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Sir Peter Lane and Judge Michael Clements review the year in the Immigration and Asylum Chambers

Summary:

Latest annual report on the work of the Tribunals published today by Sir Ernest Ryder

Date of Publication:
30 October 2019

Sir Peter Lane and Judge Michael Clements review the year in the Immigration and Asylum Chambers

30 October 2019
EIN

The Senior President of Tribunals, Sir Ernest Ryder, has today published his latest annual report on the work of the Tribunals.

The report includes a review of the year in the Upper Tribunal Immigration and Asylum Chamber by Sir Peter Lane and a review of the year in the First-tier Tribunal Immigration and Asylum Chamber by Judge Michael Clements.

You can read the full 107-page report here and we've excerpted the sections on the Immigration and Asylum Chambers below:

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SENIOR PRESIDENT
OF TRIBUNALS

Senior President of Tribunals'
Annual Report
2019

[…]

Annex A
Upper Tribunal

[…]

Immigration and Asylum Chamber

President: Sir Peter Lane

Jurisdictional landscape

The past 12 months have seen the Chamber continue to work under considerable pressure, as a result of a shortfall in the number of judges. I am, however, happy to say that, as was announced in last year's report, the Judicial Appointments Commission (JAC) undertook a selection exercise for Upper Tribunal Immigration and Asylum Chamber (UTIAC) in the latter part of 2018. This has resulted in offers being made to nine candidates. We are, accordingly, looking forward to a significant increase in our salaried cadre during the summer of 2019.

The arrival of these judges will be particularly welcomed by Mark O'Connor who, since April 2018, has been UTIAC's Principal Resident Judge. As such, Mark has primary responsibility for judicial deployment, including last-minute changes to itineraries. The fact that we have coped is a testament to Mark's organisational skills and to the willingness of colleagues to step in at very short notice. Mark has rapidly gained the respect of all who have dealings with him.

Our new colleagues will largely be replacing those who have retired in the recent past or who are about to do so. Most recently, we saw the departure of Peter King, after many years of devoted public service, beginning as an Immigration Adjudicator. He will be much missed; but, since he is an ordained Anglican priest and a senior figure in Rotary International, he will continue to lead a busy life. In May, we shall also say farewell to John Freeman. His judicial career extends back well over 20 years. He has made an invaluable contribution, not least in developing the jurisprudence in written decisions noteworthy for their clarity and concision. We wish Peter and John all the best.

UTIAC would not be able to function without the assistance of its deputy Upper Tribunal Judges. A JAC selection exercise for new deputies is due to launch this summer.

UTIAC continues to be grateful for the vital support given by the President of the Queen's Bench Division and by the Lord President of the Court of Session, who respectively make Queen's Bench and Court of Session judges available to sit in UTIAC. As I said in my 2018 Report, UTIAC's judges gain from sitting with these senior colleagues, who, in turn, are able to keep abreast of the latest developments in immigration and asylum law. I am also particularly pleased that, over the past year, a number of recently appointed deputy High Court Judges have started to sit with us.

All of this serves to emphasise the closeness of the connection between UTIAC and the Administrative Court; a fact that it is underscored by our regular liaison meetings with Mr Justice (Michael) Supperstone, the judge in charge of that Court, together with its Lawyers and administrative team.

UTIAC has its own group of lawyers, which has quickly become a key part of the Chamber's operations. The Senior President of Tribunals has enabled me to delegate certain judicial functions to the lawyers, in respect of both UTIAC's appellate and judicial review jurisdictions. Much of the work formerly carried out by UTIAC judges, in dealing with such matters as applications for adjournments and directions prior to hearing, is now being successfully undertaken by our lawyers. I am extremely grateful to Helen Chaytor for expanding the team of lawyers, thereby allowing us to make best use of our judges.

Outside London, there has been progress in co-locating UTIAC's judicial review and appellate work in the Civil Justice Centres. I referred last year to the circuit-system which was about to be introduced in Manchester. This began in April 2018 and has, by common consent of both courts' and tribunals' judiciary, been an enormous success. More recently, we have been able to establish co-location at the Birmingham Civil Justice Centre; and, with effect from January 2019, at the Cardiff Civil Justice Centre thanks to the invaluable support of Mr Justice (Clive) Lewis. I am indebted to Andrew Grubb for agreeing to transfer his judicial base from the First-tier hearing centre in Newport to Cardiff.

With the approval of the Lord President of the Court of Session, UTIAC will this summer sit for the first time in the Parliament House in Edinburgh. I am very grateful to Lord Carloway for making this possible.

My colleagues have continued their participation in the international training of judges, reaching places as far afield as Hong Kong and Odessa. They and I have also participated in various training and conference events in the United Kingdom, both for existing practitioners and law students interested in entering the field of immigration and asylum law.

