A pressure group that successfully challenged Covid-related judicial guidance regarding immigration appeals has set up an 'error of law' helpline for those affected by the High Court's ruling.
Last month the High Court ruled that guidance issued by the president of the Upper Tribunal (Immigration and Asylum Chamber) telling judges that appeals should normally be decided on the papers rather than at remote hearings was unlawful. The ruling affects at least 150 individuals.
The case was brought by the Joint Council for the Welfare of Immigrants, which has set up a free, confidential helpline for cases considered by the upper tribunal between 23 March and 20 November. Those who were given permission to appeal against a first-tier tribunal decision, and the error of law hearing took place on the papers, might be affected.
Nicola Burgess, JCWI legal director, said: ‘What we are concerned about is the fact that many impacted by the judgment will be unaware of their rights moving forward. To comply with the order of the High Court, the defendant has sent a “to whom it may concern” letter. There is no indication given of the importance or relevance of the judgment to the individual and there is no guarantee that it will reach the intended recipient. This has been sent to litigants in person as well as those represented, and there are likely to be many who have lost representation since their appeal was determined. There is a real risk that some may even have been detained or deported.'
One example that the JCWI submitted to the High Court was an appeal by the Home Office against a decision of the First-Tier Tribunal preventing the deportation of an Iraqi citizen, whom the FTT ruled faced a real risk of breach of his rights under article 3 (protection from torture, inhuman or degrading treatment or punishment) and article 8 (respect for private and family life) of the European Convention on Human Rights. He was denied an oral hearing despite asking for one.
Burgess said: ‘JCWI remain concerned that appellants like [the Iraqi citizen] will have been denied the opportunity of an oral hearing and will be unaware of the significance of the judgment on their case. This is why we have set up a free confidential telephone advice line which is available to both litigants in person and legal representatives.’
She added: ‘The Upper Tribunal has now indicated that they will seek to identify a number of cases that appear to raise any general issues and will list those cases for hearing (hopefully in late January or early February 2021), with a view to giving decisions that may inform the approach that will be taken in other cases.’