The Rt Hon Sir Keith Lindblom releases his third annual review of the year in the tribunals
The Senior President of Tribunals, Sir Keith Lindblom, has this week released his latest annual report reviewing the year in the tribunals.
You can download the full 55-page report here.
As we do each year on EIN, we've excerpted the sections on the Immigration and Asylum Chamber (IAC) and reproduced them below.
The Honourable Mr Justice Dove reviews the year in the Upper Tribunal (IAC) and Judge Melanie Plimmer reviews the year in the First-tier Tribunal (IAC).
Mr Justice Dove's review considers the impact of the Illegal Migration Act 2023 (IMA) and he notes that it will require the Upper Tribunal to "receive, process and determine an unprecedented volume of cases within unprecedented timescales."
Both the Upper Tribunal and First-tier Tribunal also expect a significant upturn in work due to the Home Office's increased decision-making to clear the large backlog of asylum applications.
Judge Melanie Plimmer said: "Over the next two to three years, it is anticipated that notwithstanding the IMA requirements, the numbers of asylum appeals will increase consistent with the Home Office's commitment to reduce and eventually clear the substantial backlog pre-dating the implementation of the IMA. It is anticipated that in the short term, as a consequence of the IMA duty placed upon the Secretary of State to remove illegal entrants, there will be a substantial increase in the number of bail hearings dealt with by the FtTIAC. Planning for these expected developments is well underway."
Excerpts from the Senior President of Tribunals' report follow below:
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Courts and
Tribunals Judiciary
Senior President of Tribunals' Annual Report
2023
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Immigration and Asylum Chamber
President: The Honourable Mr Justice Dove
The jurisdictional landscape
It is the perennial experience of those who practice in the field of immigration and asylum law that the only constant is change. Following the preparation and training for the implementation of the Nationality and Borders Act 2022, several of the new procedures which this legislation enacted have yet to be implemented, and it appears that Upper Tribunal Immigration & Asylum Chamber (UTIAC) will retain the jurisdiction in relation to age assessment cases for the foreseeable future. At the start of 2023 we were advised of the intention to introduce what is now the Illegal Migration Act 2023. The provisions in this legislation will require UTIAC to receive, process and determine an unprecedented volume of cases within unprecedented timescales. The preparations to meet this challenge have been extensive, and working in partnership with HMCTS colleagues the need for expanded premises and enlarged administrative resources have been the subject of lengthy and detailed planning work. In particular, a large number of judges from the FtTIAC have been recruited to deal with this work, alongside the running of an ambitious programme of recruitment for both Salaried Judges and Fee-Paid Deputy Judges of UTIAC. An intensive programme of training has been put in place to equip the judiciary and those who support us to be ready for this new work.
The current caseload in UTIAC is manageable, but we await the upturn in work which is anticipated when the Home Office address the backlog which they have in respect of outstanding cases. There continues to be a significant volume of cases related to the EU Settlement Scheme which is likely to persist during the coming year. UTIAC has also dealt with a significant number of cases involving decisions to deprive a person of their British Citizenship, a jurisdiction which has required clarification following the Supreme Court decision in Begum v Secretary of State for the Home Department [2021] UKSC 7. In particular, further analysis of the implications for this decision in deprivation cases was provided in Chimi v Secretary of State for the Home Department [2023] UKUT 00115. Other themes of the caselaw currently in UTIAC include the need for procedural rigour in the conduct and management of appeals, as well as the encouragement of focused and issued based decision making.
Diversity, inclusion and wellbeing
The judges in UTIAC have a keen commitment to the pursuit of diversity and inclusion through a variety of initiatives. We continue to host students at Field House from a number of different academic institutions and welcome the chance to introduce students to the important work that is undertaken in UTIAC. As part of the preparation for the recruitment of Salaried and Fee-Paid Deputy Judges we undertook a sequence of outreach events both in London and in many of the locations outside London in which we regularly sit. These were well-attended and will hopefully support a successful selection exercise by the JAC. The co-ordination of this diversity and inclusion work is supervised by UTJ Bruce.
UTIAC is actively engaged in promoting the welfare and well-being of the judiciary. The judges have a group which meets regularly, led by UTJ Norton-Taylor, to identify and work on these issues. One recent initiative has been the creation of support groups for judges, to enable concerns and problems which are affecting welfare and well-being to be reported and tackled. I conduct an annual programme of one-to-ones, and regular consultation through Town Hall style meetings to foster improvements in judge's working environment.
