The purpose of this video is to explain the changes that the UK Immigration Courts – UTIAC both First Tier Tribunal and Upper Tribunal have adjourned all or nearly all the face to face hearings due to the coronavirus outbreak and its appears a lot of appeals will be heard on the papers rather than by hearing.
This is hugely worrying as the UT and FTT have issued very detailed directions which place a huge burden on representatives and clients.
For a while there was uncertainty as to what was happening and then I heard first that the UT were proposing to deal with the error of law cases on paper unless a hearing was necessary on the basis that the UTIAC had 10 years experience of hearing such cases the issue as to whether there was an error of law could be decided on the papers. In my view any curtailment or potential curtailment of the right of the advocate to make oral representations at any hearing is dangerous. The late LJ Laws as he then was commented on the importance of oral advocacy being the keystone of our legal system.
I would therefore advise anyone with an upcoming UT error of law hearing to ensure that their representatives make representations to the UT to attempt to secure a “hearing” which can be conducted by phone.
Not to make clear and comprehensive representations risks the appeal being determined with no oral submissions.
In respect of Judicial Reviews, both in the High Court or Upper Tribunal it is my understanding that there will be hearings conducted by phone.
In the FTT, the Tribunal offer to decide the case to be decided on the papers something I would never advise, I have seen countless attempts to appeal decisions made on paper, these have usually failed.
The other offer is for the hearing to be turned into a Case Management Review (“CMR”) where the FTT will decide whether the case can proceed with or without an oral hearing. This follows the new directions issued in relation to the digital pilot scheme – whereby the Appellant needs to prepare the bundle (limited to 50 pages) and a skeleton argument and and then the Home Office needs to respond, all of which needs to be uploaded to the FTT.
Then at the CMR the Court will determine in the light of the Appellant’s skeleton argument and bundle, and the response together with all the evidence provided will be considered by a Judge who will consider, whether
the appeal can be justly determined without a hearing (rule 25(1)(g)).
This creates huge problems for Appellants and their representatives, it means that the not only must the case be prepared by the CMR and a skeleton provided but that the Appellant runs a real risk that the Judge may not if the case is not properly prepared by representatives to decide it on the papers.
This will incur further costs to the Appellants, who are also more than likely suffering was. result of Covid-19,
What worries me is that I am not sure what extra provisions for Skype and phone hearings have been made.
I fear is that a combination of poor representation and an overworked Tribunal may end up in more cases being determined on the papers than should be,
While I have ever sympathy for the Tribunal during this time, there has been plenty of time over the last 10 years to implement remote or video hearings yet in reality, despite some excellent examples it is often hard to find a DVD player in the Tribunal let alone facilities for Skype etc.
I cannot stress highly enough that if you have an appeal you must get the best quality of representative otherwise if the directions are not complied with the appeal is likely to be dismissed.
It is also vital that those affected ensure that the representation at the CMR is conducted by someone with a great deal of experience as an advocate.
I, and the team at Imperium Chambers are currently working and can take on cases and ensure compliance. If you have an appeal or immigration problem please do not hesitate to contact me on 020 7 242 3488 or clerks@imperiumchambers.co.uk or through this channel or my site – www.theimmigrationbarrister.co.uk
Good luck and stay safe.
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