. See further chapter 32.
7A.60 In certain protection appeals, which are not private hearings, the ability to attend remotely may give rise to safeguarding concerns. Whereas in physical hearings, it is possible to verify the identity of all members of the public present in the hearing room, this becomes more difficult in remote hearings. It is unclear, at present, whether – if it receives an application for remote observation – the Tribunal will notify the parties and invite representations. It is considered that this is necessary in protection appeals as an application to observe by certain individuals might give rise to the need for a private hearing. If you have safeguarding concerns it may be wise to proactively make an application for a remote hearing to be private to avoid such issues arising.
7A.61 The Practice Guidance on remote observation to judges says the following on when remote observation may jeopardise the administration of justice:
The primary duty of any court is to administer justice in the case before it. In some circumstances, remote observation could jeopardise that aim. For example, a witness might be reluctant to give evidence under remote observation by an unknown number of unseen persons, or the quality of the evidence might be impaired by the prospect. Remote observers may be more likely than someone watching in a court room to breach a reporting restriction or the ban on filming or photography or to engage in witness intimidation. They may be harder to observe, identify and hold to account if they do. For observers outside the jurisdiction these risks may be greater, and it is unlikely that sanctions for disobedience could in practice be imposed. Judicial office holders should consider whether any such risks exist in the case that is before them when assessing whether remote access would be in the interests of justice. They should reflect the answer in their decisions and in the content of any directions they make.
7A.62 In certain cases where you consider there to be a risk of applications for remote observation from individuals who are agents of the actors of persecution in your clients case, it may be necessary to apply for a direction that the hearing be held in private (see chapter 32), or failing that, a direction that any applications for remote observation be communicated to your client to enable her to consider her position and make representations or further applications as appropriate.