Immigration Judge tries to change his mind – unsuccessfully

As those who spend their time hanging around the First-Tier Immigration Tribunal will know, sometimes the Immigration Judge gives a verbal decision at the end of the hearing. In such cases it seems, in practice, that the Judge will only do so when the decision is positive (ie when the migrant is successful). And – highly presumably – only when they are sure that the migrant’s case should succeed. If the case is complicated or requires further analysis then they should not do so.

For stressed and anxious appellants a verbal decision is, for obvious reasons, a very desirable outcome. They will not have to endure the further stress and anxiety of waiting for the decision to come in writing.

When the Judge gives a verbal decision they will in most circumstances still additionally provide the written decision. And, in the normal course of events, the written decision will be the same as the verbal one – but typically expressed in greater depth and detail.

But supposing the Judge grants the appellant’s appeal verbally but then, when the written decision arrives, it says that the appeal has been dismissed?

This is a scenario that most of us have, hopefully, never experienced but it did happen in a recent Upper Immigration Tribunal case called “PAA”.

The case concerned an Iraqi unaccompanied child asylum-seeker who thought that he had been successful in his appeal against the Home Office’s decision to refuse his asylum claim. Certainly, the Judge told him so at the end of the hearing, and there were several other parties in the courtroom who attested to this. So the appellant and no doubt his lawyers must have been feeling a bit confused when the negative written decision came.

Why the Judge changed his mind in this way does not emerge but, whatever the reason, the question was: was it lawful? Could the Judge change his decision in this way?

So the issue came before the Upper Tribunal. The First-Tier Tribunal Judge did not come in for any criticism from the Upper Tribunal, but both the appellant’s and the Home Office’s legal representatives did. Neither of them, said the Upper Tribunal Vice-President (who was sitting on that occasion), had been properly prepared.

Neither of them appeared to be aware of the Tribunal Procedure Rules. Indeed this was, to be fair, rather curious. It is the Tribunal Procedure Rules that should have been the first port of call in order to understand the legality of the situation. The Vice-President thus found himself in the unsatisfactory position where he had to explain the rules and analyse them all by himself, without the help of the representatives.

We might have some sympathy with his position. It seemed as if he were the only person who properly understood the law. But this did at least give him the opportunity for a stern lecture:

“That is extremely regrettable. It ought to go without saying that anybody proposing to make submissions in an appeal about the procedure adopted below [ie in the court below in the hierarchy] should have done proper research on what the procedural strictures below actually were.”

Well, that told them, and the Vice-President had no doubt about the legal situation: No, it was not lawful. The verbal decision must stand and the written decision must fall; a correct interpretation of the Tribunal Procedure Rules admitted of no other view. The verbal decision was the “decision” in the meaningful legal sense and the subsequent written decision could not undermine it.

So the appellant, who by now must have experienced substantially more than the normal levels of stress, was successful.

Appellants and potential appellants can take comfort from this judgement to the extent that if they are given a positive verbal decision at the Tribunal they should be able to rely on it. And of course it always helps if you have instructed an advocate who thoroughly knows the relevant law; you should not have to rely on the Judge.

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