Expert Evidence in Immigration and Asylum Appeals

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Hi, and welcome to this latest immigration law update video. This video is part of a series I'm doing on the new practice direction for the First-tier Tribunal Immigration and Asylum Chamber, which was released on the 1st of November 2024. I've shared my screen, which contains the EIN link to the practice direction, which is available to everyone, and I put the link below this video. Also, the tribunal has prepared a helpful guide, which includes a video explainer, and the link to that helpful guide produced by the tribunal is also below this video.

In this video, I'm going to look at expert evidence in the First-tier Tribunal for immigration and asylum appeals. Now, I've said this in other videos: the sort of overarching themes to the new practice direction are following the disputed issues—so, what are the disputed issues in the case—and proceeding with procedural rigor. So, procedural rigor and disputed issues—those are the things to hold in your mind as we go through.

But let's go to the index, and you'll see at Section 9 expert evidence is dealt with. Now, expert evidence can often be a difference maker to an immigration and asylum appeal. Let me give you some examples. Perhaps, in a protection case, you're relying on a country expert. Often, in an Article 8 family life case, you might be relying on an independent social work report. In any case, you might rely on medical evidence. Perhaps, in a deportation case, you might be relying on an independent risk assessment.

So, what do the tribunal say about expert reports? Now, if you're an expert, make sure you read this carefully and you comply with this within your report. If you're instructing an expert, I would cut and paste Section 9 of the practice direction into your letter of instruction, and make sure, as solicitors and immigration advisors, you've got good letters of instruction because that will often determine the quality of the expert report.

9.1: Expert reports should be as concise as possible and focused on the issues in dispute—see that disputed issues coming up again—which are within the author's field of expertise. Lengthy and discursive commentary, which is not directly relevant to the disputed issues, is not conducive to the proportionate dispatch of judicial business in accordance with the overriding objective and procedural rigor. See, there's that other overriding theme—procedural rigor. An expert report must not exceed 20 pages. The party producing the expert evidence may apply in writing, with reasons in support of the application, for an expert report exceeding 20 pages or for any addendum reports to be served.

So, we need to try and make sure our expert reports don't exceed 20 pages. Now, in some cases, you can't get the report within 20 pages because, say, it's a complex medical issue, for example. Well, in those circumstances, we need to apply to the tribunal in writing, with reasons in support, to produce a longer expert report.

Now, expert reports must comply with what's set out in 9.3. I'm just going to summarise—it'd be a bit boring if I just read them all out—but let me summarise 9.3. But experts, make sure your reports comply with 9.3. If you're instructing an expert, make sure to check that the report does comply.

So, it must be addressed to the tribunal and not to the party who instructed the expert. Give qualification details. Give details of literature or other material that has been relied upon. Attach the letter of instruction, which must include the disputed issues. So, if you're writing a letter of instruction, set out the disputed issues. You should already know those because they should be in your appeal skeleton argument. And that helps actually get the report within the 20 pages because, one, the expert will focus on the disputed issues, and, two, if you attach the letter of instruction, they don't need to cut and paste all of that into the report.

Contain a statement confirming the material and evidence provided to them—so, what material and evidence has been provided to the expert. Now, if you're instructing an expert, make sure you give them all the relevant material. For example, if there's been a previous appeal determination and this is a fresh claim, make sure you include that previous determination. Make sure you give a medical expert the medical records, for example.

So, contain a statement setting out the material that the expert has had. Make clear which of the facts stated in the report are within the expert's own knowledge. Say who carried out an examination or procedure. Where there's a range of opinion, summarise the range of opinion. Give reasons for the expert's own opinion. Contain a summary of the conclusions reached. If an opinion is qualified, state the qualification of that opinion. Contain a statement—and this is important, and the wording is set out below—that the expert understands their duty to the tribunal, has complied, and will continue to comply with that duty, and contain the date on which it was signed.

Now, an expert report must be verified by a statement of truth, and 9.4 gives the wording. So, experts, make sure you're using, and if you're instructing an expert, make sure the expert uses, the wording in 9.4 in terms of the statement of truth and declaration that needs to be given.

Now, a number of organisations, after the practice direction was published, wrote to the president of the First-tier Tribunal, Judge Plimmer. And here is the link, actually, to the EIN summary of her response. So, I've got the letter in front of me. ILPA, the Helen Bamber Foundation, Freedom from Torture, and Forest Medical Legal Services raised some concerns with the new practice direction with Judge Plimmer, and she's given her response. Now, a full copy of the letter is on the ILPA website. A summary is on EIN. If you're an ILPA member, you'll be able to get access to it. I don't know if the other organisations have published the letter on their website.

Now, Judge Plimmer stresses the importance of following the practice direction. She acknowledges the high-quality medical reports that are often produced and how helpful they are. She says it's imperative that everybody follows the practice direction, and her expectation is that the vast majority of good-quality medical reports will be able to get within the 20-page limit. So, that's really helpful. But she does say, where it is necessary to exceed 20 pages, the practice direction makes express provision for an application to be made to the FTT to extend the page count. This should be short and straightforward and should take little time to prepare.

In order to make the application, a representative should outline why it is necessary, by reference to the disputed issues and any relevant guidance, for the report to exceed 20 pages. We expect these applications to be made in those cases where a lengthier report is necessary and can be justified. So, we don't want to be doing it in all our cases, only in those cases where a lengthy report is needed and can be justified.

She also says this, which is helpful: for the avoidance of doubt, reports submitted directly to the Home Office prior to the Home Office decision and included in the Home Office bundle are not intended to fall within the scope of the practice direction, albeit it would be helpful if the spirit of the practice direction is taken into account. And this final sentence will be helpful to experts as well. In addition, the 20-page limit relates to the report itself and not to CVs, appendices, or references, albeit we would expect these to be as concise as the disputed issues permit.

So, I would encourage you, if you're an expert or if you're instructing an expert, to make sure you follow Section 9 of the practice direction and take into account Judge Plimmer's letter. I hope that's helpful to you. There are more videos in this series covering other aspects of the practice direction.