- BY Colin Yeo
Free Movement Forum Banned!
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It was with a mixture of pride and regret that I heard that last week immigration judges were explicitly and specifically instructed not to join the Free Movement forum by the two Presidents of the Immigration and Asylum Chambers. It is nice to know the blog is on the senior judicial radar, less nice to be blacklisted. This places immigration judges in the same position as immigration detainees, the only other group of which I am aware that are banned by their custodians from access to the Free Movement forum.
The Internet and social media present challenges to us all, from transforming standard legal business models to offering new ways to immortalise rash moments of misjudged ‘humour’ or to fuelling misplaced accusations of bias as a consequence of social media connections. As a complete coincidence, at the weekend I came across a new paper on exactly this last issue: Ethical Exits: When Lawyers and Judges Must Sever Ties on Social Media by Kelly Lynn Anders in the Charleston Law Review, Vol. 7, No. 2, Winter 2012-2013. Almost inevitably this is from the United States, where social media and the Internet are taken more seriously and are more embedded. Hat tip to Richard Moorhead for Tweeting it.
That said, singling out particular websites for banning orders probably isn’t the right way forward. It is flattering to think that Free Movement is a special case in some way because of its wide readership amongst immigration lawyers and judges. It is just a blog and forum after all, though, not a cesspit of moral turpitude. Will a blacklist of other banned sites be maintained somewhere? Are immigration judges also to be banned from socialising where only claimant lawyers are present at a gathering? Will they be forbidden from being in the same room as a Home Office Presenting Officer where no one else is present? Will they be banned from professional or other organisations from which Home Office civil servants are excluded? What about judges in other areas of law?
Fundamentally, why issue this specific missive when there is already arguably rather better considered guidance from the Ministry of Justice on exactly this issue? That guidance surely says enough:
Blogging by members of the judiciary is not prohibited. However, judicial office holders who blog (or who post comments on other people’s blogs) must not identify themselves as members of the judiciary. They must also avoid expressing opinions which, were it to become known that they hold judicial office, could damage public confidence in their own impartiality or in the judiciary in general.
It is also worth referring to the Judges’ Council Guide to Judicial Conduct, released following a Freedom of Information request. I am indebted to the Meeja Law blog for their summary of the relevant parts of the guide:
You will see at paragraph 3.1, dealing with impartiality, that “A judge should strive to ensure that his or her conduct, both in and out of court, maintains and enhances the confidence of the public, the legal profession and litigants, in the impartiality of the judge and of the judiciary. You will also note at 3.4 that judicial office holders are warned against the expression of views out of court that would give rise to issues of perceived bias or prejudgment in cases that might later come before them. Also of interest will be paragraph 3.10, section 4 (Integrity) and Section 5 (Propriety).
The tenor of both sets of guidance is to encourage judges not so say anything stupid. This seems reasonable enough. The guidance does not go so far as to prohibit judges from placing themselves in a position where they might say something stupid. There is no hint of a ban from social media connections or Facebook or Linked In or Google+ or any groups on such websites whether public or approved members only or any other similar websites. It seems unlikely that anything so specific will ever follow, either, at least outside the immigration judiciary. The broad guidance that judges should not express opinions that might give rise to a perception of bias seems strong enough and ‘future proof’.
The extra guidance specifically for immigration judges about a specific website going far beyond the general guidance is, arguably, hysterical overkill. It risks giving the impression that the senior immigration judiciary simply does not trust its junior judges to exercise judgment and would rather they lived in a legal isolation tent, quarantined from legal influences outside the control regime of The Reporting Committee and its reported determinations, the unsearchable unreported database, (ill-) Starred determinations, Country Guidance determinations, Practice Directions and Practice Statements and judicial supervisors at hearing centres. Surely this decade-long trend to infantilise our immigration judges has already gone too far.
I should point out that Ronan Toal of Garden Court Chambers has written on a related subject for the Immigration, Asylum and Nationality Law journal (hard copy only as far as I am aware). See The Reporting Committee of the Upper Tribunal, Immigration and Asylum Chamber: Country Guidance Decisions (2012) Vol 26, No 1 IANL 64 and The Reporting Committee of the Upper Tribunal, Immigration and Asylum Chamber and the Citation of Authorities (2012) Vol 26, No 3 IANL 278.
The ban seems a shame. Some interesting tidbits are emerging on the forum already, including a policy on evidential flexibility in entry clearance cases. Oh well. A few refunds have been issued as a consequence. Immigration judges remain welcome readers of the main blog, at least so long as they aren’t banned from looking at it as well.
