Dear Susan,

I know you are interested in the transparency via social media, so I wanted to discuss with you an issue that affects significant numbers of Tribunal users in the UK, every day.

Since coming to the Bar (5 years and 1 month ago), I have seen ‘float-lists’ in operation at the Immigration Tribunal. Indeed, others have highlighted publicly the potential injustice of this system since 2014 at the latest. The practical effect of these lists can be summarised thus:

Due to the removal of legal aid, those appellants who need to return to the Tribunal end up having to pay twice (or more) for lawyers to represent them. This frequently results in unacceptable delays and hardship being imposed on those who use the system. As I say in the thread:

Following my tweets, I was inundated with accounts of negative float-list experiences from colleagues across the UK. Sadly, none come as much surprise to me.

One example, from Newport (Wales), was frankly astonishing:

Others had similar stories from other parts of the UK:

The list went on:

Others who are not on social media have recent accounts of being adjourned three times (twice because of the float list, once due to the failure of the Tribunal to book an interpreter).

A fairly similar pattern emerged via another practitioner whose case started out in Birmingham and ended in London, some 18 months later:

How could a rational Tribunal consider a case involving interpreters for foreign language into BSL and BSL into English suitable for the float?

My thread was prompted by being on the float list in London’s York House, despite my solicitor having written to the Tribunal well in advance to explain it was not suitable for the float-list. Eventually, the duty Judge agreed and case was adjourned.

Part of the problem here is a lack of transparency around how the float-lists are operated.

A look on the gov.uk website shows that the information supplied there about the float-list is sparse:

Your case may be put on a waiting list, called a ‘float list’, of extra cases not linked to a particular court or judge. If this happens your case will be heard by the first judge to become available.

It may be that if your case is on a float list it will not be heard on that day. If that happens it will be relisted on another day when it will not be on the float list.

This does not answer any of the questions set out above and, inevitably, puts unrepresented parties at a particular disadvantage.

A FOIA 2000 request earlier in 2018 discovered the following, in relation to immigration appeals:

The Tribunal policy as to which appeals are placed on a float list and when a decision on whether to place an appeal on a float list is made is entirely a matter for the Regional Judge or their designated Duty Judge of the day.  Listing is a judicial function and there is judicial oversight as to the appeals considered suitable to float.  Lists are reviewed up to the day of the hearing, and sometimes on the day of the hearing to take into account adjournments/withdrawals.

If this is a ‘judicial function‘, it follows that there should be full transparency as to the procedure and the basis of the decision-maker’s interventions. Currently, there is very little.

It is also highly concerning that decisions as hopelessly ill-fated as some of the examples listed above are being taken with judicial input but without any oversight.

According to one practitioner in Manchester, the Tribunal has started to list asylum claims on the float-list, a practice that runs counter to the unofficial rule / informal understanding that asylum claims are not suitable for floating.

Unfortunately, float-lists are not confined to one jurisdiction within HMCTS. They now being used in the Employment Tribunal. Only today have I had the pleasure of floating in Watford ET:

At the time of writing, I have no information to provide my client about how long we may have to wait, the cut-off time when we will told to come back again in future, the criteria (if any) that have been applied in selecting my client’s case as being suitable for the float-list, the availability of compensation or a costs order out of central funds for our attendance today.

[UPDATE: while writing this post, we were called in because a single Judge had become unexpectedly available. We have had a very brisk hearing, made possible only because the parties had cooperated effectively to narrow the issues and agree directions. I doubt it would have been possible to conduct a fair hearing at such speed with an unrepresented party].

There are then jurisdictions with unofficial float-lists – for example, over-listed County Courts where not every case can be heard in the time available.

Just the other day, I appeared before a District Judge in a central London County Court that I know well. I remarked that she appeared to have a particularly heavy list. She informed me that the Court are down by several Judges, with no prospect of the recruitment procedure commencing before mid-2019.

It’s no secret that Judges in certain jurisdictions are in short supply. You are under-resourced and have made digitisation your priority. However, I would encourage you and your team to urgently review the use of float-lists (official and un-official) within HMCTS.

From a data perspective, it is alarming that despite it being common practice in Courts and Tribunals to mark files with adjournment codes specifying the reason for cases being delayed, the FOIA response quoted above stated that the MoJ did not hold information on the number of cases listed on the float in the Immigration Tribunal.

Only through greater transparency and data-analysis can we begin to comprehend the scale and severity of the problem and the possible solutions to it.

I would welcome further information from you on:

  • The number of Courts and Tribunals operating official and unoffical float-lists, by location and jurisdiction;
  • The available policies (whether published or unpublished) for the operation of  official and unoffical float-lists at such jurisdictions;
  • The criteria that are being applied by decision-makers regarding float-listing;
  • The extent to which HMCTS and/or the relevant decision-makers have regard to their duty as a public body to eliminate all forms of discrimination, make reasonable adjustments in the discharge of public functions for persons who are disabled, and promote equality;
  • The extent of any measures that HMCTS has taken or anticipates taking in order to compensate those inconvenienced by the use of such lists.

Yours sincerely,

BEN SIGNATURE.jpg

Ben Amunwa, barrister.

Posted by Ben Amunwa

Founder and editor of Lawmostly.com. Ben is a commercial and public law barrister with The 36 Group. He gives expert legal advice on employment, public law and commercial disputes to a wide range of clients.

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