New immigration tribunal procedure rules : analysis
The First-tier Tribunal now has a new set of procedure rules: the Tribunal Procedure (First-tier Tribunal) (Immigration and Asylum Chamber) Rules 2014, which came into force on 20 October 2014.
The Rules are streamlined in some parts and the overriding objective is modified to emphasise fairness and justice more than speed. Case management powers are stated more generally, in line with the objective of flexibility.
Appellants and their representatives should pay careful attention to the changes, especially as non-compliance can now result in a trip to the Upper Tribunal or an order for costs. Time limits have also changed.
Some of the changes will in most cases be of benefit to Appellants: the rule on adjournments is now less restrictive, Appellants have longer to appeal both to the First-tier and Upper Tribunals, and the Secretary of State is no longer necessarily able to thwart an appeal by withdrawing the decision appealed against.
Transitional provisions (Rule 46)
The transitional provisions in new Rule 46 provide that the Tribunal may apply any provisions of the old Rules to ensure proceedings are dealt with fairly, and any time period already running on 20 October shall continue to apply. It therefore appears that the starting point is that the new Rules will apply to all current proceedings, even if they got underway and had substantive hearings before 20 October 2014. This is particularly relevant for time limits to appeal to the Upper Tribunal, which are now longer.
Time limits (Rule 11, Rule 19, Rule 20)
Under the old rules, in-country appellants had to send their notice of appeal to the First—tier Tribunal no later than 10 days after being served with notice of the decision, five days if in detention. Now in new Rule 19 no distinction is drawn between appellants who are detained or at liberty and the time limit is 14 days after they are sent the notice of decision. Decisions delayed in the post may therefore result in a scramble to get a notice of appeal lodged. Bear in mind that 14 days means 14 calendar days, although if the final day is not a working day the act may be done by the end (midnight) of the next working day (new Rule 11).
Rule 11 contains no equivalent to old Rule 57 on calculation of time which states that periods of time of 10 days or less do not include non-business days.
Rule 11 contains no equivalent to old Rule 57 on calculation of time which states that periods of time of 10 days or less do not include non-business days. Parties should therefore be careful with short timeframes issued in directions and where these are being discussed in case management review hearings it may be worth highlighting to the Tribunal that this provision has changed. Simply setting a calendar date as the deadline is likely the best way to avoid accidental non-compliance.
For out-of-country Appellants, the timeframe for providing a notice of appeal remains the same as it was under old Rule 7(2).
Rule 20 contains no particular test for extension of time for filing a late notice of appeal, in old rule 10(5) the Tribunal only had the power when ‘satisfied by reason of special circumstances it would be unjust not to do so.’
The new rules do not have an equivalent to old Rule 55(5) which says that a document provided by post or DX will be deemed served two days after it is sent. In the absence of this Rule it is suggested the representatives still proceed on this basis and if necessary rely on new Rule 46(2) which allows for the application of any of the 2005 Rules where this would enable a case to be dealt with fairly.
Please see below for time limits for applications for permission to appeal to the Upper Tribunal.
Evidence (Rule 5, Rule 14)
Some elements of the rules on evidence have become more flexible: the Tribunal is not inhibited from considering written evidence not filed or served in accordance with directions (old Rule 51(3)) or from considering documents not accompanied by a certified translation (old Rule 52(3)). Written evidence is not required for adjournment applications (old Rule 21(1)(c)) or applications for extensions of time for appeal (old Rule 10(1)(b)) although it is to be expected that supporting evidence would strengthen an application and should still be provided where available.
now at new Rule 14(1)(c) the tribunal can direct whether the parties are permitted or required to provide expert evidence
The rules previously did not contain any express provision on expert evidence; now at new Rule 14(1)(c) the tribunal can direct whether the parties are permitted or required to provide expert evidence. It would be interesting to conceive of situations where the Secretary of State may be required to provide expert evidence. New Rule 5 introduces a specific provision for parties to apply for directions., It is particularly worth noting that this can be done in writing, which might be worthwhile in advance of CMRHs, especially where it is a complex request.
