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Mr Justice Lane and Judge Michael Clements review 2017 in the Immigration and Asylum Chamber

Date of Publication: 
25 May 2018
Summary: 

Senior President of Tribunals publishes his annual report

Mr Justice Lane and Judge Michael Clements review 2017 in the Immigration and Asylum Chamber

25 May 2018
EIN

This year's annual report by the Senior President of Tribunals has been published today. You can read it here.

It is the third annual report of the Senior President, Sir Ernest Ryder.

Mr Justice Lane and Judge Michael Clements contribute reviews of the year in the Immigration and Asylum Chamber to the report. We've excerpted their reviews below:

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Senior President of Tribunals' Annual Report
2018

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Annex A Upper Tribunal

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Immigration and Asylum Chamber

President: Mr Justice (Peter) Lane

I became President of the Upper Tribunal Immigration and Asylum Chamber (UTIAC) on 2 October 2017, when I also became a High Court judge in the Queen's Bench Division.

For the previous four years, UTIAC had been led by Mr Justice Bernard McCloskey of the High Court of Northern Ireland. His legacy is a profound one. Bernard possesses a remarkable energy, which it will be impossible to emulate. His capacity for hearing and deciding cases was vast. He leaves behind a large body of case law on almost every aspect of the jurisdiction. Bernard's expertise in public law meant that he was able to see immigration as a part of that wider system and to bring to bear principles derived from its other parts. One particular interest was in matters procedural. Coming from a background where procedural requirements are expected to be followed, he lost no time in making it apparent that laxity would not be tolerated in UTIAC. This is because procedural rules are there to serve the interests of justice. Bernard was also quick to master the intricacies of the often-labyrinthine immigration rules. A significant number of his decisions involved a clear-sighted and rigorous approach to their interpretation.

Bernard has returned to Northern Ireland, as the judge in charge of its Queen's Bench. I wish him well and thank him for his personal kindness.

Since April 2017, UTIAC has seen a significant rise in work coming to it from the First-tier Tribunal, Immigration and Asylum Chamber (FTTIAC). Against this background, several initiatives are underway to ensure the best possible use is made of our limited judicial resources. There is a pressing need for more salaried Upper Tribunal judges and a JAC competition for these is due to launch soon.

This upturn in work is confined to UTIAC's appellate jurisdiction. Immigration judicial review applications are not currently showing a similar rise. As always in the jurisdiction, however, it would be rash to conclude that this situation is likely be maintained.

Particularly in the light of what I have said about workload, UTIAC continues to be grateful for the vital support given by the President of the Queen's Bench Division and by the Lord President, who respectively ensure that Queen's Bench and Court of Session judges are available to sit in UTIAC. As I know from my own experience as a UTIAC judge, sitting with such a colleague can enrich a UTIAC judge's court craft; whilst a period of intensive exposure to the latest issues arising in immigration appeals and judicial review enables the Queen's Bench/Court of Session judge to keep up to date in this fast-changing area of work and therefore assists when that judge is hearing out-of-hours applications for urgent relief in the immigration field, or when he or she is deciding an immigration judicial review which lies with the High Court or Court of Session.

Last year's report detailed a number of judicial retirements from the Chamber. Further retirements loom. UTJ (Peter) King has agreed to sit for a while beyond his recently-celebrated significant birthday. UTJ (Andrew) Jordan retires in April but has kindly agreed to give us his valuable services thereafter in a fee-paid capacity. Both have provided UTIAC and its predecessors with sterling service over many years.

In January, we bade farewell to UTJ (Paul) Southern, following his appointment as a circuit judge. HHJ Southern is now sitting at Snaresbrook Crown Court. Paul made a huge contribution to UTIAC, both as its Principal Resident Judge and in developing the jurisdiction's jurisprudence. We wish him well.

As I write, UTIAC's current Principal Resident Judge, Bernard Dawson, is about to step down from that role. I have been most fortunate to have had Bernard at my side for the first 6 months of my term. His knowledge and support have been invaluable and I have been able to see at close hand just how demanding and important is the work of the PRJ.

Bernard Dawson has, in turn, enjoyed the support of his two deputies, UTJ (Judith) Gleeson and UTJ (Mark) O'Connor, for whose work I am also grateful. Judith undertakes wider international and information technology duties on behalf of the Senior President of Tribunals, whilst Mark is to be a key figure in the development of a common IT system, which will cover both the RCJ (and its regional offices) and the Chambers of the Upper Tribunal. This system will be an important element of the Reform Programme, to which UTIAC is committed.

