Recent research conducted by Public Law Project has revealed significant challenges in the shift towards using an online procedure to manage appeals in the First-tier Tribunal (Immigration & Asylum Chamber) (FtTIAC).
Our report, Online Immigration Appeals: A Case Study of the First-tier Tribunal, was published today. It identifies a number of key issues with the online procedure, including under-resourcing and an insufficient consideration of how the online procedure interacts with the existing justice system.
We suggest that the front loading of work in the online procedure needs to be matched by a front loading of resources with respect to both the appellant and the respondent. Without this, the value of the online procedure is undermined. We also highlight the urgent need for research into the impact of the online procedure on especially vulnerable appellants, particularly appellants in person.
Our research principally draws on 43 interviews with lawyers, appellants, representative bodies and appellant support organisations, conducted between 20 April and 24 June 2020.
The report examines the transition to the online procedure to manage appeals in the FtTIAC. This new system involves the introduction of a digital platform to lodge and track appeals, as well as an adapted appeal process that aims to provide more active case management and earlier engagement from parties. Our research into this online procedure has two parts: first, an exploration of its use in the pilot phase in 2019, and second, its expansion as a response to the Covid-19 pandemic from March 2020 to June 2020.
We also explore wider developments in the tribunal’s transition to an online court during the pandemic, and the adoption of remote hearings in particular.
1) The online procedure offers significant benefits in principle
Interviewees saw the shift away from paper working and towards a digital system that facilitated earlier engagement of parties to be beneficial. Specifically, the role of Tribunal Case Workers (TCWs) and the respondent review stage were perceived to have clear benefits. One interviewee said:
‘I think the concept is good, and I think that it could work well. … I like the idea of working paperless as much as possible, and being able to upload bundles is something that saves a huge amount on postage.’
2) However, there were substantial concerns with how the online procedure was implemented during the pilot and how it was expanded during the pandemic
It was clear that many of the issues experienced with the online procedure during the pandemic, both in terms of its implementation and its fundamental structure, had its antecedents in issues that were not addressed during the pilot phase.
3) A number of key concerns need to be tackled for the online procedure to fulfil the potential that many interviewees saw in it
These concerns related primarily to the legal aid funding arrangements, the nature of the Appeal Skeleton Argument (ASA) and poor Home Office engagement with the respondent review process. As a fundamentally frontloaded process, sufficient resourcing of the early stages in the online procedure was perceived to be vital in addressing these concerns:
‘[T]he Home Office do not appear to be resourced to carry out this work or certainly not to carry it out in the way that the Tribunal thinks that it should be carried out, which is a full and detailed consideration and response.’
4) Conducting Case Management Review Hearings via remote link was generally seen as desirable if an appellant was represented
Interviewees perceived remote hearings to have advantages in the context of Case Management Review Hearings, but had concerns about their use in substantive hearings:
‘I mean, they [Case Management Review Hearings] could probably be done by telephone, even in the best of times if someone’s represented. Because it’s just admin.’
The report outlines a case study of one aspect of the wider HMCTS reform programme which was expanded rapidly during the pandemic. However, there are broader lessons to be learnt from this research. In particular, it highlights the challenges of parachuting in a digital process to an already established network of systems, which in this instance most notably includes the Home Office and the Legal Aid Agency. This research makes it clear that evidence-based reform, including comprehensive evaluation of the impact of reforms on the wider justice system, is paramount.
Jo Hynes is a research fellow at the Public Law Project