New Practice Direction for Immigration and Asylum Appeals

New Practice Direction for Immigration Appeals

On 1 November 2024, the Senior President of Tribunals, Sir Keith Lindblom, issued a new Practice Direction that governs the immigration appeals process in the First-tier Tribunal. This article outlines the key updates and requirements detailed in the new Practice Direction; as well as what these changes mean for appellants and their representatives.

2. Purpose of the Updated Practice Direction

The stated purpose of the Practice Direction is to explain the practices that should be followed now that the majority of immigration appeals have been moved to an online system. An overview of the appeal system can be found in our previous article. This Practice Direction applies to both the Home Office and to appellants (whether represented or unrepresented). The changes which are outlined below are governed by the requirement that the parties identify, articulate, agree and then focus on the principal controversial issues, or the disputed issues, thereby adopting an issues-based approach to the appeal.

3. Page Limits in the Practice Direction for Immigration Appeals

The Practice Direction contains the following page limits (with a requirement that the text in any document be no less than size 12 font with 1.5 line spacing):

Appellant’s Skeleton Argument (ASA): the length of the ASA is now limited to 12 pages. Longer submissions require permission and justification.
Respondent’s Review: the length of the review is now limited to 6 pages unless extended by permission.
Expert Reports: such reports are now capped at 20 pages, with addendums or longer reports requiring permission.
Country Schedule: this is now limited to 12 pages, with longer schedules requiring permission.
Note that this is a significant change given that such page limits had not previously been in place.

4. Requirements for Immigration Appeal Bundles

The Practice Direction makes clear that the bundle must be prepared with the disputed issues in mind. It states that, if there is doubt whether any material or evidence is relevant to a disputed issue, it should not be included. It is also important to note that an Appellant’s bundle should not include any documents that have been included in the Respondent’s bundle.

There are also specific requirements for the formatting of bundles. The Practice Direction requires that:

Any bundle prepared by a legal representative and the respondent must be in a digital, indexed, bookmarked and paginated format where every page is A4 (unless a larger page size is required for good reasons). Any documents with typed text must be formatted so that characters can be recognised by the software (this function is known as Optical Character Recognition (‘OCR’)) unless doing so garbles the text.

5. Appellant’s Skeleton Argument: Key Components as Outlined in the Practice Direction

It is specified that an ASA should include the following:

(a) a summary of the appellant’s factual case;
(b) a schedule of the disputed issues;
(c) the appellant’s brief submissions on each of those issues, which should state why the appellant disagrees with the respondent’s decision with sufficient detail to enable the reasons for the challenge to be understood, and must:
(i) be concise;
(ii) engage with the decision letter under challenge;
(iii) not include extensive quotations from documents or authorities;
(iv) identify but not quote any more than necessary from any evidence or principle of law that will enable the basis of challenge to be understood; and
(v) cross-refer to any country information evidence schedule (see below).

6. Witness Statements in Immigration and Asylum Appeals

The Practice Direction also sets out several specific requirements for witness statements, which will be included as part of the bundle. A statement must include the following:

(a) the full name of the witness,

(b) their place of residence or, if they are making the statement in their professional, business or other occupational capacity, the address at which they work, the position they hold and the name of their firm or Employer;

(c) their occupation, if they have one;

(d) the fact that they are a party to the proceedings or are the employee or relative of such a party if that is so;

(e) the process by which it has been prepared, for example, face-to-face, over the telephone, and/or through an interpreter; and

(f) the date on which it was signed

The Practice Direction also specifies that a witness statement must indicate which of the statements are made from the witness’s own knowledge, which are matters of information or belief, and the source for any matters of information or belief. Further, an exhibit or document that is referred to within the witness statement should be verified and identifiable from the witness statement, with a clear reference to the document and its location in the bundle. There are also specific requirements for the statement of truth, and for the relevant attestations in cases where a witness statement has been prepared with the help of an interpreter.

It is made clear that the contents of the witness statement should stand as the totality of evidence-in-chief. Only where there is good reason, and with the permission of the judge, will a witness be permitted to provide additional evidence-in-chief. As a result, it is very important that all relevant information is included within a witness statement.

7. Expert and Country Information Evidence in Immigration Appeals

One of the most significant changes in the Practice Direction is an amendment to the requirements for expert evidence. It is emphasised that expert reports should be as concise as possible, and it is stated that:

“Lengthy and discursive commentary which is not directly relevant to the disputed issues is not conducive to the proportionate despatch of judicial business by the Overriding Objective of the Procedure Rules and procedural rigour.”

