The Senior President of Tribunals has published his 2023 annual report which includes updates from the Immigration and Asylum Chambers of both the First-tier Tribunal and Upper Tribunal. Apart from reporting on the extensive preparation work that has been required for both the Nationality and Borders Act 2022 and the Illegal Migration Act 2023, both Tribunals have commented on the number of appeals they are seeing against the deprivation of British citizenship.
Upper Tribunal
For the Upper Tribunal (Immigration and Asylum Chamber) update, the Honourable Mr Justice Dove began with a quote that will resonate with all of us: “it is the perennial experience of those who practice in the field of immigration and asylum law that the only constant is change”. He points out that after all the preparation and training that was done ahead of the Nationality and Borders Act 2022, several of the new procedures have yet to be implemented. He also says that it appears that the Upper Tribunal will retain jurisdiction over age assessment cases “for the foreseeable future”.
This was of course followed by reference to the Illegal Migration Act 2023 which the President says “will require UTIAC to receive, process and determine an unprecedented volume of cases within unprecedented timescales” and that “the need for expanded premises and enlarged administrative resources have been the subject of lengthy and detailed planning work”.
As anticipated by Colin when looking at the most recent statistics, the President also writes of the anticipated upturn in work that the Upper Tribunal expects about the backlog of asylum cases. There is also a “significant volume of cases related to the EU Settlement Scheme which is likely to persist during the coming year”. He also comments on the “significant number of cases involving decisions to deprive a person of their British Citizenship”.
The Upper Tribunal is looking to expand its services outside of London and this is stated as a “key element” of the agenda for 2024.
First-tier Tribunal
The First-tier Tribunal’s update by President Judge Melanie Plimmer also commented on the “paused” implementation of “many parts” of the Nationality and Borders Act 2022, including age assessment appeals. She also mentions the “intense preparation and planning” that has been needed for the Illegal Migration Act 2023.
Despite the Illegal Migration Act 2023 intending to remove most people from the asylum system, the First-tier Tribunal expects the number of asylum appeals to continue to increase for cases that were lodged before its implementation. If the duty to remove provided for in the Act is brought into force, the Tribunal expects “a substantial increase in the number of bail hearings” and is planning for that accordingly.
Judge Plimmer also commented on the “substantial increase in the number of deprivation of citizenship appeals in the FtTIAC”, saying that “guidance from the higher courts is still emerging” (for example, this recent Upper Tribunal decision on deprivation without notice).
It appears that at some point the First-tier Tribunal intends to produce an “IAC User Guide similar to the successful Administrative Court User Guide” intended to “bear down on poor litigation conduct” and provide easily accessible support for judges. This sounds like a very useful development for all parties.
Another new development is that work has started on a “FtTIAC Virtual Region pilot”, intended for appeals “that can be heard and dealt with in a just and effective way by remote means”. This report by Public Law Project on online immigration appeals from August 2020 is worth revisiting, hopefully the concerns and recommendations in there are being taken on board with this new pilot.
Two cases were singled out for attention by Judge Plimmer because they “concern the need for procedural rigour and the constructive engagement required from the parties” under the ‘reformed’ FTT appeal procedure. Lata (principal controversial issues) UKUT 00163 (IAC) and TC (PS compliance – “issues-based reasoning”) Zimbabwe UKUT 00164 (IAC) were both covered previously on Free Movement.
Conclusion
It appears that much of the preparation work done by the Tribunals for the Nationality and Borders Act 2022 has not been utilised. Similarly, it remains unclear how much of the preparation work that has been done for the Illegal Migration Act 2023 will actually be needed, given how little of that has been brought into force so far. Tribunal resources could surely be far better used than this.