Summoning witnesses (Rule 15)
The power to summon witnesses, now in new Rule 15, is wider than that in old Rule 50 which allowed the Tribunal to summon a witness to attend an appeal. New Rule 15 uses the word hearing which means that a witness could, for example, be summoned to a bail application. This could be very useful for bail applicants in cases where their applications are being frustrated by inaction on the part of the Probation Service or the UKVI section 4 bail team.
Response: bundle and statements of opposition (Rule 23, Rule 24)
Old Rule 13 (the Respondent’s bundle) is largely preserved but split into two rules found at Rules 23 and 24.
New Rule 23 relates specifically to entry clearance and EEA family permit appeals and adds a requirement for a statement of whether the Respondent opposes the Appellant’s case and if so for what reason. Respondent’s bundles now must be sent within 28 days of receipt of the notice of appeal, apparently whether or not the notice was in time.
This is interesting as it might prevent, as a matter of procedural fairness, the SSHD from seeking to rely on additional reasons at a hearing
New Rule 24(2) requires the Respondent, if intending to change or add to the grounds or reasons relied upon in the notice of decision or other documents served under Rule 24(1)(a), to provide a statement of whether the respondent opposes the appellant’s case and the grounds for such opposition. This is interesting as it might prevent, as a matter of procedural fairness, the SSHD from seeking to rely on additional reasons at a hearing, e.g. by going fishing into credibility issues not already put in dispute by the refusal letter, unless they have filed a statement under new Rule 24(2)). Appellants are therefore advised to particularise their grounds of appeal as much as possible, because the more notice the Appellant can say the Respondent has had as to what the Appellant’s case is, the better. The Respondent is unlikely, given resource limitations, to provide any statements under new Rules 23 or 24 and the Appellant can then object to them raising extra stuff at the hearing.
Withdrawals (Rule 17)
One of the most positive changes in the procedure rules appears in new Rule 17. Previously, an appeal had to be treated as withdrawn if the Secretary of State notified the Tribunal that the relevant decision had been withdrawn. This was open to abuse and judicial review claims had been launched in cases where decisions were repeatedly withdrawn on the day of the hearing, with no explanation and no substantial difference when re-made. Now the Secretary of State must provide reasons for the withdrawal and the Tribunal may with good reason not treat the appeal as withdrawn even if the Secretary of State withdraws her decision.
Adjournments (Rule 21)
Under the 2005 Rules parties seeking an adjournment had to satisfy the test in Rule 21 to show good reason and, where an adjournment was sought to allow more time to produce evidence, that it would otherwise be ‘unjust to determine the appeal.’ This was a relatively stringent test although generally more generously applied in asylum cases following SH (Afghanistan)  EWCA Civ 1284 (and recently applied in a points-based system case: Nwaigwe (adjournment: fairness)
Now the Tribunal is simply given the power to ‘adjourn or postpone a hearing’ under its case management powers (Rule 4(3)(h)). There is therefore no specific test for adjournments.
In its absence, the Tribunal should have regard to the overriding objective set out in Rule 2 to ‘deal with cases fairly and justly.’ This is notably different from the previous definition of ‘fairly, quickly and efficiently’ which emphasised speed. Appellants can further rely on Rule 2(2)(e) which says that dealing with a case fairly and justly includes ‘avoiding delay, so far as compatible with proper consideration of the issues ’ (emphasis added). An adjournment to obtain a medical or expert report might be an example of where delay is justified to ensure proper consideration of the issues. Again, the guidance in Nwaigwe is helpful in highlighting the central question of ‘whether the refusal deprived the affected party of his right to a fair hearing.’
It is also worth noting that the requirement in Rule 21 to notify, if practicable, all other parties to an adjournment application and to produce evidence, is not replicated in the 2014 Rules. However Appellants should bear in mind that relevant evidence (e.g. of expert’s timescale) may strengthen the application.
Participation (Rule 28)
New Rule 28 allows the Tribunal to proceed with a hearing in a party’s absence if satisfied the party has been notified or reasonable steps have been taken to notify the party of the hearing and it is in the interests of justice to continue.
This is broader than the old Rule 19 which, by providing specific scenarios under which proceeding would be acceptable, in fact limited this power. New Rule 28 gives the Tribunal little guidance on what interests of justice might merit the continuation of an appeal when there is no indication of what might have happened to the missing party.
