Home Office misleads Tribunal Procedure Committee

In a curious turn of events, the Home Office wrote to the Tribunal Procedure Committee late last year to ‘fess up to having mislead the committee about Home Office policy on withdrawal of decisions. This is an issue we’ve covered before on Free Movement because under the old procedure rules this could cause huge inconvenience to appellants and was wide open to abuse by the Home Office. Only today, for example, the presenting officer I was against was instructed to apply for an adjournment and if not granted then to withdraw the decision and try and kill the appeal that way. In short, the Home Office had told the committee that “withdrawals…

20th January 2015 By Colin Yeo

Judicial toolkit for dealing with miscreant immigration lawyers

The previously reported case of R (on the application of Bilal Mahmood) v Secretary of State for the home Department (candour/reassessment duties; ETS :alternative remedy) IJR [2014] UKUT 439 (IAC) has been re-titled and I think the headnote has been supplemented as well. The case is important on the ongoing saga of how far out of country appeals are an adequate remedy (relevant but far from determinative in the context of the very different statutory context of section 94B “deport first appeal later” certificates) and the current President’s impatience with the conduct of judicial review proceedings (see also Muwonge). The judgment goes a lot further than that though, and the…

7th January 2015 By Colin Yeo

Legal Aid and ‘exceptional’ case funding

In an important and wide-ranging judgment the Court of Appeal in R (on the application of Gudanaviciene & Ors) v The Director of Legal Aid Casework & Ors [2014] EWCA Civ 1622 has upheld Collins J’s finding that the Exceptional Case Funding (‘ECF’) scheme has been operated unlawfully, while allowing the appeal in two, and dismissing the appeal in the remaining three, of the test cases. Rarely can the Court of Appeal have considered such a number of important and diverse issues in one judgment. While everyone will recognise the importance of the case, at 181 densely-written paragraphs over 60 pages, it is hard to make much headway on the…

22nd December 2014 By James Packer

Unwanted anonymity and gagging orders

I’ve now come across two cases in which judges of the First-tier Tribunal Immigration and Asylum Chamber have imposed unwanted anonymity orders on parties without any application or notice. One case is reported here and the other can’t be reported because of, well, the anonymity order. In both cases there was media interest beforehand and the orders acts as a gagging orders, preventing the parties from discussing their case with the media, even though the cases and the identities of the appellants had already been reported. In one of the cases the appellant had a child and that provided the reason or pretext for imposing anonymity. In the other unreported…

17th December 2014 By Colin Yeo

Litigants in person, costs, consent orders …and Hamlet

The case of R (on the application of Muwonge) v Secretary of State for the Home Department (consent orders: costs: guidance) (IJR) [2014] UKUT 514 (IAC) makes for interesting law and interesting reading. It is, apart from anything, the first case I can immediately recall featuring a Prologue, a section entitled The Plot and and an Epilogue and which opens and closes with quotation from Hamlet. More importantly for litigants in person and claimant lawyers, though, it should put an end to dodgy dealing by Treasury Solicitors when it comes to costs.

21st November 2014 By Colin Yeo

New immigration tribunal procedure rules: analysis

The First-tier Tribunal now has a new set of procedure rules: the Tribunal Procedure (First-tier Tribunal) (Immigration and Asylum Chamber) Rules 2014, which came into force on 20 October 2014. The Rules are streamlined in some parts and the overriding objective is modified to emphasise fairness and justice more than speed. Case management powers are stated more generally, in line with the objective of flexibility. Appellants and their representatives should pay careful attention to the changes, especially as non-compliance can now result in a trip to the Upper Tribunal or an order for costs. Time limits have also changed. Some of the changes will in most cases be of benefit…

20th November 2014 By Natalie Wilkins

Tribunal criticised for conducting own research

East of England Ambulance Service Nhs Trust v Sanders (Practice and Procedure) [2014] UKEAT 0217/14/1710 is an interesting employment case involving a litigant in person via Neil Rose. I do not think it is at all unusual for immigration tribunal judges to conduct their own research and I’ve been presented by, for example, a Daily Mail article about a client’s relative by a judge on the morning of a hearing. There are obviously important differences between the employment and immigration jurisdictions and the role of the tribunal in each but nevertheless the issues around inquisitorial vs adversarial, descending into the arena and raising new issues of the tribunal’s own motion are all thought…

