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Tribunal judges are now addressed as “judge” not “sir”, “madam” or “ma’am”

In a change to which some of us may struggle to adjust, tribunal judges are now to be addressed in court or correspondence as “judge” rather than “sir”, “madam” or (cringe) “ma’am”. So say the Lord Chief Justice and the Senior President of Tribunals:

The current practice is to address them as ‘Sir/Madam’ or ‘Judge’. The move away from ‘Sir or Madam’ involves modern and simple terminology, reflecting the important judicial role whilst maintaining the necessary degree of respect. We also hope this change in language will assist litigants in person involved in court and tribunal proceedings. Up to date guidance on what to call a Judge can be found on the What do I call a Judge? webpage. Any other relevant guidance will be changed as appropriate in due course.

I’m sure the judges themselves will be understandably pleased about the change. It seems overdue given the complexity and formality of the modern immigration tribunal system. Personally, I cannot help feeling a little sad, though, and not just because I’m worried my tongue will slip in a hearing.

The immigration tribunal was supposed to be simple and informal when established by the Immigration Appeals Act 1969, and that is one of the reasons the title ‘adjudicator’ was then used. The ‘sir/madam’ mode of address dates from those early days. Legal representation of appellants was to be permitted but not essential because appellants would be able to represent themselves. When proposing the title ‘adjudicator’, the Wilson Report of 1967 said this:

We have come to the conclusion that the best machinery for the hearing of appeals against exclusion would be provided by a two-tier structure, consisting of a central tribunal and of subordinate judicial officers at the ports. We therefore recommend the establishment of a central Immigration Appeal Tribunal (which we will hereinafter refer to as “the Tribunal”) and the appointment of subordinate judicial officers who, we suggest, might be known as “adjudicators”. They would be quite independent of the Immigration Service. (To underline their independence we favour a title which does not include the word “officer”.) Where we wish to refer to the Tribunal and the adjudicators collectively we shall describe them as the appellate authorities.

Report of the Committee on Immigration Appeals, August 1967, Cmnd 3387, paragraph 110.

As an aside, those who gave evidence to the Wilson committee included Ian Macdonald and Anthony Lester, on behalf of the Campaign against Racial Discrimination.

Adjudicators were initially appointed by the Home Office. Appointments were only transferred to the Lord Department as late as 1987. It was clearly not originally envisaged that adjudicators would be judges as such. They need not even be legally qualified, in fact:

The primary qualification for appointment as an adjudicator should be the ability to conduct hearings impartially and in a judicial spirit, with due regard both to the law and policy which it is his duty to apply and to the right of an appellant to full consideration of his case. For this purpose legal qualifications would be an advantage but are not in our view essential. In order that the adjudicators should be seen to be independent of the Home Office, we think it advisable that all those appointed on the first establishment of the appeal system should be drawn from outside the public service. Suitable candidates may not be easy to find, and this must be recognised in fixing their pay and other conditions of service.

Report of the Committee on Immigration Appeals, August 1967, Cmnd 3387, paragraph 153

The rights and grounds of appeal of the 1969 legislation were essentially replicated by the Immigration Act 1971, as was the two-tier appeals system. Appeals were initially heard at ports as planned. The main centres were at Gatwick, Dover and Southampton, then later at Harmondsworth and later still at Thanet House in central London.

A system of “special adjudicators” was later instituted by the Asylum and Immigration Appeals Act 1993, which reintroduced a right of appeal against refusal of entry to asylum seekers. Such appeals had been possible between 1905 and 1919 before being abolished and all but forgotten. Only one of these literally special adjudicators could hear an asylum appeal. I assume they were given additional training of some sort. Special adjudicators survived the Asylum and Immigration Act 1996 but not the Immigration and Asylum Act 1999, which reverted to providing for only simple “adjudicators”. When I first started representing refugees in 2001, the “special” terminology had not quite died out, though.

The second tier of the 1969 system, originally known as the Immigration Appeals Tribunal, has undergone even more radical changes. Seemingly abolished in name if not in spirit by the Asylum and Immigration (Treatment of Claimant etc) Act 2004, it was transmogrified into the Upper Tribunal (Immigration and Asylum Chamber) by the Tribunal, Courts and Enforcement Act 2007 and became a full superior court of record (section 3(5)). It now hears applications for judicial review as well as appeals.

The new judicial terminology seems judicious for the modern age. That can be seen as a sad reflection on what some might see as the failed promise of an informal tribunals system. But the new mode of address is simultaneously both more respectful and less deferential. It is not loaded with connotations of class, which is no bad thing. And I leave you with a final thought: the current system may well be hideously complex, but those who do have legal representation seem to have a far higher chance of success than in previous years. I suspect it would be a grave mistake to view the early days of the immigration tribunal through rose-tinted glasses. The standard of adjudication is far higher than in bygone years.

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Colin Yeo

Immigration and asylum barrister, blogger, writer and consultant at Garden Court Chambers in London and founder of the Free Movement immigration law website.