and Alison Pickup and Monika Nollet of Asylum Aid
6.1 Once the appeal has been lodged and a certificate of fee satisfaction issued by the Lord Chancellor (see 4.4A-4.4G), the appeal will begin to be case managed by the Tribunal.
Active Case Management under the online procedure
6.1A Under the online procedure, used for appeals lodged after 22 June 2020 where the appellant is represented and not in detention, documents are submitted to the Tribunal by uploading them onto the online MyHMCTS platform. After the appeal has been created and automatic notification issued to the parties, the standard directions provide for the following steps:
• not later than 14 days after the notice of appeal has been provided, the Home Office must upload its bundle, which must contain the refusal decision and any material submitted in support of the application;
• not later than 28 days after the Home Office bundle is uploaded, or 42 days after the notice of appeal, whichever is later, the appellant is required to upload an appeal skeleton argument ('ASA') and a bundle of any material relied upon in the ASA which is not included in the Home Office bundle.
Within 14 days of the ASA, the standard directions provide for a 'meaningful review' by the Home Office of the case, and provide the result of that review and 'particularis[e] the grounds of refusal relied upon'.
6.1B Following the Home Office review, the appeal is actively case managed by the Tribunal. If it is ready to be listed, the Tribunal will issue directions to provide any hearing requirements to accommodate the appellant's needs for the hearing. MyHMCTS generates a list of questions for the appellant's representatives to answer in response to the directions. The questions include whether the appellant will attend the hearing, whether they will give oral evidence at the hearing, whether any witnesses will attend the hearing, whether interpreter services will be required on the day, whether a hearing room with a step-free access will be required, and whether a hearing loop will be required. Furthermore, the appellant's representatives can request any additional adjustments, for example that the appellant be treated as vulnerable or that the hearing be listed as an in person or in camera hearing etc, and they can also request that the Tribunal avoids certain dates when listing the appeal for a substantive hearing, to take account of the advocate's availability to attend. A remote or hybrid hearing can also be requested at this stage: see further chapter 7A.
6.1C It is important to respond to these questions as fully as possible because it is on the basis of these that the Tribunal will review the hearing requirements and any requests for additional adjustments before sending a hearing date. If you don't submit any hearing requirements by the date directed, the Tribunal may not be able to accommodate your client's needs for the hearing. You should therefore make sure that by this stage, you have discussed with your client whether she will give evidence (see chapter 30), whether she will call any witnesses (see chapter 15), and in either case, what interpreter (see chapter 34) or other adjustments are required. If you will not be the advocate, you will need to obtain the advocate's dates to avoid and any reasonable adjustments which they may require from the advocate or their clerk (if you have instructed counsel).
Case management in legacy appeals
6.1D In cases started before 22 June 2020 (so called 'legacy' cases), after the appeal was lodged the Tribunal would send a copy of the notice of appeal and any accompanying documents to the Home Office and issue a notice of hearing and directions. Rule 24(3) required that the Respondent's bundle and any statement as to any change in or addition to the Respondent's reasons for opposing the appeal under rule 24(2) (see chapter 10) must (if no specific directions are given) be provided within 28 days of the date on which the Tribunal sent the Respondent a copy of the notice of appeal and any accompanying documents. The Senior President's Practice Directions (now replaced by the current Practice Direction) set out the standard directions for legacy cases. These typically required the service of bundles and skeleton arguments 'not later than 5 working days before the full hearing (or 10 days in the case of an out-of-country appeal)' (para 7.5).
6.2 The 2014 Rules do not lay down time limits for the listing of the hearing. However, under the online procedure (and for all cases started on or after 22 June 2020), a hearing will not be listed before the stages envisaged in the standard directions are completed. In practice, this will be at least 56 days after the appeal is lodged with the Tribunal. This process turns on its head the procedure previously adopted by the Tribunal to issue a notice of hearing as an initial step after the notice of appeal is received. Given that under the online procedure, it is not anticipated that an appeal will be listed for a substantive hearing until the prior steps set out in the standard directions are completed, in some cases the time between lodging the appeal and listing of the final hearing will be considerably longer than 56 days. One of the aims of the online procedure, however, is to prevent last-minute adjournments by ensuring that final hearings are listed only for cases that are evidentially ready to be listed. This requires the parties to make timely requests for extensions of time in order to obtain further evidence, including expert evidence, the Tribunal to engage constructively with such requests, and the Home Office to engage meaningfully with the review stage of the online process to avoid hearing lists collapsing due to late withdrawals by the Home Office.
