I once, on behalf of an organisation with which I was associated, plotted the take over of the Public Law Project (PLP). Last month, PLP published its latest study of online immigration appeals. Nothing better makes the point about the value of its continued autonomy. To interfere would have been crass to the level of criminal – particularly because PLP’s transparency and user-focused approach contrasts so evidently with whatever internal analysis is being undertaken within the Court Service.
The PLP – deploying a mix of research, policy analysis, training and litigation – has attained its eminence through some shrewd hires. It has employed a string of high quality activist lawyers of exactly the type that has got under the skin of government ministers and exceptional research staff. At least two of its lawyers became Queen’s Counsel and at least two of its research directors went on to academic professorships.
The current postholder Joe Tomlinson, has led the team that has produced a series of reports on the digitalisation of our courts that are international in their implications if domestic in their focus.
This study explores the digitalisation of immigration appeals. As you might imagine, this is a somewhat contentious political area. There is a lot of history here behind the creation of rights of appeal and requirements for appropriate standards of administrative justice. But we have ended up with appeals going to a body that is quite a mouthful – the First-Tier Tribunal (Immigration and Asylum Chamber) – ‘the appeal tribunal’. Tribunals have been amalgamated with the courts and subject to the same digitalisation process.
PLP studied a pilot phase that began in 2019 and then was on hand to study ‘its unplanned explosion’ in response to Covid 19 from March to June this year. Let’s get the report’s first recommendation out of the way: ‘The results of any evaluation of the online procedure, pertaining to its use either in the pilot phase or during its recent expanded use … should be made publicly available.’ In publishing a report like this one with a short timeline and based on a relatively small number of interviews, the PLP is doing exactly what it should do. Any official review would have more access to official data and should be more thorough. It would take longer. But, it still needs to be undertaken to learn the lessons of a major change in operation. And it needs to be transparent, rigorous and honest.
Changes to the legal process can affect the process of representation. The digitalised procedure envisages, logically enough, an online application followed by agreement of a digital bundle (assisted by Tribunal CaseWorkers), the production of an appeal skeleton argument and then a hearing. This front loads the work. It minimises the usefulness of the charismatic advocate who turns up on the day of the hearing to pull victory out of nowhere. It maximises the value of painstaking early preparation. Legal aid is available for some appeal cases and, to its credit, the Ministry of Justice has recognised that it needs to consider changing the basis of its payment structure to reflect changing work patterns. This new procedure change relies heavily on the skeleton argument: is it a broad indication of a case or its final statement? There seems a degree of inconsistency about this. Behind this stands a potential conflict, mercifully irrelevant to the strict concerns of access to justice, between the solicitor in the office and the barrister on the fly.
A weakness in the research, which would be easier for the Court Service than the PLP to overcome, is the lack of views from self-represented litigants. This is a general concern for digital process – it may be easier for courts, government departments and lawyers but not for individuals. The PLP noted: ‘The ‘frontloaded’ nature of the online procedure led many interviewees to question its suitability for unrepresented appellants, or even those with less diligent representation.’
Partly because tribunal appeals have been such a contested area for so long – with governments only conceding any appeal rights under considerable pressure – a degree of scepticism over the future is perhaps merited. The role of the Tribunal Case Worker seems, for the moment, to be a success – provided that they remain as an honest broker in the process. The Home Office withdrew around a fifth of its decisions to contest appeals over the pilot/Covid period because convinced of its weak case. And part of the reason for that was increased availability of an identified and accessible tribunal case worker: ‘[T]hat’s [the introduction of TCWs] an improvement because there is a direct line of communication to the caseworkers there, which never was before. We never had telephone number. We didn’t have direct email.’ [Interview #32]
Tribunals, not just their caseworkers, must themselves be seen as honest brokers or the objectivity of the courts in general will be tainted. Judges will need to take the Home Office to task. ‘In a majority of the interviews with individuals involved in casework, interviewees said that the Home Office had either not complied with their obligation outlined in the directions to review the appellant’s case and provide a response, or that their response had not meaningfully engaged with.
‘[T]he Home Office have not done anything at all, so not responded to us, not engaged. We still don’t really know what their case is. The [other case] they have responded to it by basically just copying, pasting our list of issues and saying we disagree with all of these. You know I think the Tribunal is overly optimistic about the idea that they would really be able to narrow issues.’ [Interview #18] …’
The Home Office also needs to address a longstanding problem: non-continuity of representation at its end. The research undercover consistent concern that the Home Office was not fully signed up to the consequences of tribunal digitalisation and would fall down if and when it is expanded:
“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.’ [Interview #21]”
And, finally, the PLP team had a recommendation fro the judiciary. It wants to see ‘A guidance note about good practice for remote hearings (both telephone and video links) in the FtTIAC should be produced by the Tribunal. The judiciary, user groups, and interested stakeholders could make valuable contributions to this. This note should particularly focus on the technical, financial, and linguistic constraints experienced by appellants in the [appeal tribunal], both represented and unrepresented, with regard to their ability to engage with digital processes.’
The international reputation of the UK government can hardly have been lower than it is at the present time for reasons to do with Brexit and Covid – not the courts. The head of Her Majesty’s Courts and Tribunal Service, who has been leading the digitalisation process, has been promoted to try to firefight the chaos that is currently the Department of Education. Let us hope that her successor has the heft and integrity to take up the conclusions of PLP’s research. And let us give thanks for the continued existence of the small and perfectly formed independent organisation that PLP remains.