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Justice McCloskey and Judge Clements review the year in the immigration tribunals

Date of Publication: 
30 July 2017
Summary: 

Senior President of Tribunals, Sir Ernest Ryder, releases his 2017 annual report

Justice McCloskey and Judge Clements review the year in the immigration tribunals

30 July 2017
EIN

The Senior President of Tribunals, Sir Ernest Ryder, released his 2017 annual report on Friday. As Sir Ernest Ryder notes, this year's report is a little later than normal, largely due to the general election. Future annual reports can be expected in April.

The report provides a comprehensive review of 2016 in the tribunal system, including individual reviews of the Upper Tribunal, Immigration and Asylum Chamber by Justice Bernard McCloskey, and of the First-tier Tribunal, Immigration and Asylum Chamber by Judge Michael Clements.

You can read both immigration tribunal reviews below (excerpted from the report), and you can read the full, 114-page annual report here.

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Senior President
of Tribunals'
Annual Report

2017

[…]

Annex A Upper Tribunal

[…]

Immigration & Asylum Chamber

President: Mr Justice (Bernard) McCloskey

Our Work Streams

The Upper Tribunal Immigration and Asylum Chamber's (UTIAC) work streams remain unchanged. We continue to deal with:

(a) Immigration and asylum error of law appeals from the First-tier Tribunal (FtTIAC) in which permission to appeal has been granted.

(b) Immigration and asylum judicial reviews falling within our jurisdictional remit. This Chamber handles approximately 95% of all such cases, while the Administrative Court retains jurisdiction in the residual category.

In addition, age assessment judicial reviews, representing a small fraction of the whole, continue to be transacted in this Chamber.

The basic profile of the work of the Chamber also remains unchanged, being constituted by written judicial decision of various kinds and decisions given orally at the conclusion of a hearing.

Between 01 November 2015 and 31 October 2016 the total intake of new statutory appeals was 7,055 and new judicial reviews totalled 16,195. All permission to appeal applications, inward and outward, totalled 11,362.

Judicial Personnel

The most notable feature of the past year was the loss of several senior judicial colleagues through retirement. Upper Tribunal Judges Chalkley, Eshun, Goldstein, Storey, Taylor and Warr all succumbed to the alluring pastures of retirement. They have, however, done so with more than a whimper. All have become fee-paid judges of the Chamber. This has softened the blow somewhat and, via this conversion, the continued benefits of their unrivalled combined experience, wisdom and expertise are available. This benefit is not merely enjoyed by the Chamber internally. Rather, it enures to the advantage of all users and stakeholders.

Flexible working and judicial diversity continue to feature in our Chamber and work patterns. Many salaried judges of the Chamber are based at home approximately two days per month, making paper decisions. Interestingly, the home output is approximately 20% greater. This, evidently, is attributable to the convenience and comfort of the home working environment and the absence of interruptions and distractions. The flip side is that home working weakens the Chamber's ability to deal fairly and equitably with rapid onset business needs which, by definition, are volatile and unpredictable. The second downside is the impact on judicial morale and collegiality.

Another striking trend of recent times is that of less than full-time working. Of the 36 salaried judges in the Chamber, the working hours of 18 are less than 100%, while one judge is the President of another Chamber and devotes 20% of his time to the Chamber. This flexibility means, amongst other things, that working parents can be accommodated as far as reasonably and fairly possible and experienced judges who might otherwise have opted for career breaks or early retirement remain in active employment. In this way both diversity and expertise are promoted. On the other hand, arrangements of this kind can sometimes have a disproportionate impact on judges who work 100%, particularly at times of acute unpredictable stresses.

There is also the phenomenon that certain judges of the Chamber hold more than one judicial appointment.

The above arrangements mean, in principle, that fee-paid judges who may become candidates for future appointment to salaried posts gain increased experience. Striking the necessary balances in matters of this kind is never straightforward. Much depends upon goodwill, morale and collegiality.