Work is ongoing on two projects, which I announced in October 2017. UTIAC's judicial review work outside London requires the participation of courts colleagues. I am pleased to say that we shall soon be in the position to introduce a circuit-system in Manchester, whereby a UTIAC salaried judge will be able to work with those courts colleagues to ensure a more systematic and efficient approach than has hitherto been the case. Integral to the new system will be the ability to hear UTIAC appeals in the Manchester Civil Justice Centre. My thanks in this regard go to the Senior President, Dove J and Kerr J, to Jason Latham and Daniel Flury of HMCTS and to UTIAC's Vice- President Mark Ockelton.

Mark Ockelton and I are now exploring the opportunities to effect similar changes in other regional centres. Mark's work in the regions is being expanded, compared with the position under my predecessor, and despite his other extensive duties as Vice President.

The second project involves making more and better use of UTIAC's excellent cadre of lawyers. Following a shadowing scheme in December 2017, proposals are being developed for the lawyers to undertake delegated judicial functions in UTIAC's appellate jurisdiction, in addition to immigration judicial review. In an era of financial stringency, it is vital that each element of our work is done by the persons best able to undertake it, having regard to all relevant factors, including cost.

The Chamber continues to enjoy the support of a loyal administrative team at Field House, until recently led by Michael Nuna. In January, Michael left to undertake an important Reform-related project. Michael's role is now being filled by Surrinder Singh, who has replaced him for the duration of the project.

The Head of Office of both of the Immigration and Asylum Chambers continues to be Vicky Rushton, who has been assiduous in ensuring I have been brought up to speed on everything of relevance.

UTIAC's salaried and fee-paid judges continue to enhance the Chamber's reputation by their participation in the international training of judges. Colleagues are active in the European Judicial Training Network and the European Asylum Support Office. Getting the balance right between these activities – prestigious though they are – and maintaining the timely throughput of UTIAC's own work can be challenging, particularly at present, when judicial resources are under pressure.

The duties of a UTIAC judge are heavy enough at the best of times but can be intense when the workload increases and judicial resources remain static or diminish. I am, therefore, enormously grateful to my colleagues for their willingness to step in at short notice at times of sickness or other unforeseen events, despite the personal inconvenience involved in changing their judicial itinerary at the last minute.

UTJ (David) Allen continues to organise and deliver excellent judicial training for the Chamber. His most recent success was the 2-day course run in February 2018, which benefited from the active participation of all the delegates. Instead of merely being a series of lectures, the event included teams of colleagues choosing a case of note and then advocating for it in plenary session. UTJ (Helen) Rimington is to be thanked for her work on this aspect of the event. I left the venue, reinforced in my belief that the Chamber is extremely fortunate in its judicial personnel.

UTIAC is also very well-served by the Legal and Research Unit, led by Rebeccah Sheen. The Unit has assembled the following Schedule of Leading Reported Cases, which gives an indication of the nature of the work done in the Chamber in 2017.

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Annex B First-tier Tribunal

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Immigration and Asylum Chamber

President: Judge Michael Clements

Reform is now underway. New salaried judges have been appointed. Fee-paid judges have continued to see a steady stream of sittings and, given the current profiles, the pending appointment of our salaried judges and recruitment of our fee-paid judges, it is likely that demands on our hard- working fee-paid judges to sit up to their limit will continue. I am happy to report that every fee-paid judge has now an ejudiciary address making communication and working practices generally more efficient.

Last year, Mungo Deans, the Resident Judge at Glasgow retired after 21-years service. To him and our other recently retired judges I wish them a long and healthy retirement.

After a judicial competition we welcome the new Resident Judges: Russell Campbell based at Taylor House and Mark Sutherland Williams based at Hatton Cross. Frank Appleyard, who was acting Resident Judge for the North-East of England, has now been appointed as the Resident Judge for Birmingham. Julian Phillips, who had responsibility for both Birmingham and Newport, is now at Newport. Donald Conway has moved to Glasgow and David Zucker is based at Bradford with overall responsibility for the North-East. In fact, the only Resident Judge not to have moved is Christine Martin as she continues to be based at Manchester. These changes I am sure will re-energise this already positive, progressive and forward-thinking jurisdiction as we embrace the changes which we face in the increasingly digital environment in which we will all be working.

