and Alison Pickup and Monika Nollet of Asylum Aid
27.1 For appeals lodged on or after 22 June 2020 (which is now the vast majority), you are required by the Standard Directions to file and serve the appellant's bundle not later than 28 days after receipt of the Respondent's bundle, or 42 days after the appeal is lodged, whichever is the later. In practical terms for cases lodged under the reform procedure, this will mean uploading the bundle onto the MyHMCTS appeal platform. For any remaining legacy cases, that is, those lodged before 22 June 2020, the standard directions require the appellant's bundle to be filed and served not later than five working days before the full hearing. In all cases, the standard directions require the bundle to be paginated and indexed.
27.3 The standard directions only require the inclusion of material that is not already within the Home Office's bundle. The Home Office's bundle will typically include any witness statement that your client provided when she made her asylum application, so you should not include that within your bundle except in circumstances where the Home Office bundle contains omissions. The Tribunal will appreciate some sort of order in the compilation of your client's bundle. Separate out evidence which is specific to your client from the general background evidence. It is usually a good idea to put any appeal witness statements (which do not already appear in the Home Office bundle) first, as you and the Tribunal will normally need to refer to these first in the course of the hearing. Any documents exhibited or referred to by a witness should come next after their witness statement. Other documents should be presented thematically (e.g. medical evidence, other expert evidence, documents) and/or in chronological order. In cases under the reform procedure, the Tribunal makes a composite bundle containing the Home Office and appellant's bundles, sometimes called a 'stitched' bundle. This retains the internal pagination but will also create a separate PDF page number of which it will be useful for the advocate presenting the appeal to be aware. Bear in mind that barristers cannot access the MyHMCTS portal to download the composite bundle so you will need to provide it to any barrister you are instructing to represent your client at the appeal .
27.4 The bigger the bundle, the more important that it is properly presented. If you want the Tribunal to accept that a large bundle is carefully chosen rather than thrown together, help yourself by exhibiting care in its presentation. Always ensure that the pages are legible.
27.4A You may wish to consider creating standard country bundles which can be supplemented with more specific reports in light of the fixed fee regime. The Tribunal has agreed in general to look sympathetically at steps to meet the challenges of the fixed fee regime. However, it is important that these are kept up to date and that older reports which are no longer relevant are removed.
Schedule of essential passages
27.5 There is no longer a requirement in the standard directions to provide a schedule identifying the essential passages of country evidence, but it may still be of use to do so in certain cases where background evidence is particularly voluminous. The Tribunal is unlikely to read hundreds of pages in full. Indeed, you are unlikely to be inviting it to read the whole thing if you are relying only on particular passages from particular reports. It will do your prospects no harm to have your key quotations available in convenient form when he turns to write his determination. This can be either in your skeleton argument (para 28.19) or a separate schedule.
27.6 A schedule also helps demonstrate the care you have taken over the material. It is also a useful check on the relevance of your bundle. You may need to include a report which does not appear in your schedule of key passages. But its absence should lead you to double-check what purpose it is actually serving.
27.7 The HJT 'Bundle-maker' software on EIN (See chapter 18) includes an automated function for highlighting and indexing key passages from country reports.
Lodging the bundle
27.8 The standard directions for MyHMCTS cases require the bundle to be filed and served 28 days after receipt of the Home Office bundle, or 42 days after the appeal is lodged, whichever is the later.
27.9 The 2014 Procedure Rules do not prescribe a specific sanction for a failure to serve evidence in time, unlike the previous rules, but in deciding what action to take in response to such a failure, the Tribunal will need to take account of the prejudice caused to either party by admission of the evidence, and the seriousness of the issues at stake in an asylum or human rights appeal.
27.9A Under r 6, the FTT may refuse to admit evidence not served in compliance with the time limits in the Procedure Rules, practice directions or directions where it is just to do so.
27.10 The Tribunal has traditionally taken a fair and practical approach to the submission of late bundles and evidence. As the then Chief Adjudicator stated in 2003:
It is only on rare occasions that adjudicators in my experience decline to consider late filed evidence or documents. (letter to IAS, 15th May 2003)
27.10A That approach is supported by caselaw. In AK (Admission of Evidence - Time Limits) (Iran) [2004] UKIAT 00103, the Tribunal noted that the relevant rule provided that judges "must not consider any evidence which is filed or served late, unless he or it is satisfied that there are good reasons to do so." It held that:
The qualification contained in those closing words relates to good reasons for considering the evidence, not good reasons as to why the evidence was not filed or served in time. There is a clear public interest in ensuring that it should not be open to parties to disregard with impunity directions given by the Immigration Appellate Authority, whether by an Adjudicator or this Tribunal. The same public interest applies in ensuring that parties should not be entitled to disregard with similar impunity the requirements of the Procedure Rules.
However, the understandable desire on the part of Adjudicators and this Tribunal to enforce due compliance with such directions and provisions must be balanced against a competing requirement to ensure that justice is done in a jurisdiction in which appeals routinely require the "most anxious scrutiny" and in which the issues at stake frequently involve matters of life, limb and liberty. There is an inevitable tension between those conflicting interests.
Whilst there may be individual cases in which it would be right for an Adjudicator to exclude material, or potentially material evidence on which a party (normally the Appellant) wishes to rely by reason of the failure by that party to file or serve the evidence in time, nevertheless, as a general principle, the requirement to ensure that justice is done in appeals requiring the most anxious scrutiny, will in most cases outweigh the understandable desire on the part of the Immigration Appellate Authority to ensure that its directions and the provisions of the Procedure Rules are not flouted with impunity.