The judicial members of this Chamber consist of 36 salaried judges and 52 fee -paid judges. I also owe thanks to judges from other courts and chambers who volunteer to sit in UTIAC on a regular basis. These include Scottish Court of Session judges; judges from the High Court and Administrative Appeal Chamber (AAC) judges. Thanks are also due to the Lord President of Scotland, the Queens Bench Division Presiding Judge for facilitating these arrangements and to the Senior President of Tribunals for authorising their assignments.

The Chamber's Committees

One of the trends in our Chamber during recent times has been a reduction in judicial committees. This has occurred gradually, in a context of frequent consultation with judges and reviews of arrangements. The policy here is intrinsically flexible. New committees can be established or discontinued committees revived at any time if the need is demonstrated. This is illustrated by the way the Presidential Country Guidance Advisory Group of judges lead by the Vice President operates.

The most important feature of the Chamber's main committees is that they are judicially led. Properly analysed, this serves to promote one of the multi-layered strands of judicial independence, namely judicial control over the listing of cases.

Administrators, of course, play an important role in this, providing indispensable support. I consider that the keys to successful interaction between judges and administrators are mutual trust and confidence, communication, mutual respect and flexibility. It is appropriate to commend all members of the administration in our Chamber in their constant endeavours to promote these values and, in doing so, to provide the best possible service to judges, users and stakeholders.

Meantime, judges continue to willingly and selflessly give of their time in serving on committees. The most active of the Chamber's committees are (in no particular order) the Executive Committee, the Reporting Committee, the Judges and Practitioners Committee (of which more below) and the Country Guidance Committee. The Chamber continues to benefit also from the work of the Judicial Welfare Committee and the Research and Information Committee.

In an era of significant change, judges of this Chamber continue to discharge important roles in organisations such as EJTN (the European Judiciary Training Network) and the IARLJ (the International Association of Refugee Law Judges). The importance of this external profile and, in particular, the learning benefits which it involves, must not be underestimated.

I thank all judges of the Chamber for their continuing commitment to the important portfolios noted above.

Continuous Learning

I continue to attach elevated importance to the continuous education of judges. This is a matter of greater importance than ever before, particularly in the sphere of immigration and asylum law which is characterised by rapid change, high volumes and complexity.

Fortunately, in this Chamber we have an excellent lead training judge, Upper Tribunal Judge (UTJ) David Allen, duly supported by other regular and reliable contributors We have one dedicated weekly session which is supplemented almost daily by the latest developments. The number of willing judicial contributors is a reflection of the professionalism, commitment and collegiality of the judges of this Chamber.

I envisage that we are likely to rely increasingly on e-learning. Furthermore, I am pleased to report that we are one step closer to a dedicated Chamber homepage which will contain all kinds of useful learning tools and resources.

Users and Stakeholders

I attach substantial importance to the relationship and interface between the judiciary (on the one hand) and the legal profession, users and stakeholders (on the other). The link which unites all of us is our unqualified commitment to the rule of law. A cordial, cohesive and mutually respectful relationship between the judiciary and others is of benefit to everyone and, fundamentally, promotes the rule of law.

In furtherance of the foregoing this Chamber has established, in addition to the bi-annual joint First-tier Tribunal (F-tTIAC) and UTIAC stakeholder meeting, a Judges and Practitioners Group. We meet in open forum at quarterly intervals. These are structured events, preceded by an agreed agenda and followed by the minutes of our discussions.

I am delighted to report that the group is highly representative and there are clear signs of developing a forum in which informed, productive and frank deliberations predominate. We do not, of course, discuss the merits of judicial decisions. Rather matters of practice, procedure and administration are the main focus of discussions.

A related, significant event during the past twelve months was a lecture on Practice and Procedure ("Judicial Review Dos and Don'ts") which I delivered at Law Society headquarters in May 2016. This attracted an encouraging attendance (of well over 100 practitioners) and, happily, was well received.

The success of this forum illustrates how close interaction between the judiciary and the profession can serve to further the rule of law without any compromise of judicial independence.

The Engine Room

We, the judges, are supported daily by an administrative structure. There are, inevitably, periodic stresses and strains, duly infused with highs and lows. A determination to provide an ever more efficient service to users and stakeholders, coupled with a readiness to acknowledge and learn from occasional errors, are two of the main features of this Chamber's administration. All concerned are unfailingly courteous to judges and consistently keen to enhance the Chamber's reputation and image. I commend all members of our administration and the Presidents' Office accordingly.

