by Mark Henderson and Rowena Moffatt of Doughty Street Chambers
and Alison Pickup and Monika Nollet of Asylum Aid
~ Revised 2023 Edition ~
33.1 If your case has a case owner, you may be able to engage in sensible discussion prior to the hearing date. Otherwise, you may be able to contact the HOPO by telephone in advance of the hearing date. Unfortunately, beyond confirming whether or not he has your material, the HOPO is very likely to indicate that he does not intend to familiarise himself with the file until the eve of the hearing. (As indicated in chapter 27, it may be helpful to note this if he subsequently tries to take a point on late submission of evidence.)
33.2 You will need to complete a form confirming that you are not prohibited from providing representation under s.84 of the 1999 Act. In MyHMCTS cases this is required to be uploaded to the portal and the Tribunal will not accept paper forms on the day of the hearing.
33.2A If have uploaded late material, whether it be evidence or a further skeleton argument or speaking note, well in advance of the hearing start time you will need to actively liaise with the court clerk and the HOPO to check they have received it (see further chapter 28). For remote hearings, if you are concerned your skeleton has not yet reached the judge on the day of the hearing, be sure to join the online link as early as possible and so that you can speak to the clerk and email him your skeleton to forward on to the judge directly.
33.3 Even if you do not have further documents to serve, it is important to see the HOPO beforehand to check that you have everything he has submitted or plans to submit, and that he has everything you have submitted. You should also explore with the HOPO whether there is any scope to narrow or agree any issues, if it was not possible to do so in advance of the hearing date. HOPOs vary greatly in the degree to which they will co-operate in defining the issues.
33.4 In MyHMCTS cases, adjournment requests are much less frequent because the case should not be listed until the point at which it is evidentially ready. However, if you have an adjournment request or an application to be put back in the list (for example, because a witness is late, or because the Home Office wants to submit further evidence upon which you need to consider your position), you should put the Tribunal and HOPO on notice as soon as possible. This will then be dealt with at the outset of the hearing. Deal with any issues concerning exclusion of the public or anonymity at this stage (chapter 32). You should also check the implementation of any other special measures that have been directed, agreed, or requested in advance (see paras 6.23-6.23A, 6.27, and 31.17), and that the judge and HOPO are aware of them, or else apply for any such measures if this has not already been done.
33.5 The Tribunal will want to check that it and the parties have the same documents. You should therefore ensure that you are in a position to provide details of when your evidence was uploaded.
33.5A If your case is remitted from the Upper Tribunal following the finding of an error of law, it may be necessary to establish at the outset whether the appeal is de novo or, if not, what remains in issue. In Ortega (remittal; bias; parental relationship) [2018] UKUT 00298 (IAC) it was held that a clear indication should be given in the Upper Tribunal error of law decision that remits an appeal to the First-Tier Tribunal if the appeal is to be re-heard de novo. If that is not the case, the error of law decision should set out clearly the issues which require re-making and any preserved findings of particular relevance to the re-making of the appeal. It will be important to raise the extent of any re-hearing with the Tribunal and Home Office Presenting Officer at the outset of the hearing. If the remittal decision is unclear, be prepared to argue for your interpretation of it at the outset of the hearing. The Tribunal in AB (preserved FtT findings; Wisniewski principles) Iraq [2020] UKUT 00268 (IAC) considered the case law on whether, and if so when, the Upper Tribunal should preserve findings of fact in a decision of the First-tier that has been set aside by Higher Courts. This highlighted that whilst the general principle that findings of fact which have not been 'undermined' or 'infected' by legal errors should be preserved, what that would mean in each individual case was fact-specific. Often remitted cases are not set down for a further CMRH but if you are of the view that the Upper Tribunal's determination is ambiguous as to the extent of the remitted appeal, it is advisable to raise this with the Tribunal requesting a CMRH to determine a preliminary issue.
33.6 If any attempt to engage the Home Office in useful negotiations has so far proved futile, the opening discussion provides a further opportunity to seek to define the issues. The HOPO may be asked whether he has anything he wishes to add to the refusal letter. Normally he will not, in which case you may confirm with him, in front of the Tribunal, that he is not raising any new issue at the hearing. You will normally object to any new basis for refusal being advanced at this stage if it could have been raised in advance and this will often require you to indicate that were the Tribunal to permit this new case to be advanced by the Home Office, you would need to apply for a consequential adjournment to enable you to respond properly to the new allegation (see chapter 8).
33.7 If you have submitted evidence such as medical reports or documentary corroboration in compliance with directions and the Home Office has given no indication that it disputes them, you should object if the HOPO raises any specific objection to them at the hearing (for example, that an arrest warrant is forged, or that a medical expert's methodology is deficient).
33.9 Given the appeal process now provides multiple opportunities for the Home Office to make its position on the appellant's expert evidence clear, this is a powerful argument in favour of not permitting the Home Office to advance new allegations for the first time at the hearing. The undesirability of any adjournment that fairness would otherwise require to enable you to respond to the new allegation is a further factor militating against the allegation being permitted.
33.10 If the refusal letter has made specific but unsourced allegations against your client, then you should query these at the start of the hearing if the Home Office has failed to respond earlier in its review. The same applies if an allegation appears to be based on a mistake or misunderstanding of the evidence. You can assume that the HOPO intends to cross-examine on the arguments set out in the refusal letter. There is no reason why your client should have to respond to misconceived and mistaken allegations, and it saves everyone time to sort these out at the start of the hearing.
33.11 If you have submitted evidence which refutes an assertion in the refusal letter, ask the HOPO if he will now withdraw it, and if not, what evidence he intends to call. HOPOs again vary in their approach to this process. But a reasonable HOPO will often withdraw the offending paragraphs from the refusal letter if you convince him that they are mistaken or insupportable. This process also reminds everyone that this is an appeal against the Home Office's decision rather than an unfettered investigation into your client's credibility and character.
33.12 See also para 30.6 for opening where you do not intend to call the appellant.
33.13 For remote hearings, you should have satisfied yourself in advance of the hearing that your client will be in an appropriate location and that she is prepared for what to expect (see Chapter 7A and paras 31.18-21). If, at the outset of the hearing, it transpires that your client is not in a suitable location and she is liable to be interrupted or distracted, you will need to alert the Tribunal to this and you may need to request a short adjournment whilst you communicate with your client. If, having taken instructions, there is no suitable space available on the day of the hearing for your client to give evidence, you should request an adjournment to another day.
33.14 The CVP joining notice permits participants to join slightly in advance of the hearing. You should encourage your client to join as early as possible so that any technological problems stand a better chance of being resolved in advance of the start of the hearing. The Tribunal clerk will open the CVP and will be online to attempt to resolve any problems. There should also be a telephone number on the Joining Notice which participants are requested to call if they are unable to join at all. Once your client has joined the CVP, you will be able to communicate with her via that platform. Ensure, before the hearing starts if possible, that she can see and hear the other participants properly.