6.5 When the Case Management Review hearing ('CMR') was introduced in 2005, one was held in every asylum appeal; the practice directions stated that one would be held unless the Tribunal otherwise directed. However, the failure of the Home Office to engage fully in the CMR process, for example, by refusing to narrow issues and by failing to serve its bundle in advance of the hearing, gradually led to decisions by regional centres to abandon this practice. In January 2009, the Tribunal announced its intention to extend a pilot of telephone CMRs and at some hearing centres, these became the norm. The introduction of the MyHMCTS online procedure has led to the reduction of CMRs and the introduction of a new type of review hearing, the Case Management Appointment ('CMA') which is before a legal officer (formerly called Tribunal case worker). Whilst the Practice Direction does not provide guidance as to the circumstances in which a CMR will be listed rather than a CMA, it appears that the Tribunal is most likely to list a CMR where an appellant may lack capacity or where there are other complex preliminary legal issues. Whilst a CMA might be useful for short CMRs relating to listing or other simple directions which are unlikely to be contentious, you should request a CMR before a judge where there are complex legal issues that require determination prior to the substantive hearing and particularly where such issues are, or are likely to be, contested by the Home Office. The stage of the appeal process at which the CMR/CMA will be held will be case specific. For example, a CMR dealing with questions of mental capacity will be held early in the appeal journey, if this was raised when the appeal was lodged, whereas a CMA relating to the mode of hearing/listing is likely to be held later, following the Respondent's Review.
6.5A The current Practice Direction (13 May 2022), provides that -
3.2 The Tribunal will hold a CMA or CMR whenever it considers it necessary to do so in order to further the overriding objective of dealing with cases fairly and justly… This will include, but will not be limited to) holding a CMA or CMR for the purposes of –
(a) identifying and/or narrowing the issues, and consequentially the evidence necessary to decide the appeal;
(b) dealing with preliminary issues;
(c) deciding any applications made by either party;
(d) giving case management directions;
(e) deciding the mode of hearing;
(f) fixing a date for the final hearing.
6.5C CMR/CMAs can be conducted at a face-to-face hearing at which both parties are present, or by telephone or video conferencing. Previously, concerns were raised about a practice whereby the Tribunal would invite HOPOs to appear personally and appellants only by phone. The then President of the First-tier Tribunal IAC told the Presidents' Stakeholder Forum on 21st April 2010 that she had reminded judges that it was unacceptable to invite the Home Office to appear personally and appellants only by phone, and that judges had been reminded not to discuss a case with the HOPO until the appellant's representative was online. In the unlikely event that you have been invited to attend a CMR remotely but the Home Office and judge are present in the court room, you should query the reason for this and, in certain circumstances, it may be appropriate to object and request that the hearing be adjourned to a date when both parties can attend in person. Often, however, the only circumstances in which this will take place is at a 'hybrid' hearing where you have elected to appear remotely (see chapter 7A). It is envisaged that the majority of case management hearings will continue to be held remotely – by telephone or CVP.
6.5D It is sensible to request an oral CMR if the issues in your case are particularly complicated, including where you are seeking to rely on 'new matters' (see chapter 5), you are seeking unusual directions about which the judge may have questions and oral argument is likely to be more persuasive, or your client is a child or particularly vulnerable.
6.5E In such circumstances, and particularly if your appeal is listed at a hearing centre that you know is not routinely conducting CMRs or if you receive a paper PHR form, you will have to ask for a CMR and justifying your request by reference to the complexity of the issues, the directions which you require, or the need to make arrangements to deal with a vulnerable adult. Such a request can be made on MyHMCTS either in response to the standard case management questions (para 6.1B) or by way of an application. You should draw attention to the Guidance Note on Child, Vulnerable Adult and Sensitive Witnesses if appropriate (see para 6.23 below). The need for a CMR in order to consider bespoke directions in such cases was emphasised by the Senior President in AM (Afghanistan) [2017] EWCA Civ 1123 (para 28). If the date for the final hearing has been listed and you need more time, you can request that that hearing date is instead converted into a CMR. Your request will be stronger if accompanied by a draft of any directions you are seeking; of course if the Tribunal is content to simply make those directions you may not need to insist on an oral hearing. Be aware, however, that in practice requesting a CMR may lead to a delay of several months in listing the final hearing.