The judicial team at the daily coalface, consisting of our Principal Resident Judge, UTJ Dawson and his two assistants, UTJJ Gleeson and O'Connor continue to provide an indispensable service to the Chamber. They qualify for a particular tribute.

Our hard pressed and under resourced in-house lawyers and Legal & Research Unit, under the leadership of Rebeccah Sheen, continue to provide the judges with a magnificent service.

Some Notable Successes

I should highlight particular successes this year which include:

• The formation of the Judges and Practitioner Group mentioned above.

• We have reduced our backlog of outstanding cases. Input and demand no longer outstrip output and our overdue determinations list is at an all time low. This has been achieved without any real increase in resources, human or financial, and is a tribute to the commitment and professionalism of judiciary and administration alike.

• We have undertaken judicial review training in the regional centres with a view to supporting our judicial colleagues and enhancing consistency of approach nationwide.

• The periodic assignment of judges from other Chambers has developed and all are invited to our training exercises. This brought about a lecture delivered to this Chamber and the AAC by Lord Sumption in September 2016.

• In September 2016 this Chamber hosted a tripartite conference involving the IARLJ (International Association of Refugee Law Judges), AEAJ (Association of European Administrative Judges) and EASO (European Asylum Support Office). We welcomed not only the lectures and training provided at this event but also the interaction of our judges and those of countries across Europe, involving much sharing of experiences and hot topics

• The Chamber has completed timeously all the appraisals of all our Deputy Judges. This was seen as a constructive experience by those concerned.

• The joint training with the First-tier Chamber was positive and promoted collegiality.

• Our judges have all been converted to e-judiciary and with some hiccups have embraced the change.

Our Jurisprudence

Such were the breadth, range and quality of our reported cases during the past twelve months that the exercise of identifying the most important presented a major challenge. Fortunately, I received the assistance of willing judicial colleagues and the staff of the Library and Research Unit in this task. The outcome is contained in schedule annexed to the Senior President's Annual Report. I trust that readers will benefit from the categorisation adopted.

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Annex B The First-tier Tribunal

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Immigration and Asylum Chamber

President: Judge Michael Clements

Last year's report was written in anticipation of significant reform and change. This is an ongoing process and although many changes have already taken place there is much more to come. A welcome change has been the steady flow of sittings throughout the past year which has given our fee-paid judges much needed stability. We have also seen the introduction of eJudiciary which, despite some problems, offers a more modern and flexible working platform.

In 2016 we have seen the retirements of Resident Judges Christine Roberts, Francis Pinkerton and Nigel Poole and the retirements/resignations of a further 36 salaried and fee- paid judges. I thank them for their work in the Chamber and wish them well for their futures. It is anticipated a further Resident Judge will be retiring in 2017.

For more positive news we have Julian Phillips based at Birmingham and David Zucker based at Taylor House who were appointed through a JAC competition to be Resident Judges at those hearing centres. In addition to the two new appointments Frank Appleyard is Acting Resident Judge for the North-East until August 2017. Jonathan Holmes and Paul Cruthers have taken up positions as Assistant Resident Judges in North Shields and Manchester respectively, and Nihar Bird, Michael Keane and Carole Scott-Baker at Taylor House, London. A further recruitment campaign will take place in 2017 to fill the current and future gaps in our leadership and management structure.

This is a progressive and forward-thinking jurisdiction ready to embrace change. We are discussing various pilots to improve our service to justice and the public, are in close consultation with our stakeholders and some of the pilots may be underway by the time this report is published. These will include better ways of case management, procedure and the expeditious delivery of decisions in some cases by way of oral decisions at the end of the appeal hearing. There will be a greater use of virtual hearings and IT use. This will no doubt produce challenges for court users and judges alike. We will need better IT platforms and technology if we are able to fully embrace the challenges presented to provide a better, faster and more efficient service for both in-country and out-of-country appeals where the appellants will have been removed prior to their appeal hearing. We are also working with JUSTICE to explore an IT based process for appeals.

