Justice McCloskey reviews a “momentous” year in the Upper Tribunal, Immigration and Asylum Chamber
17 February 2015
The Senior President of Tribunals’ Annual Report 2015 has been published today. The report is the third and last by Sir Jeremy Sullivan, who retires from judicial office later this year.
In chapter one of the report, Justice Bernard McCloskey, in his first year as President of the Upper Tribunal, Immigration and Asylum Chamber, looks back at a year in which events and developments ranged from “the merely notable to the outright momentous.”
Michael Clements, President of the First-tier Tribunal, Immigration and Asylum Chamber, also contributes a review of the year in chapter two.
We’ve excerpted both pieces below:
________________________________
Senior President
of Tribunals’
Annual Report
February 2015
[…]Chapter One – Upper Tribunal
[…]Immigration & Asylum Chamber
Chamber President: Mr Justice Bernard McCloskey
It is my great pleasure to contribute to this annual report to the Senior President of Tribunals. It is the first such report that I have compiled. I do so as the first year of my Presidency of the Upper Tribunal, Immigration and Asylum Chamber (UTIAC) comes to an end.
It has been quite a year for UTIAC. Events and developments have ranged from the merely notable to the outright momentous. The year began with a significant loss to the organisation. At the end of September 2013, the presidency term of Sir Nicholas Blake was concluded. I am his honoured successor. Sir Nicholas was the inaugural President of UTIAC. During his three and a half year term, he drove the organisation forward into a new era, successfully so. This he achieved by deploying to the full his multiple talents, foremost amongst which are his intellectual rigour, tireless enthusiasm and breadth of vision.
The achievements of Sir Nicholas included the compilation of a series of much needed Presidential Guidance instruments regulating important subjects including anonymity, unrepresented litigants, video link hearings, the reporting of judgments and the treatment of vulnerable litigants and witnesses.
One of Sir Nicholas’ outstanding achievements was the extinguishment of a large backlog of statutory appeals. During his presidential term, the statutory appeal backlog peaked at 6,035. When his term finished three years later there were 2,212 cases.
This towering achievement was matched only by the headline event of 2013/2014, namely the transfer from the Administrative Court of over 90% of immigration and asylum judicial reviews. This was the culmination of a protracted and challenging project led and driven by Sir Nicholas. I had the advantage of witnessing at close quarters the latter stages of this project. It was an enormous undertaking, involving seemingly countless committees, judicial office holders, stake holders, civil servants and many others. Forecasts, calculations, projections and, dare I say, the simple human qualities of hope, enthusiasm and trust abounded. Countless deadlines were met, seemingly insurmountable hurdles were overcome and occasional setbacks did not arrest the relentless flow.
The accomplishments which I have reduced to a mere summary above would not have been possible without the trojan industry, co-operation and support of the management, administration and judiciary of this organisation. I salute them all.
Another great servant of UTIAC left our organisation during the year to which this report relates. Vice-President Elisabeth Arfon-Jones (“Libby” to all) executed a long standing threat of retirement, to our great regret. Happily her immense services will remain available to us in her new part-time sitting role. Libby’s experience, excellent judgment and seemingly inexhaustible fund of good sense were of tremendous benefit to me during my first presidential year and I shall continue to utilise them! In common with Sir Nicholas, Libby has moved on accompanied by the best wishes of everyone.
UTIAC Judge Paul Southern relinquished the post of Principal Resident Judge in April 2014, succeeded by UTIAC Judge Jim Latter. Judge Southern is deserving of the highest of accolades for his magnificent period of service. I salute him with a mixture of gratitude and admiration. As regards Judge Latter, to describe the transition as seamless is an understatement – the King is dead, long live the King!
Judicial Review in UTIAC
With effect from 01 November 2013, a large proportion, estimated at 75%, of all immigration/asylum judicial review cases has fallen within the exclusive jurisdictional remit of the Upper Tribunal, Immigration and Asylum Chamber (“UTIAC”). This has given rise to the following jurisdictional dichotomy:
(a) Judicial reviews transferred to UTIAC.
(b) Judicial reviews in which the Administrative Court (“AC”) retains exclusive jurisdiction.
The issue is governed by the Direction made by the Lord Chief Justice on 21 August 2013 in accordance with Part 1 of Schedule 2 to the Constitutional Reform Act 2005 and section 18 of the Tribunals, Courts and Enforcement Act 2007.
