How is the immigration appeals system structured?
Firstly, a brief history of the structure of the appeals process. From 1973 to 2004 there was a two tier system in place for dealing with immigration appeals named the Immigration Appeal Tribunal (IAT) and this year, in 2010, the existing Asylum and Immigration Tribunal (AIT) has been split from a single tier system (2005 to 2010) into the First Tier and Upper Tier of the Immigration and Asylum Chamber (IAC).
Who are the adjudicators in the Immigration & Asylum Chamber?
The adjudicators in the Immigration & Asylum Chamber are called Immigration Judges and are also joined by non-legally qualified members if the case requires this. Immigration Judges can sit in panels of up to three but most commonly sit as a single adjudicator.
The Immigration & Asylum Chamber has a President with two Deputy Presidents, directly below him/her. One of the responsibilities of the President is to issue a practice direction giving guidance on how panels should be composed for different types of cases.
Regionally (i.e. in each hearing centre), Senior Immigration Judges take care of judicial management and legal responsibilities with Designated Immigration Judges, one grade down, supporting a collegiate judiciary of around ten Immigration Judges.
What are the principles governing the Immigration & Asylum Chamber?
The Asylum and Immigration Tribunal (Procedure) Rules of 2005 outline the proceedings that guide judicial decisions in the Immigration & Asylum Chamber. The aim of these rules is to provide principles to be interpreted by Immigration Judges in cases that involve discretionary decisions. Rule 4 of the 2005 Rules states that the overriding objective was to handle proceedings ‘as fairly, quickly and efficiently as possible’. This has been criticised since then for suggesting that fairness would not be as uppermost in the Immigration Judges’ minds as expediency – especially since the same part of the 2003 Rules stated instead that they aimed to ‘secure the just, timely and effective disposal of appeals and applications’.
As was pointed out by the UNHCR, the ‘fundamental concern’ should be, instead, ‘correctly identifying those who are in need of international protection’ and to make accurate decisions so as not to put appellants at risk if they return to their own countries. Although it is clear that, with immigration such a controversial topic in the UK’s politics at this time, speed and efficiency are particularly welcome, usually by all the parties concerned.
How long do appellants have to appeal an Immigration Decision?
There are very short time limits in place for appealing decisions. According to rule 7 of the Asylum and Immigration Tribunal (Procedure) Rules of 2005, an appeal will be deemed as out of time after just ten days. If the person is currently in detention, they have five days to serve the correct appeal forms. This system has been criticised for a lack of impartiality with such strict deadlines for appellants’ whose first language might not be English and who may struggle to find public funding for legal advice and representation. Questions have arisen which cast doubt on the capacity of these rules to protect appellants who are truly in danger in their home country.
What is the appellants’ right to be heard?
If an appeal if considered in time then the appellant has the right to a Substantive Hearing in front of an Immigration Judge, whether or not they have found legal representation.
One example of the danger of the consideration to the right to be heard as set down by the 2005 Rules is that in the past, specifically FB (Iran) and MB (Libya), an appeal was allowed to go ahead in the absence of the appellant, based on a reading of rule 19(1) together with rule 52(2). The former solicitors of the appellant had closed down and failed to notify the then Asylum and Immigration Tribunal of the appellant’s new address. As such the Notice of Hearing was not sent to the correct address and the appellant was not correctly informed of the date. This was found to be unlawful as it breached that particular appellant’s right to be heard.
Now, under an amended rule, if the Immigration and Asylum Chamber is aware that there may be good reasons not to go ahead with a hearing if the party is absent then the Immigration Judge is allowed to adjourn the case.
How are the Notices of Hearing and determinations served on all parties?
In terms of immigration appeals, the parties include the Immigration and Asylum Chamber, the Respondent (the Secretary of State, Entry Clearance Officer or Visa Officer depending on the type of appeal), the appellant and in some cases, the legal representation of the appellant i.e. a firm of solicitors. For the purposes of discussing the serving of legal documents, the Home Office acts as the Respondent in all cases.
The Notice of Appeal must be filed by the appellant on the Immigration & Asylum Chamber who then must serve it on the Home Office ‘as soon as reasonably practicable’ (rule 12 of the 2005 rules). This could result in cases in which the Home Office may arrest, detain or even remove the appellant unlawfully, having not been correctly served with the Notice of Hearing by the Immigration & Asylum Chamber. However, it is preferable to the old system whereby the appellant lodged their appeal straight to the Home Office and then had to wait lengthy periods for the Home Office to inform the Tribunal.