Following the case of the Lord Chancellor v Detention Action [2015] EWCA Civ 840 in which the 2014 Detained Fast Track Procedure was held to be unlawful, (the Supreme Court having refused the Lord Chancellor permission to appeal) I have set aside some 314 decisions heard under the 2014 Rules which have now been re-listed. Judgement in respect of the 2005 Detained Fast Track Rules has been handed down and we will be considering with the parties the appropriate venue to deal with any applications to set aside. The hearing centres at Yarls Wood and Harmondsworth where detained Fast Track were heard have not been idle. We are presently hearing at these centres detained immigration appeals (DIA) under the standard Procedure Rules. As these appeals are by persons who are detained utilising these courts and implementing my Presidential Guidance on listing has enabled these appeals to be expedited. I am grateful to Assistant Resident Judge Neil Froom at Hatton Cross who has worked hard in putting together a transparent procedure by which detainees can be more fairly processed through the system. We are awaiting the response of the government consultation on a new form of detained Fast Track.

We have been fortunate to have had the support of many judges from the Employment Tribunal and Social Entitlement Chamber both salaried and fee-paid. In 2014 we held an Expression of Interest for fee-paid and salaried judges to be assigned and of over 400 applications 198 were assigned for a set period of two years. 139 sought a new assignment by way of a recent Expressions of Interest and all of whom, after an Assessment and Evaluation panel with senior First-tier Tribunal Immigration and Asylum Chamber (F-tTIAC) judges, were offered a new assignment by the Senior President of Tribunals. I wish to extend my congratulations on their achievement in what was a challenging process and extend my thanks to the senior judges of the Tribunal who sat on panels with them and thereafter produced a comprehensive report on their judicial skills. Nevertheless they are not sufficient to meet the increasing demands to fulfil the work in this Tribunal taking into account the reducing number of judges. A further expression of interest has been recently sent to the Employment Judges resulting in the assignment of 37 judges and one Judge transferring from the Social Entitlement Chamber with training taking place in January, February 2017

There has not been a competition for salaried judges in this jurisdiction for some years. The number of salaried judges in FtTIAC has reduced due to retirements and resignations from 152 in 2005 to 65 as at October 2016. The Lord Chancellor has therefore approved the appointment of 20 salaried judges with 20 reserves and it is anticipated that the JAC will be able to run a competition for these judges in the first quarter of 2017. One important element in ironing out fluctuations in the areas of judicial workload across all chambers will be an increased facility for assignment to enable both fee-paid and salaried judicial officers to be deployed effectively and at relatively short notice to those locations of the judicial family where they are most needed. It is intended that on appointment our new salaried judges will be initially assigned to FtTIAC but will be encouraged to assign fully to other areas of judicial work if and when the business needs arise.

In order for this Chamber to operate efficiently it is necessary for parties to respect orders and directions given by judges. I regret to say that this does not always happen. Over the last few years we have been finding our way with the new cost sanctions afforded to us. It is likely that in future we shall give increasing effect to them to ensure in particular that the change in our work process is not derailed. We have also been fortunate to have been given Tribunal Caseworkers who are currently based at our back office at the National Business Centre in Leicester and at the London centres and Birmingham. They have taken up many forms of interlocutory work as set out in the Senior President's Guidance allowing judges to concentrate on the substantive appeals.

As part of the reform programme Chamber Presidents, along with local liaison judges have been appointed to work alongside their counterparts in the Courts. I am grateful to Christine Martin and David Zucker who have taken on these roles, representing the Tribunals in the North-West and London respectively.

Notwithstanding the referendum result, judges from this jurisdiction have continued to make a valuable contribution to the understanding of European jurisprudence under the aegis of the European Asylum Support Office based in Malta. In this regard the contribution of Julian Phillips, who has also continued as the Training Judge in this Chamber, is of particular note. I was pleased to make my own foray into the European arena attending the annual conference of the IARLJ European Chapter in Oslo in May which I found useful and informative. Designated Judge Edward Woodcraft has continued his support for the Bulgarian judiciary and with Edward's help, the FtTIAC hosted a visit from a group of Bulgarian judges in April. Judge Anna Rose-Landes, Elizabeth Davidge and John Manuell have all taken part in the "Train The Trainers Event" in Malta thereby consolidating this chambers reputation as a centre of excellence for training judges in the first-tier area of immigration law.

