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Latest Position in Immigration Appeals & JRs during Coronavirus Crisis

HJT Training will keep our clients and readers up-to-date on the latest developments during the public health crisis via a series of webinars. We will also summarise the latest information regarding the status of appeals and JRs in immigration cases. 

Immigration Tribunal positions arise in the context of the Pilot Practice Direction across all Tribunals which emphasises a general objective to determine appeals without a hearing where possible, where this is likely to lead to a decision in the applicant’s/Appellant’s favour.

 First-tier Tribunal

  1. Asylum appeals to be lodged online as per Presidential Practice Statement No 1 2020.
  2. FTT is currently triaging cases with a view to identifying cases that can be determined (allowed?) without a hearing
  3. Directions to follow for cases requiring a hearing (including those recently adjourned). Different versions of FTT directions have been seen whilst a routine settles down, an example of directions that have been sent:

            – Appellant’s skeleton argument to be sent 15 days before the hearing

            – SSHD to state position vis-á-vis skeleton via a Response

            – Parties make submissions on whether hearing required

            – No Response = FTT assumes SSHD takes no issue with case put in skeleton argument

  1. The immigration bar wrote a letter last week re “at risk” skeleton arguments if SSHD concedes appeal pre-hearing public funding remote hearings (as well as arguing that oral evidence inapposite in most immigration appeals), and MoJ/LAA statement of 3 April 2020 states

“We will also align legal aid fees for First Tier Tribunal immigration and asylum appeals with HMCTS’ move to an online system for these cases.”

  1. Realistically it must be assumed that FTT hearings will not pick up in significant numbers for many weeks.
  2. Contact details for hearing centres for appeals and bail

Upper Tribunal

  1. Currently triaging cases Practice Direction here update here
  • All cases granted permission to appeal to be reviewed
  • Provisional decision to be made as to whether “error of law” stage needs oral hearing: presumption is decision on “error of law” without hearing
  • If UT thinks that is appropriate, will invite submissions, 21/28 days from that notice being given Appellant/Respondent must produce written submissions/Response, and if either objects to decision without a hearing, then must give reasons 21 days from notice
  • However in practice intelligence from around the country is that senior POs are saying that institutionally they do not the technology in place (or what they have access to is insufficiently secure): so error of law hearings may end up proceeding via audio
  • Where error of law established, continuation hearings to follow, presumption will be remote hearing, otherwise relisting for normal oral hearing in due course

Remote hearings

See the general guidance HMCTS telephone and video hearings during coronavirus outbreak. Relevant issues are likely to be

  • Access of Appellant and witnesses to IT and ability to use it
  • Confidentiality of proceedings in shared accommodation
  • Risk of contamination of evidence due to witnesses over-hearing one another
  • The presentation of those giving oral evidence if not used to speaking remotely

Bail hearings

  1. A hearing notice from Hatton Cross stated

– Telephone bail hearing will follow (date/time given)

            – between Judge and the representatives

– 24 hours before: email bailshattoncross@justice.gov.uk with telephone number & any objection why “cannot” participate in this kind of hearing

            – Applicant may be absent (unless unrepresented)

            – Financial Condition Supporters will be absent

            – Hearing may proceed if you miss the call

Judicial review and Administrative Court

Latest guidance here

Issuing claims

  1. Urgent claims to be issued between 9:30 and 4:30pm to

administrativecourtoffice.immediates@hmcts.x.gsi.gov.uk

With small bundle of super-essential documents

  1. Routine claims to be issued at

administrativecourtoffice.generaloffice@hmcts.x.gsi.gov.uk

  1. Decisions on paper applications such as permission decisions will resume shortly but decision times likely to be longer.

Hearings

  1. Information received on the ground is that oral permission hearings are likely to resume in May/June; non-urgent hearings possibly not until early 2021, more urgent ones for summer 2020 onwards
  2. Most if not all hearings will be conducted by Skype or phone, and where possible will be conducted as public hearings
  3. Give realistic time estimates bearing in mind IT teething issues


Judicial review and Upper Tribunal

Guidance here

Issuing claims

  1. Non urgent matters to be lodged by post (and then to be processed when UT’s work capacity increases)
  2. Urgent matters to be lodged via londonjr@Justice.gov.uk – though the “usual” arrangements of faxing in detained cases

Information posted by HJT on behalf of Mark Symes

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