CMRs and CMAs
6.6 The current Practice Direction provides for case management at para 3.1 – 3.4. There is no longer any presumption in favour of holding a CMR hearing. Instead, the Practice Direction states that it will hold a CMA or CMR insofar as 'it considers it necessary to do so in order to further the overriding objective of dealing with cases fairly and justly.' The Practice Direction then enumerates the circumstances in which a CMA or a CMR might be necessary: see para 6.5A above. –
6.6A The Practice Direction warns against non-attendance at a CMR:
3.3 It is important that the parties and their representatives understand that a CMR hearing is a hearing in the appeal and that the appeal may be decided if a party does not appear and is not represented at that hearing.
6.7 The relevant rules in the First-tier Tribunal for non-attendance are rule 25(2), which allows the Tribunal to determine the appeal without a hearing, and rule 28 (hearing an appeal in the absence of a party). If due to unforeseen circumstances, you cannot attend the CMR (whether it is by telephone or in person) it is vital that you provide a prompt explanation to the Tribunal to avoid either of these courses. Neither course can be taken if your client attends although this should not of course be used as a basis to avoid the attendance of the representative.
6.9 While there are obvious benefits in the advocate who will conduct the full hearing also conducting the CMR, it is not always practical, particularly given that the Tribunal does not invariably list appeals taking account of representatives' dates to avoid, and is less important in straightforward cases. However, it is vital that if a different advocate is briefed for the CMR, that person is properly briefed to deal with the issues that will arise.
6.12 The Tribunal may want to know whether it is intended to rely on any expert evidence. If you are unclear as to the utility to your client's case of any expert evidence at the CMR hearing, it may not be appropriate to provide detail which may be speculative to the Tribunal at this early stage. Whilst you may not knowingly mislead the Tribunal, there is no duty of candour in statutory immigration and asylum appeal proceedings: see Nimo (appeals: duty of disclosure) [2020] UKUT 00088 (IAC) at [23] and see further chapter 9.
6.13 If you have informed the Tribunal that you have instructed an expert witness and there is doubt about whether the expert evidence will be available in time to comply with the directions (or even before the full hearing), it is advisable to ask the judge to note this on the record of proceedings or on the directions sheet. If it is subsequently necessary to request an extension of time or an adjournment of the full hearing because the expert evidence is not ready, you will be able to demonstrate that you raised the issue in good time.
6.14 Where you seek to raise a 'new matter' (see chapter 5), this should be raised in your ASA. However, it will be particularly important to raise or reiterate this at the CMA/CMR, if one is held, particularly if this is prior to the ASA or the Home Office's Review, or if the Home Office has failed to deal with it in their Review. The online MyHMCTS procedure asks about any new matters at the start of the appeal process so the Home Office should be fully on notice. Whilst Home Office policy is to consent to new matters to allow all relevant matters to be considered in one appeal, in practice the Home Office frequently withholds consent. There is little the Tribunal can do about this, although you may want to ask the judge to direct that the Home Office apply its policy in respect of the new matter raised in your case, but ultimately your remedy for the withholding of consent will be judicial review (see 5.6A-D).
6.17 If the Tribunal presses for more particulars of your case than you are able to provide at the CMR (if the CMR is held at a point before which the evidence in your client's case is complete), it can be referred to the AIT Guidance Note. This sounds the following note of caution against unrealistic requests to the appellant to concede or abandon points when the preparation of her case is not complete:
18. One of the perceived advantages of the introduction of CMR hearings was to allow the Tribunal to identify the issues in the appeal and focus the parties on those issues. This requires thorough preparation by the immigration judge prior to the hearing.
19. There are constraints, however, on how far the issues can be narrowed and defined. The Appellant's representative will probably still be in the process of assisting the appellant in preparing the case. Until the appellant's witness statement is finalised, it may be difficult for aspects of the appellant's case to be conceded or reduced in significance.
6.18 The CMR ought to provide an excellent opportunity to clarify the Home Office's case (see chapter 9) and the Tribunal should encourage this, given that its case will ordinarily be complete by this stage. However, as noted above, historically, one of the reasons for the Tribunal moving away from automatic CMRs in asylum cases was its frustration at the failure of the Home Office to engage properly in the process.
6.18A Under the online procedure, the Home Office is required meaningfully to review your client's appeal which requires active engagement with the issues and related evidence. If the CMR is listed after the Home Office review stage, therefore, the HOPO should have instructions on the issues and whether anything can be narrowed. If an agreement is reached which narrows the issues, particularly if it does not reflect what is in the refusal letter and is not contained in any Home Office review document, it is important to ensure that an agreed note of the issues is prepared at that stage. The Practice Direction provides that –
3.4 … at the end of a CMA or CMR the Tribunal will also give to the parties written confirmation of:
(a) any issues that have been agreed at a CMA or CMR as being relevant to the appeal; and
(b) any concession made by a party.