Whilst on the subject of training I would like to thank all those judges who work so hard to prepare, deliver and facilitate at training events. We work in an area of extraordinary complex law, arguably in need of consolidation, but in the meantime these judges give effective support to Julian Phillips and his deputy, John Manuell and remain in my debt. These judges who are often willing to go the extra mile, often in their own time, to prepare the materials which enable the rest of us to be trained with the very fluid and ever changing law which we are charged to interpret and apply.

On 10 October 2016 a new fee structure was introduced substantially increasing the cost of bringing an appeal before this Tribunal. The Government on 25 November 2016 indicated that they wished for further consultation and the fees introduced have been suspended as with other proposed fees for the time being.

The caseload increased by 8000 appeals during 2016 peaking in June 2016 but has reduced each month since then and is now back to the same level it was in December 2015. The ceiling on the number of sittings made available to fee-paid judges has been increased and subject to judicial resources we are piloting afternoon courts in Manchester which appears to be successful so far. I am pleased to report however that due to various initiatives the outstanding caseload has been reducing.

As President of FtTIAC I have, as last year, been greatly assisted and supported by the proactive thinking and, from time to time, constructive criticism from the Council of Immigration Judges (CIJ). I work closely with the Council and whenever possible I share information and exchange ideas. I pay particular tribute to the President of the CIJ, Judge Christopher Buckwell, who has been an invaluable conduit for the varied, sometimes very emphatic, view of individual judges. I have also made mention of Designated Judge Russell Campbell who is now Chairperson of the Tribunal's Forum where he will perform the same task for Tribunals generally as does Judge Christopher Buckwell for this jurisdiction. In that role and as a member of the Judges' Council, Judge Campbell is, among other things, able to ensure the continuing development of assignments and cross-ticketing which is so beneficial both to the judiciary and to the interest of justice.

The HMCTS Reform Programme, an important part of which is the rationalisation of the Courts and Tribunals estate continues. As I reported last year many of the leases on the FtTIAC estate come for renewal during 2017. We are working closely with the administration to identify appropriate venues. The move from Sheldon Court Birmingham to the Civil, Family and Tribunals centre in the city centre has been delayed due to construction works although we hope to be in the refurbished building by March 2018. The works at Taylor House, London, for the provision of more courts to be used by the Tax Tribunal have now been completed.

I record first of all my thanks to the Resident Judges of FtTIAC especially those who have or will be retiring. They have provided a strong and supportive leadership for FtTIAC over the past years. We have and hopefully will be appointing shortly new Resident Judges and Acting Resident Judges to provide a forward-thinking and progressive leadership and management role to meet the future challenges for FtTIAC and the HMCTS Reform generally. I would also like to record my thanks to the salaried and fee-paid judges of this Tribunal who continue to hear some of the most complex appeals in an ever-changing area of law which is, quite rightly, open to public scrutiny.

I would also wish to record my thanks to Jason Latham of HMCTS who has assisted greatly during the past year in obtaining financial resources for FtTIAC which may not otherwise have been available. He has, with Olwen Kershaw, supported me in my work as President. I am also grateful to record that both judiciary and administration have worked together and the constructive and amicable approach each has developed with the other over our increasingly heavier workloads.

I am sad to report that in the last 12 months FtTIAC Judges Michael Upson, John Jones and David Archer have passed away and I extend my sympathies to their families.

In my last report I mentioned the arrival of Sir Ernest Ryder as the Senior President of Tribunals. Over the last year I have been pleased to work closely with him in this challenging area of the law and HMCTS Reform. His enthusiasm, knowledge and interest in the myriad areas of this Tribunal are impressive as is his wholehearted support of FtTIAC and Tribunals generally. He has been a great and vociferous advocate on our behalf. My thanks also go to his admin support team and in particular Craig Robb and Rebecca Lewis who are always unfailingly courteous and helpful.

Looking forward to the coming year there will be a number of exciting challenges and we will be looking to see what Brexit actually means to FtTIAC in the terms of workload.

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