20th November 2014 By Colin Yeo

Awards of costs in immigration tribunal appeals

For the first time, it will now be possible for the immigration tribunal to make awards of costs in statutory appeals. The power is conferred by the Tribunal Procedure (First-tier Tribunal) (Immigration and Asylum Chamber) Rules 2014 (SI 2014/2604), specifically by rule 9. The new rules come into effect on 20 October 2014 and apply immediately to any outstanding or future immigration appeal. One important consequence to note of the change to the procedure rules to the First-tier Tribunal Immigration and Asylum Chamber is that the Upper Tribunal also inherits the same power to award costs, presumably also as of 20 October 2014 given the commencement of the FTT rules. See rule…

17th October 2014 By Colin Yeo

Compensation awarded for hearing cancelled at short notice

Given my experience on the float list at Hatton Cross this week, this successful complaint to the Parliamentary and Health Ombudsman makes very interesting reading. An award of £3,600 plus interest for legal costs and £100 for inconvenience was made to a lady whose hearing was cancelled the day before by the court. Waiting around all day only for it later to be cancelled is surely worse, particularly if a load of witnesses and supporters are also put to the same inconvenience? Also interesting is the prospect of successful compensation from the Home Office where a decision is withdrawn at the last minute but the evidence was served in good time…

22nd August 2014 By Colin Yeo

New tribunal procedure rules from 20 October 2014?

At paragraph 4(b) of the newly laid Tribunal Procedure (Amendment No. 3) Rules 2014 is a reference to the Tribunal Procedure (First-tier Tribunal) (Immigration and Asylum Chamber) Rules 2014. These latter rules do not exist yet. As paragraph 4(b) of the amendment rules commences on 20 October 2014, can we therefore expect entirely new rules to come into effect on that date? And will, as has been rumoured, the changes to appeal rights also take effect at the same time that the new rules commence?

11th August 2014 By Colin Yeo

Ethnographic study of “culture of disbelief” at Taylor House

A fascinating study of power play and relationships inside and outside the hearing room has been published as a working paper by the Refugee Studies Centre at the University of Oxford: The culture of disbelief: an ethnographic approach to understanding an under-theorised concept in the UK asylum system by Jessica Anderson, Jeannine Hollaus, Annelisa Lindsay, Colin Williamson. I highly recommend taking a look. It provides that rare thing: a fresh, external view of the work of the immigration tribunal and the key actors, judges, representatives and appellants.

6th August 2014 By Colin Yeo

Detained fast track as presently operated unlawful

In Detention Action v Secretary of State for the Home Department [2014] EWHC 2245, Ouseley J considered a challenge to the lawfulness of the policy and practice applied by the Secretary of State in the operation of the detained fast track and concluded that it ‘carries with it too high a risk of unfair determinations’ ([221]).

15th July 2014 By Bijan Hoshi

Upper Tribunal procedure rule amendment on service

The Tribunal Procedure (Upper Tribunal) Rules 2008 are to be amended from 30 June 2014 to ensure that one party to proceedings gets notice before the other and indeed is responsible for serving the other party. Because the proceedings are immigration ones involving asylum seekers, the obvious bias in treatment of the parties, supposedly equal before the law, is not apparently generally considered to be problematic. There might be more of an uproar if the same approach were applied in housing possession proceedings, for example: you only find out you’ve lost when the bailiffs or police appear to forcibly evict you. In fact this service provision has existed in one…

11th June 2014 By Colin Yeo

“No right of appeal” human rights decisions

There can be few immigration practitioners who do not presently encounter decisions in relation to applications made on the basis of peoples’ private and family life which do not carry the right of appeal. In recent years the prevailing tendency has become to segregate decisions, where the applicant is an overstayer or illegal entrant, such that refusals to vary leave to remain are made without further steps to enforce removal, leaving migrants without an appealable immigration decision which would gain them access to a merits appeal in the First-tier Tribunal (because overstayers do not enjoy the right of appeal given section 82(2)(d) of the Nationality Immigration and Asylum Act 2002,…