6.18B In Kalidas (agreed facts – best practice) [2012] UKUT 00327 (IAC), the Tribunal emphasised the importance of ensuring that where a concession has been made it is reduced to writing so as to avoid any misunderstanding between the parties and the Tribunal as to the nature of the issues in the case. It gave guidance encouraging the narrowing of issues at CMRs and how appeals should then proceed where the issue could be narrowed:
29. Parties should consider at as early a stage as possible, and preferably in advance of any CMR, what agreement can be reached on the scope of the issues and what concessions can be made. …
33. A judge who accepts and records concession or agreement on the facts should consider whether to treat the case as part-heard, and reserve to herself for further hearing. She is best placed to understand the exact scope of the agreement. There may be future difficulty for another judge who is faced with partial agreement on evidence, if the challenge to the rest raises questions about the whole.
34. Representatives have a joint responsibility to draw the attention of the judge at the outset of the substantive hearing to the extent of agreement reached, and the nature of the decision still required.
35. Judges, unless in exceptional circumstances, do not look behind factual concessions. Such exceptional circumstances may arise where the concession is partial or unclear, and evidence develops in such a way that a judge considers that the extent and correctness of the concession must be revisited. If so, she must draw that immediately to attention of representatives so that they have an opportunity to ask such further questions, lead such further evidence and make such further submissions as required. An adjournment may become necessary.
6.19 The AIT Guidance Note also warns against the Tribunal determining any substantive disputed issues at the CMR:
20. It should also be borne in mind that unless the same immigration judge conducts the substantive hearing as conducts the CMR hearing, the earlier immigration judge has no power in law to exclude from consideration any issues which the immigration judge at the substantive hearing may consider relevant. Under no circumstances should the Tribunal at the CMR hearing purport to determine any substantive issues in dispute, such as the appellant's nationality, where the appeal is proceeding to a full hearing, unless the issue in question has been expressly agreed between the parties.
6.20 The Guidance Note further states that:
25. It is always worth ascertaining whether the appellant has any family members in the UK, and, if so, whether they are dependants or have claimed asylum themselves. It is desirable to hear appeals by members of the same family together, in terms of rule 20, but not if this will lead to a lengthy or indefinite delay in hearing one of the appeals.
26. Where a family member has already had an appeal, details of this should be made available, along with any determination, unless the determination has been over-turned. The findings made in the earlier determination, so far as relevant and still valid, will have to be taken into account in the later appeal. (See TK (Consideration of Prior Determination - Directions) Georgia [2004] UKIAT 00149.)
6.21 See chapter 15 as to combined or linked hearings and calling evidence from a family member. TK (Consideration of Prior Determination - Directions) Georgia [2004] UKIAT 00149 would not appear to be authority for the proposition that the determination of family members who are not being called as witnesses must be taken into account in the way envisaged in the Guidance Note.
6.22 No definition of 'family member' is given. It seems unlikely (and unreasonable) that representatives should be intended to find and produce determinations in cases of relatives which do not involve the same facts. Note that there is no requirement for permission to adduce the determinations of family members (para 15.7).
6.23 Presidential Guidance Note No.2 of 2022 (Anonymity Orders and Directions regarding the use of documents and information in the FtTIAC) indicates that all protection appeals will be anonymised at inception and judges must then later consider whether to maintain, vary or discharge anonymity (para 2 and 22). The Guidance Note does not, in this context, refer to human rights appeals which are not also protection appeals. In cases which are not anonymised by the Tribunal at the outset, the Guidance Note also makes clear that applications for anonymity may be made at any later stage (see chapter 32 for more detailed treatment of anonymity in asylum and human rights appeals).
6.23AA According to the Guidance note, the need for anonymity should be reviewed at any CMR and you should raise this, assuming your client wants anonymity (see chapter 32). You should also consider in advance of any CMR whether your client is vulnerable or whether there are any concerns about her capacity to give you instructions or give evidence (para 11.22-11.32). If so, the CMR is the appropriate time to raise these concerns with the Tribunal and seek directions. Joint Presidential Guidance Note No. 2 of 2010 on Child, Vulnerable Adult and Sensitive Appellants recommends that "potential issues and solutions should be identified at a CMRH or pre hearing review and the case papers noted so that the substantive hearing can proceed with minimal exposure to trauma or further trauma of vulnerable witnesses or appellants." It sets out a list of matters to be considered at the CMR or at the start of the substantive hearing if there was no CMR. This Guidance Note was explicitly endorsed by the Court of Appeal in AM (Afghanistan) [2017] EWCA Civ 1123. One of the key features of the Guidance emphasised by the Court of Appeal in AM (Afghanistan) was the importance of early identification of vulnerability. The Senior President noted that (para 32):
… the primary responsibility for identifying vulnerabilities must rest with the appellant's representatives who are better placed than the Secretary of State's representatives to have access to private medical and personal information. Appellant's representatives should draw the tribunal's attention to the PD and Guidance and should make submissions about the appropriate directions and measures to be considered e.g. whether an appellant should give oral evidence or the special measures that are required to protect his welfare or make effective his access to justice.
