New Pupil Barrister Jack Dingley explains what is new in the latest First-tier Tribunal (IAC) Practice Direction and how it will affect case preparation in this blog.

As part of the ongoing crusade to enforce procedural rigour on parties to proceedings in the immigration and asylum chamber, on 01st November 2024 a new practice direction was published with little notice and immediate effect.

The general aims of this practice direction will not surprise anyone, with the overarching approach foreshadowed by the reform process and the recent cases of ‘Lata (FtT: principal controversial issues) [2023] UKUT 00163’ and ‘TC (PS compliance – "issues based" reasoning) Zimbabwe [2023] UKUT 00012 (IAC)’.

However, the finer details and in particular new requirements imposed on representatives and the evidence they submit may catch some out. It is worth reading the practice direction in its entirety but this blog highlights the key changes for you.

• Representatives must inform the Tribunal if their appeal is based on the same facts as another for the Tribunal to decide if it should be linked (PD4.1)
  
  
• Bundles must only include justifiably relevant material – they must be digital, indexed, bookmarked and paginated. All typed text must be OCR compatible (PD7.1-7.2)
  
  
• Appeal Skeleton Arguments (or ASAs) can be no more than 12 pages (at 12 point font and 1.5 line spacing) without permission (PD7.7)
  
  
• The author of an ASA must now sign and date the document (PD7.8)
  
  
• Respondent reviews must be no more than six pages and not include standard or pro forma paragraphs (The latter not being new, but rarely being enforced) (PD7.11)
  
  
• Within a review, the Respondent must specify which witnesses they intend to cross-examine (PD7.11(e))
  
  
• Files containing supplementary bundles should be labelled as such with the date and number of bundle (PD7.13)
  
  
• Specific requirements for witness statements tinkered with – including specific wording for interpreter attestations (PD8.12)
  
  
• Expert evidence must be to the point, and no more than 20 pages without permission (PD9.2)
  
  
• Expert reports must meet specific requirements – including now attaching the letter of instructions (PD9.3)
  
  
• Provision of objective evidence (i.e. country information) is restricted where there is a country guidance case on the same matter, as this will be seen as authoritative of the objective position in any given case (PD10.4)
  
  
• When objective evidence is required, representatives must file a “country information schedule” which must not exceed 12 pages without permission, with hyperlinks to full copies of the documents (PD10.6)
  
  
• Representatives will only need to provide full versions of their objective evidence if the Respondent disputes it in their review (PD10.7)

How does this change things?

Some of these points will be a reiteration of what the Tribunal considers best practice, but in other aspects, representatives will need to change their approach, most critically in relation to providing country information, whether from an expert or otherwise.

Now more than ever it is crucial to identify the issues at an early stage and adapt case preparation to these issues to avoid having your hands tied when it comes to the appeal hearing.

Tips – ASAs and bundles

• When drafting ASAs getting the issues schedule right is crucial. It is not enough to have a broad heading such as ‘Article 8’, the ASA must also articulate the argument relied upon. Early engagement of counsel in the drafting of ASAs can help frame the case in the way that it is likely to be argued on the day and avoid any Tribunal backlash.
  
  
• Avoid lengthy quotations in your ASAs to keep page counts down, unless particularly punchy, citing a reference will usually be enough.
  
  
• Don’t forget the Tribunal’s preferred formatting – 1.5 line spacing, 12 point font, and justified text when making sure that you are within the page limits.
  
  
• Read the citations in the refusal letter carefully and raise objections to them in your ASA if their contents are disputed.
  
  
• There is no need to duplicate documents in the Respondent’s bundle, but where key documents are missing either apply for the Respondent to include it on receipt of their bundle or include it yourself in the Appellant’s bundle.
  
  
• Do not be afraid to request accommodations from the Tribunal for longer ASAs, reports, or country of origin schedules. The page limits are not onerous, but it is not hard to envisage matters where these won’t be enough. Think critically about what you are submitting, but if there is a justifiable reason for needing more, then make that application as early as you can.
  
  
• If something new comes up, raise it as early as possible. The more notice the Tribunal and Respondent have the less likely it is to be rejected.
  
  
• It is good practice to start labelling documents consistently, i.e. “Appellant’s bundle on (date).”

Tips – Expert reports:

• Instructing experts should involve an ongoing dialogue. Initial letters of instruction should clearly set out the issues, following the same issue-based framework that the ASA will, and clearly direct the expert on what you want them to comment on.
  
  
• Provide experts with a copy of the practice direction, and don’t be afraid to ask for changes if there is lengthy generic material that is not relevant to your case, or if the expert hasn’t commented on the key issues that you need them to.
  
  
• It is not yet clear if the 20-page limit includes the CV of the expert and the letter of instructions, but this is worth keeping in mind when considering how to present the report in the bundle.

Tips – Country information:

• It has always been best practice to provide a key passage index with objective information, but now it is all that can be provided. For each passage highlighted keep in mind, what issue is this evidence addressing?
  
  
• If there is an existing country guidance case, think critically about whether it addresses the position for your specific client and if not, whether further country information is needed.
  
  
• Be mindful of paywalls when using information aggregators to prepare bundles. If providing a hyperlink, will it be accessible? - It may assist to prepare a full objective bundle, even though you’ll only provide a schedule to start with. You do not know if a review will request that it be produced, and it will be easier to have it on hand rather than to start from scratch at the point of the request.

These rules will make big changes to how evidence is presented in immigration and asylum appeals, and so will change how representatives should prepare.

The underlying theme is – be prepared to justify why something has been included.

Representatives must engage with these new requirements but not be afraid to challenge the restrictions when required to put forward their client’s case properly. Procedural rigour does not mean your hands are tied, but it does require you to act early and be prepared to justify your choices.

Jack Dingley will commence the practising period of pupillage in January. Call our Immigration Clerks Daniella Howarth and AJ on 0161 832 4036, e-mail [email protected] [email protected] or fill out our contact form.