For immigration lawyers, a First-tier Tribunal appeal hearing is a routine experience. It’s easy to forget how intimidating and stressful this moment can be for people appealing, many of whom have never set foot in a courtroom in their lives and whose continued presence in this country hinges on the outcome. If you have an upcoming immigration appeal at the First-tier Tribunal and you’re worried about what to expect on the day, this guide is for you.
This guide has been written on the assumption that you have instructed a lawyer to represent you at the hearing. If you are representing yourself without a lawyer, then you will broadly have to take on the jobs that a lawyer would normally do for you throughout the course of the hearing.
There will normally be at least four people in the courtroom at an appeal hearing:
- The appellant (that’s you)
- Your lawyer
- The Home Office presenting officer (the person who represents the Home Office at court; usually civil servants rather than lawyers, though sometimes they do instruct barristers or advocates to appear on their behalf)
- The judge
If you have asked for an interpreter in advance, the court will have arranged one at its own expense. The court is responsible for ensuring that the interpreter is ready and available on the day, so you do not need to worry about hiring one.
The court clerk – the judge’s assistant – may also be present. The clerk is there to help the judge with administration and generally make sure the hearing runs smoothly. They usually leave once the hearing has started (although may observe proceedings through a video link from another room).
You may have brought friends, family, experts, or other supporters along with you to court. If you want any of these people to speak to the court (referred to as giving evidence), they will be referred to as your witnesses.
Your witnesses will not be allowed into the court until after you have finished giving your own evidence (see below). This is to ensure that each witness provides an impartial account, uninfluenced by what anyone else has said.
Your witnesses will be asked to remain in the court’s waiting area until the judge is ready for them. When the judge is ready, either a clerk or your lawyer will bring your first witness into the courtroom. When your first witness has finished giving their evidence, the next can be brought in, and so on.
Friends, family or other supporters who will not be giving witness evidence will be allowed to sit in and observe the hearing from the public seating area at the back of the room. Hearings are open to the public and so there could also potentially be members of the public watching from the public seating; this is relatively unusual.
There is no jury at an immigration appeal hearing. The decision will be made by the judge.
Before the hearing
All of your paper evidence will normally have been sent to the tribunal in advance of the hearing. It’s important to understand that new evidence should not normally be produced on the day of the hearing.
Most hearings are listed to start at 9.45am. You will know what time your case has been listed for by looking at the notice of hearing letter sent to you by the tribunal. Make sure you arrive at least fifteen minutes before your start time and let the receptionist know you have arrived.
When you arrive, you will have to go through a metal-detector security gate. There may be a queue at peak times (i.e. between 9.30am and 10am), so allow time for that. Your lawyer may also want to have a short meeting with you to go over any important points before the hearing. If you are late, both you and your lawyer will be rushed and start the hearing from an avoidable position of stress. If you are running extremely late and will miss your case’s start time, you should call your lawyer or the tribunal immediately to alert them.
Each judge normally hears several cases in one day. As they are all put down for the same time, it’s likely that your case may not actually start until later in the day. The judge will consider how many cases are listed for their courtroom, the number of witnesses involved and any other issues, then make the final decision on what order to hear the cases in.
This can mean a lot of waiting around. You will not normally be allowed to leave and come back unless it’s lunchtime so plan ahead by bringing a snack.
Your appeal hearing will take place in a courtroom presided over by a judge of the First-tier Tribunal. You may have a mental picture of wigs, gowns and gavels, but you will not see any such things in the tribunal; it’s much less formal. Your judge will be dressed in business clothes like a suit, but will be recognisable by where they sit. They will sit at an elevated bench, looking down on the room.
Usually there is just one judge, though sometimes a second judge will be present for training or monitoring purposes.
The clerk or your lawyer will show you to your seat at a desk which directly faces the judge’s bench. There will be desks to your left and right reserved for your lawyer and the Home Office. There will normally be a small badge on one desk to indicate which one is for the “respondent” (the Home Office). Fun fact: this will always be the desk closest to the door so that the presenting officer can be evacuated from the room if you decide to attack them.
When the hearing is ready to start, the clerk will go and get the judge. You should stand when the judge enters the room. The judge may start by talking to your lawyer and the Home Office presenting officer to check that everyone has the same documents. There is also often a short discussion of what the case is about and the legal provisions relied on by each side.
The judge will introduce themselves to you and explain how the hearing will work. If you need to speak directly to the judge, you should address the judge as Sir or Ma’am depending on their gender. Once your lawyer and the presenting officer have confirmed with the judge that they are ready to start, the case will move to the first stage. This is your witness evidence. Lawyers call this “examination-in-chief”.