This is reflected in the 20 page limit for expert reports outlined above. The Practice Direction also contains additional provisions relating to country information evidence. It emphasises the importance of Country Guidance cases; and states that it should only be necessary for a party to provide country background information when there is no applicable country guidance or a party is arguing that the Tribunal should depart from established country guidance.

Any party relying on material within a country guidance decision or additional country background information is instructed to provide a ‘country schedule’, which should:

(a) contain the country guidance paragraph references and/or extracts of additional country background information relied upon by reference to each disputed issue;

(b) not exceed 12 pages; and

(c) include the relevant hyperlink to the additional country background information source document.

It thus appears that one should excerpt from the relevant country guidance instead of including the guidance in full, unless the other party challenges the accuracy of an extract contained in the schedule and puts the party producing the evidence on notice that it will be necessary for the full source documents to be available at the hearing.

8. Updated Specifications for Respondent’s Review in Immigration Appeals

There are also now additional requirements for the Respondent’s (Home Office’s) review of the ASA and bundle submitted. The previous Practice Statement No. 1 of 2022 required that:

Within fourteen days of the ASA being provided the respondent must undertake a meaningful review of the appellant’s case, taking into account the ASA and appellant’s bundle, providing the result of that review and particularising the grounds of refusal relied upon.

A.9 Pro-forma or standardised responses will be rejected by the Tribunal. The Review must engage with the submissions made and the evidence provided to the Tribunal.

The specifications for the Respondent’s review are now more lengthy. Firstly, it is mandated that, unless permission is sought and obtained, the review should not be more than 6 pages. It is also specified that the review must:

(b) not contain standard or pro forma paragraphs;

(c) explain whether the respondent agrees that the schedule of the disputed issues is correct and, if not, the correct list of disputed issues, including whether there are any further issues that the respondent wishes to raise;

(d) the respondent’s brief submissions on each of those issues including whether the respondent opposes or accepts the appellant’s position on each issue, with cross-referencing to paragraphs in the decision under appeal, pages in the respondent’s bundle, any country information evidence schedule, and/or any additional evidence relied upon;

(e) specify which, if any, witnesses the respondent intends to cross-examine; but if the respondent does not intend to cross-examine a witness, the respondent must set out any objections to that witness’s statement being read by the judge; and if a witness provides a further witness statement, they should attend the hearing to give oral evidence, unless the Tribunal otherwise directs;

(f) address whether the appeal should be allowed on any ground if the appellant and/or their key witnesses are found to be broadly credible according to the applicable standard of proof;

(g) identify if the respondent is preparing to withdraw the decision or part of it; and

(h) address the question of whether the appeal can be resolved without a hearing.

It may be hoped that the specific nature of these requirements might lead to an improvement in the quality of such reviews, and thus avoid the need to proceed to a hearing in cases where such hearings are not necessary.

9. Late Evidence in Immigration Appeals: Restrictions and Justifications

There are also explicit restrictions on the provision of evidence after the Respondent’s review. Any party providing evidence after the review must provide a written explanation as to why it was not provided earlier in the appeal process. A bundle of any additional evidence must be provided in a specified format.

10. Special Provisions for Unrepresented Appellants in the Practice Direction

The Practice Direction applies to unrepresented appellants in the same way that it does to represented appellants. However, the Tribunal must ensure that unrepresented appellants are treated fairly and are allowed to explain their case. Judges are directed to take into account the guidance provided in the Equal Treatment Bench Book, which emphasises inclusivity and fairness for vulnerable or disadvantaged groups.

Unrepresented appellants are required to explain their case and provide evidence or material that supports their claims. The Tribunal will issue directions tailored to their circumstances to guide them in this process. Unrepresented appellants may be given flexibility in presenting their documents or written submissions.

11. Conclusion: Balancing Efficiency and New Demands in Immigration Appeals

The updated Practice Direction might well represent a positive step toward improving the efficiency of the appeal system, which is certainly needed given the extended waiting times individuals are currently facing. By encouraging concise, issue-based submissions and introducing clear formatting and evidential guidelines, the new rules aim to streamline proceedings and reduce unnecessary delays. However, these changes come with an additional burden for all parties involved. The stringent requirements for document preparation and adherence to page limits (with the potential need to make applications if the page limits must be exceeded) may increase the work involved in preparing appeals, especially in the case of appeals that were being prepared before the new Practice Direction took immediate effect on 1 November 2024.

For expert advice and assistance in relation to an immigration appeal or other matter, contact our immigration barristers in London on 0203 617 9173 or via the enquiry form below.