All who practise in this field know the work can be difficult and demanding, at both a legal and a human level. The vast majority of practitioners discharge their professional responsibilities assiduously. However, in order to ensure that this majority can safely enjoy the societal recognition they deserve, professional regulators must be prepared to deal robustly with those who standards fall short. In this regard, UTIAC, like the High Court, may call for an explanation from those whose behaviour is adjudged to be problematic, with a view to referring the individual to the relevant regulator, where it is appropriate to do so. I am particularly grateful to Fiona Lindsley for acting as the co-ordinating and liaison judge on these issues.

As the schedule of important cases in the annexes to this report demonstrates, UTIAC's judges continue to be active in developing the jurisprudence of the Chamber.

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Annex B
First-tier Tribunal

[…]

Immigration and Asylum Chamber (IAC)

President: Judge Michael Clements

The Jurisdictional Landscape

Last year I was able to report that reform was well underway. However, we were then only at the stage of gathering evidence and mapping how we might put into practice that which had been conceived. I am extremely proud to be able to say that this year we are now piloting the new online process at Taylor House and Manchester Hearing Centres, albeit it in a very limited way, with carefully filtered international protection appeals. To date, the feedback from stakeholders has been very positive; we have met the target dates set for us; and, though not wishing to tempt fate, we remain on track to be fully operational by the end of 2020 as intended.

I am not nor shall I be complacent. There is still a lot of work to be done.

The pilot is being case-managed with the use of 'Pilot Directions' and therefore, changes to the Procedure Rules may well be required. This will involve engagement with the Procedure Rules Committee and proposals have already been prepared for the committee. I remain hopeful that these proposals will be well received.

Those who have any dealings with 'reform' will be aware that the construction of the new platform is being completed in an 'agile' way. Having taken on board the recommendations of the Fundamental Review of this jurisdiction [1], published in 2014, and the Report of Justice, 'Immigration and Asylum Appeals – a Fresh Look', dated 2 July 2018, the IAC has been working towards a new end to end way of working. Every aspect of the process from lodging, progressing, managing and deciding an appeal has been examined. I would like to express my gratitude to the very many stakeholders, including members of the judiciary, Tribunal Caseworkers (TCWs), the Immigration Law Practitioners' Association, the Home Office and the many members of our administration who have all assisted, and continue to assist, the Appeals Transformation Team convert the original concept into a functioning online system.

One of the many efficiencies which we expect to make in reform will be the better use of resources. Over the last year we have increased the number of existing TCWs and we are set to increase the number further. In May 2018, the Senior President of Tribunals extended the powers delegated to TCWs and it is my intention to have TCWs working to the full extent of those delegated powers which in turn will release more judges to deal with the final disposal of appeals. The better management of cases by specialists and the powers delegated to TCWs is at the very heart of reform and will be vital to ensure success.

Given that it is of utmost importance for those TCWs around the country, as well as the judges who might be required to supervise and review their work, to approach similar cases in the same way we have begun, together with HMCTS, to address the process of jointly training judges and TCWs, as appropriate. This will certainly become an important aspect of our rolling training programme. In order to assist with this endeavour, a 'Box-work Benchbook' is being produced which will be made available to all TCWs, as well as those judges tasked with supervising and reviewing such work, in the next few weeks. It may well be that this benchbook will have been circulated by the time this report is published.

Most of the hearing centres around the country are still operating below profile. In large measure this is because there was, in previous years, a moratorium in recruitment. However, I am delighted to confirm that recruitment is once again underway. This year, we have been able to welcome 64 new fee-paid judges amongst our ranks and are anticipating recruiting additional salaried judges in the forthcoming months. I am keen to welcome even more next year.

The increase in the number of judges has created the opportunity for me to increase the number of Assistant Resident Judges following an Expressions of Interest exercise run in January 2019. I look forward to the contribution that I know they will make at the various centres to which they have been appointed in the years to come.

In addition to the regular residential and continuation training courses attended by all judiciary over the course of the year there have been three induction courses for judges new to the First-tier Tribunal Immigration and Asylum Chamber (FtTIAC). In January 2018 we ran a course for new judges, in July 2018 there was another for judges assigned to the IAC from Social Security and Child Support (SSCS), and in March 2019 a course for newly appointed fee-paid judges. The Judicial College have been impressed by the interest and commitment shown by all judges at these courses. I would like to express my particular thanks to John Manuell who retired as Deputy Training Judge at the end of December 2018 and to Anna-Rose Landes and Jonathan Holmes who have taken up this role in his place.