This year I set out for the Senior President my vision for the Immigration and Asylum Chamber in the digital world. In that context we are working together with administration to bring about the introduction of "paperless" appeals whilst continuing to press ahead with the working towards the extempore decisions being the norm. Many of our forms have been re-drafted with a view to reforming timetables and bringing about efficiencies in this jurisdiction. I am sure all the stakeholders will wish to work with us proactively in assisting the Tribunal in delivering an efficient service.

Earlier this year I sat with Bernard McCloskey, who was then President of the Upper Tribunal (IAC), and we have now given guidance with respect to wasted cost orders and cost unreasonably incurred. New forms and Notices have been developed and I expect them to be put into common usage shortly. It is hoped that the cumulative effects of these steps will be to create better discipline within the jurisdiction with fewer adjournments and postponements.

Additionally, I have been travelling around the country to see for myself the work that we have been piloting. There have been a number which are presently being evaluated. At Taylor House we developed a process of virtual or video hearings. The judiciary were impressed with the improvements in technology including clear visibility of those present at the hearing, perfect synchronisation of audio and visual streams and good "naming conventions". It was clear to all who were speaking. Appellants' solicitors are able to gain access to the hearing using their own computers rather than being required to use dedicated machines. The judge was able to conduct a mock hearing, again successfully. It is considered that the entire case management list could be dealt with using this new technology with no need for the parties to come to the hearing centre. In Manchester we piloted extended hours hearing of afternoon courts. From a judicial perspective on the whole it was seen as a success however there are still a few issues to resolve. As the local Presenting Officers Unit could not provide Presenting Officers for the afternoons they attended by video-link. Unlike the virtual hearings pilot there were problems with sound quality. At Taylor House and Manchester we also conducted a proof of concept in relation to hearing cases and giving extempore decisions. It is intended that we will progress this with a pilot at other hearing centres in due course. At Newport the Home Office have started to issue "minded to refuse" letters. This allows applicants to provide further documentation to enable the Home Office to further consider the application. At Birmingham and Newport we are piloting digital production of the Home Office bundles.

Following the case of Kiarie and Byndloss (on the application of) [2017 UKSC42] the Tribunal has been working together with other users to ensure that those removed from the jurisdiction before their appeal is finally heard will not be unfairly disadvantaged. The guidance in the case of AM (Afghanistan) v SSHD and Lord Chancellor [2017] EWCA Civ 1123 has caused us to look again as to how we identify vulnerable persons before their substantive hearings.

Last year I reported that there had not been a competition for salaried or fee-paid judges in this jurisdiction for some years. The existing 57 salaried judges have become significantly depleted by attrition but we were fortunate to have the support of many judges from the Employment Tribunal and Social Entitlement Chamber most of whom have renewed their assignments to this Chamber. Nevertheless, they were not sufficient to meet the increasing demands on the ever reducing number of judges. Last year I oversaw a salaried competition and am pleased to be able to report that we have appointed 36 judges who are to be divided between ourselves and the Social Entitlement Chamber. They will be based around the country. However, at the time of writing this report we still have a shortage of judges and as a result it has been agreed that we can take from the reserve list of the salaried competition further salaried judiciary. A fee-paid competition has launched for judges to be appointed across the jurisdiction of the First-tier Tribunal which will hopefully provide further judicial resources. We are reviewing with the JAC the need for further competitions in 2018/19.

As part of the reform programme Chamber Presidents, along with Regional Liaison Judges, have been appointed to work alongside their counterparts in the Courts. We have also been working with the organisation "Justice" under the Chairmanship of Sir Ross Cranston. A report is being prepared with suggestions of how we might improve the work we do. We are always pleased to take good advice from wherever it may come. Julian Phillips, who is the FtTIAC Training Judge, has also been proactive in his involvement with many of our European colleagues in working towards a uniform approach to international protection under a qualification directive. A number of our judges have also trained at international conferences and it is of note that judges from the United Kingdom are in demand to lead and train on these international training and conference events. In addition, David Zucker and Julian Phillips, in their own time and at their own expense, visited leadership judges in the Royal Courts in Haarlam in the Netherlands. As a result, His Honour Judge Michael Van Der Valk, the leadership judge in Haarlam and Her Honour Judge Esther De Rooij, a member of the Board of the Family Court in Amsterdam, accepted an invitation to come to talk of our leadership judges in the United Kingdom as to the Dutch solution for the problems facing us in our role as leaders. They also talked about the organisation "Rechters Voor Rechters" a human organisation that protects the independence of the judiciary around the world. Also over the last year we have received visits from judicial colleagues abroad notably from member states of the European Union including France, Germany, Slovenia, Portugal, Bulgaria and Japan. Opportunities to discuss ways of working in other countries are invaluable.

