Few will lament its passing, announced today by still Immigration Minister Phil Woolas. The news is far from unexpected, but the details are interesting. The plan is for the new system to be implemented by early 2010. A full consultation response has also been published.
Immigration appeals will be transferred into the unified tribunal system. A separate chamber will be created in the both the First Tier Tribunal and the Upper Chamber specifically for immigration cases. In some ways this is a shame as many representatives hoped for some new blood and fresh perspectives from non immigration judges working in other areas.
Interestingly, there will be a normal two stage appeal process between the First Tier and Upper Tribunal. An appeal goes to the First Tier to start with. If the appellant is unhappy, an application for permission to appeal to the Upper Tribunal is made, firstly to the First Tier. If the First Tier refuses permission to appeal, an application for permission to appeal can then be made to the Upper Tribunal. The Home Office sound un-enthusiastic about this system, which includes an additional stage to the old systems of immigration appeal, and say they will keep it under review.
If permission to appeal is granted by either the First Tier or Upper Tribunal, the Upper Tribunal will hold a hearing to decide whether an error of law was committed by the First Tier. If so, the Upper Tribunal can proceed to hear the case itself or can remit the case to be re-heard in the First Tier. What the consultation paper says about remittals is worth quoting:
“The Government believes that remittal may be necessary in some cases, but it should only take place in exceptional circumstances and no case should be remitted more than once. However, we recognise that the Senior President of Tribunals has the primary role in guidance on how cases should be handled in the unified system.”
An assurance has been given that the procedure rules (and therefore presumably practice directions) will be drafted by the normal drafting committee, not by the Home Office. This issue could well provide the first test of the tribunal’s independence. It is again worth quoting from the consultation response, which makes the following heavy-handed threat about the procedure rule drafting process:
“[The Government] has faith this will be done with full regard to the Government’s targets and policy. It is also noted that the Lord Chancellor has the power, where expedient to do so, to direct the committee to make rules necessary to achieve a certain purpose, and may disallow procedure rules made by the committee with written reasons.”
There will be no specific legislation to preclude judicial review of tribunal decisions. The consultation response says this question will be left to the courts to decide, which is welcome. If permission to appeal is refused by the Upper Tribunal, it therefore may or may not be possible to judicially review that decision. A test case will be necessary. The Home Office say they will keep this under review, which presumably means they’ll legislate if they lose the test case.
There will be an onward right of appeal to the Court of Appeal. The consultation response is silent on the critical issue of whether a public interest test will be introduced for appeals to the Court of Appeal. Any such limitation is strongly opposed by lawyers and at least some judges.
The Government is attempting to legislate to allow transfers of immigration judicial reviews from the High Court into the Upper Tribunal. However, they were defeated on this issue in the House of Lords, which I think ended up providing only for fresh claim judicial reviews to be transferred. It looks like the Home Office plan to try and push through their original amendments despite the opposition of the Lords so far.
The current appeal system is a botched mess. The new system looks more sensible, and is basically a return to the days before the Asylum and Immigration Tribunal, which can now be written off as a messy and expensive failure. The big news is the transfer of at least some judicial review cases into to the Upper Tribunal. However, there will no doubt be battles to be fought over the Court of Appeal issue, remittals, time limits for appeals and legal aid funding.