Does an Immigration Judge’s verbal decision stand?
11 February 2019
Experienced practitioners might tell you that you never really know what is going to happen at an immigration appeal hearing. An apparently easy case may turn out to be complex and an apparently complex case may be dealt with by the Tribunal in a very simple way. And sometimes events become unexpectedly confusing.
The recent Upper Immigration Tribunal case called “PAA” (which are anonymised initials) concerned an Iraqi unaccompanied child asylum-seeker whose asylum claim had been refused by the Home Office and dismissed by the First-Tier Immigration Tribunal Judge. Or had it?
The child, through his lawyers, had appealed to the First-Tier Tribunal against the Home Office refusal decision. At the hearing at the First-Tier Tribunal the Judge had heard the case and said verbally at the end of the hearing that he was allowing the appeal - ie that the child’s asylum claim had succeeded.
On occasion Immigration Judges can and do do this, if they are sure that the appellant’s case is strong to the point where the Judge has no doubt that it should succeed.
This must have come as a relief to the child and no doubt his lawyers congratulated themselves on a job well done.
But when the decision came in written and more detailed form it said that the appeal had been dismissed - ie that it had unsuccessful.
This was very confusing and, not surprisingly, the child appealed to the Upper Immigration Tribunal. Surely the Judge could not change his mind in this curious and unexpected way?
The Upper Tribunal - in the person of the Vice-President, Mr Ockleton - had some strong ideas about this. First of all he said that the child’s lawyers had argued that “the appellant had a substantive legitimate expectation of a decision in his favour as the judge had said there would be one”. Well, maybe it sounds reasonable but this was, he indicated, nowhere near good enough in legal terms: “I cannot see the slightest basis in law why that should be so.”
This does not sound very encouraging, but then he went on to say: “If what happened at the hearing constitutes a ground of appeal it must be on the basis of the rules of procedure of the First-tier Tribunal.”
And here things became rather uncomfortable. He asked both the legal representative for the child and the legal representative for the Home Office for their views about the procedure rules and why their case should succeed.
Rather disappointingly, it appears that neither representative had looked at the procedure rules and “they did not know”. The reason that they did not know was, evidently, that they had been approaching the case from the wrong legal angle. To put it a bit differently, neither representative had spotted the fact that the case could and should have been approached on the relatively straightforward basis of whether or not the First-Tier Tribunal Judge had followed the Tribunal procedure rules correctly.
This was, the Vice-President said, “extremely regrettable” and he had some harsh words to say: “A representative who conducts litigation or who comes into court without an adequate knowledge of the rules of procedure risks having a decision made against the party on procedural grounds, and may well open him or herself to a claim by the party for failure to provide a proper service, or a reference to the appropriate regulator, or both.”
This must have been excruciatingly embarrassing for the representatives, and we feel rather sorry for them. However, despite this unfortunate vacuum of legal knowledge the Vice-President took it upon himself to rescue them from such dire consequences and explain how the procedure rules should operate in these circumstances.
He explained that an Immigration Judge is indeed entitled to make their decision verbally. And he further explained that that verbal decision becomes in a legal way “the decision” - a proposition he supported with legal learning that the legal representatives had not been able to provide. And, after that, there is no going back. The decision cannot be subsequently revised or reversed. A subsequent written decision does not have a greater status by virtue of being written rather than verbal.
This case raises a few interesting points. Firstly, if an Immigration Judge makes a verbal decision on an appeal then they can be held to it. Secondly, the art of advocacy depends to an important extent on the ability to think in the round - to think outside the legal box and consider other possibilities. And, thirdly, you are well advised to instruct such a good advocate to perform your advocacy for you. A case like this can easily go wrong if your advocate has not thought of all the legal angles they should.