A digital system piloted on a small scale last year to manage immigration and asylum appeals was parachuted into the justice system without any formal evaluation, a public law charity revealed today.
Public Law Project conducted its own evaluation of an online procedure designed to reduce the number of hearings and published its findings today. The system was piloted last year with a small number of appeals. However, just before the country went into Covid-19 lockdown, a practice direction was issued stating that most appeals to the first-tier tribunal must commence under the online procedure.
After speaking to practitioners, PLP's report concludes that many of the issues experienced with the online procedure during the pandemic ‘had their antecedents in issues that were not addressed following the pilot phase’.
Under the system, applications are submitted online. Tribunal caseworkers manage progression of a digital bundle. Practitioners have 28 days from submitting the bundle to file an appeal skeleton argument. The Home Office then has 14 days to review the appeal and make a decision.
Today’s report states that HMCTS told legal aid firm Duncan Lewis in June that no formal evaluation of the project had been carried out, but that evaluation was ongoing as the project developed. Duncan Lewis had just served the government a letter before action regarding new legal aid fees for appeals lodged under the online procedure.
On the pilot, practitioners told the research team that the online procedure was flexible and increased the rate at which the Home Office withdrew decisions to contest an appeal. However, they were concerned that the system created additional, unpaid work. The time between submitting an appeal and the appeal being decided affected commercial viability of taking on cases. Unsustainable funding arrangements for fixed-fee cases could lead to difficult negotiations between solicitors and barristers.
One practitioner said: ‘At the moment… tribunal case workers are fantastic – they’re responding quickly, but then there are not many firms and not many appeals. If you’re suddenly dealing with a whole range of firms and thousands of appeals a month, they’re not going to be able to cope in the same way… The quality of the Home Office review undoubtedly is going to go down because they’re not going to have enough time to do it...’
Assessing the system’s expansion during Covid-19, practitioners said the Home Office did not always meaningfully engage with the skeleton argument. The Home Office team responsible for reviewing appellants’ cases were not the same representatives at the hearing.
One solicitor told the report that they had lodged several appeals but struggled to get progress updates. Different hearing centres had different approaches to what the skeleton argument should look like. Many practitioners found it difficult to take statements and gather evidence remotely within the tight deadlines.
The report makes several recommendations including HMCTS making publicly available any evaluation of the system. The frontloading of work under the online procedure should be matched by a frontloading of resources.