IMMIGRATION APPEALS AND REMEDIES HANDBOOK

By Mark Symes and Peter Jorro (Bloomsbury, 2015) (£37.40)

When the President of the Upper Tribunal, Immigration and Asylum Chamber writes a foreword, and the foreword concludes with the words “This is…. a compulsory addition to the library of every immigration judge and practitioner” one gets the picture: something special has been added to the library.

The Handbook provides a history of appeal rights in immigration cases and a full explanation of the appeal system under the Nationality, Immigration and Asylum Act 2002, that we have known and loved, and that remains in place transitionally.

The authors explain clearly and carefully how the staged transition process works and in this respect the book passes the first test that one might set for it: can a busy practitioner speedily locate the parts of the book that explain these relatively complex transitional provisions? (yes) and can a busy practitioner speedily and clearly find the right answer to whether his or her particular case falls under the old or the new regime (yes).

For this reviewer, who has a deep-seated phobia relating to any kind of transitional provision, the calm and clear approach of Messrs Symes and Jorro is deeply reassuring.

Otherwise, stylistically, the authors have used the same basic approach as in their blockbuster tome, Asylum Law and Practice: Immigration and Nationality Law (Bloomsbury, 2^nd edition, 2010): clearly laid out text, with helpful cross-references, supplemented by detailed footnotes. So one gets to see the wood and, also, the trees that matter.

But where the Handbook really comes up trumps, derives from the fact that it is written by two busy immigration barristers, one of whom also sits in the Upper Tribunal, who know

(i) what questions other practitioners want answers to, and

(ii) what the answers are.

There are some legal tomes out there, often with very good reputations, that one resorts to when problems arise, and that always seem to explain everything – apart from, however, again and again, the actual question that one wants answered. This book (like the authors’ Asylum Law and Practice and, indeed, like Macdonald’s Immigration Law and Practice (LexisNexis, 2014, Macdonald and Toal) is not like that: the authors’ vast experience and encylopaedic knowledge happily combine with their soaring intellect, profound sagacity and kindly disposition to create a book that actually answers the questions that arise in practice and at a very reasonable price.

The main focus of the Handbook, and probably its most useful feature, is that it includes an authoritative guide to the new appeal provisions brought in by the Immigration Act 2014.

As the authors explain:

• judges of the FTT will now only deal with appeals in asylum or protection and human rights cases, and in respect to EEA decisions;
• challenges to all other immigration decisions must now be brought by way of administrative review and then by judicial review to the UT.

In relation to asylum protection and human rights cases, the Handbook sets out a lucid guide to the different ways in which the SSHD may, or must, “certify” a claim, so that any appeal must be brought, or pursued, outside the UK. In relation to certification under section 94B of the 2002 Act, the Handbook dissects both the legislation and the SSHD’s guidance (Section 94B certification guidance for non-EEA deportation cases) and makes some fairly shrewd observations, correctly anticipating aspects of the decision in R (Byndloss and Kiarie) v SSHD [2015] EWCA Civ 1020.

There follows a well structured and highly accessible account of the law and practice of immigration appeals in the FTT, under the new regime. These chapters deal with all the issues that one would expect from any useful textbook: time-limits, extensions of time, directions, costs, appeals and so forth. Where, again, the Handbooks comes up trumps is in the way that, written as it is by busy immigration practitioners, it anticipates the issues that do actually arise in practice and that are really useful for practitioners to have explained: the existence of parallel family law proceedings, concessions and agreed facts, post-hearing evidence, errors by legal representatives, the role of the Home Office Presenting Officer, children as witnesses, allegations of forgery, expert witnesses (and so on). There is a particularly useful section on how to prepare and decide Country Guidance cases: as indicated above, the function of this book is to assist tribunal judges, at least as much as practitioners.

Clear guidance is provided on appeals all the way up to the giddy heights of the Supreme Court, in relation to law, procedure and also practical issues. Again, I found particularly useful parts of the book which tell you all you need to know if you find yourself in a tricky, unusual, but not uncommon situation: a good example is the section on Drafting Grounds of Appeal, Including Challenges to the Conduct of the Hearing. This section tells the reader exactly what evidence is needed, and how it is to be presented, where a complaint is made that a decision is vitiated by the conduct of a judge, or a former representative. When such issues arise, it is vital to address them in the right way but, as ever, what one needs as a busy practitioner, who does not really have time to address all the issues in the right way without a lot of help, is a convenient location where all the rules and principles are collected and clearly explained.

For this reviewer, at least, the highlight of the book is its treatment of Administrative Review and Post-Decision Representations and Judicial Review in the UT, both of which raise relatively new kinds of issues.

The section on Administrative Review and Post-Decision Representations takes the reader carefully through the different types of out-of-country and in-country applications for Administrative Review, and the different types of Reconsideration requests, the process, the legal criteria and the remedies. These are obviously now incredibly important procedures to understand and effectively to undertake and the Handbook really helps with that.

The section on Judicial Review in the UT will be regarded by many as the most useful in the book. It begins with a reassuringly comprehensive survey of what cases must and must not be issued in the UT, and what cases may be transferred to the UT, based on the relevant Directions. There follows a conspicuously clear elucidation of the JR powers of the UT, the rules, the forms that practitioners are to use, the procedure for obtaining urgent interim relief (e.g. where there are removal directions), obtaining permission to apply for judicial review (on the papers, at a renewal hearing and on appeal), costs and so on.

I found the sections on Cart JR in the Administrative Court, and on securing the return of a “removee” to the UK especially useful. The latter is another example of an unusual but not that uncommon type of case which, when it happens, one does not want to trawl through the law reports or some huge tome to ascertain what to do: one wants to be told what to do and how to do it and then one wants to get on and do it. The Handbook, again, achieves that function.

This section concludes with a deft and bang up-to-date section called Substantive Principles of Judicial Review Relevant to Immigration. The Handbook is very modest about its ambition on this score and refers the reader to a number of heavyweight texts on substantive immigration law and JR law. In the opinion of this reviewer, though, without detracting at all from the range of excellent tomes in the market place on immigration law, and on JR, there is a great deal to be said in favour of a concise and expert distillation of the principle grounds of legal challenge. It leaves the creative mind of the lawyer (and immigration lawyers, perforce, do tend to have quite creative minds) freer to work out the solution to his or her particular client’s predicament. It saves many hours spent trawling through a sometimes confusing plethora of case references, many of which ultimately turn, in any event, on their own facts and offer the wise practitioner little real assistance. As is their wont, Messrs Symes and Jorro present the wood and the most important trees, leaving the reader free to wander – in dappled sunlight, as it were; unwearied in mind, emboldened in spirit and ready to slay dragons with aplomb.

As a colleague of Mark Symes and Peter Jorro, with no cause for any complaint relating to their use of the Garden Court Biscuit Tin, or anything like that, this reviewer is hardly likely to savage their book, but it really is excellent as the President himself has indicated. And, if the book is to be “…. a compulsory addition to the library of every immigration judge…”, well, it’s no bad thing to at least start off on the same page as the judiciary. Indeed, merely to be seen to have the Handbook by one’s side, unopened but at the ready, like a book of spells or a weapon of last resort, could perhaps tip the balance in difficult circumstances; although (for the reasons set out above) I do also advise opening the Handbook, reading it and following its advice when cases of particular difficulty arise.