It was with a mixture of pride and regret that I heard that last week immigration judges were explicitly and specifically instructed not to join the Free Movement forum by the two Presidents of the Immigration and Asylum Chambers. It is nice to know the blog is on the senior judicial radar, less nice to be blacklisted. This places immigration judges in the same position as immigration detainees, the only other group of which I am aware that are banned by their custodians from access to the Free Movement forum.

The Internet and social media present challenges to us all, from transforming standard legal business models to offering new ways to immortalise rash moments of misjudged ‘humour’ or to fuelling misplaced accusations of bias as a consequence of social media connections. As a complete coincidence, at the weekend I came across a new paper on exactly this last issue: Ethical Exits: When Lawyers and Judges Must Sever Ties on Social Media by Kelly Lynn Anders in the Charleston Law Review, Vol. 7, No. 2, Winter 2012-2013. Almost inevitably this is from the United States, where social media and the Internet are taken more seriously and are more embedded. Hat tip to Richard Moorhead for Tweeting it.

That said, singling out particular websites for banning orders probably isn’t the right way forward. It is flattering to think that Free Movement is a special case in some way because of its wide readership amongst immigration lawyers and judges. It is just a blog and forum after all, though, not a cesspit of moral turpitude. Will a blacklist of other banned sites be maintained somewhere? Are immigration judges also to be banned from socialising where only claimant lawyers are present at a gathering? Will they be forbidden from being in the same room as a Home Office Presenting Officer where no one else is present? Will they be banned from professional or other organisations from which Home Office civil servants are excluded? What about judges in other areas of law?

Fundamentally, why issue this specific missive when there is already arguably rather better considered guidance from the Ministry of Justice on exactly this issue? That guidance surely says enough:

Blogging by members of the judiciary is not prohibited. However, judicial office holders who blog (or who post comments on other people’s blogs) must not identify themselves as members of the judiciary. They must also avoid expressing opinions which, were it to become known that they hold judicial office, could damage public confidence in their own impartiality or in the judiciary in general.

It is also worth referring to the Judges’ Council Guide to Judicial Conduct, released following a Freedom of Information request. I am indebted to the Meeja Law blog for their summary of the relevant parts of the guide:

You will see at paragraph 3.1, dealing with impartiality, that “A judge should strive to ensure that his or her conduct, both in and out of court, maintains and enhances the confidence of the public, the legal profession and litigants, in the impartiality of the judge and of the judiciary. You will also note at 3.4 that judicial office holders are warned against the expression of views out of court that would give rise to issues of perceived bias or prejudgment in cases that might later come before them. Also of interest will be paragraph 3.10, section 4 (Integrity) and Section 5 (Propriety).

The tenor of both sets of guidance is to encourage judges not so say anything stupid. This seems reasonable enough. The guidance does not go so far as to prohibit judges from placing themselves in a position where they might say something stupid. There is no hint of a ban from social media connections or Facebook or Linked In or Google+ or any groups on such websites whether public or approved members only or any other similar websites. It seems unlikely that anything so specific will ever follow, either, at least outside the immigration judiciary. The broad guidance that judges should not express opinions that might give rise to a perception of bias seems strong enough and ‘future proof’.

The extra guidance specifically for immigration judges about a specific website going far beyond the general guidance is, arguably, hysterical overkill. It risks giving the impression that the senior immigration judiciary simply does not trust its junior judges to exercise judgment and would rather they lived in a legal isolation tent, quarantined from legal influences outside the control regime of The Reporting Committee and its reported determinations, the unsearchable unreported database, (ill-) Starred determinations, Country Guidance determinations, Practice Directions and Practice Statements and judicial supervisors at hearing centres. Surely this decade-long trend to infantilise our immigration judges has already gone too far.

I should point out that Ronan Toal of Garden Court Chambers has written on a related subject for the Immigration, Asylum and Nationality Law journal (hard copy only as far as I am aware). See The Reporting Committee of the Upper Tribunal, Immigration and Asylum Chamber: Country Guidance Decisions (2012) Vol 26, No 1 IANL 64 and The Reporting Committee of the Upper Tribunal, Immigration and Asylum Chamber and the Citation of Authorities (2012) Vol 26, No 3 IANL 278.

The ban seems a shame. Some interesting tidbits are emerging on the forum already, including a policy on evidential flexibility in entry clearance cases. Oh well. A few refunds have been issued as a consequence. Immigration judges remain welcome readers of the main blog, at least so long as they aren’t banned from looking at it as well.