Equal treatment in appeal hearings

Legal Updates

Last week, we ran our “Understanding the UK asylum process” workshop with staff and studio holders at the Art House in Wakefield, and also for volunteers at Manchester City of Sanctuary.

As we run through the main stages of the asylum process, we get to appealing a negative Home Office decision at the First-tier Tribunal.

“The Tribunal” I explain, “is independent. Well, what I mean is that it’s not the Home Office. But sometimes it doesn’t feel very independent to the person seeking asylum”.

What did I mean by this? I didn’t mean that judges are biased, despite the sometimes appalling decisions and comments made by some of them. What I was referring to was more of a structural unfairness, when behaviour of the Home Office representatives is treated very differently by judges and the Tribunal than when someone seeking asylum or other right to remain does something comparable.

I explained in the workshop how difficult it can be for someone who is appealing a Home Office decision to get an adjournment – when the hearing is postponed – even when vital evidence is soon to be forthcoming. The Home Office, however, frequently seek adjournments simply because they have not followed the rules properly and are often granted them.

This explanation is confirmed in the impressive body of evidence put together by the Immigration Law Practitioners’ Association (ILPA) in response to the independent chief inspector’s call for evidence about Home Office Presenting Officers (HOPOs, the Home Office’s representative in appeal hearings).

In their response, ILPA says:

In one example, the HOPO attended court without the appellant’s bundle and had failed to contact the solicitor to obtain this in advance having identified that it had not reached the file within the Home Office.

As a result, the hearing had to be adjourned but no criticism was made of either the Home Office or the HOPO. In a further example, involving a particularly vulnerable client, the Home Office had applied to adjourn proceedings before the First-tier Tribunal on the day of the hearing in order to deal with an issue it had administratively overlooked.

ILPA suggests that “poor conduct of the Home Office and its representatives in appeal proceedings is often not visible through its routine and normalised nature. It is therefore rarely addressed in determinations or in the issue of wasted costs orders.”

Barrister Alison Harvey gave some further examples via Twitter:

As we note in our blog post on preparing for an appeal hearing here, the behaviour of Home Office Presenting Officers can vary widely. Many times, there is no HOPO at all at the appeal hearing. Sometimes the HOPO is professional and neutral, sometimes even helpful to the conduct of the hearing.

What is of great concern however, as the ILPA response points out, is that there seems to be no consequence when there is poor conduct, which not only negatively impacts on people’s legal cases but creates a culture of impunity.

It is to be hoped that this call for evidence, and robust responses such as the ones cited in this blog post, might be the start of things getting better.



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