The welfare and well-being of our Deputy UTJs is supported by a programme of assigning mentors to help and support these judges in their UTIAC work. This work is supervised by UTJ Gleeson who has responsibility for the Deputy UTJs in this jurisdiction. We also have a comprehensive programme for appraisal for our Deputies which is now in full swing and is co-ordinated by UTJ McWilliam.
People and places
Considerable effort by both judges and HMCTS colleagues has been devoted to attempting to expand the amount of work which UTIAC undertakes outside London and in the Regions. In Scotland, UTIAC has been provided with new premises, and we have been greatly helped by the HMCTS staff who have assisted in equipping our new base in Edinburgh. There is a need to expand the amount of work which is being undertaken outside London, and to that end a protocol has been agreed to guarantee UTIAC court facilities on a regular basis in the Regional centres. Increasing access to justice outside London will remain a key element of our agenda for the coming year.
As judges, we are extremely grateful for all of the hard work, dedication and professionalism of all of our HMCTS staff in Field House and outside London. A particularly important initiative which has been brought to fruition is the implementation of mandation, which will require our professional users to directly file papers at UTIAC without the extensive need for staff to process the paperwork before it is introduced onto our case management system.
We are also extremely fortunate as judges to have the support of a team of talented and resourceful lawyers who provide invaluable assistance in case managing and progressing the appeals which we decide. The need for this support will expand as our caseload increases. UTIAC also benefits greatly from the work of the Legal Research Unit, which is vital in keeping us up to date in the fast-moving area of law in which we work.
The judicial business that has been dealt with by UTIAC over the past year could not have been accomplished without the support of all the judges who play a critical role in the ensuring effective and efficient operation in all the places where we sit. We shall miss the contribution to the work of UTIAC made by our recently retired colleagues UTJ Allen and UTJ Grubb, who both were very substantial figures in our jurisdiction and key members of the team. We are delighted that we shall continue to benefit from their expertise on our Editorial Board.
In particular, it is important to place on record the tireless and invaluable dedicated work undertaken by the Vice President of UTIAC and our Principal Resident Judge UTJ Blum. Very many of our judges have specific responsibilities for important issues which are vital to the health of our operations and specifically, beyond those already identified, the following judges have successfully supported important specific areas of activity: UTJs Frances and O'Callaghan (Training); UTJs Rintoul and Smith (Practice and Procedure); UTJs Kamara and Pitt (JAC competitions); and UTJs Keith and Smith (IT). We have very reason to believe that the strength of UTIAC depends upon this team approach across the board, and the essential individual contributions of all of our judges to our collective endeavour in this jurisdiction.
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Immigration and Asylum Chamber
President: Judge Melanie Plimmer
The jurisdictional landscape
The First-tier Tribunal (Immigration and Asylum Chamber) ('FtTIAC') deals with appeals against decisions of the Secretary of State relating to international protection, deportation, the EU Settlement Scheme, deprivation of citizenship and human rights. These often involve vulnerable appellants and detailed evidence addressing what is often difficult evidence including torture, persecution and family separation. Appeals must be determined pursuant to a changing and complex legal landscape, often in the public eye.
The year started with the passing of the Nationality and Borders Act 2022 ('NABA'), albeit as the months progressed the implementation of many parts of NABA, including the age assessment appeals highlighted in last year's report, have been paused. The year ended with the passing of the Illegal Migration Act 2023 ('IMA'), which upon implementation will have far reaching consequences for all IAC work. This has required and continues to demand intense preparation and planning on the part of leadership judges.
Over the next two to three years, it is anticipated that notwithstanding the IMA requirements, the numbers of asylum appeals will increase consistent with the Home Office's commitment to reduce and eventually clear the substantial backlog pre-dating the implementation of the IMA. It is anticipated that in the short term, as a consequence of the IMA duty placed upon the Secretary of State to remove illegal entrants, there will be a substantial increase in the number of bail hearings dealt with by the FtTIAC. Planning for these expected developments is well underway.
The year has seen the introduction and implementation of the new FtTIAC President's "Programme for Change" through which there have been significant changes to ways of working with the overarching aim to re-focus preparation, hearings and written decisions through a more "issues-based" and structured lens, consistent with the manner in which Reform is expected to work in FTTIAC. This has involved a 360-degree approach which has benefitted from the support and guidance of other Presidents in the Senior President's Tribunals Action Group: re-training of salaried and fee-paid judges; realignment of mentoring and leadership on the part of Assistant Resident Judges; judicial training of legal officers to case manage through narrowing issues in advance of the hearing; judicial support for pro-active case management by legal officers in a Birmingham pilot; more comprehensive and up to date jurisdictional support for judges through the maintenance of online checklists, templates and sample judgments for each cohort of work. The latter could not have been achieved without the hard work and dedication of judicial subject leads under the supervision and unstinting dedication of the training team, which continues to be led by Resident Judge Julian Phillips and his deputies Resident Judge Holmes and Assistant Resident Judge Landes. Whilst it is anticipated that this enhanced 360-degree support package will lead to more concise decisions where possible, it is also hoped that the overall quality of decision-making will increase with a consequent reduction in the number of successful onward appeals, whilst simultaneously making the work of the FtTIAC judge more enjoyable.
