President Clements says crisis 'requires significant changes to our lives generally and to the way that we work'
President of the First-tier Tribunal (Immigration and Asylum Chamber) responds to concerns raised by members of the immigration Bar over Covid-19 changes
02 April 2020
The President of the First-tier Tribunal (Immigration and Asylum Chamber) yesterday responded to a letter sent on Friday by leading members of the immigration Bar.
Members of the immigration Bar had written to President Clements to express their serious concerns over the Tribunal's recently announced practice and procedure changes due to the Covid-19 pandemic. You can read the Bar's letter here.
"We appreciate that drafting new procedure rules and practice directions with such urgency and in unprecedented circumstances has not been an easy task. We thank all those involved. However, upon review of the existing directions and notices, we are concerned that the current proposals are unworkable," the immigration Bar wrote.
Deep concerns were expressed by the immigration Bar over the Tribunal's new requirement for a skeleton argument in all cases in advance of the appeal, especially as there is no provision in publicly funded cases for counsel to be paid for the skeleton argument.
"Some chambers have already felt compelled not to take instructions under such circumstances and it is likely that most barristers will be unable or unwilling to accept publicly funded cases if required to comply with this direction," the letter states.
The immigration Bar's other concerns included the Tribunal's apparent assumption that all hearings can be conducted remotely, whereas in reality very few that require live evidence to be taken can fairly be done this way.
"Our view is there should be an assumption that live evidence cannot be taken remotely from a non-controlled environment, in line with the tribunal's view in out of country appeals," the immigration Bar wrote.
In his reply, which is available here on ILPA, President Clements explained that he has "had to make clear decisions in a landscape which changes day by day" and says the Covid-19 crisis "requires significant changes to our lives generally and to the way that we work".
President Clements said:" Swift action has been required to avoid the IAC being left with cases listed, hearing centres closed and inadequate means for appellants and their representatives to know that they would not have access to our buildings."
On the subject of funding for sekelton arguments and in general, the President of the First-tier Tribunal (Immigration and Asylum Chamber) wrote: "I want to assure you that I completely understand your concerns and in particular for the junior bar. I am aware that the legal aid contract, as currently drafted, provides for some challenges as to how fees are to be divided between the bar and those instructing them. You will know from other correspondence that the Lord Chancellor's Department is also fully aware of your concerns and that consideration is being given at the highest levels to ways in which the current scheme can be adapted to fit the new ways of working now required. We understand the concerns about legal aid but decisions about the future of the scheme are for others and not the IAC judiciary."
On the subject of remote hearings, President Clements wrote: "You are right to point to the challenge which remote hearings pose … HMCTS is working hard to provide the environment in which we can meet this challenge but you are right to observe that much more needs to be done."
President Clements says in closing: "The leadership judges have put a great deal of thought into identifying ways in which appeals can be heard and decided safely and the work of the Tribunal continued during the pandemic and thereafter."
HM Courts & Tribunals Service (HMCTS) publishes a daily operational summary on courts and tribunals during coronavirus (COVID-19) outbreak. You can access operational updates for the First Tier Immigration and Asylum Tribunal and the Upper Tier Immigration and Asylum Tribunal.
HMCTS also has Coronavirus (COVID-19): courts and tribunals planning and preparation guidance.
Judiciary.uk has a comprehensive page of Covid-19 court gudiance at https://www.judiciary.uk/coronavirus-covid-19-advice-and-guidance.
The Legal Aid Agency has recently published Coronavirus (COVID-19): Legal Aid Agency contingency response guidance and Financial relief for legal aid practitioners guidance.
Note also that the Home Office has now gathered together its Coronavirus (COVID-19): immigration and borders guidance on a single page.