by Mark Henderson and Rowena Moffatt of Doughty Street Chambers
and Alison Pickup of the Public Law Project
~ Revised 2021 Edition ~
This 2021 revised edition is dedicated to the memory of Shindo Maguire who sadly passed away in December 2020.
Continued relevance of (retained) EU law
Impact of the Covid-19 pandemic
It has been said time and again that asylum cases call for consideration with 'the most anxious scrutiny' . . . That is not a mantra to which only lip service should be paid. It recognises the fact that what is at stake in these cases is fundamental human rights, including the right to life itself. (Sivakumar v SSHD  EWCA Civ 1196, per Dyson LJ)
The stakes in asylum and human rights appeals are higher than any other field of litigation yet the exceptional stakes are matched by the exceptional political pressures both on appellants and the appeal process which hinder the effective preparation and determination of these cases.
Two themes run through this book. First, the hearing is only the end of the process. Good advocacy at the hearing can win an appeal (and bad advocacy can lose it). But it is more likely that the appeal was won or lost on the preparation beforehand. Second, the appeal system is just that, not a second round of primary decision-making. It provides a means of testing whether Home Office decisions violate the UK's international obligations. It should not be employed to shore up inadequate Home Office decision-making by drawing judges into trying to formulate a better case against the appellant than the Home Office could manage. Such a distortion of the appeal process only generates cost and delay and so provides ammunition to its detractors. The operation of this jurisdiction is also hampered by what appears to be a systemic inability on the part of the Home Office to engage in sensible negotiation to define and confine issues in advance; its propensity to present a different case at the hearing from any that was disclosed in advance; and frequent failure to comply with judicial directions. The Tribunal has on one occasion been driven to remark that the Home Office's conduct went 'beyond mere institutional incompetence, into the realm of an institutional culture of disregard' for the Tribunal.
Neither appellants nor their lawyers can force the Home Office to make quality decisions or to litigate responsibly. But the best way to counter attacks on the appeal system, and to ensure that 'the highest standards of fairness' apply in practice, is to focus attention upon the Home Office's accountability for its decisions and its conduct in an adversarial system, and to discourage judges from being drawn into acting as primary decision-makers. In the words of the Tribunal, it should be made 'perfectly clear to... the Home Office that they cannot simply leave it to [judges] to make bricks without straw on their behalf' (SSHD v Gjurgjei and Others (01/TH/00197)).
This publication deals with the conduct of asylum and human rights appeals. The text is structured in roughly chronological order, starting with the Home Office's reasons for refusal letter followed by procedure, evidence, and presentation of the appeal, and concluding with using the determination. It aims to provide the practical advice and information required to conduct each stage of the appeal according to best practice. The current edition does not deal with challenging a negative determination of the appeal but the strength of the grounds for any challenge to the appeal determination may well depend upon how well the appeal was prepared.
The book is about practice and procedure, not substantive law. It does not purport to provide a contemporaneous statement of substantive law on any particular date. It is no substitute for the current knowledge of asylum and human rights law that any representative must acquire. On the other hand, no effort is made to artificially exclude discussion of points of substantive law where these are intrinsic to the practical conduct of the appeal. The only criterion used is what will most assist in rendering the presentation of the appeal more effective.
The aim is to be of as much use to as many practitioners as possible. Not everything will be relevant to every practitioner. Some will be embarking upon practice in the field from scratch. Others will be more experienced practitioners who have encountered a specific problem for which they want ideas quickly. Some practitioners will work only on certain aspects of the litigation. However, that makes it even more important to appreciate the process as a whole, and why choices made at one stage will reverberate many stages (and sometimes many years) down the line.
Practitioners vary in their knowledge and experience of civil litigation. Different elements of the appeal process vary in their difficulty and complexity, and the nature of this text inevitably varies accordingly. As few assumptions as possible are made about the practitioner's legal background. The book does make two assumptions: first, that the litigation is approached with a commitment which is commensurate with the issues at stake, and second, that there are adequate resources available to permit the proper conduct of the appeal. As to the second, it would be wrong to pretend that best practice could be achieved on inadequate resources. The on-going cuts to public funding and reduction in the availability of publicly funded legal advice means that those resources are even more precious than before.
Social welfare and support issues for appellants are beyond the scope of this guide since they are beyond the power of the Tribunal. But dealing with such issues is not an optional extra. It is integral to best practice in the preparation of an appeal. It is facile, for example, to go to great lengths to provide a supportive environment for taking a torture survivor's statement, yet ignore her living conditions outside the interview room. The latter are likely to have the greater effect on her mental state and her ability to give instructions and to prosecute her appeal. If you are not able to provide social welfare advice, it is essential to make arrangements to ensure that your client has access to it.
As with the previous editions, this electronic edition of the guide shows what can be done when a text is linked to a comprehensive database of legal and policy resources in EIN's website. The vast majority of references in the book can be obtained by a single click. The authors and publishers welcome comments, suggestions, and corrections and the email address to use for these is: email@example.com. These can be incorporated into the electronic text on an ongoing basis.