6.23AB In MyHMCTS cases, generally it is unlikely that a CMA/CMR will be held to deal with these questions, unless a particular case requires one due to the specific nature of the issues. In MyHMCTS cases, the Tribunal issues questions as to the mode of hearing and hearings are listed taking account of the answers. If you disagree with any directions issued as a result of your answers to these questions, you can renew to a judge or request a CMR.
6.23A The Joint Presidential Guidance Note advises the Tribunal on particular steps to be taken to ensure that "the substantive hearing can proceed with minimal exposure to trauma or further trauma of vulnerable witnesses and appellants" (para 4). It recommends a number of steps, including "rearrangement of furniture to enable a child friendly or less formal structure eg all on the same level" and ensuring that "the time estimate provided allows for special arrangements eg frequent breaks to ensure adequate concentration levels...". The Senior President's Practice Direction on Child, Vulnerable Adult and Sensitive Witnesses advises Tribunals to consider allowing evidence to be given by video link or other means, or to appoint a person "who has the appropriate skills or experience in facilitating the giving of evidence" by such a witness. The IAA Gender Guidelines suggested rearranging the hearing room to make it less formal, giving evidence via video link, provision of a female interpreter, or an all-female court. The latter involves not only a female judge but the Home Office being directed to provide a female HOPO. The Joint Presidential Guidance Note now indicates that any request for a single gender Tribunal should be considered but advises judges to "bear in mind that sensitive issues may not be the subject of questions or core to the evidence". In SB (vulnerable adult: credibility) Ghana [2019] UKUT 00398 (IAC) the Tribunal described the two aims underlying application of the Joint Presidential Guidance Note No 2 of 2010:
61…First, the judicial fact-finder will ensure the best practicable conditions for the person concerned to give their evidence. Secondly, the vulnerability will also be taken into account when assessing the credibility of that evidence.
62. So far as the second aim is concerned, the Guidance makes it plain that it is for the judicial fact-finder to determine the relationship between the vulnerability and the evidence that is adduced:
"3. The consequences of such vulnerability differ according to the degree to which an individual is affected. It is a matter for you to determine the extent of an identified vulnerability, the effect on the quality of the evidence and the weight to be placed on such vulnerability in assessing the evidence before you, taking into account the evidence as a whole."
6.24 As noted above, the Practice Direction provides for a written record to be provided to the parties at the end of the CMR hearing as follows:
3.4 In addition to the [standard] directions ... , at the end of the CMA or CMR the Tribunal will also give to the parties written confirmation of:
(a) any issues that have been agreed at a CMA or CMR hearing as being relevant to the appeal; and
(b) any concessions made by a party.
In practice, in the absence of the Tribunal sending out directions, a written statement of any agreed issues or concessions is not always provided to the parties following a CMA/CMR. If you do not receive anything from the Tribunal, you should follow up requesting this from the Tribunal, copying in the HOPO. A written record of points agreed between the parties at the CMA/CMR will avoid potential problems at a future hearing, whether it be a substantive hearing or a further CMA/CMR, where the HOPO and judge/legal officer are likely to be different.
6.24A The Presidential Guidance Note No 3 of 2018 provides for Tribunal caseworkers to hold case management meetings (which the parties, and/or their representatives, are required to attend) for the purposes of managing, and/or giving directions in, any appeal. These are said to be called 'Case Management Appointments' and are undertaken pursuant to the Senior President of Tribunals' Practice Statement of 28th September 2018 (and updated on 11 November 2019) authorising Tribunal Caseworkers to carry out functions of a judicial nature.
Paper PHRs
6.25 The Tribunal used to hold a paper Pre-Hearing Review (PHR) in appeals where it dispensed with a CMR hearing. The current Practice Direction does not include PHRs as a case management option in para 3. Represented appellants whose appeals are managed via the online MyHMCTS platform are not issued Reply Notices (as was the former practice where a PHR was held).