Barty Scholefield spoke to Jo Hynes about the Public Law Project’s case study into online immigration appeals at the First-Tier Tribunal (Immigration and Asylum Chamber)
Jo Hynes is a PhD researcher at the University of Exeter and Research Fellow with the Public Law Project (PLP). Her work focuses on the legal geographies of online courts. Jo, along with other PLP researchers, recently published a study examining the impact of immigration tribunals moving online, and spoke to Bartholomew Scholefield about the findings.
During the coronavirus pandemic, many courts across the UK were forced to switch to online hearings in order to continue to provide access to justice. Thankfully, the movement of hearings online was not new to the First-tier Tribunal (Immigration and Asylum Chamber) (FtTIAC), but that didn’t mean that the transition was without its difficulties. A Pilot system of online hearing had been trialled in 2019 as part of the government’s £1 billion reform programme of the justice system. The new online scheme was “parachuted in” in response to the pandemic, which was particularly bold given that the Pilot scheme had only been applied to 1% of the Tribunal’s cases whilst it was in place, but the new online system was to be applied to the entire caseload. A “number of concerns” that were raised in response to the Pilot remained unaddressed, and whilst practitioners supported case management conferences being held online, there were widespread concerns that online substantive hearings prevented the participation of the most vulnerable appellants.
In 2020, the PLP undertook a study consisting of 43 interviews with barristers, solicitors, and Appellants, as well as court observations conducted by the PLP. Whilst initially intended to only cover the Pilot, the study was prolonged in response to the new scheme being introduced. Jo tells me that there were “strong reflections” between the concerns raised in response to the Pilot and the concerns raised in response to the current system. The “primary concern”, she told me “was resourcing”. The intention of the online scheme was for a more “front-loaded system”, whereby counsel and the Home Office would come together at an earlier stage in the proceedings to avoid any unnecessary hearings. Whilst interviewees were, in general “on board with the aim of front-loading” there was agreement that funding was “lacking”. Particular issue was raised with the Home Office’s response team as they were frequently unresponsive, often giving “cut and paste answers and not engaging with the spirit of the process”.
There were contexts in which the online process was praised, with the vast majority of interviewees supporting the use of a remote link – either telephone or video – for case management reviews “provided that the Appellant was represented”. Additionally, expert evidence became easier to obtain, as the experts did not have to travel to tribunals, and, as Jo pointed out, the remote system “opened up hearing centres across the country” for observers like herself, enabling them to cover centres in London, Newport, Bradford and Manchester.
However, there were serious concerns that the risks of online hearings outweighed the benefits when it came to substantive hearings. “A lot of what an Immigration Judge does in a substantive hearing centres around an assessment of credibility,” Jo explained. However, in online hearings interviewees felt judges were “engaging less” and Appellants were “not able to interact well” with the Tribunal, particularly if an interpreter was involved. There was widespread concern that Judges would “stick to their normal habits” whilst assessing credibility, and not take into account the “totally different nature of the interaction”.
Jo told me that a large part of the problem was that the Pilot scheme had only been used for a very limited number of appeals, selected for their relative straightforwardness. The current system, on the other hand, was “rolled out to an entirely new group” of Appellants. Consequently, interviewees expressed concern over the “suitability” of the new system, considering the “particular vulnerabilities” of FtTIAC Appellants.
Equally concerning, Jo said, was the possibility for a “two-tiered system” to be created, dividing Appellants on the basis of their access to resources. As a result, those with access to a private space, laptop, and good internet would be able to have their cases heard much sooner than others. Legal counsel noted they were being made to “feel responsible” for their client’s ability, or lack thereof, to access the Tribunal remotely by being “encouraged to provide hearing facilities in their offices”, a responsibility they felt “very uncomfortable with”. One interviewee mentioned that a FtTIAC Judge even deemed it appropriate for a street-homeless Appellant to “call into their hearing from the street!”, a suggestion so dangerous “even the Home Office caseworker protested against it as totally inappropriate”.
This two-tiered system was further exacerbated by the problems caused by the new Legal Aid Reforms passed right at the beginning of the pandemic. Jo has also written on the impact of the new legislation, and gave me an oversight of the problems. The Reforms, which came into effect on 8 June, 2020, essentially created a new type of funding for representatives submitting appeals through the online system. Appeal skeleton arguments were billed at a flat rate of £60, which could reflect “10–12 hours work”. This left Chambers increasingly uncertain of the commercial viability of taking on such work and representatives thus felt “unable to undertake it”. Indeed, 20 Chambers issued a joint statement, in which they stated that they are unable to accept fixed-fee cases.
Interestingly, much like the online hearings system, there had also been a pilot of the new Legal Aid payment structure, which was met with a lot of resistance, but the new system was pushed through anyway once the pandemic struck. Responses to the pilot scheme “criticised the framework, which left representatives unable to make ends meet”, there was talk of a consultation with the Legal Aid Agency and “promises that the issues would be solved before a full-scale rollout”, but ultimately it was “forced through without any consultation at all”.
Jo was keen to emphasise that it “isn’t a story of lawyers being picky or doing a bad job, but the impossibility of surviving on Legal Aid contracts”. Fortunately, the Legal Aid Reforms were effectively challenged, and a new hourly-billed system brought in as of October 2020. Nonetheless, it demonstrated yet another occasion in which the Government was willing to rush through legislation without regard to the problems practitioners raised.
All in all, the new system paints the picture of a “vicious circle”, with a reduction of quality at both ends. On the one hand, you have more work being done by solicitors, and barristers being brought in later, as a hangover from the first Legal Aid Reforms. Whereas on the other hand, you have the Home Office, who have either been unresponsive or offered “copy and paste” responses, and Judges who aren’t engaging with the new system properly.
It brings to mind an article written in the Law Gazette by Dr Natalie Byrom, in which she states:
“Some commentators have referred to this period as a great experiment in the delivery of remote justice; I would counter that it is only an experiment if you collect data to test your hypothesis – something that HMCTS has failed to do.”
Despite the issues that the PLP report reveals, the new FtTIAC system shows no signs of leaving anytime soon, as there is an enormous backlog of cases due to the delays caused by coronavirus. To give an idea of the scale of the problem, Jo explains, “pre-Covid there were 916 substantive hearings in the FtTIAC a week”, whereas during the week ending 24 May, 2020 “only three substantive hearings took place!”.
Disclaimer: The BPP Human Rights blog, and all pieces posted on the blog, are written and edited exclusively by the student body. No publication or opinion contained within is representative of the values or beliefs held by BPP University or the Apollo Education Group. The views expressed are solely that of the author and are in no way supported or endorsed by BPP University, The Apollo Education Group or any members of staff.
Image credit: Field House Tribunal Hearing Centre, London | Smuconlaw / Wikimedia Commons
BPP Human Rights Law Blog 