In transitional terms, it embraces:
(i) Any case in which an application for permission to apply for judicial review was issued in the AC on or after 09 September 2013.
(ii) Any case in which there is an undetermined request for an oral hearing under CPR 54.12 following a paper refusal of permission on or after 09 September 2013.
(iii) Any application issued in UTIAC on or after 01 November 2013.
Altogether nine types, or classes, of judicial review were not transferred from AC to UTIAC. Both transferred and non-transferred judicial cases include omissions or failures to make a decision in the various categories.
Viewed panoramically, the effect of these reforms has been as follows:
(i) Approximately 70% of all judicial review cases formerly belonging to the AC would fall within the exclusive jurisdiction of UTIAC.
(ii) Over 90% of all immigration and asylum judicial review cases now fall within the exclusive jurisdiction of UTIAC.
Manchester retains its status as the biggest AC centre outside London, followed closely by Birmingham. UTIAC JRs are listed outside London in Manchester, Birmingham, Leeds and Cardiff.
A full year has now elapsed since the historic conferral on UTIAC of jurisdiction to deal with the great majority of immigration and asylum judicial reviews. The volume of cases transferred from the Administrative Court was substantially greater than predicted. During the first six months, there were significant variations in receipts and projections. A more settled pattern has now emerged. To summarise:
(a) The total number of judicial review cases transferred from the Administrative Court was circa 3,300.
(b) The total number of new judicial review cases received in UTIAC during the period viz from 01 November 2013 to 30 September 2014 was 15,567.
(c) During the past six months, new judicial review cases received in UTIAC have been averaging at just over 1,000 per month.
Statutory Appeals
For the period April 2014 – September 2014:
(a) UTIAC received a total of 4,814 statutory appeals.
(b) Altogether 4,643 appeals were completed.
(c) Immigration appeals accounted for 15% (872 appeals).
(d) Asylum appeals accounted for 15% (705 appeals).
(e) Deportation appeals were 6% (295 appeals).
(f) The remainder – managed migration and visitors’ visas – were 2,718 and 219 respectively.
These figures are comparable to those of the previous year. Furthermore, other data demonstrate that, as previously, asylum appeals continue to be the most cumbersome and time consuming in the system.
Applications for Permission to Appeal
There are two species of applications for permission to appeal in UTIAC:
(a) Applications for permission to appeal from the First-tier Tribunal (Immigration and Asylum Chamber) (the “FtT”) to UTIAC.
(b) Applications for permission to appeal from UTIAC to the Court of Appeal (“COA”)
As regards these two categories:
(a) UTIAC received 7,642 permissions to appeal and disposed of 6,645, of which 10% were granted, 88% refused and 2% withdrawn.
(b) 1,165 appeals were lodged with UTIAC for onward appeal of which 10 were granted.
Court of Appeal Decisions in Appeals from UTIAC
The Court of Appeal heard 70 appeals of which they allowed 12 and remitted 25 to UTIAC .
Notable Developments in UTIAC Jurisprudence 2013/2014
The year 2013/2014 was marked by a rich seam of jurisprudence in UTIAC relating to both substantive and procedural law. Some of these decisions are highlighted in this section.
Substantive Immigration & Asylum Law
Kareem (proxy marriages – EU law) [2014] UKUT 24
SM (withdrawal of appealed decision; effect) Pakistan [2014] UKUT 64
Shahzad (Art 8: legitimate aim) [2014] UKUT 85
Ved and others (appealable decisions; permission applications; Basnet) [2014] UKUT150
KV (scarring – medical evidence) Sri Lanka [2014] UKUT 230
Castro (removals; s 47 (as amended) [2014] UKUT 234
Durrani (entrepreneurs; bank letters; evidential flexibility) [2014] UKUT 295
Decisions re: Procedure & Practice
Marghia (procedural fairness) [2014] UKUT 366
Budhathoki (reasons for decisions) [2014] UKUT 341
NA (UT rule 45; Singh v Belgium) Iran [2014] UKUT 205
AAN (Veil) Afghanistan [2014] UKUT 102 (IAC)
Kumar (acknowledgement of service; Tribunal arrangements) [2014] UKUT 104 (IAC)
Mahmood (continuing duty to reassess) [2014] UKUT 439 (IAC)
Nwaigwe {Adjournment: fairness) [2014] UKUT 418 (IAC)
MM (unfairness; E & R) Sudan [2014] UKUT 105 (IAC)
SM (withdrawal of appealed decision: effect) [2014] UKUT 64 (IAC)
Nixon (permission to appeal: grounds) [2014] UKUT 368 (IAC)
MK (duty to give reasons) [2013] UKUT 641 (IAC)
Country Guidance
AT and others (Article 15c; risk categories) Libya CG [2014] UKUT 318
MOJ and others (return to Mogadishu) Somalia CG [2014] UKUT 442
The Immigration Act 2014
The shadow of a new Immigration Bill loomed large during much of 2013/2014. Just as the dust was beginning of settle on UTIAC’s newly extended judicial review jurisdiction, the Bill became an increasingly dominant presence.
