Mr Justice Bernard McCloskey has been appointed the new President of the Upper Tribunal’s Immigration and Asylum Chamber. His term begins on 1 October 2013 at the conclusion of Mr Justice Nicholas Blake’s three year term of office.
First of all, a few words on the term of Mr Justice Blake. The Asylum and Immigration Tribunal was held in low esteem by just about everyone, and it would be no surprise if the confidence of the judicial inhabitants of that tribunal had been at a low ebb. The quality of decisions does seem to have improved since then. The tribunal is less intransigently anti-EU in approach. A stand has been taken against incursions by politicians. Public law arguments have gradually become acceptable. The worst excesses of the Points Based System have been mitigated. Discreditable episodes such as internal flight in Sudan and third party support are behind the tribunal now. These improvements surely flow from President Blake’s fine legal mind and his humanity.Work still needs to be done, though, for sure.The reduction in the number of tribunal cases being overturned by the Court of Appeal is arguably due to the second appeals test rather than any reduction in the incidence of errors of law, for example. Nevertheless, President Blake leaves the tribunal a far healthier and less irrelevant institution than when he joined it.
Little is known about the new President, at least amongst the London immigration fraternity. Mr Justice McCloskey hails from Northern Ireland where he was appointed to the High Court of Justice of Northern Ireland in 2008. He has been the Northern Ireland High Court Judge in the Upper Tribunal’s Immigration and Asylum Chamber since 2010 so may be known to Northern Irish colleagues.
More importantly, his one reported Upper Tribunal is the excellent case of Rodriguez (Flexibility Policy)  UKUT 00042 (IAC), in which he dealt adroitly with a complex range of authorities on various points more or less peculiar to the immigration jurisdiction. If this determination is anything to go by, he certainly would seem keen to keep up the momentum of the increasing use of conventional public law arguments in the immigration tribunal.
The MOJ press release tells us that prior to all this Mr Justice McCloskey practised at the Bar and was appointed by the Attorney General to the posts of Junior Crown Counsel and Senior Crown Counsel for Northern Ireland and that he took silk (NI) in 1999. Interestingly, he has also served as Chairman of the Northern Ireland Law Commission since 2009 and has been ‘judge in residence’ at Queen’s University Belfast. This suggests a deep interest in the law as an academic subject and, for example, he is familiar with some of the cutting edge principles of EU law. Of the EU Charter of Fundamental Rights, for example, he has written in the context of the EU arrest warrant that the charter
surely has rich potential to present the courts, in this field and others, with new and challenging issues concerning rights and values more conventionally considered by national constitutional courts.
He goes on, almost as a lament, to question whether
the dominant position of the Human Rights Act 1998 [is] in some way explicable of the Charter’s failure to blossom and bloom before national courts in the United Kingdom? Is it possible that there is some lack of appreciation and education amongst practitioners? Or is a Lisbon Charter explosion about to occur? I suggest that these and other related questions may be worthy of closer examination.
There are some interesting arguments based on the charter floating around right now in the immigration law world, so it may not be long before the new President has a chance to conduct that closer examination.
If this university newsletter is to be believed, he comes across as being approachable and down to earth, open to outside learning and viewpoints. These were not traditionally characteristics one would associate with the pre-Blake introspective, insular immigration tribunal hierarchy. As an advocate, it is also encouraging that he comes from an advocacy background and, hopefully, has an understanding of the pressures faced by lawyers.
Rumour has it that some members of the Upper Tribunal were unhappy about the appointment, which they have known about for some time. Might this be a good thing?