Important new report considers online procedure pilot phase and unplanned Covid-19 expansion
The Public Law Project (PLP) yesterday published a new report which will be of considerable interest to all members and readers of EIN. The report examines the transition to online appeals in the First-tier Tribunal (Immigration and Asylum Chamber) (FtTIAC).
PLP's comprehensive 75-page report is here. It covers both the Tribunal's planned pilot phase of the use of online procedures in 2019 and the unplanned expansion of online appeals in response to the Covid-19 pandemic from March 2020 to June 2020.
The report draws on quantitative and qualitative data produced through interviews, observations, and Freedom of Information Act (FOIA) requests. Interviews were conducted with a mixture of lawyers and non-lawyers, and the report features plenty of interview quotes throughout.
PLP summed as the report's key findings as follows:
• The online procedure offers significant benefits in principle. Interviewees saw the shift away from paper working and towards a digital system that facilitates earlier engagement of parties to be beneficial. Specifically, the role of Tribunal Case Workers (TCWs) and the respondent review stage were perceived to have clear benefits.
• There were substantial concerns with how the online procedure was implemented during the pilot and how it was expanded during the pandemic. It was clear that many of the issues experienced with the online procedure during the pandemic, both in terms of its implementation and its fundamental structure, had their antecedents in issues that were not addressed during the pilot phase.
• A number of key concerns need to be tackled for the online procedure to fulfil the potential that many interviewees saw in it. These concerns related primarily to the legal aid funding arrangements, the nature of the Appeal Skeleton Argument (ASA), and poor Home Office engagement with the respondent review process. As a front-loaded process, sufficient resourcing of the early stages in the online procedure was perceived to be vital in addressing these concerns.
• Conducting Case Management Review Hearings via remote link was generally seen as desirable if an appellant was represented. Interviewees saw advantages to remote hearings in the context of Case Management Review Hearings but had concerns about their use in substantive hearings.
The authors acknowledge the report's findings during the coronavirus pandemic cannot be extrapolated beyond this specific time period. "We accept that they were, and continue to be, exceptional circumstances during which many were working hard to allow the Tribunal to continue to function," they say.
As noted in the report, Covid-19 caused a dramatic fall in the number of FtTIAC hearings ("from a 'Pre-Covid Baseline' of 916 hearings per week to 3 hearings in the week ending 24 May 2020").
In a piece for the Law Gazette, Jo Hynes, PLP research fellow and one of the authors of the report, said: "The report outlines a case study of one aspect of the wider HMCTS reform programme which was expanded rapidly during the pandemic. However, there are broader lessons to be learnt from this research. In particular, it highlights the challenges of parachuting in a digital process to an already established network of systems, which in this instance most notably includes the Home Office and the Legal Aid Agency. This research makes it clear that evidence-based reform, including comprehensive evaluation of the impact of reforms on the wider justice system, is paramount."