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24 Responses
The role of an IJ is to adjudicate between two equal parties in a hearing. Your forum prohibits one of these equal parties representatives from access, a ban if you will. It would consequently be grossly inappropriate for IJs to be participants in your forum, passive or active. That you can’t see that is a little troubling.
There’s no need to be ‘troubled’ by my opinion, it’s just an opinion. What I do find genuinely troubling is where one of the parties makes submissions to a judge in a specific case where the other party is unaware of those submissions. This occurs in ex parte applications, obviously, and there is an added duty of candour in such situations. It also, highly controversially, occurs before Charter Flights, where Treasury Solicitors write with submissions to the High Court about why the Charter Flight is justified and lawful. In the last Sri Lankan one, those submissions were, as usual, not available to the other parties and were also, in that case, inaccurate and wrongly set out the Secretary of State’s position in the Country Guidance case.
Being a member of an internet forum is hardly of the same order (even where the website is so subversive and controversial and morally and legally misleading as Free Movement) and is in my view more akin to a social gathering or a Linked In group or similar.
I echo that sentiment!
Some of the IJs sitting across the UK should be banned too. Forcing appellants to give live evidence. Not mentioning case law in determinations and not reading the evidence in hard copy. And of course doing it (not literally but it would be preferable if they did) with their beloved HOPOS. Totally filthy stuff. Can’t believe tax payers bear the brunt of all this extravagance. Better off doing finance based law and reading the Lehman’s litigation: might make a few bucks and sleep better at night …
I think you might be adding grist to the mill…
So you don’t accept that there is any impropriety or even the chance of a perception of impropriety in judges and appellants representatives sharing a space to discuss their work, from which the respondent and its representatives are barred? Also, I enjoy being troubled. Nothing personal you understand!
No more so than when meeting socially, I guess, or meeting to discuss cases elsewhere. We have a largely part-time judiciary and many IJs are also practicing immigration lawyers. They are trusted (well, were trusted) to have separate hats. Any judges participating in the forum would, I imagine, be part timers who are also immigration lawyers and would be wearing their immigration lawyer hat.
The whole thing looks like an absurd, hysterical over-reaction to me. The forum isn’t intended for judges but I didn’t want to ban part timers who are also lawyers, that is all.
While I understand the ‘professional ethics’ point, it is possible to remain completely anonymous.
Its a shame as the advantages outweigh the disadvantages.
I think the FM forum is now an elite underground club whereby we can now express our thoughts about the quality of IJ’s we come across.
The opportunity to listen and learn has gone – perhaps the judges will discuss amoung themselves in their own elite club instead. It won’t be half as interesting as the FM forum though. :)
Was the reason advanced by “banned too” officially given by the banners and/or were there other reasons?
As a non-lawyer, one might wonder, if such steps are deemed necessary to allow the existing system to continue to work as it is supposed to, or to retain confidence in it, whether that means that there might be problems with the system as it is.
FM congratulations on the positive side, being on the radar.
Hmmm. Perhaps if the SSHD stopped having secret policies, Immigration Lawyers might stop having “secret” forums? ;)
I am still waiting for a copy of the ECO policy on evidential flexibility that gives preferential treatment to Oxbridge student applicants, which was highlighted in the Chief Inspector’s report of November last year. I am not holding my breath, though…
Congratulations on the forum, FM. I shall have to stick my nose in there more frequently.
I was pleased to see you found the existing guidance, I was around at its birth and a great deal of thought and input went into it. It is common sensical and covers all scenarios, including judges.
To specifically ban one forum is definitely prejudicial and makes no sense whatsoever because, doh!, ‘other web forums/sites/social media exists’.
The judges should complain, they have every right to.
Nice to hear from you, Paul, I wondered what had happened to you. It isn’t a Home Office ban, though, but one by the two Presidents of the Immigration and Asylum Chambers. I’ve got a Freedom of Information request pending to see the exact terms of the communication and will publish what, if anything, I receive.
Hehehe Freemovement has achieved heights of greatness and is now ‘Officiialy’ subversive. Seriously though Immigration Judges should not be getting involved in the forum which is a free for all and it could throw up issues of partiality if they expressed an opinion. The last thing we would want is an unsightly brawl in court with accusations flying that a Judge had expressed an opinion on a forum that indicated that he was predisposed on a particular issue. Judges like everyone else put their trousers on one leg at a time and the potential for slip ups is great.
