Life after Lock Down

Danielle Cohen
By Danielle Cohen Immigration Law Solicitor Linkedin
Danielle Cohen has over 20 years of experience as a lawyer and a reputation for offering professional, honest and expert advice.
25 March 2020

On 19th March 2020 the Lord Chancellor approved the practice direction made by Senior President of the Tribunal which stated that during the Covid19 Pandemic, Tribunals will have to change the way of working to limit the spread of the virus and to work appropriately.  This practice direction will be in force for six months from 19th March 2020, but will be reviewed within that period and can be revoked at any time.

The Upper Tribunal informed parties of the postponement of hearing of cases beginning on 23rd March 2020. It is now suggested that decisions will be made on paper without a hearing.  If the Tribunal considers it is appropriate to have a case decided without a hearing, it will provide a provisional decision to the parties.  The parties will then be asked whether they consent to the Tribunal making a binding decision on the papers, that is in the same terms as the provisional decision.  If both ourselves and the Home Office confirm that they require a hearing, a hearing will be listed which may be conducted remotely. If, on the other hand the parties consent to a paper determination, and don’t object to it, the Tribunal will issue a final decision in the same form as their provisional decision.

We will advise our clients on whether the case can fairly and justly be dealt  without a hearing on the papers alone. In view of this change it is more important than ever that the papers that are presented to the Judiciary will include all the information a Judge will need to determine the case favourably, and to have an overall view of the case.  It is important to appreciate that the fact that a party is unrepresented will not necessarily lead the Judge to conclude that a hearing is necessary. On the contrary, the view is that it may be easier to make submissions in writing rather than to address the Upper Tribunal orally through an interpreter. In deciding whether it is necessary to hold a hearing the Judge can be expected to have regard to paragraph 4 of the practice direction and Rule 2 of the Upper Tribunal Rules.  The fact that the outcome of the appeal is of importance to the party or another person will not be a reason to have an oral hearing. It goes without saying that almost all appeals in the Immigration jurisdiction are important to the individuals affected.

What is a remote hearing

A remote hearing may involve a live audio link or live video link.  A live audio link will usually be by telephone and a live video link might involve a video link from a Court room that has fixed kit for that purpose to barrister’s chambers and Presenting Officers.

Because of the requirement for electronic filing and service it is important that the documentation to be relied upon at a remote hearing is confined to what is absolutely essential.  Where case law is relied upon, the bundle should contain a list of the cases concerned with citations rather than the actual text. Where other documents are publicly accessible on line, the only parts relied on should be included in the bundle.  An attachment to an email must not in total exceed 15Mb and therefore several emails may be necessary in order to complete in submitting the bundle electronically. If practical, electronic bundles should be indexed and paginated and must be prepared in PDF or other formats readily capable of being opened and read on computers using Microsoft Windows.

The remote hearing itself, unlike face to face hearings,  will be listed at different times, rather than all at 10.00am.  The Court staff will establish contact with the parties approximately 10 minutes before the scheduled time of the remote hearing.  Therefore, we must make ourselves ready and available well in advance.