The Immigration Act 2014 has had an almost immediate impact on the work of UTIAC by the coming into force on 28 July 2014 of Part 5A of the Nationality, Immigration and Asylum Act 2002, in respect of Article 8 ECHR, together with relevant Immigration Rules. Other provisions of the Act, including section 15, which substitutes a new section 82 into the 2002 Act, setting out the new rights of appeal to the First-tier Tribunal, are being phased in gradually, from 20 October 2014. A significant increase in the number of applications for judicial review in UTIAC appears highly probable.
UTIAC Judges wil have dedicated training on the new Act in November 2014, when its impact on both statutory appeals and judicial reviews will be considered in detail.
Judicial Resources
From its inception, the judicial compliment of UTIAC has included High Court (or equivalent) judges from the three jurisdictions concerned, viz England and Wales, Northern Ireland and Scotland. This continues for which I thank the Lord President (Scotland), The Lord Chief Justice (Northern Ireland) and QBD Presiding Judge.
A UTIAC judicial recruitment exercise is underway at present. This should result in the appointment of six to nine new salaried, full-time Judges and up to 20 new Deputy Judges. This will not, however, increase UTIAC’s judicial resource in real terms, having regard mainly to the effect of judicial retirements. Projected future judicial resource needs for UTIAC are currently being considered, not least by reason of the predicted impact of the new Immigration Act.
I consider that the workloads of UTIAC judges – hearing lists, paper lists et al – should be constantly governed by the principles of quality, fair and reasonable burden and efficiency. The first of these principles is sacrosanct. Other essential judicial duties and activities must always be taken into account. Foremost amongst these is the work of various UTIAC committees, attending necessary courses, continuing education and assisting me in a broad spectrum of Chamber tasks. These duties and activities are time consuming, demanding and labour intensive.
I will continue to monitor the fairest, most reasonable and most efficient methods of arranging and implementing the workloads of judges. This subject, which I consider to be of exalted importance, is being actively considered at present. It is directly related to the issue of morale, which is crucial in every judicial organisation.
Miscellaneous
There has been judicial review training in September 2013 and July 2014. There was also training in December 2013 on a range of topical issues, and the annual conference, including the Deputy Judges of the Chamber, took place in March 2014. There was, for the first time, joint training of SIAC judges and lay members, in January 2014, under the auspices of Irwin J, Chairman of the Special Immigration Appeals Commission.
Seminars & Conferences
I consider this subject to be inextricably linked with the issues of continuous training (self-evidently important), morale and the profile and reputation of the organisation both nationally and further afield. Events at which papers have been delivered by the President include the annual Administrative Court judicial training day, the Public Law Project Annual Conference, the inaugural Garden Court Chambers Public Law Conference, the annual conference of the Immigration Lawyers Practitioners’ Association, an EDAL conference in Dublin and an ECRE/EDAL conference, also in Ireland.
UTIAC Judges have also been active in the forum of certain prestigious international judicial events. Several UTIAC judges have delivered papers at these events in the course of the year. Some have been in connection with activities by the International Association of Refugee Law Judges, of which UTJ Dr Hugo Storey is the European Chapter President and UTJ Dawson the Vice President. A report on their activities with the European Asylum Support Office appears in a special international issue of the Tribunals Journal for autumn 2014.
In November 2014 a tripartite seminar took place at the Court of Justice of the EU in Luxembourg, attended by judges from the CJEU, the Strasbourg Court, senior judges from the UK and judges from other EU member states. One of the aims was to facilitate judicial dialogue on the very topical issue of international protection. Papers were presented by the President of UTIAC and Dr Hugo Storey. During the course of the year, the President and other UTIAC judges also presented papers at a major event organised by the IARLJ (European Chapter), in Gothenburg, Sweden.