2nd June 2014 By Mark Symes

Permission required to ensure public funding in JR proceedings

The Civil Legal Aid (Remuneration) (Amendment) (No. 3) Regulations 2014 came into force on 22 April 2014 with the effect that judicial review proceedings commenced on or after that day will not be funded unless: (a) the High Court or Upper Tribunal grants permission; or, (b) permission is neither granted nor refused and the Lord Chancellor considers that it is reasonable to pay remuneration in the circumstances of the case.

19th May 2014 By Bijan Hoshi

Immigration forms collection

The team at gov.uk are making definite progress with improving the immigration bits of the website. This latest collection of all the major immigration forms is very handy.

2nd May 2014 By Colin Yeo

Child victims and protective measures

This jumped out at me from the newspaper the other day: People who may find it difficult to give their best possible evidence in a courtroom environment and all child victims will be considered in the pilot areas. This allows them to give evidence and be cross-examined by both prosecution and defence barristers ahead of the trial, in front of a judge, and then it is shown to the jury as part of the trial. Three crown courts – Leeds, Liverpool and Kingston-upon-Thames – are testing pre-trial cross-examination this year.

29th April 2014 By Colin Yeo

Ved and another (appealable decisions; permission applications; Basnet) [2014] UKUT 150 (IAC)

Ved and another (appealable decisions; permission applications; Basnet) [2014] UKUT 150 (IAC) is a new case from the Upper Tribunal on the vexed issue of immigration applications the Home Office considers to be invalid. The tribunal takes the view that a Home Office decision that an application is invalid cannot itself be appealed to the tribunal and that sorting it out through the appeal system to show that the Home Office was mistaken requires a later application and formal immigration decision which can then be appealed. Applicants unwilling to take that chance and who feel they need to prove validity directly will need to pursue that in an application for…

28th April 2014 By Colin Yeo

Procedural fairness as an error of law

In a handy case that arrived just after I’d finished a Court of Appeal skeleton on the same subject, Mr Justice McCloskey has delivered another of his characteristically interesting determinations. This one is MM (unfairness; E & R) Sudan [2014] UKUT 105 (IAC), on the subject of procedural fairness amounting to errors of law. The key question is whether an appealable error of law can arise through no fault on the part of the judge. As an aside, most lawyers would consider this a bit of a no brainer, but it is interesting to see a detailed analysis and the context in which the issue arose in this case is…

19th March 2014 By Colin Yeo

New judgment on delays by Home Office in judicial review cases

The Upper Tribunal has in a new judgment [R (on the application of Kumar & Anor) v Secretary of State for the Home Department (acknowledgement of service; Tribunal arrangements) (IJR) [2014] UKUT 104 (IAC)] now set out how it will deal with the vast majority of judicial reviews in which the Home Office fail to provide a timely Acknowledgment of Service. The ruling almost entirely follows the form anticipated in our blog post following the hearing. The most surprising feature of the final form of the judgment is that, despite a pretty clear indication at the hearing that these ‘special arrangements’ would have a clear end date following which the ordinary…

3rd March 2014 By James Packer

Costs in immigration judicial review cases

There has now been a fairly substantial series of Court of Appeal judgments on the issue of costs orders in an immigration litigation context. These also have wider significance for other public law cases, but immigration law is currently dominating public law litigation, at least by volume, as this widely circulated chart shows, based on Ministry of Justice statistics: These costs cases have now been joined by a new one.

12th February 2014 By Colin Yeo

New guidance on handling Home Office delay in judicial review cases

Routine, repeated delay in providing Acknowledgements of Service by the Home Office in judicial review cases reached such a pitch in 2013 that the court held a hearing into the matter (as previously covered on this blog). The Home Office blamed a rise in the number of claims, though from my own experience I conclude that an unthinking and rigid approach to Points Based System and family immigration Appendix FM applications, coupled with the ongoing failure to clear backlogs of applications made years ago, despite repeated promises to do so — and even announcements that this has been completed — is the ultimate cause.

