In our earlier post in our Knowledge Centre, we examined Immigration Appeals and the Covid-19 Pandemic. The article can be accessed here.
On 11 June 2020, Presidential Practice Statement No 2 of 2020: Arrangements during the Covid-19 pandemic was published, revoking Practice Statement No 1. From then, all immigration appeals to the First-tier Tribunal had to be started using the reformed online procedure accessed through MyHMCTS, unless it was not reasonably practicable to do so.
New Presidential Practice Statement
The new Presidential Practice Statement (PPS) came into effect on Monday 26 April 2021. This replaces Presidential Practice Statement Note No.2 of 2020. This now widens the scope and makes it mandatory to use MyHMCTS to lodge immigration appeals for those represented who are appealing from outside of the UK. All immigration appeals must be started using the online procedure unless it is 'not reasonably practicable to do so'.
If arguing that it is not reasonably practicable an Appellant must explain why this is so and if the Tribunal agrees, the Appellant can proceed without using MyHMCTS.
For those who are bringing linked immigration appeals at the same time and in the same circumstances and there are common issues, it is now possible to use the MyHMCTS system. The Appellant will be expected to provide the relevant reference number or numbers of those linked appeals.
It is not necessary or appropriate to start an immigration appeal through MyHMCTS for those appealing on the following basis.
- An appeal under the Immigration (Citizens' Rights Appeal) (EU Exit) Regulations 2020);
- Anyone unrepresented (not represented by a qualified person within the meaning of section 84 of the Immgration and Asylum Act 1999;
- Anyone in detention.
The matter is simplified as it is considered not reasonably practicable in those circumstances to commence an immigration appeal using My HMCTS.
There remains a note at the end of the statement:
*Note: Increased functionality of MyHMCTS has been brought forward to facilitate an increased number of appeals being brought by that method to enable remote engagement. However, some aspects of the system have not yet been completed, which explains why not all appeal types can be brought in this way. Further there will be occasions when parties may still need to communicate with the Tribunal from time to time by email or other online means as directed.
What Is MyHMCTS?
MyHMCTS is an online case management system for legal professionals which is managed by HM Courts and Tribunals Services (HMCTS). The system allows professionals to submit, pay for and manage online case applications. It applies in various areas including immigration and asylum appeals.
Further information about how to create an account can be accessed: here.
MyHMCTS was initiated at the beginning of 2020 and applied to divorce, probate and financial remedy services. As this blog available in Inside HMCTS by Steven Chapman, A year in review: How MyHMCTS has become an essential service for professional users examines, the implementation was very timely and has made a real difference in light of the Covid-19 pandemic. We all reflect on the rapid need to now manage appeals online and digitally.
As above, the system can only be used on behalf of Appellants who are not in detention and not appealing an EU Settlement Scheme decision.
It is only possible to select the type of immigration appeal that best fits the case. Evidence and detailed legal argument will follow in accordance with directions.
Once an immigration appeal is submitted legal representatives will be able to build their client's case including providing an 'appeal skeleton argument' (ASA) and uploading supporting evidence,
What is an Appeal Skeleton Argument (ASA)?
An Appeal Skeleton Argument is a brief summary of the case, a schedule of issues and the reasons why the Appellant disagrees with the decision.
The Appeal Skeleton Argument is uploaded along with documents in support of the case.
Home Office Review
If all in the correct format and meeting the requirements the Tribunal will then forward the ASA and bundle to the Home Office. The Home Office will then carry out a review. The review period will depend on the circumstances of the case, but the Tribunal will issue directions. The review is an important way to narrow the issues and on many occasions reach agreement as to the way forward, including by way of withdrawal with a view to grant.
Under the system it is possible to provide additional evidence after submitting a case, for example where additional information is provided by the client or in response to a Home Office review where further issues might need to be addressed.
Hearing - If Necessary
If there is to be a hearing the representatives will confirm any adjustments needed, for example an interpreter. All documents relating to their hearing will be combined in a 'digital bundle'. This can be accessed via MyHMCTS.
Everyone has had to adapt to change and hearings can now easily take place using Cloud Video Platforms (CVP) if necessary.
It is certainly our experience that a structured framework can lead to a meaningful review and potentially avoid any need for the matter to proceed to a hearing. It is extremely important that the reviewer is provided with all necessary information and that the arguments are clearly and succinctly advanced.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.