UTIAC Committees
The governance and efficient management of the Chamber is informed and enhanced by the work several committees. Most salaried judges are members of one or more of the committees and have given generously of their time in order to facilitate this. This is considered one of the real strengths of the Chamber. The President keeps the Chamber’s committee structure under review, both as to the scope of their remit and the need to refresh their membership periodically. Some committees meet regularly and some are convened on an ad hoc basis as and when the need to do so arises. While the work of each is valuable the following qualify for special mention.
The Reporting Committee meets fortnightly and has the responsibility of selecting cases for reporting and drafting the headnotes of each reported case. In the last twelve months the committee has selected 66 cases for publication as reported cases, eight of which have been published as Country Guidance. The Country Guidance Committee plays an equally valuable role in this respect.
Key areas of the Chamber’s activity are monitored and overseen by dedicated committees. These include the Training and Appraisals Committees, the Performance Committee, the Executive Committee and the Welfare Committee.
Conclusion
Foreseeable issues and developments of importance in this Chamber during the forthcoming year include the appointment of significant numbers of new full-time and part-time judges, reduction of the backlog of judicial review cases flowing from the events described above, increasingly efficacious and inclusive solutions to the concerns and problems of judges and the revision and adaptation of certain practices and arrangements with a view to enhancing efficiency and expedition. Collectively, we look forward to these, and other, challenges. I commend all members of this Chamber for their admirable dedication to duty, industry, expertise and collegiality. It is a privilege to lead this organisation.
[…]Chapter Two – First-tier Tribunal
[…]Immigration & Asylum Chamber
President: Michael Clements
The Immigration and Asylum jurisdiction has always been, and remains, subject to fluctuations in workloads due to factors such as humanitarian or economic crises in parts of the world; the rate at which Home Office officials process migrants’ applications, and therefore the rate at which appeals against their decisions are instituted and changes in legislation and government policy bearing upon the appeals process. Working together with HMCTS and in consultation with the Ministry of Justice and the Home Office, I try to stabilise such fluctuations. However from time to time there are wide variations in the requirement for Judges to conduct hearings.
Other areas of difficulty encountered this year include the difficulties faced when detained litigants are produced for the hearing late or fail to attend their hearings (usually bail applications or deportation appeals). This is a serious deficiency in the system which wastes a great deal of court time, and as a result, can lead to adjournment of cases which would otherwise have been concluded. I am working closely with the administration to resolve this issue. It is hoped this situation may improve with the establishment of a secure immigration facility for the hearing of deportation cases.
Resident Judges and administration in some of our hearing centres continue to experience a lack of judicial capacity to cover all the work which we are asked to undertake. This has resulted in parties being offered hearing days some months ahead and impacted on other centres.
In accordance with the principle of encouraging cross-ticketing and assignment within the judicial family and to cover the shortfall in judicial resources mentioned earlier, 197 fee-paid judges of the Social Entitlement Chamber and Employment Tribunal (both England and Wales, Scotland and Northern Ireland) have recently been assigned, following an “Expression of Interest” exercise, into First-tier Tribunal, Immigration and Asylum Chamber (F-tTIAC) for a period of two years whilst continuing to be available to sit in their own jurisdictions.
This has been possible because of a corresponding fall in the current workload of the Social Entitlement and the Employment Tribunals whose workloads are, in turn, expected to increase within the next couple of years. This may, in due course, require assignment in the opposite direction.
One hundred and twenty-two of these newly assigned judges attended a training week in October at which a number of salaried judges acted as facilitators. The remainder are due to attend training in February. The training has been designed and organised by Designated Judge Julian Phillips, who was appointed Training Judge of FtTIAC at the beginning of 2014, following the re-assignment of Judge John McCarthy who has my thanks for successfully leading our judicial training in the past. The newly trained judges will, before sitting in a “solo” capacity, sit and work together with experienced salaried judges for hearing and writing-up cases. They will also have, as do all salaried and fee-paid judges, the benefit of our judicial mentoring scheme which ensures regular contact with Designated and Resident Judges at the hearing centres.