Written determinations (Rule 29)
New Rule 29 makes a major change to Tribunal practice in removing the requirement in old Rule 22 that the Tribunal must provide a reasoned written determination in every case. Now that requirement only applies to a protection claim (which does not include human rights claims such as Article 8 claims), although parties may request a written statement of reasons. Appellants should be alert to the fact they only have 28 days following the dispatch or provision of the notice of decision to do so.
The 10-day turnaround requirement is replaced with ‘as soon as reasonably practicable.’ It will be interesting to see how many First-tier Tribunal judges, unused to providing oral decisions at the hearing, will take up the opportunity to do so.
Appeals to the Upper Tribunal (Rule 33, Rule 34, Rule 36)
The party now has 14 (calendar) days after receiving written reasons for the decision.
The major change in appeals to the Upper Tribunal is an increase in the time provided, in new Rule 33. The party now has 14 (calendar) days after receiving written reasons for the decision. This means where decisions are given orally or otherwise without reasons time does not start to run until after written reasons have been applied for and provided.
Applications for extension of time may be more readily granted as the Tribunal no longer has to be satisfied ‘by reasons of special circumstances it would be unjust not to do so’ (old Rule 24(4)(a)). The Tribunal itself has more time to provide a response to the application for permission in that it is no longer bound by 10 working days but by the more generous ‘as soon as is practicable’ (new Rule 34).
The Tribunal has a new power in Rule 36 to ‘treat an application for a decision to be corrected, set aside or reviewed, or for permission to appeal against a decision, as an application for any other one of those things.’
By new Rule 34(3) the Tribunal must send a record of its decision to the parties as soon as practicable. There is no equivalent of old Rule 27 which in asylum cases required the tribunal to send its decision first to the Secretary of State who would then have 28 days to serve it upon the Appellant.
Bail hearings (Part 5)
The most striking change to the rules on bail, in Part 5 of the new Rules, is that bail applications are no longer limited to applications for release but may include applications to vary conditions, continuation or forfeiture of recognizance (Rule 39(1)). Bail applications other than for release may be heard without a hearing (Rule 39(2)).
As mentioned above, it should also now be possible to summon witnesses to bail hearings.
Transparency (Rule 13, Rule 27)
Two of the new rules affect the transparency of the tribunal. New Rule 27 on public and private hearings allows the Tribunal to give a direction that a hearing, or part of it, is to be held in private. No further indication of when this might be appropriate is provided, in contrast with old rule 54 which limited the Tribunal to exclude the public if necessary in the interests of public order or national security, to protect the private life of a party or the interests of a minor, or, in exceptional circumstances, to ensure that publicity does not prejudice the interests of justice – but only if and to the extent that it is strictly necessary to do so.
New Rule 13 is an entirely new rule giving the tribunal power to prohibit the disclosure or publication of specified documents or information relating to the proceedings, or an matter likely to lead members of the public to identify any person whom the Tribunal considers should not be identified. The Rule appears to envisage its relevance in cases where serious harm could result from disclosure, or in cases of national security, but could potentially have much wider application given the Tribunal’s general discretion in Rule 13(1) to prohibit disclosure or publication is not limited by any particular or mandatory considerations.
W hile possibly protecting vulnerable appellants, this may cause other appellants such as those whose cases involve national security elements, or who wish to make use of the Protocol on communications between judges of the Family Court and Immigration and Asylum Chambers of the First-tier Tribunal and Upper Tribunal.
Failures to comply: requiring attendance or production of documents (Rule 6)
The new Rule 6(3) introduces (with some problematic syntax) a procedure whereby the First-tier Tribunal may refer failures to comply with a requirement imposed by the First-tier Tribunal to the Upper Tribunal who may then may take a variety of actions including requiring that person to attend to give evidence. This is something for representatives to watch out for – if it appears that there will be problem with compliance it is best, as always, to inform the Tribunal in advance.
Costs (Rule 9)
Subject of a separate Free Movement post, the introduction of a provision for the Tribunal to make a costs order for wasted costs or where a party has acted unreasonably in bringing, defending or conducting proceedings. There is no provision equivalent to that in the employment tribunal procedure rules allowing the Tribunal to consider the party’s ability to pay when considering making an order, although representatives should urge this point on the Tribunal if necessary.