Forthcoming major changes to immigration and asylum judicial review and appeals procedure
13 May 2013
On 26 April 2013 the Crime and Courts Act 2013 received Royal Assent. Section 22 of the Act amends the law governing transfers of immigration judicial reviews to the Upper Tribunal from the High Court. Once section 22 is brought into force, the Lord Chief Justice will issue a Practice Direction specifying a wide class of immigration applications that must be transferred there. From 1 October 2013 most immigration judicial review applications will be heard by the Upper Tribunal (the Tribunal currently only hears fresh claim judicial reviews).
The Tribunal Procedure Committee (TPC) is currently holding consultations (until 20 June 2013) regarding proposed changes to the Upper Tribunal Procedure Rules to accommodate these cases. However, given that the government recently published its response to its consultation on proposals for reform of judicial review, which may lead to changes in the procedure for judicial review in the High Court, the TPC's proposals are somewhat uncertain. If the Civil Procedure Rules for judicial review in the High Court are amended, then the proposed Upper Tribunal rules will almost certainly have to be brought into line with them.
The Committee is also conducting a consultation exercise (until 2 July 2013) regarding proposed amendments to the new First-tier Tribunal Procedure Rules, planned for introduction in autumn 2013. Although the Asylum and Immigration Tribunal (AIT) was replaced by the Immigration and Asylum Chambers of the First-tier and Upper Tribunals in 2010, the AIT's Procedure Rules have remained in force for the First-tier Tribunal with some minor changes. However, it is now proposed to make bespoke new rules for the First-tier Tribunal.
Of note, and welcome, are substantial proposed extensions of time for appealing for persons in detention (from five business days to 14 days) and a similar extension in time for appealing from the First-tier Tribunal to the Upper Tribunal.
Another welcome development is that the Committee is consulting on whether to introduce costs penalties for unreasonable behaviour by the parties or their representatives.
There is also a proposal to grant the First-tier Tribunal a discretion to continue to hear an appeal even where the Home Office has withdrawn the original decision. Gherson would view this as an extremely positive development, since the Home Office appears to have developed a practice of withdrawing decisions at the last minute before appeal hearings, causing considerable frustration for the appellant.
The Committee is also considering ending the current practice whereby the Home Office are served with asylum determinations to serve upon appellants. This would again be a positive move, as it is surely wrong that one party should receive the decision before another.
A less welcome development is that the Committee is considering whether to place restrictions on repeat applications for bail, although the proposals allow for discretion to be applied.
It should be stressed that these are only proposals and it remains to be seen how many of them will find their way into the new Rules.