Slowly but surely, the justice system is going digital.
One of its busier divisions, the First-tier Tribunal (Immigration and Asylum Chamber) (‘F-tTIAC’), is near the front of the digitisation queue. The reforms raise many questions about how the F-tT’s various users will access justice and how legal procedure and practice can keep pace with (and be substantively changed by) technology.
To get a glimpse from inside the digital appeal hearings of the future, I caught up with Claire Ryan, a solicitor at Duncan Lewis, one of the firms participating in the F-tTIAC digital pilot at Taylor House, London, where some of the £1 billion investment from the Ministry of Justice and HM Courts and Tribunals Service is being road-tested.
BA: What is the F-tTIAC’s digital pilot at Taylor House?
CR: The pilot scheme aims to reform the asylum appeals service to deliver a ‘simpler, fairer and more accessible service.’ It works as an online platform for case handling and management throughout the F-tT appeal process.
The pilot aims to make everything much more straightforward, with better case handling and more communication between the parties. Lodging an appeal is now a simple tick box exercise which takes around 5 minutes.
BA: So far so good. What does it look like in practice?
CR: Rather than drafting grounds of appeal you just tick the relevant box which mirrors the statutory grounds of appeal.
There is instant notification an appeal is lodged so there are no longer issues with faxes not going through, emails bouncing back etc.
Once lodged the Respondent will be directed to file their bundle within 14 days, which is checked by an allocated Tribunal caseworker before being sent to the Appellant. If the bundle is incomplete the Respondent is directed to amend it.
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The Appellant then has 28 days from when the Respondent’s bundle is provided, or 42 days after the notice of appeal, to upload a bundle and skeleton argument. This is then put to the Respondent to carry out a comprehensive review of the Appellant’s case before it’s listed for hearing. The Tribunal will not accept a standardised response and the review must engage with the evidence and submissions. Following this the Appellant can put in a further response and the matter is then listed for a hearing. The hearings are all audio recorded and each party has one bundle complied by the court and everyone works off a laptop.
BA: That sounds radically different to the current system where bundles fail to appear and decisions are pulled at the last minute due to the lack of timely reviews. Who’s involved in the pilot at this stage?
CR: At present a few firms are participating to test the new digital system, with the aim that it will eventually be rolled out on a larger scale. Duncan Lewis are one of the firms involved in the pilot and we have had cases which have been through the pilot system from start to finish. At the moment, international protection and (revocation of protection) appeals are accepted in the pilot if the appellants are:
- over 18;
- not in detention;
- not a linked appeal;
- not stateless;
- not a fee paying appeal (legally aided parties);
- live in a postcode which would mean the appeal is normally listed at Taylor House (this has been applied flexibly).
BA: For you and your clients, what have been the main advantages?
CR: It’s paper saving! Everything is online and there is no need to bring a paper bundle as the Tribunal have screens that laptops can be connected to and everyone is working from the same digital bundle.
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There is more time to prepare a case – a minimum of 42 days from lodging to upload a bundle with further flexibility if needed. Once a bundle is uploaded further evidence can be submitted if it becomes available.
The Tribunal are very responsive and caseworkers answer queries by email very quickly. It feels as though everything is being managed much more closely and so a hearing should only proceed when all parties are ready.
BA: As it should be, really…
CR: In cases where expert evidence is needed there is more flexibility from the Tribunal to extend the timetable and no need for an adjournment as the case won’t have been listed at that stage. Instead a written request can be put to a caseworker to put before a Judge if necessary.
BA: This totally inverts the existing practice of listing cases first only to find out that they aren’t ready later on, leading to avoidable adjournments. Are the bundles available at an earlier stage than usual?
CR: Respondent’s bundles are received and received in time with all relevant documents! There are no more last-minute discussions with HOPO before the hearing as they don’t have the Appellant’s bundle or their own.
BA: In other jurisdictions like the Employment Tribunal or some County Court claims, there’s an emphasis on identifying issues at an early stage. How does the pilot deal with defining the issues in an appeal?
CR: Issues are narrowed before the hearing so all parties know what the relevant issues are.
BA: That’s helpful. How is the pilot affecting the outcomes of Tribunal appeals?
CR: At a user group meeting we were informed 13.4% of cases in the pilot had been withdrawn by the Respondent post review. The Tribunal are only allowing the Respondent to withdraw if they are granting, rather than reconsidering decisions subject to security etc.
BA: What are the drawbacks that you’ve noticed?
CR: Well, some teething errors as to be expected with any new system. Pagination is an issue. At present the Tribunal produce one master bundle but this isn’t properly paginated – it just has links to the respondent’s bundle, the respondent’s review etc. At the case preparation stage, the Appellant uploads a paginated and indexed bundle and skeleton argument with specific page references. As the Appellant’s bundle is in the middle of the master bundle none of the pages are correct. All the references in the skeleton are wrong by the time of the hearing as everyone is working off one PDF bundle and following the PDF page numbers.
BA: What a nightmare!
CR: Also there is no provision to remove documents so the master bundle becomes huge. We have cases with 1,000 pages bundles which could be significantly reduced if the parties could agree to remove out of date objective evidence which was no longer relied on.
In some cases the Respondent is repeatedly directed to refile a compliant bundle but still haven’t, which causes delays.
Respondent’s bundles haven’t been Optical Character Recognition (‘OCR’) scanned, which makes navigating in the hearing tricky. This is changing, however.
BA: It seems like digitisation could fundamentally change the nature of administrative decision-making in the Tribunal. What are your conclusions about how it works?
CR: The higher withdraw rate is exciting and shows that the Respondent is engaging with evidence pre-hearing.
I’ve received a determination which ran to 87 detailed paragraphs, and engaged with the evidence and issues in a lot of detail. This may have happened outside the pilot but having one clear bundle and an audio record may assist Judges in producing sound determinations.
Many thanks to Claire for explaining the pilot, which has some quite clear advantages for certain cases and clients, as well as significant issues to work through.
Care will need to be taken to ensure that more vulnerable and unrepresented users are not disadvantaged or left behind. As Joe Tomlinson and Byron Karemba of Kings College London wrote in a recent paper:
The HMCTS digitalisation reforms, together with changes in immigration law and policy being ushered in by Brexit, could mark the beginning of a revitalisation of tribunal justice within the sphere of immigration. At the same time, these same changes could potentially be just another step in the ongoing decline of tribunals.