A New Era for Immigration and Asylum Appeals
On 1 November 2024, the First-tier Tribunal (Immigration and Asylum Chamber) (FTT IAC) ushered in a new era with the publication of its latest Practice Direction (PD). This comprehensive document replaces previous iterations and Practice Statement No. 1 of 2022, signifying a considerable shift in the landscape of immigration and asylum appeals.
While the overarching timelines for filing evidence and legal arguments remain as stipulated in the Tribunal Procedure (First-tier Tribunal (Immigration and Asylum Chamber) Rules 2014 (as amended), the new Practice Direction introduces several key changes that demand careful consideration from practitioners.
Judge Melanie Plimmer, President of the FTT IAC, highlights the importance of this shift in her introduction to the new Practice Direction. She states that everyone involved in the IAC, including judges, legal officers, and representatives, needs to “intently focus on the issues and the evidence that really matters”. This approach, she believes, aligns with the Reform Programme and the Overriding Objective. You can watch her video on Vimeo, which is also available in the new online guide to the Practice Direction.
The Cornerstones of the New Regime: Issues-Based Approach and Procedural Rigour
At the heart of the new Practice Direction lies an unwavering emphasis on an “issues-based approach” and stringent “procedural rigour.” These principles, interwoven throughout the document, set the tone for a more streamlined, efficient, and focused approach to appeals.
Understanding the Issues-Based Approach
The issues-based approach mandates meticulous identification, clear articulation, and agreement upon the core points of contention between the Appellant and the Respondent. This approach is not merely a procedural formality, but a codification of the evolution of appeal structure and adjudication, as seen in last year’s cases of Lata (FtT: principal controversial issues) [2023] UKUT 00163 and TC (PS compliance – “issues based” reasoning) Zimbabwe [2023] UKUT 00012 (IAC), both of which are referenced in the new PD. Benefits for appellants include:
- Focused Proceedings: This approach ensures that the Tribunal’s and the parties’ resources are directed towards the pivotal issues in the case, maximising efficiency and minimising distractions.
- Transparency and Manageability: The issues-based approach fosters a more transparent and readily comprehensible process for appellants, enabling them to better understand the crux of their case and the arguments at stake.
- Timely Resolutions: By streamlining proceedings and concentrating on core disputes, the issues-based approach expedites the resolution of appeals, minimising delays, and providing appellants with swifter outcomes.
Navigating the Pitfalls of Procedural Rigour
The new Practice Direction is unequivocal in its demand for procedural rigour. Non-compliance with its provisions can have serious consequences, potentially jeopardising the success of an appeal. The PD cites R (Spahiu) v Secretary of State for the Home Department [2016] UKUT 230 as previous authority for the principle that severe consequences that can follow procedural missteps “the price of securing an amendment may sometimes involve the payment of costs consequently incurred by the respondent”: PD:1.2 The Tribunal will not overlook breaches of the Procedure Rules, Practice Directions, Practice Statements, or failures to comply with directions: PD 1.2-1.3.
The Tribunal can of course strike out an appeal if the associated fees are not paid (Rule 7(1)) and may only reinstate the appeal under certain conditions (Rule 7(2)). They may also order the payment of costs if a person has acted unreasonably in bringing, defending, or conducting proceedings; Rule 9(2)(b). Whilst non-compliance can result in sanctions, the Tribunal must consider all relevant principles and conclude that they are “just” in the circumstances: see SS (Congo) v SSHD [2015] EWCA Civ 387.
Key areas of procedural rigour include:
Page Limits: Strict page limits apply to various documents, References to maximum page numbers of bundles of documents referred to in this Practice Direction require the text to be in no less than size 12 font with 1.5 line spacing. While exceeding these limits is permissible with the Tribunal’s permission upon an application, it is crucial to adhere to the prescribed page constraints unless there are compelling reasons to exceed the page limit.
- Appeal Skeleton Arguments (ASAs): Limited to a maximum of 12 pages: PD 7.6. If an ASA needs to exceed this limit, permission must be obtained from the Tribunal: PD 7.7. The ASA should be structured to include a brief summary of the appellant’s factual case, a schedule of the disputed issues, and the appellant’s submissions on each issue: PD 7.6(a) and (b)
- Country Guidance Material: parties relying on country guidance material (CPIN or decision) must only include extracts in the bundle, and this must not exceed 12 pages. This must be included in a “Country Evidence Schedule”: PD: 10.6.