28th January 2014 By James Packer

Home Office should not have special litigant status

This determination was quietly released by the Judicial Office late last year. It is unusual for immigration cases to be publicised in this way. Presumably in this instance it was because of likely public interest in the final outcome rather than the procedural issues arising. It does seem to me, anecdotally, that the Judicial Office has recently released several cases where Home Office appeals against deportation orders were dismissed. This case too ends with a good result for the appellant.

22nd January 2014 By Colin Yeo

Withdrawn decisions survey

This is a very short survey to gather information for a possible legal challenge to the Home Office practice of withdrawing decisions late in the day and perhaps to the tribunal procedure rules, which provide for automatic termination of the appeal. We are very grateful for your time. Any responses will zoom off through the Interwebs to James Packer of Duncan Lewis, who is collating information on this issue. Please share widely.

14th January 2014 By Colin Yeo

Delays by Home Office in judicial review cases

An important recent case slipped under my radar last year, mainly because it has not been publicly reported on one of the publicly accessible case law repositories like BAILII. The case is R (on the application of Jasbir Singh) v Secretary of State for the Home Department [2013] EWHC 2873 (Admin) and it addresses the ongoing problems of delays and routine breaches of the Civil Procedure Rules by the Home Office in judicial review claims. It also has important implications on whether to ask for expedited consideration. If the judgment becomes publicly available I will post a proper link [UPDATE: here you go], but for now I’m stuck with quoting…

9th January 2014 By Colin Yeo

Duty to give reasons

MK (duty to give reasons) Pakistan [2013] UKUT 641 (IAC) is a corker of a decision from the incoming new President of the Immigration and Asylum Chamber of the Upper Tribunal, Mr Justice McCloskey. It is well worth a detailed read. Here, I just set out a few of the edited highlights.

6th January 2014 By Colin Yeo

More on judicial review transfer

Following on from two recent posts on this subject (Judicial review in the Upper Tribunal, Do not lodge Upper Tribunal judicial reviews by post if urgent), there has been another warning about the transfer of judicial reviews into the Upper Tribunal. A claim that includes an element of unlawful detention must remain in the High Court according to the Lord Chief Justice’s Practice Direction on transfers. In the case of R (on the application of Ashraf) v Secretary of State for the Home Department [2013] EWHC 4028 (Admin) Cranston J goes on the war path: It seems to me that to lodge a challenge to removal in the Administrative Court, including a ground…

19th December 2013 By Colin Yeo

Do not lodge Upper Tribunal judicial reviews by post if urgent

Following my previous post on Judicial review in the Upper Tribunal someone got in touch with a total horror story. She attempted to lodge a judicial review by fax to the Upper Tribunal. There was no initial response but on enquiry by telephone the next day she was invited to re-send by fax with an undertaking to pay the fee. However, this was a removal case. No written confirmation of issue was given until several days later. The client’s removal was therefore not suspended. The solicitor had to make an urgent injunction application at the High Court. The situation was fully explained and the order granted. The urgent injunction would…

17th December 2013 By Colin Yeo

Judicial review in the Upper Tribunal

Since 17 October 2011, some immigration judicial reviews have been heard in the Upper Tribunal. Until now this was confined to asylum fresh claims and disputed age assessments. From 1 November 2013 most new immigration judicial reviews are heard in the Upper Tribunal. There are a few teething difficulties, though. And given that my daughter is currently teething, do not for a moment think I’m minimising the seriousness…

12th December 2013 By Colin Yeo

R (Ignaoua) v Secretary of State for the Home Department, CA

The Court of Appeal has held, overturning the decision of the High Court (see previous blog), that the issue of a certificate under section 15 Justice and Security Act 2013 does not have the effect of terminating existing judicial review proceedings.

