Immigration appeals: a case apart

Immigration law is a complex specialist field, one with which practitioners who do not work in the area are unlikely to be familiar. To the author’s knowledge, most of the universities in Scotland do not teach an immigration law course on the LLB, and none do so on the Diploma in Professional Legal Practice. This is unfortunate, as preparing for and conducting an immigration tribunal is a materially different experience than conducting a case in the civil courts, or even in the other First-tier Tribunals. It is hoped that the following tips will provide helpful guidance to people starting a practice, or contemplating one, in immigration law.

Preparing the case

1. Writing a skeleton argument

In the ordinary course of events, the First-tier Tribunal will direct the appellant to lodge a skeleton argument. Even if this has not been directed, a skeleton argument will assist the immigration judge at the hearing and should always be prepared.

A good skeleton argument will start with an overview of the basis of the appeal and then provide a brief factual summary. Following this, the skeleton argument should provide a “schedule of issues” for the tribunal to determine. These should be as succinct as possible, while still allowing the immigration judge to clearly discern the matters in dispute. Reference should be made to all the legal and factual arguments that the tribunal is required to determine in order to decide the appeal, but not to each fact which the tribunal needs to make a finding on.

After the schedule, brief submissions on each issue should be provided. All authorities which will be relied upon should be clearly referred to in the appeal skeleton argument, in a way which makes clear what proposition is being taken from the case. The author has seen skeleton arguments running to over a dozen issues, which is unlikely to be required in all but the most complex appeals. The author has also seen skeleton arguments where the only issue listed for the tribunal to determine was “Should the appellant succeed in their appeal?” This provides no benefit to the immigration judge.

2. Preparing the bundle

All the documents relied on by the appellant, including authorities, should be lodged in a paginated electronic bundle. An index of the documents contained in the bundle is essential, and some thought should be given to the structure. A proposed structure is to start with the witness statements, then any expert reports, followed by any evidence in support of the appellant’s account, a section for objective country evidence, and then concluding with the authorities relied on.

Paragraph 7.5(ii) of the Practice Directions recommends a “schedule identifying the relevant passages”. It may be useful to provide more than one schedule. For example, a schedule of key passages should be included at the end of the objective country evidence, and a separate schedule of key passages should be included at the end of the authorities. The key passages should be highlighted where they arise in the text of the documents.

Paragraph 7.5(iv) also recommends that a chronology of events is lodged, which appears to happen infrequently in practice.

3. Identifying objective evidence

The immigration tribunal is often critical of the volume of country information which is lodged in support of an appeal. It is not appropriate to create a “generic” bundle containing human rights reports on every issue arising in a certain country. Thought should be given to identifying which reports support the appellant’s case for each of the issues in the appeal.

For country evidence, the Home Office relies on its Country Policy and Information Notes. The relevant CPINs should be read to determine where the appellant’s case is not supported by the CPIN, and objective evidence should be used to justify the tribunal departing from the guidance in the CPIN. If the appellant’s case is supported by the CPIN, this should be relied on. For example, if a CPIN or a recent country guidance decision accepts that torture of detained prisoners is widespread in a country, there is no need to include other evidence to establish this point.

4. Bring your cases

In the immigration tribunal, cases which have not been lodged are frequently referred to in submissions. This is rarely objected to, as para 2(d) of the tribunal’s rules requires the immigration judge to use their special expertise. If the case is familiar to the judge, they are likely to accept reference to it without having the case in front of them.

However, this does not override the obligation to give fair notice to the other side, or the desirability of being able to refer the immigration judge to the relevant passages in the case. If a case is going to be referred to, it is best practice to include it in the bundle. If a case which has not been lodged has to be referred to in submissions, the representative should offer to make this case available to the tribunal.

Conducting the case

5. Informal – to a point

Paragraph 2(b) of the tribunal’s rules requires the immigration judge to avoid unnecessary formality in proceedings. Representatives remain seated throughout the hearing and the judge is more likely to allow discussion between the representatives during the hearing.

However, the hearing is still an official process which should be conducted with dignity. The judge should be referred to as “sir” or “ma’am”. Representatives should stand when the judge is standing, unless asked to sit, and should also bow to the judge if leaving the courtroom while the judge is on the bench. Any discussion should cease when the judge enters the room.

6. Communicating through interpreters

Many immigration hearings require a court-appointed interpreter to translate the proceedings for the appellant. Careful effort should be taken to identify not only the language which is required, but also the specific dialect. For example, appellants who speak Pakistani Pashto may not be understood by an Afghani Pashto interpreter, as Urdu words are incorporated into the Pakistani dialect.

When asking questions through an interpreter, the questions should be directed at the witness. Any clarification required should be obtained through asking further questions of the witness, instead of asking the interpreter what was meant by an answer.

When delivering submissions, representatives will need to be acutely aware of how fast they are speaking, and make frequent pauses for the interpreter to translate. The time taken for translation will also have to be factored into any estimated timings which the judge may ask for.

7. Structuring submissions

In the immigration tribunal, submissions are delivered first by the Home Office representative, and then by the representative for the appellant. It is common practice for those representing the appellant to make a rebuttal of the Home Office argument at the end of their submissions.

However, the author suggests that the rebuttal argument should come first, after a brief introduction. The Home Office argument is fresh in the judge’s mind and should be addressed before moving on to new points which assist the appellant. This also allows the appellant’s submissions to finish on a positive note stressing their case, instead of ending with the points made by the Home Office.

Submissions should not rehearse the objective evidence, but the tribunal should be taken to relevant passages with a clear explanation of what proposition should be taken from them in respect of the appellant’s position. Internal and external consistencies in the appellant’s account should be stressed.

8. Devaseelan

A common type of immigration appeal is a “Devaseelan appeal”, named after the Upper Tribunal case of Devaseelan (Second Appeals, ECHR, Extra-Territorial Effect) [2002] UKIAT 702. This case explained the approach which the First-tier Tribunal is to take when dealing with further submissions which have been made following an unsuccessful appeal.

The main principle of Devaseelan is that the decision in the first appeal is the “starting point”, but can be departed from where new evidence, which was not before the original tribunal, justifies departing from its findings.

Secretary of State for the Home Department v BK (Afghanistan) [2019] EWCA Civ 1358 is also a useful case on this type of appeal and should be read by practitioners.

When delivering submissions in a Devaseelan appeal, it is important to identify which parts of the original First-tier Tribunal decision should be departed from, and which new evidence entitles the later tribunal to do so. The later tribunal cannot merely rehear the appeal and come to a different conclusion. It must provide reasons for departing from the previous determination. It is the appellant’s representative’s role to provide these reasons in submissions.

It is important to note that this is not an appeal against the original determination. Submissions that the previous judge was wrong are unlikely to be successful. Instead, it should be argued that new material has come forward or circumstances have changed which render the previous decision untenable.

Conclusion

Preparing for and conducting an immigration tribunal is likely to be an unfamiliar experience for practitioners used to the proceedings in other civil courts. An understanding of how to prepare and lodge appeal skeleton arguments and prepare a bundle of materials relied on is essential. Useful guidance can be found in the practice directions. When appearing in the immigration tribunal, practitioners should be mindful that the relative informality of the proceedings does not diminish the solemnity of the process, be aware of the proper way of putting questions to a witness through a translator, and consider where best in their submissions to place a rebuttal of the Home Office argument.