Whilst on the subject of training I would like to thank all those judges who have worked so hard to prepare, deliver and facilitate at training events. We continue to work in an area of extraordinarily complex law with the various Immigration Acts in need of consolidation but in the meantime, I am in debt to those who take on this work and to Julian Phillips and his deputy John Manuell, the Training and Deputy Training Judges.

Around the country Tribunal Case Workers are being deployed. Early indications are that I have every reason to be optimistic as to the proactive and important role that they will be taking on in the Tribunal subject of course to the overall guidance and authority of judges.

I was pleased to be able to attend, with the Senior President of Tribunals, Sir Ernest Ryder, John Aitken, President of the Social Entitlement Chamber and other notables the opening of the 4th floor of Priory Court, Birmingham. This brings together Civil, Family and Tribunals into one building. The 4th floor has been completely refurbished providing an excellent working environment. The 4th floor is shared with our colleagues in the SEC and has twelve hearing rooms. A number of judges and administration will miss Sheldon Court where we were formerly based. Also at the end of 2017 we moved out of Bennett House, Stoke. Judges from Stoke have relocated either to Manchester, Birmingham, Nottingham or Taylor House, London. As President I would like to extend my thanks to all judges and administration who worked at Sheldon Court and Bennett House over the years and came together to facilitate the move to new venues.

For many years we have been assisted in keeping up to date with the law by the regular updates produced by John Nicholson. These updates became, for many, our first port of call if there was a point of law requiring clarification. John retired last year and his dedication and hard work will be missed. Anna-Rose Landes has now taken on his role.

I am sad to report that, in the last 12 months, FtTIAC Judge Milligan Baldwin passed away and I extend my sympathies to her family.

As President of FtTIAC I have been greatly assisted by the support of my Resident Judges. As a leadership and management group we have collectively worked and implemented a number of pilots and digital reform. I have also been greatly assisted by the support and from time to time constructive criticism of the Council of Immigration Judges. I work closely with the Council with which, whenever possible, I share information and exchange ideas. I pay particular tribute to the immediate past President of the CIJ, Judge Christopher Buckwell, who has been an invaluable conduit for the varied and sometimes very emphatic views of individual judges and Judge Timothy Thorne who has taken over that role and with whom I now look forward to working.

I would also like to record my thanks to all the salaried and fee-paid judges of this Tribunal who have to cope with a fast pace of change not only in working practices as Reform increasingly takes effect but also in the changes of the law. They continue to hear some of the most complex appeals which are quite rightly open to public scrutiny.

My thanks should also go to Jason Latham of HMCTS who greatly assisted during the past year in obtaining financial resources for FtTIAC. Jason has now moved on to pastures new and we shall miss him. We wish him the best in his new endeavours. Daniel Flury has taken over from Jason and we have already seen his decisive manner and I look forward to continuing to work with him and Olwen Kershaw. I am also grateful to all the judiciary and administration as we have worked together and the constructive and amicable approach each has developed with the other over our increasingly heavier workloads.

I continue to work closely with Sir Ernest Ryder as the Senior President of Tribunals and my thanks go to him and his administration. In particular Craig Robb and Rebecca Lewis are always unfailingly courteous and helpful. Sir Ernest's continued enthusiasm, knowledge and interest in the myriad area of this Tribunal and also Tribunals across the board continue to be impressive. I am pleased to be able to work closely with him in this challenging area of law and HMCTS Reform. I would also wish to express my thanks to the Presidential Team at Field House, in particular to Vicky Rushton and Jane Blakelock for their hard work and loyalty not only to me but the Tribunal.

Brexit is coming although we are still not informed fully as to what this will mean or the implications for the FtTIAC in terms of workload. We will, however, be ready to meet the exciting challenges that the next year will undoubtedly bring forward.