We would like to thank the EIN both for funding and publishing this updated electronic edition and for their previous support for the book. This edition is dedicated to the late Shindo Maguire, EIN's Chief Executive, who sadly passed away at the end of 2020. Shindo's support for the project of updating the text has been instrumental in ensuring that now yearly updates are made and the text remains relevant and accessible. Her commitment to this work and her leadership of EIN will be sadly missed.
We would also like to add to the acknowledgements of the publishers, our thanks to the Public Law Project for its help with this edition as well as the 2018, 2019 and 2020 editions. The previous editions would not have been published without the Nuffield Foundation's generous funding and the support of the Legal Education Foundation in 2018.
The end of the Brexit transition or implementation period on 31 December 2020 has meant significant changes to the legal framework for immigration and asylum law in the UK. Most of the secondary EU legislation relevant to this text has been retained under the EU (Withdrawal) Act 2018 although it is subject to modification and the Court of Appeal and Supreme Court now have the power to depart from CJEU case law. The text needs to be read with the following points about the continued applicability of EU law in mind.
Dublin III Regulation
The Dublin III Regulation has been repealed and replaced by the system of 'admissibility' decisions discussed in chapter 1.
EU asylum Directives
Despite the repeal of the European Communities Act 1972 ('ECA'), the UK regulations which implement the key EU asylum directives (i.e. the Reception Directive, the Procedures Directive and the Qualification Directive) continue to have effect in the UK after the implementation period, unless and until repealed, revoked or amended, by virtue of s2 of the European Union (Withdrawal) Act 2018 ('EUWA 2018'). The relevant Regulations are:
Some parts of the Directives were implemented into UK law through changes to the Immigration Rules; those rules are largely unamended.
However the provisions of the Directives themselves, where different from the UK implementation of them, may only be relied on where they:
(i) Confer directly effective rights on individuals and
(ii) Those rights are 'of a kind recognised by the European Court or any court or tribunal in the United Kingdom in a case decided before [31 December 2020] (whether or not as an essential part of the decision in the case)' (s4(2)(b) EUWA 2018)'
(iii) Are not inconsistent with or otherwise capable of affecting the interpretation, application or operation of, any provision made by or under the Immigration Acts, including the Immigration Rules (Immigration and Social Security Coordination (EU Withdrawal) Act 2020, Sch 1, para 6).
What it means for a right to be 'of a kind' 'recognised' in case law is something which will no doubt be considered by the courts in the near future. In the text we have continued to refer to both the Regulations and the Directives where relevant, and have assumed that all relevant rights have been 'recognised' as such and are not excluded by the 2020 Act rule on inconsistent provisions.
The Charter of Fundamental Rights
The EU Charter of Fundamental Rights is no longer part of UK law: s5(4) EUWA 2018. However, this is subject to the important caveat that 'fundamental rights and principles which exist irrespective of the Charter' form part of retained EU law: s5(5). References to the Charter rights in retained EU case law are to be read as if they were references to corresponding fundamental rights: s5(5). This provision should be read in light of the fact that the intention of the Charter of Fundamental Rights was to 'reaffirm' and make 'more visible' the fundamental rights and freedoms which were already recognised in EU law (see the Preamble to the Charter, and see Art 6(1) of the Treaty on European Union (TEU)).
In addition, Article 6(3) TEU guarantees fundamental rights, including the rights protected by the European Convention on Human Rights and 'as they result from the constitutional traditions common to the Member States' as 'general principles' of EU law. 'General principles' are part of retained EU law if they were recognised as such by the CJEU before the end of the implementation period (EUWA 2018, Sch 1, para 2). However, they may be relied only for interpretive purposes and not as the basis for holding any action, or any domestic legislation, to be unlawful.
The interplay of these provisions is complex and again, will no doubt be considered by the courts in the near future.
Relevance of EU case law
Retained EU law (including retained UK implementing legislation) will continue to be interpreted in line with judgments of the Court of Justice of the European Union ('CJEU') handed down prior to the end of the implementation period (31 December 2020) unless either the Supreme Court or the Court of Appeal decides to depart from them: s6 EUWA 2018 and European Union (Withdrawal) Act 2018 (Relevant Court) (Retained EU Case Law) Regulations 2020. Post-implementation period judgments may also be taken into account if relevant: s6(2) EUWA 2018.
The impact of the Covid-19 pandemic on asylum and human rights appeals has been dramatic. After initial concerns that the Tribunal was continuing to hear appeals without adequate safety measures to protect court staff and users, in late March all appeals were adjourned and relisted for case management hearings. Appeal procedures were largely shifted online and where substantive hearings went ahead they have often been conducted remotely. The digital 'reform' procedure which was being piloted with a small number of cases prior to the pandemic has been rolled out for use in all represented appeals. These developments have led to significant changes in working practices and practitioners are still learning how best to navigate the world of online hearings. We have sought to address the key changes where relevant within the text, as well as identifying suggestions for best practice in advising and representing appellants in a context of remote hearings and often remote advice provision. The paramount importance of fairness in these appeals has not diminished as a result of the pandemic; the considerations which you will need to consider together with your client in deciding how best to secure fairness in practice are myriad. See in particular chapter 7 (concerning the decision whether to seek an in-person or hybrid rather than a remote hearing) and chapter 31 (on preparing your client for participating in a remote hearing).