With statistical assistance and input by George Symes.
A person whose immigration application to the Home Office has been refused sometimes has a right of appeal. Prior to the Covid-19 pandemic, people essentially had a choice. Their appeal could be heard in person, at court, in front of a judge who would listen to their evidence live (referred to as an “oral hearing”). Or they could opt for a judge to decide the outcome without a hearing, by only reading the documents in the case to reach a conclusion (a “paper disposal”).
The immigration tribunals want to decide a substantial number of appeals on the papers during the pandemic, as set out in a recent Pilot Practice Direction. Many practitioners fear this may be indicative of a change of approach even after the lockdown has ended.
Whilst some may be suitable for paper disposal, in immigration cases the truthfulness of witnesses is often the central factor in dispute. It has been of concern that even in such cases, judges are canvassing whether representatives will give consent for matters to go ahead by paper consideration alone. Other areas of law are similarly grappling with issues of fairness in cases affected by the pandemic (in the family context, for example, see Re A (Children) (Remote Hearing: Care and Placement Orders)  EWCA Civ 583).
Case law recognises the value and weight of oral argument in court. Statistical data obtained through a Freedom of Information request lend support to these observations. The figures cover 264,000 orals hearings and 17,000 paper disposals decided between 2014 and 2019. They show a marked disparity in outcome between the two forms of appeal.
Appeals decided without hearing more likely to fail
In the five-year period covered, 32% of paper appeals were allowed compared to 47% of those heard orally. In other words, an appellant has about a one in two chance of having their appeal allowed at an oral hearing as opposed to a one in three chance on paper consideration alone. These results are similar to those for 2010 to mid-2014, reported by Free Movement a few years ago.
Another way of putting this is that, in summary and on average, an appellant has a 46% increased chance of their appeal being allowed at an oral hearing versus a paper hearing.
But there is also a stark disparity between different types of case. In asylum appeals specifically, appellants have a 368% increased chance of their appeal being allowed at an oral hearing. For in-county migration appeals, the figure is 70%, and for deportation appeals, 45%.
The smallest disparity is for EEA appeals, in which an appellant has only a modest 2% higher chance of having their appeal allowed at an oral hearing. This may be because EEA appeals often centre around financial evidence which involve less of a subjective assessment than credibility disputes.
A statistical analysis of these data, which can be downloaded here, indicates with well over a 99.99% certainty that there is a statistically significant correlation between the decision type (oral vs paper) and the decision outcome.
Are paper disposals more likely to be weak cases?
Does this mean hearing type has an influence on the appellant’s chances of success? Perhaps not directly, although it could do.
The statistics only demonstrate a correlation, which strongly suggests a link of some kind. They do not show causation. It could be suggested that the link might be the other way around — that the statistics simply reflect the strengths of the appeal (i.e. those claims which were going to succeed in any event are more likely to have an oral hearing).
Prior to the “Covid procedure”, appellants were in effect allowed an outright choice as to hearing type. While other factors besides the strength of the case may influence whether or not an appellant chose to have an oral hearing (for example, to extend lawful stay or lack of funds for representation) these would not be expected to have a bearing on the outcome, and therefore would not explain the statistical link between appeal type and outcome.
If the statistics do simply reflect the relative merits of the appeals, they would suggest that the strength of an appeal has a bearing on whether or not an appellant opts to have an oral hearing, and the increased success rate at an oral hearing would derive from the fact that people are disproportionately content for weak appeals to be decided on the papers.
This, however, is highly unlikely to be the explanation. Not only is it counter-intuitive (why would an appellant wilfully throw away the opportunity of persuading the judge in person by agreeing for a weak appeal to be decided on the papers?), it also conflicts with the anecdotal evidence, which is that appellants are generally advised that oral hearings improve their chances of success — which, on the face of it, would be supported by these figures. Indeed, it would be surprising if appellants were not given this advice, in view of the strong tradition of oral advocacy in this country and the array of judicial authority about the benefits of assessing the credibility of live evidence.
For common sense, anecdotal and historical reasons, therefore, it is extremely unlikely that the figures simply reflect the relative strengths of the appeals. More likely is that oral hearings do provide a statistically significant advantage to appellants over paper disposals.
These statistics offer clear support for the value placed on oral argument in the case law and serve as further strong reason as to why your client may wish to request an oral hearing, whether during the lockdown or more generally.
Percentage values in this article have been rounded to whole numbers. For more accurate figures, including calculations and the full statistical breakdown, see Annex 1. The full Freedom of Information response can be found here.