- BY Sonia Lenegan
New Tribunal Procedure Rules for Illegal Migration Act appeals published
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As I predicted earlier today, the Lord Chancellor has today laid The Tribunal Procedure (Upper Tribunal) (Immigration and Asylum Chamber) (Amendment) Rules 2024 before Parliament. Ominously, these rules are to come into force “immediately after the coming into force of section 2 (duty to make arrangements for removal) of the Illegal Migration Act 2023”.
These rules amend the Tribunal Procedure (Upper Tribunal) Rules 2008 to insert new “Suspensive Claims Rules” at 26D and Schedule 5. The appeals process is summarised below, with the relevant rules and timescales.
| Application for permission to appeal (when required) | Received by the Upper Tribunal within seven working days of the date the certification decision was received. Part 2, rule 4(2) |
| Upper Tribunal to decide the application for permission to appeal | Parties to be notified of the decision within seven working days of receipt of the application. Part 2, rule 7(5) If a hearing is deemed necessary to secure justice then a hearing must be set for no later than six working days after receipt of the application. Part 2, rule 7(3) |
| Lodging appeal where permission to appeal has been granted | The notice of appeal must be received by the Upper Tribunal within seven working days starting from the day of receipt of the written notice granting permission to appeal. Part 3, rule 8(2) |
| Lodging appeal where permission to appeal was not needed (case was not certified) | The notice of appeal must be received by the Upper Tribunal within seven working days starting with the day of receipt of the suspensive claim decision. Part 3, rule 9(2) |
| Upper Tribunal to set appeal hearing date | The Upper Tribunal must send a copy of the appeal to the Home Office and set a date for the hearing and issue directions no later than the next working day after receipt of the notice of appeal. Part 3, rule 11 |
| Hearing date | The hearing day must be listed for no later than 20 working days after the day on which the notice of appeal is received. Part 3, rule 11(b) |
| Home Office to respond to appeal notice | The Home Office must respond as set out in rule 12(1) no later than the next working day after receipt of the appeal. Part 3, rule 12(2) |
| Appellant’s reply | If the appellant has a legal representative then a skeleton argument and associated evidence must be provided no later than seven working days after receipt of the documents provided by the Home Office under rule 12. Part 3, rule 13(2) |
| Home Secretary’s written statement | Where the Home Office has indicated in its rule 12 response that it is intends to provide a written statement then this must be sent to the Upper Tribunal and the appellant no later than nine working days after the rule 12 response. Part 3, rule 14(2) |
| Readiness check | No later than 15 working days after receiving the notice of appeal, the Upper Tribunal must check whether there is any reason the hearing cannot proceed and whether the appeal will be determined with or without a hearing (rule 15(1)) and adjourn it if necessary to secure justice (rule 15(3)) |
| Notification of outcome of readiness check | The Upper Tribunal must notify the parties of the outcome of the readiness check no later than the next working day after it has made the decision. Rule 15(4) |
| Notice of decision | The Upper Tribunal must send their decision no later than two working days after the hearing or after the appeal was otherwise decided. Rule 17(2) |
There are provisions for extensions of time, new matters and adjournments which would all affect the timings, but the above should give an indication of the anticipated timescales. Even with these cases being made a priority, for the Home Office to comply with any of these timescales will require a complete change of approach that is difficult to fathom given the experiences of myself (and most practitioners), which is of little involvement with appeals prior to the hearing (and sometimes not even then).
In relation to decisions being made on the papers rather than at an oral hearing, I recommend reviewing this article on that point as well as the points made about fairness in this case.
The rules imply that section 2 of the Illegal Migration Act may soon come into force. I still do not see how the Home Office can bring the duty to remove in as it is currently drafted. They may seek to bring it in in such a limited way that it only applies to people they are actively trying to send to Rwanda, but I can’t currently figure out how that drafting would work. We may not have to wait long to find out.
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