Senior President of Tribunals, Sir Keith Lindbolm recently presented the 2021 annual report. You can access the 213 page report and read it: here. This is the first report presented by the current Senior President of Tribunals, who was appointed in September 2020.
Senior President's Introduction
In the introduction, the report acknowledges the challenges of the pandemic and the effect on the tribunal system:
No annual report in 2021 would be complete without some reflection on the COVID-19 pandemic and its effects on the tribunals system. The tribunals judiciary has shown itself to be remarkably adaptable and resilient in the face of the COVID-19 crisis. Processes had to be changed overnight as the majority of cases were, out of necessity, dealt with remotely, and judiciary and users alike have had to adapt repeatedly to an ever-changing procedural landscape. We have learned much from the pandemic and will continue to do so as we work with Government towards recovery. Some practices we shall probably retain. Video hearings will no doubt perform a larger role in the tribunals than they did before the pandemic. This, in my view, ought to be welcomed. However, I am also clear in my opinion that face-to-face hearings will never, and should never, be completely replaced by remote methods. There are always going to be cases - indeed, many cases - in which a face-to-face hearing is clearly the best form of hearing, and for several reasons. Judges are responsible for, and will make, the decision, taking into account the interests of justice and the particular circumstances of each case.
The introduction speaks of 'one judiciary' and recognises the importance of equality, diversity and inclusion, as well as ensuring efficiency to maintain access to justice, and the rule of law.
The year in the Upper Tribunal, Immigration and Asylum Chamber, reviewed by Sir Peter Lane
The review acknowledges the impact of the first lockdown:
In common with the rest of the justice system, the Chamber had to quickly adapt to new ways of working, putting in place in just a few days arrangements for the continued progression of work. This included devising an online process for lodging urgent applications in immigration judicial review. The credit for this lies with the Chamber's judiciary and, particularly, its Lawyers who carried the burden of processing the urgent applications at a time when the activities of the administrative staff were profoundly affected by the first national lockdown.
The review emphasises 'new judicial ways of working' including resolving matters without the need for a hearing in addition to developments in hybrid and remote hearings.
The review acknowledges the investment and developments relating to reform including completing a comprehensive overhaul of judicial review templates, modifying forms for users and developments in training.
The review concludes by accepting how uncertain the future is:
At the time of writing, it is uncertain how quickly life may return to something approaching what it was before the onset of the pandemic. The UTIAC is, however, making appropriate plans.
The year in the First-tier Tribunal of the Immigration and Asylum Chamber, reviewed by Judge Michael Clements.
The review notes how the pandemic had a 'significant effect' on immigration appeal caseloads, and a further 'sharp increase' is predicted. In the period 2020-21, 25,210 appeals were received and 20,410 disposed of. This compares with 2019-2020 in which 42,290 appeals were received and 49,900 appeals disposed of.
The Immigration and Asylum Chamber has seen significant reform:
The FtTIAC Reform Team was the first to conceive and design an end-to-end online appeals process. The vast majority of online appeals have been commenced during the pandemic. This has been achieved by FtTIAC extending the service to include most appeals lodged in the UK where there is a representative and proscribing, by way of Directions (effective from 22 June 2020), that in certain categories appeals are brought in that form unless it is not reasonably practicable to do so.
The focus of the system is now to identify issues and to ensure the Secretary of State has reviewed the merits before an appeal is listed. Cases are now actively managed by judges and Tribunal Caseworkers - TCWs. The report acknowledges that care has been taken to ensure that unrepresented Appellants are not disadvantaged.
The report addresses the response to the pandemic:
The decision in March 2020 to adjourn appeals that had been listed in April, May and June for face to face hearings was not taken lightly. It was made to protect the health and welfare of the parties, the judiciary, our staff and all of our court users. Hindsight has confirmed that this was the correct decision. It was rapidly overtaken by the closure of our hearing centres by HMCTS, the national restrictions that affected travel and the ability of all of our stakeholders to operate normally.
There is further acknowledgement that the pandemic: 'led to an acceleration of the implementation of the reform process and the swift adoption of video hearings'.
The practicalities of remote hearings is considered:
These allowed remote hearings whenever these were suitable for the parties. Not every party will, in practice, be able to access a remote hearing satisfactorily. I accept that, even when access to technology allows them to do so, the personal circumstances of some require careful consideration to ensure a fair hearing and that best evidence is given. This will continue to inform our listing decisions as to whether to list an appeal for face to face or remote hearing. These decisions will be driven by the circumstances of the parties not by the representatives, and it will remain a judicial decision'.
The review recognises the use of technology in dealing with the provision of documents and bundles for hearings.
The review notes how the Diversity and Inclusion Committee will be 'integral to implementing Equality, Diversity and Inclusion initiatives within' the Chamber.
A new Bench Book has been issued and Practice Directions and Practice Statements will be reviewed to consider what 'consolidation can be effected'. The review reflects on anticipated legislative reform: Nationality and Borders Bill.
Looking to the future, the review reads:
We will continue to research the effects of video hearings on outcomes and court users and of remote working on our judges. I seriously consider the many reports that remote video hearings take longer and cause more judicial fatigue. However, those must be balanced against the reports I receive suggesting many court users prefer remote hearings, finding them less stressful, cheaper and more efficient. There are clear benefits to using remote hearings 'in appropriate cases', but I remain vigilant in ensuring that they are properly identified.
The Future - Immigration Appeals
As immigration lawyers, we have witnessed many changes in the system during the pandemic, beginning with initial substantial distribution to a now streamlined system incorporating active case management before listing. We have considered and reflected on the changes we have seen in other recent posts in our Knowledge Centre: Immigration Appeals and the Covid-19 Pandemic and Immigration Appeals Updated Procedure.
As immigration lawyers, we welcome a combination of continued face-to-face hearings as well as remote hearings using Cloud Video Platforms depending on a client's individual needs. We are pleased to partake fully in the pre listing process and embrace active case management; ensuring cases are reviewed before consideration is given to listing.
In order for us to fully engage in the review process it is important that time is not wasted; preparation and planning should commence at an early stage. For a guide to preparing appeals including both the practical and legal considerations, our series of posts in our Knowledge Centre may assist. For cases involving expert evidence, which may take time, our guide to considering the use of experts is available to read.
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.