- Expert Reports: must be no more than 20 pages. A written application with clear justification is required to exceed this limit: PD 9.2 and 9.3. In an application for permission to rely on a longer report, it may be worth citing the need for “anxious scrutiny” where “only the highest standards of fairness will suffice”: Abdi & Anor v SSHD [1996] 1 All ER 641. This also raises the question of whether, contrary to the intention of the PD, there will be more oral expert evidence, with accompany complexities that entails, see for example, HA (expert evidence; mental health) Sri Lanka [2022] UKUT 111 (IAC).
Bundle Organization: Bundles must adhere to a digital, indexed, bookmarked, and paginated format, with each page in A4 size unless a larger size is necessary: PD 7.2. Any typed text in the documents must be compatible with Optical Character Recognition (OCR) software, which allows the text to be electronically searched and copied, except when this would distort the text.
Country Information Evidence: The use of country information evidence, particularly anything beyond country guidance (CG), should be limited and presented in a schedule of country information. If a party seeks to depart from the findings of a relevant CG case, strong justification and compelling evidence are needed: PD 10.5. Additional country background material should only be introduced if there is no applicable CG case: PD 10.4. Parties are required to present a country information evidence schedule that complies with formatting guidelines: PD 10.6.
Practical Tips for Success
Early and Comprehensive Case Assessment: Begin by conducting a thorough review of all client documents and consult with a barrister specialising in immigration and asylum law to identify potential issues and devise an initial strategy. This early intervention can be instrumental in shaping the direction of the appeal and avoiding costly missteps.
Meticulous Identification of Disputed Issues: Engage in a detailed analysis of the respondent’s decision, identifying all areas of disagreement. Collaborate with a barrister to ensure that no relevant issue is overlooked. A well-defined schedule of disputed issues forms the foundation of the issues-based approach and guides the entire appeal process.
Strategic Evidence Gathering and Preparation: Focus on collecting evidence that directly addresses the identified disputed issues. Ensure that witness statements and expert reports are concise, relevant, and comply with the prescribed format and content requirements. A barrister’s expertise can be invaluable in assessing the strength, admissibility, and compliance of evidence.
Expert Drafting of the Appeal Skeleton Argument (ASA): Instruct a barrister to prepare a clear, persuasive, and well-structured ASA within the stipulated page limit. Effective communication with your barrister and providing timely feedback will help to ensure that the ASA effectively presents the appellant’s case. It should be noted that if the Respondent fails to provide a bundle, the Tribunal may direct the Appellant to provide their ASA and evidence in any event PD 7.4.
Thorough Bundle Preparation: Compile all relevant documents into a meticulously organised and indexed bundle, strictly adhering to formatting and content requirements. Consult with a barrister to verify the completeness, compliance, and effectiveness of the bundle in supporting the ASA. Bundles must contain a written explanation of why any new evidence was not provided earlier: PD 7.13 and if any evidence is provided later than five working days prior to the hearing, the Tribunal must decide admission as a preliminary matter. If the Tribunal excludes such evidence, the Judge must give reasons and if the admission of late evidence results in a hearing being adjourned, the Tribunal should consider wasted costs: PD 7.14.
Final Review and Consultation: Conduct a comprehensive review of all prepared materials, including the ASA, the bundle, witness statements, and expert reports. Schedule a final consultation with a barrister to address any outstanding issues and finalise the case strategy.
The Importance of Specialist Legal Counsel
The intricacies of the new Practice Direction, and the potential consequences of non-compliance, underscore the critical role of specialist legal counsel in immigration and asylum appeals. Solicitors seeking to effectively represent their clients in this evolving landscape should consider collaborating with barristers possessing the requisite expertise in navigating these complex procedural requirements and presenting compelling arguments within the confines of the issues-based approach.
Garden Court Chambers is home to a team of highly experienced and dedicated immigration and asylum barristers with a proven track record of success in the First-tier Tribunal and beyond. Our barristers can provide invaluable assistance at every stage of the appeal process, from initial case assessment and strategy development to evidence preparation, ASA drafting, and representation at hearings.
Contact Garden Court Chambers today to discuss how our expert team can support your clients in achieving the best possible outcomes in their immigration and asylum appeals. Members of the Garden Court Immigration Team Zehrah Hasan, David Sellwood and Georgie Rea recently provided training to Gherson LLP Immigration team on the new Practice Direction. Please do get in touch if your firm would benefit from similar training.
