Updated guidance sets out when immigration appeals can be heard remotely
The Courts and Tribunals Judiciary has today published new remote participation guidance across the civil, family and tribunal jurisdictions following the Remote Participation Review launched in July 2024 at the request of the Lady Chief Justice.
Updated guidance has been issued governing remote hearings in the First-tier Tribunal (Immigration and Asylum Chamber) and the Upper Tribunal (Immigration and Asylum Chamber). They supersede all previous guidance on the issue. Copies of both can be read below.
The guidance sits alongside the Remote Participation Overarching Guidance issued by the Lady Chief Justice and the Senior President of Tribunals and emphasises that decisions about whether a hearing should take place remotely remain matters of judicial discretion.
Today's updated guidance confirms that hearings in both the First-tier and Upper Tribunal of the Immigration and Asylum Chambers may take place in person, remotely, or in a hybrid format, with decisions on mode of hearing to be made on a case-by-case basis in the interests of justice. While the First-tier Tribunal guidance expressly recognises that substantive, interim and bail hearings may be suitable for remote determination, the Upper Tribunal adopts a different starting point, establishing a presumption that hearings will be conducted with all participants attending in person unless there is reason to depart from that approach.
Copies of the First-tier Tribunal (Immigration and Asylum Chamber) guidance and the Upper Tribunal (Immigration and Asylum Chamber) guidance follows below:
Remote Hearings in the First tier Tribunal Immigration and Asylum Chamber Jurisdiction
1. Introduction
1.1. Access to justice requires litigants to have effective access to the court that is deciding their case. In some cases, this may be by way of a remote hearing.
1.2. This guidance concerns the mode and listing of hearings in the First tier Tribunal Immigration and Asylum Chamber (FtTIAC) in England and Wales
1.3. This guidance supersedes all previous Guidance.
1.4. This guidance on remote hearings in the FtTIAC jurisdiction follows the Judicial Principles on remote participation, issued by the Lady Chief Justice and the Senior President of Tribunals, set out below:
a) Remote Participation Overarching Guidance
b) Remote Participation Judicial Principles
1.5. The decision to hold a hearing remotely or to enable participants to attend remotely is a judicial one.
2. Rules of Procedure
2.1. This Guidance is issued pursuant to paragraph 7 of schedule 4 to the Tribunals, Courts and Enforcement Act 2007. It applies specifically to FtTIAC.
2.2. In accordance with Rule 2 of the Tribunal Procedure (First-tier Tribunal) (Immigration and Asylum Chamber) Rules 2014 ("the Procedure Rules") decisions as to the appropriate mode of hearing by which to determine appeals requires a flexible approach in order to deal with cases fairly and justly.
2.3. Rule 4(g) of the Procedure Rules permits the FtTIAC to decide the form of any hearing or appointment.
2.4. This Guidance is written without prejudice to the following Guidance Documents:
a) IAC Evidence-from-abroad-Presidential-guidance-v16
b) Practice-Guidance-on-remote-observation-final 28.6.2022
3. Mode of Hearing
3.1 A hearing in FtTIAC may take place in person or remotely.
3.2 Remote hearings use either video or telephone. A hearing may be fully remote (by which none of the participants is present in the hearing venue) or partially remote (by which some participants are present in a hearing venue but some join remotely). The mode may also change during a multi-day hearing, with all participants present in the hearing venue on one day but some or all joining remotely on another day.
3.3 Decisions whether to hold a remote hearing are to be taken on a case-by-case, basis based on the interests of justice. Responsibility for choosing the appropriate mode of hearing is a matter of judicial discretion, subject to the power to delegate such discretion to HMCTS' Legal Officers. Decisions are taken on a case-by-case basis in order to meet the demands of the Overriding Objective. All relevant circumstances will be taken into account.
4. Default approaches when listing cases for a hearing
4.1 Any hearing must be recorded.
4.2 Substantive hearings, interim hearings and bail hearings may be adjudged suitable for remote hearing and determination at the point of listing.
4.3 In all cases, the parties will be able to express their views as to their preferred mode, for example when filing hearing requirements, in correspondence or at any interim hearing held for case management purposes. In all cases, it will be open to a judge to decide, in the interests of justice, the mode of any hearing.
5. Relevant factors
5.1 The question of whether a hearing should be remote remains a matter of discretion for the court, based on a number of clear fundamental principles.
5.2 Listing is a judicial function. The decision whether to proceed with a remote hearing, a partly remote hearing or a fully attended hearing remains at all times one for the court. It is a judicial decision involving appropriate exercise of judicial discretion.
