One Of The UK’s Highest Dedicated Immigration Courts Has Been Told That Guidance It Issued Banning In-Person Hearings During The Covid-19 Crisis Was Unlawful.

In response to the pandemic on March 23, the president of the Upper Tribunal for Immigration and Asylum Claims (UTIAC) had told the court it should hold hearings and determine rulings “on the papers”, without any need for the individual appealing to be present, even though a video link.

This was challenged by the Joint Council for the Welfare of Immigrants (JCWI) in the context of years of UK Government action which has made it harder for migrants and asylum seekers to appeal against immigration decisions and access legal advice.

Since the guidance was issued, the JCWI said hundreds of asylum and human rights appeals have been determined without a hearing, with most rulings concerning the right to remain in the UK, and that all will have likely been life-changing for the individuals involved. More than half of immigration and asylum decisions are overturned on appeal, underlining the crucial nature of a full and fair hearing, the charity said.

In his judgment at the High Court in London, Justice Fordham found the guidance was unlawful. The cases in question were the error of law appeals, where it is argued that a judge applied the law incorrectly.

He said communicating that these cases should normally be decided on the basis of the papers presented in a case rather than at remote hearings, and in neglecting to have proper regard to the importance of them to the individuals, the guidance conflicted with basic common law requirements of procedural fairness and misstated the law.

Nicola Burgess, JCWI’s legal director, said: “Ensuring migrants get an in-person hearing at the UTIAC is so important.

“This is a court which hears cases of fundamental importance to the individual concerned, for whom it is often a matter of life and limb, and for the public.

“Everyone has an equal right to their day in court, this is a fundamental pillar of justice.

“The guidance note has been declared unlawful as it is inconsistent with basic common law principles of fairness, including the need to uphold the rule of law.”

JCWI challenged the guidance to give affected individuals access to a fair procedure and to stop a precedent being set for further immigration and asylum claims to be decided without in-person hearings.

Deba Das, a partner at legal group Freshfields, which represented the JCWI, added: “We are pleased to have been able to provide pro bono representation to JCWI in this important access to justice case, and are glad that the law in this particular context has been clarified for the benefit of some of the most vulnerable individuals in the UK immigration system.”