11th December 2013 By Grace Capel

Home Office immigration tribunal advocacy

Two mundane, day to day things are getting my goat at the moment. The first is the mislabeled “cross examination” many Home Office Presenting Officers are trained into and allowed to get away with at court. The other is Presenting Officer failure to put points to witnesses that are then used in closing submissions. This is also tolerated by immigration judges and I for one have given up objecting. Both of these are basic fair hearing issues.

4th December 2013 By Colin Yeo

Are asylum appeal hearings the same wherever they are heard?

Both parties and practitioners are entitled to expect that the practice and procedure of the court in which their case is heard will be consistent and fair irrespective of which court it is and where it is.  Yet a Freedom of Information Act 2000 request made by academics at the University of Exeter has revealed a dramatic disparity between regional hearing centres in the proportion of First-tier Tribunal asylum appeals that are allowed.  Strikingly, between 1 June 2010 and 31 March 2012, 42% of appeals were allowed at Taylor House in central London versus only 18% at Columbus House in Newport.

30th November 2013 By Bijan Hoshi

Mohammed (late application-First-tier Tribunal) Somalia [2013] UKUT 467 (IAC)

Short procedural point to this one and the use of some invisible magic hats: Where an application for permission to appeal to the Upper Tribunal is made to the First-tier Tribunal outside the prescribed period, rule 24(4) of the Asylum and Immigration Tribunal (Procedure) Rules 2005 requires that the First-tier Tribunal must make a decision on whether the application should be admitted. There was a delay of 881 days in seeking permission to appeal to the Upper Tribunal against the dismissing of the appeal in the First-tier. The deadline is 5 days. A hearing was convened in the Upper Tribunal to investigate whether there was good reason for the delay….

28th November 2013 By Colin Yeo

R (Ignaoua) v Secretary of State for the Home Department

In R (Ignaoua) [2013] EWHC 2512, the Administrative Court held that under powers conferred by section 15 Justice and Security Act 2013 the Secretary of State can automatically and unilaterally terminate qualifying judicial review proceedings.  The appeal hearing concerning this controversial ruling is imminent. The Claimant was a Tunisian national who came to the UK in 2004 and claimed asylum.  In 2008, with a decision on his asylum claim still outstanding, he was extradited to Italy to face charges relating to terrorism.  He was acquitted of all charges on 8 July 2010.  Shortly after his acquittal, the Secretary of State made a decision that he be excluded from the UK because…

13th November 2013 By Grace Capel

Residence test threatens access to justice for children

On Wednesday 23rd October 2013, Parliament’s Joint Committee on Human Rights heard oral evidence on the government’s latest proposals to cut legal aid. The evidence was clear.  Those that will suffer the most from the proposals are society’s most vulnerable groups – children, care leavers, and victims of sexual abuse and human trafficking.

8th November 2013 By Samuel Hawke

Administrative review success rates

This entry is part 6 of 8 in the series Immigration Bill

The new Immigration Bill proposes removal of rights of appeal to an independent judge, to be replaced with  and replacement with ‘Administrative Review’ by one of its own staff. Immigration appeals have almost a 50% success rate according to the Government’s own figures: A recent Freedom of Information request I did reveals the following: Between July 2012 & Jun 2013, 6096 Administrative reviews were resolved and out of that 1,077 were overturned. This represents a proportion of 18%. This is why the Government wants to remove rights of appeal. It is the same reason the Government wants to reduce access to judicial review. It doesn’t like losing. The Government would…

4th November 2013 By Colin Yeo

Appeals and the Immigration Bill

This entry is part 5 of 8 in the series Immigration Bill

The new Immigration Bill (see Ronan’s previous post “Summary of clauses“) is so packed with nastiness that some really unpleasant parts of it – perhaps the whole of it – will make it to the statute book. No mainstream politician with influence will today stand up for the rights of immigrants and their families. The Lib Dems must have signed off on the contents of the Bill. Labour has said the party not only supports the Bill but would go further in introducing tougher measures. Appeal rights are too technical and complex to attract headlines. And the removal of appeal rights is far from being the most socially damaging, racist…

31st October 2013 By Colin Yeo