In the present instance, we are satisfied that the late evidence which the appellant sought to adduce before the adjudicator, and which the adjudicator refused to consider because it had not been filed in time, was prima facie material evidence which, if it had been considered by him, might (we put it no higher than that) have resulted in the adjudicator arriving at a different conclusion in relation to the credibility of the appellant's evidence. In the circumstances, his decision to exclude that evidence from consideration was one which he ought not to have taken. (Paras 11-14)
27.11 You should make every effort to comply so far as possible with directions, and especially to avoid having to submit material on the day of the hearing. But it is never wise to submit an unfinished statement or report purely to comply with the standard directions. This may seriously jeopardise the prospects of the appeal succeeding.
27.11A The Tribunal cannot prevent you from calling a witness whose statement was not submitted in accordance with directions. Consequently, there is little purpose in it excluding a written witness statement which is submitted late: MA (rule 51(4) - not oral evidence) Somalia [2007] UKAIT 00079
27.11B For cases under the MyHMCTS procedure, the three sets of standard directions state that any material filed and served outside the time limits in the standard directions 'may not be relied upon without leave' and that the question of the admissibility of any material provided after 5 working days prior to the hearing, including on the day of the hearing, must be dealt with by the Judge at the outset of the hearing. Some judges may require this to be dealt with as a preliminary issue, however, frequently where it is not a critical piece of evidence such as to require adjournment it will be admitted into the evidence implicitly, without argument.
27.11C For cases under the online reform procedure, no material will be admissible unless it has been uploaded onto the MyHMCTS platform. The standard directions say the following as to late material:
Late Material
Any material provided outside the time limits may not be relied upon without leave.
Where any material is provided after 5 working days prior to the hearing, including on the day of the hearing, the Judge must deal with the admissibility of that material at the hearing as a preliminary matter.
A party may not rely on material which has not been provided.
If an application is made to admit material and (a) the material is ruled inadmissible the material shall not be uploaded, though the Judge must give reasons in the Decision and Reasons for the exclusion of that material and identify the material excluded, and (b) the material is admitted the Judge must stand the appeal down and cause the material to be uploaded as soon as reasonably practicable and will not proceed with the appeal until the material has been uploaded. The original material uploaded shall be returned to the party who provided it unless there is a good reason for not doing so.
A party may apply to adduce material after the hearing has concluded but only in exceptional circumstances. Such material will only be admissible upon application unless the Judge has directed the provision of that material. The application must be made using the online procedure, unless it is made orally at the hearing. Any material ruled admissible must be uploaded.
The Tribunal may not accept any material after the Decision and Reasons has been promulgated. This direction does not apply to any application for permission to appeal to the Upper Tribunal.
27.11D The Practice Direction warns that the Tribunal will consider whether to exercise its costs powers where a hearing is adjourned because of the introduction of late evidence (para 5.4). See further chapter 42.
27.12 Unless you upload evidence shortly before the hearing, it should be included within the composite or 'stitched' bundle created by the Tribunal. It will be important to check, however, at the outset of the hearing that the Judge has all the documents. The Judge and HOPO (unless counsel are instructed by the Home Office) should be able to access the portal to obtain any documents that have recently been uploaded even if they have not been included within the composite bundle.
27.13 The Home Office's advocate (whether it be a presenting officer or external counsel) it unlikely to have received the papers more than a day or two before the hearing (see para 1.11). Sometimes, the Home Office advocate will object that he is prejudiced by your having lodged material within five working days of the hearing because he has been left with insufficient time to consider it. He may argue either that it should be excluded or that he should have an adjournment. Further investigation may reveal this argument to be disingenuous. You should check with the Home Office representative when the entire case papers were sent to him. Traditionally, the Home Office does not normally allocate appeal files until the day before the hearing.
27.14 A good way of checking this is to telephone the HOPO Unit the day after you uploaded the material and ask to discuss the case with the responsible advocate. If you are told that a HOPO or counsel are yet to be allocated, or if the allocated HOPO tells you that it will be days before he picks up the file, you will be in a position to refute any subsequent claim that his lack of preparedness is the result of your late submission of evidence rather than Home Office inefficiency.
27.15 The Home Office representative will sometimes make this submission even as he himself seeks to submit evidence on the day. You can point out that the Home Office is in no position to object if he is doing the same thing.
27.16 Sometimes, a judge may express concern about admitting evidence on the day of the hearing when the Home Office has chosen not to send a representative so is unaware of the evidence. In MA (Procedure Rules 48 (5) and 48 (6)) Pakistan [2004] UKIAT 00330, the Tribunal said that
27. ... the evidence produced at the hearing by the Appellant was made available to all the parties in the sense that it was produced at the hearing and it was there for the Secretary of State's representative had there been one present to comment on it and make representations on it accordingly. In the absence of a representative of the Secretary of State at the hearing before the Adjudicator, we do not consider that the Adjudicator properly acted under Rule 48(6) in excluding consideration of the evidence produced at the hearing before him.
27.17 In SA (Absence of party - late evidence) Sri Lanka [2005] UKIAT 00028, the Tribunal said that
... it would be wrong in principle, that a party who failed to attend either in person or by his representative before an Adjudicator, should be in a better position to resist the admission of late evidence than a party who had attended. (para 21)
Electronic bundles
27.17A All cases now require electronic filing of digital bundles where the appellant is legally represented. This requires firms to have a digital infrastructure, particularly since scanning paper bundles is often not efficient due to their size. Much more effective is the production of digital bundles using software such as Adobe Pro. Note that in order to enable efficient navigation of the bundle and so that everything matches, it will be necessary to either include the index within your pagination or keep it as a separate document. Digital bundles which have been made searchable by text have significant advantages in quickly locating documents in what often are very large bundles.