I continue to have a close relationship with the Upper Tribunal Immigration and Asylum Chamber (UTIAC) and its President, Mr Justice McCloskey. A valuable contribution to the work of the UTIAC is made by those judges of the FtTIAC who sit there as Deputy Upper Tribunal Judges in a fee-paid capacity. I encourage cross-ticketing. It not only enhances individual judges’ legal skills, FtTIAC also benefits greatly from cross-fertilisation with the UTIAC and other jurisdictions.
The Judicial Appointments Commission is at present running a competition for both fee-paid and salaried UTIAC appointments. It is my hope that FtTIAC judges seeking enhance their judicial skills and experience will apply and hopefully succeed having learned much from FtTIAC’s close relationship with UTIAC.
Since the implementation of the Information Sharing Protocol, in part drafted by Resident Judge Martin along with colleagues from UTIAC and the Family Court, judges in the immigration jurisdiction now have day-to-day contact with Circuit Judges, District Judges and Magistrates in the family jurisdiction. This can produce very constructive exchanges of ideas benefitting both jurisdictions, which have an important degree of overlap when international family issues arise.
Some of the benefits of cross-jurisdictional contact have flowed from the relocation of the West London Family Court, under the leadership of Her Honour Judge Rowe QC, to FtTIAC’s hearing centre at Hatton Cross. Similar arrangements are in place in North Shields. The County Court also regularly sits in the immigration hearing centre in Newport, Gwent.
In North Shields judges who hold “tickets” as deputy District Judges and in immigration regularly take lists in both jurisdictions in the course of one day. One of the Family Judges at Hatton Cross already has an immigration “ticket” and a number of judges in the immigration jurisdiction sit part-time as judges of County Courts.
It is hoped to develop these links further so as to advance the concept of a multi-disciplinary hearing centres. Ultimately, the aim must be maximum flexibility in the deployment of existing judicial resources among the Tribunals and Courts, a concept I have always strongly supported.
In July 2014 I published an internal consultation paper seeking views on the proposal to amend the appointment of Resident Judges in FtTIAC and also to introduce the appointment of Assistant Resident Judges to hearing centres that required further judicial leadership and management.
The proposal is in part aimed to separate FtTIAC from UTIAC in respect of judicial, leadership and management roles. I will continue to encourage close working between the two chambers, and I hope that in the future many judges of FtTIAC will continue to sit in UTIAC by way of competition rather than by way of their judicial position in FtTIAC.
It also aims to strike a balance by using judicial resources more flexibly and giving a clear leadership path to the appointment of a Resident Judge within FtTIAC rather than appointing by way of expressions of interest from UTIAC. Where there is a need as identified by the Resident Judge of the hearing centre and with the concurrence of myself, it will also enable the appointment of Assistant Resident Judges into leadership and management roles from salaried judiciary of FtTIAC.
Significant changes in the law relating to immigration are contained in the Immigration Act 2014, which is accompanied by new Procedure Rules for FtTIAC which came into force on 20th October 2014. It remains to be seen how these changes will work out in practice, but it is clear that, in the coming months, the process of change will make considerable demands on an already hard pressed judiciary, Training Judges and administration.
On an international basis, the Manchester hearing centre, headed by Resident Judge Christine Martin, recently hosted a conference of European Administrative Judges organised by the President of the Upper Tribunal. Designated Judge Jonathan Lewis has attended the European Court of Justice, and has visited Poland on two occasions in connection with the Polish Court Modernisation Project. Designated Judges John Manuel and Julian Phillips have attended the Strasbourg Court and Designated Judge Edward Woodcraft was formally invited by the European Asylum Support Office to take part in a needs assessment and training in respect of Bulgarian judiciary. Again I see these visits as positive judicial development which can only enhance the reputation of the chamber and shows how much our judicial system is admired and copied in other countries.
Regarding my colleagues in FtTIAC, it is my sad duty to record the deaths in the past year of Graham Davies, Robert Bailey-King, Linda Brown, Francoise Snape, Gail Elliman and Nick Bowen all of whom will be sadly missed by their colleagues.
For the good news, I extend our best wishes for their future to all our colleagues who left us this year either in retirement or to go to pastures new, many to higher courts.
This has been another challenging year for the First-tier Tribunal Immigration and Asylum Chamber and the report would not be complete without my thanking both the judiciary and administration for their help and support during these difficult and challenging times and to hope they will, with me, look forward to meeting new challenges in the future.