5.3 The following is a non-exhaustive list of factors that will be considered when exercising discretion to direct a remote hearing:
5.3.1 Whether an appellant is represented;
5.3.2 Whether the hearing is concerned with case management or with contested issues requiring the hearing of witness evidence. Hearings involving contested issues requiring evidence from numerous witnesses may be less likely to be suitable for a remote hearing;
5.3.3 Whether the parties consent or object to the hearing being conducted remotely. A party's views on whether a hearing should be remote are an important factor;
5.3.4 Whether the parties are able to engage with and follow remote proceedings meaningfully, including access to and familiarity with the necessary technology. Where a party has a disability, vulnerability or need for special measures this will be relevant to the decision whether or not to proceed with a remote hearing;
5.3.5 Whether there are suitable facilities for a video hearing.
5.4 Resource issues and other administrative difficulties cannot by themselves justify the use of remote hearings.
6. Changes to mode of hearing
6.1 A judge may change the mode of hearing at short notice, such as by converting an in-person hearing to video. This may follow an application by a party. It may also happen because the judge has taken that decision on their own initiative, driven by circumstances that are difficult to predict in advance.
Remote Hearings in the Upper Tribunal (Immigration and Asylum Chamber) ("UTIAC") Jurisdiction
1. Introduction
1.1. This guidance concerns the mode and listing of UTIAC hearings. Separate guidance has been issued by the First-tier Tribunal (Immigration and Asylum) Chamber.
1.2. This guidance supersedes any previous UTIAC guidance in relation to remote hearings.
1.3. This guidance on remote hearings in UTIAC follows the Judicial Principles on remote participation, issued by the Lady Chief Justice and the Senior President of Tribunals, set out below:
a) Remote Participation Overarching Guidance
b) Remote Participation Judicial Principles
1.4. The decision to hold a hearing remotely or to enable participants to attend remotely is a judicial one.
1.5. There is practical guidance at: What to expect when joining a telephone or video hearing.
1.6. Separate considerations, as set out in the overarching Practice Guidance, apply to the Remote Observation of Hearings (by non-parties).
2. Rules of Procedure
2.1. The Tribunal Procedure (Upper Tribunal) Rules 2008 (the "Rules") define a "hearing" in Rule 1 as "an oral hearing and includes a hearing conducted in whole or in part by video link, telephone or other means of instantaneous twoway electronic communication". A remote hearing is a hearing for the purposes of the Rules, including for the purpose of Rule 34. Rule 34 states that in immigration judicial review proceedings, a decision which disposes of proceedings shall be given at a hearing.
3. Mode of Hearing
3.1 A UTIAC hearing may take place in person or remotely.
3.2 Remote hearings use either video or telephone. A hearing may be fully remote (by which none of the participants is present in the hearing venue) or partially remote (by which some participants are present in a hearing venue but some join remotely). The mode may also change during a multi-day hearing, with all participants present in the hearing venue on one day but some or all joining remotely on another day.
3.3 Decisions whether to hold a remote hearing are to be taken on a case-by-case, basis based on the interests of justice.
4. Default approaches when listing cases for a hearing
4.1 All hearings must be recorded.
4.2 The presumption is that hearings before UTIAC will be conducted with all participants in attendance at a hearing centre.
4.3 Judges, or UTIAC lawyers exercising delegated powers, ("UTIAC Lawyers") will consider departing from that starting point on a case-by-case basis, taking account of the overriding objective, as set out in Rule 2 of the Rules and the facts of the individual case. Judges and UTIAC Lawyers may also consider Annex E of the Equal Treatment Bench Book.
5. Relevant factors
5.1 The question of whether a hearing should be remote remains a matter of discretion for the judge or UTIAC Lawyer, based on a number of clear fundamental principles.
5.2 What accords with the interests of justice in each case will depend on the circumstances and the available resources.
5.3 The following (non-exhaustive) factors are relevant when a judge or UTIAC Lawyer decides the mode of hearing and/or considers whether the default approach for listing a case should be disapplied. It will be for the judge or UTIAC Lawyer to decide how they weigh these (or other) factors in the balance in the circumstances of each case.
5.3.1 The views and preferences of the parties.
5.3.2 The availability of enough space in suitable premises, having regard to the health, safety and security of all participants.
5.3.3 The availability of technical facilitates that enable a hearing to take place fully or partly remotely.
5.3.4 Whether the choice as to mode of hearing is likely to speed up or delay the progress of the case.
6. Changes to mode of hearing
6.1 A judge or UTIAC Lawyer may change the mode of hearing at short notice, such as by converting an in-person hearing to video. This may follow an application by a party. It may also happen because the judge or UTIAC Lawyer has taken that decision on their own initiative, driven by circumstances that are difficult to predict in advance.