An integral part of the Programme for Change is the foundation of an Improvement Group which works closely and collaboratively with the UTIAC, whose focus is on procedural rigour in the IAC through collaboration with relevant stakeholders such as the Home Office and the Immigration Law Practitioners Association (ILPA). In addition, in time, the production of an IAC User Guide similar to the successful Administrative Court User Guide, will bear down on poor litigation conduct inconsistent with the reformed process in FtTIAC, as well provide further support in an easily accessible format for busy judges. The requirement for procedural rigour has been emphasised and supported by recent case law (see below) and the feedback on the effects of this initiative is already very positive. The emphasis upon procedural rigour has also been addressed at training events, together with the need for this to be applied and enforced politely and respectfully, consistent with the Statement of Expected Behaviour.
Work has recently commenced on a FtTIAC Virtual Region pilot with the object of corralling appeals that can be heard and dealt with in a just and effective way by remote means. For appeals within scope, it may be possible to shorten the time usually taken between inception of the appeal and delivery of the judgment, leading to greater efficiency and making best use of the available UK-wide judicial resource, with deployment to virtual lists not necessarily tied to a particular hearing centre or region.
Two of the more important reported decisions this year concern the need for procedural rigour and the constructive engagement required from the parties in the context of the reform in FtTIAC. In Lata (principal controversial issues) [2023] UKUT 163 (IAC), the UT gave clear guidance on the reformed appeals procedures and the essential focus on identifying the issues. In TC (PS compliance "issues- based" reasoning) [2023] UKUT 164 (IAC) a panel of the Presidents of the FtTIAC and the UTIAC emphasised the need for procedural rigour at every stage of proceedings and the importance of the FtTIAC's Practice Statement as consistent with reform and a modern application of the overriding objective in the relevant Procedure Rules to deal with cases fairly and justly.
A salient feature of the work over the past year has been the substantial increase in the number of deprivation of citizenship appeals in the FtTIAC. These are difficult and complex cases, and guidance from the higher courts is still emerging.
Diversity, inclusion and wellbeing
The Chamber has run a series of focus groups for fee-paid and salaried judges to develop an action plan mirroring the aims of the Diversity & Inclusion Strategy which has provided a useful platform to engage judges on issues which matter to them. The focus groups have focused on topics such as career progression in the judiciary. A national lecture was also held on the Judicial Appointments Commission process.
The Chamber has also promoted diversity & inclusion through (i) its training programme such as inviting an external speaker to deliver interactive training to get judges to engage, challenge and think about their own potential prejudices and (ii) establishing a dedicated Diversity & Inclusion page on the IAC website.
People and places
Chamber President Michael Clements retired after more than a decade at the helm. Judge Clements led FtTIAC during some tumultuous times, including the covid pandemic and the recovery which followed, and oversaw and managed the introduction of the online appeals process, the first of its kind in courts and tribunals, and the early years of Reform.
Judge Melanie Plimmer has been the new Chamber President since November 2022. Judge Plimmer has designed and implemented the Programme for Change and launched several initiatives to drive up standards and improve efficiency, whilst ensuring that judicial well-being and diversity and inclusion run as golden threads throughout. Judge Plimmer has made it a priority to meet the FtTIAC judiciary and legal officers at hearing centres and training venues across the UK-wide jurisdiction and to engage with the challenges facing the jurisdiction in the coming months and years.
Judge Neil Froom has been appointed as the new Resident Judge at the Hatton Cross London hearing centre. Judges Sean O'Brien and Roxanne Frantzis were appointed acting Resident Judges in Manchester on a job share basis, pending the outcome of a JAC competition. Both the Manchester and Taylor House Resident Judge JAC selection exercises which are currently underway include (for the first time) the option of salaried part-time working and job-share arrangements. Judge Jonathan Holmes who held the role of Resident Judge at Hatton Cross has relocated to take on the role of Resident Judge North East, based in Bradford and Newcastle.
Thirty new fee-paid judges were appointed in April 2023 and are now sitting having completed induction training and panel lists with experienced mentor judges. JAC competitions are currently underway for further fee-paid and salaried judges and these are expected to result in appointments next year.
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