Without their participation in forums, the pretence that the judiciary remains impartial can be maintained indefinitely.
I couldn’t agree more that judges should not express partial or biased opinions or make comments that might perceived to be so. My point is that the existing guidance already says this. To create the precedent of cautioning against a specific website and not even permitting part time judges who are also practicing lawyers to join a professional information exchange forum is foolish. I’m now thinking of creating a new website called ‘www.immigration-lawyers-n-judges-no-hopos.com’ to see if I can get that one banned as well.
Judges don’t need nannying, is my central point. The existing guidance was perfectly adequate and immigration judges should be trusted to exercise judgment. That’s what they do for a living, after all.
Don’t get me wrong, though, I’m quite pleased at the attention!
This ‘ban’ was the inevitable consequence of FM aka CY deciding to ‘Ban’ all HOPOs from participating in his forum. The comparison with ex parte applications is absurd, this is just sauce for the goose. It’s a shame that FM seems unable to cope with those who dissent from his far out views.
PO
Someone emailed in to ask (very politely) about the rational for the membership criteria. I reproduce a very slightly edited version of my reply. You certainly prove one of my points.
“1. The purpose of the forum is primarily to provide a space for immigration practitioners to help one another. That involves explaining client problems and ideas for resolution to such problems. No-one will be willing to discuss such things if they think it is being reported straight back to UKBA.
2. UKBA employees are banned from posting on online forums in their capacity as UKBA employees. A few have left comments on FM over the years (some interesting and constructive, some less so) but that stopped quite some time ago. The kind of employees (or at least those who hold themselves out as such, it is never clear whether they are or aren’t) are unlikely to engage in constructive debate about legal problems – comments in the past from those holding themselves out as UKBA have been very negative in tone and I don’t want to play host to that kind of forum or get bogged down in moderating – I hope just to be able to leave this to run itself, basically, without interference or moderation.
3. It is far from unprecedented to exclude UKBA employees. *** does the same, as does ^^^. *** also explicitly exclude judges, whereas many judges are members of ^^^. I didn’t want explicitly to exclude all judges as a class as I thought that would be a shame to exclude those who are also practicing immigration lawyers (there are quite a few) but I certainly wasn’t aiming the forum at them or encouraging any to join.”
The forum isn’t for judges, it is for lawyers. Some judges are also lawyers, though.
Oh and full time IJ’s are banned, part time have been told to ‘first carefully consider’ or words to that effect. All home office employees (and allied trades) have been banned by FM however, so the IAC has a more subtle approach.
So if you have £25 spare, you don’t work for the home office, or have any connection what so ever (For FM to interpret in accordance with his own secret policy, exempt from FOI), your not an experienced Judge and you agree with all of FM’s views you are allowed to join.
Is ‘forum’ a breach of trade description? You decide !
I’m flattered you seem so keen to join but I’m afraid you are a very good example of why the eligibility criteria exist.
@FM
A very big congratulations for getting the necessary attention from ”those” people.
1) Stop wasting your time in replying that guy.
2) There is always a way out of this. The part time IJ are first of all immigration practitioner.I cant jut believe the rationale of them being banned from expressing themselves
Would you consider (free or discounted, I suppose) read-only access to the Forum for members of the public? I understand why you wouldn’t want people without legal training posting there, but it is likely to become an extremely valuable resource. Many of us can really use it, or are likely to need it in the future.
The problem is that if the forum is fully public I think many lawyers would feel constrained in what they asked or indeed answered. I’m tempted to try out a separate public forum if the private one goes well, but there are serious obstacles to my doing so, not least the time it would take to moderate, even with volunteers helping, and the worry that it would cause I terms of legal obligations. This blog is very much a hobby, and I have no plans to give up the day job!
I think you have yourself left a number of pertinent and informed comments in the past, although not for a while. I’ve invited a couple of the other regular non-lawyer comment-leavers to join. Drop me a line if you are interested and we can discuss.
Someone has pointed me to the link below as an example of a comment policy. Substitute the word “science” for “immigration law” and it would stand as an excellent policy for this blog as well.
http://blogs.discovermagazine.com/cosmicvariance/2012/06/26/comment-policy/#.UVFilywgGSM
I understand your reasons. A separate public forum is probably not worth the trouble, as it is likely it will become filled with people seeking specific legal advice.
And thanks for your kind words and your invitation. May I hold on to it for a year or five? My interest in immigration law is proportional to the degree to which the UKBA inconveniences me and my family. Thankfully it’s currently nil, but this is likely to change again in a few years.