Overseas training has also been undertaken by our judges with Paul Shaerf, Anna-Rose Landes and Julian Phillips conducting seminars on behalf of the European Asylum Support Office (EASO) in Malta. In addition, Julian Phillips has trained on behalf of the Academy of European Law (ERA) in Strasbourg, on behalf of the United Nations High Commission for Refugees Bulgaria and, alongside myself, conducted induction training for a new Refugee Protection Appeals Tribunal that has been established in the Cayman Islands.

Last year, I mentioned that the guidance in the case of AM (Afghanistan) v SSHD & Lord Chancellor [2017] EWCA Civ 1123 had caused us to look again at how we identify vulnerable persons before their substantive hearings. We have now modified our pre-listing forms to better enable us to identify such persons and have taken steps to ensure that there is increased awareness of how the Tribunal can provide assistance when it is appropriate to do so.

The outstanding caseload for 2018-19 in FtTIAC stands at 25,448 with overall receipts and disposals for the year at 43,355 and 59,407 respectively. I am pleased to announce that the arrears of work have decreased significantly. Bail receipts have also steadily declined throughout the year from 13,623 in 2017-18 to 8,595 this year. The outcome of EU-Exit remains uncertain however, this will invariably have an impact on the work of FtTIAC.

Last minute adjournment applications in all jurisdictions are a perennial problem and FtTIAC is no exception. I am grateful to those judges who take float cases to make up the list but the cost to the public purse of having to relist appeals, send out notices and book judges is unacceptable. I have been even more determined this year to improve the practice of all stakeholders. To address this issue, I have introduced a new listing questionnaire to assist TCWs in identifying vulnerable persons and indicate which cases might require more attention before being listed for a hearing.

At the beginning of the year, at Bradford Hearing Centre, I piloted 'auto-delisting'. What this entailed, quite simply, was if a party failed to get their evidence lodged in accordance with directions, their appeal was automatically delisted and if the evidence was not then lodged when next required, a notice requiring the party in default to show cause as to why a wasted costs order should not be made against them would be sent out. I have now rolled this approach out across the country. Though adjournments remain unacceptably high, the pilot demonstrated significant improvements. I expect that many of the disciplinary challenges will be addressed in reform, though I would like the Tribunal to have greater enforcement powers. Some work is already being done on this and I hope to be able to provide a detailed update in next year's report.

Following guidance from the Supreme Court in Kiarie & Byndloss (R on the application of) [2017] UKSC 42, I have been testing video hearings at Birmingham, Glasgow and Taylor House Hearing Centre and am pleased to report that the trials worked well. I have also been piloting the audio recording of proceedings at Newport Hearing Centre.

People and Places

We were sorry to lose six salaried and two fee-paid judges to the Upper Tribunal Immigration and Asylum Chamber following the recruitment exercise earlier this year. I would like to wish them every success in their new role.

My thanks go to Daniel Flury and Natalie Mountain of HMCTS who greatly assisted during the past year in obtaining financial resources for FtTIAC and in the projects we have undertaken. I am also grateful to all the judiciary and administration as we have worked together and the constructive and amicable approach each has developed with the other over our increasingly heavier workloads and new ways of working. I continue to work closely with Sir Ernest Ryder as the Senior President of Tribunals and my thanks go to him and his administration. In particular, Cathy Yallop and Rebecca Lewis are always unfailingly courteous and helpful.

Vicky Rushton retired last year after a long and distinguished service as Head of Office. I would also wish to express my thanks to the Presidential Team at Field House, in particular Rob Theodosio (who we welcome as Vicky's replacement) and Jane Blakelock for their hard work and loyalty not only to me but also the Tribunal.

EU-Exit remains imminent and although we are still not informed fully as to what this will mean or the implications for FtTIAC in terms of workload. We will, however, be ready to meet the exciting challenges that the next year will bring.

Conclusion

Finally, I enclose the below message sent on behalf of Daniel Flury, Deputy Director for Tribunals, which I wholeheartedly endorse:

"It has been an extraordinary year in IAC where so many challenges have been met head on and where so much progress has been made. The FTT [First-tier Tribunal] caseload has now reduced to 24,800, down from 36,300 at the end of 2017/18. Listing ahead times are beginning to fall. FTPA [First-tier Permission [to appeal] Application] and UTPA [Upper Tribunal Permission [to appeal] Application] caseloads have been reduced to frictional levels with average clearance times substantially lower.

I wanted to take this opportunity to thank you all for your contribution. So much has gone into trialling new processes, making sure courts are running efficiently and working with the Reform team to help shape our future. This puts us in a strong position for whatever we may face in the coming year."

[1] https://justice.org.uk/our-work/administrative-justice-system/immigrati…