Prior to the hearing you will have prepared a statement. To begin the hearing, your lawyer will approach you with this statement and ask you to “adopt” your statement. This involves a very short series of questions for you to confirm your name, date of birth, address, and familiarity with the statement. You will be asked to confirm that you have read it (or had it read to you in a language you understand) and that it is your signature at the end of the document.
Your statement is very important because it contains your story; it is your evidence that you are giving to the court. You will not be expected to stand up and read your statement aloud or to speak at length about your case. Everything that needs to be said will normally already be in the statement.
If necessary, your lawyer may ask the judge’s permission to ask you a few extra questions. When your lawyer is finished, you will move on to the second phase of your evidence.
This is usually the most time-consuming and stressful part of the appeal hearing. During this phase, the Home Office presenting officer can ask you questions about your case or documents you have sent to the tribunal. Often, presenting officers will use this to test your credibility as a witness – that is, how reliable or truthful you are – by drawing attention to inconsistent answers given at different times.
A couple of example questions you might get in a cross-examination are:
“In your interview with the Home Office you said that you escaped in October 2017, but in your statement, you have said you escaped in February 2017. Why is this different?
“You arrived in the UK in January 2018. Why did you wait until December 2020 to claim asylum?”
It’s critical that you answer all questions truthfully and honestly. It can be difficult but do your best to remain calm and polite.
Give short, succinct answers. If your answers are evasive, this can often result in repeated questioning which can be more damaging than just giving the answer in the first place. The judge and the presenting officer are experienced in hearing evidence, and it is usually painfully obvious if a witness is trying to dodge a question.
It is important that your story is consistent. So you need to remember what you have said in your statement and when interviewed. It can be useful to read through your statement shortly before the hearing to ensure it is fresh in your memory.
If you did not hear a question, you are perfectly entitled to politely ask the presenting officer to repeat their question. If you did not understand the question, perhaps because it was too long, you are perfectly entitled to ask for the question to be rephrased. Do your best, know your statement, tell the truth, and this part will be over before you know it.
Sometimes, the judge may also have questions of their own. Don’t be afraid of this. It shows that the judge is engaged and listening to your evidence.
Try to make eye contact with the judge; ultimately it is the judge that you want to hear you and it is the judge that must record your answers. Avoid the temptation to turn your chair to face the person asking you questions: this makes it much harder for the judge (and indeed everyone else) to hear what you are saying when you are giving your answers.
The judge, and the legal representatives, will probably be looking down at a laptop screen or a piece of paper rather than at you. This is not because they are not interested in what you have to say. It is because they need to write down your answers as accurately as possible.
You can make this easier by speaking loudly, clearly, and slowly when answering questions. Try not to speak too fast because the judge needs to be able to note down your answers. If you notice the judge struggling to keep up, pause and take a breath before continuing.
Don’t be afraid of silence. There will often be short periods where nobody says anything – this will only last for a few minutes but will probably feel longer. This may be because the judge or one of the representatives is catching up on their notes, trying to find a document, or thinking about what question to ask next. You don’t need to fill the silence.
Once the presenting officer has finished cross-examination, your lawyer will have an opportunity to ask you further questions. This final phase of your evidence is called re-examination. Often re-examination is unnecessary, but it can be a valuable opportunity for your lawyer to try to clarify any issues which arose during cross-examination.
Examination of witnesses
If you have witnesses, they will be led into the court one at a time and will give their evidence in the same manner as you just did. Witnesses will not have heard what you have said during your evidence, so they may get asked similar questions by the presenting officer in order to test the truth of what has been said.
Sometimes the presenting officer will have no questions for witnesses. In that situation, after a witness has adopted their statement, they will be invited by the judge to either sit at the back to observe the rest of the hearing, or to leave if they wish.
If you’re disappointment that your witness came all the way to court and was not asked any questions, don’t worry. It is generally a good thing. It means that the presenting officer did not think that the Home Office’s case would be helped by asking the witness any questions. Often, this is because they have provided a detailed statement which provides all of the information needed. It is still important for witnesses to attend court, adopt their statements, and be available to answer questions, even if in the end they aren’t actually asked any.
After all of the evidence has concluded, the presenting officer will sum up the Home Office’s case, setting out their reasons why your appeal should be refused. They will refer to the reasons for refusal letter and the Respondent’s Review – a document prepared earlier in the appeal process explaining why the Home Office say the appeal should continue to be resisted.
Your lawyer will then get the final word by offering their closing arguments (“submissions”) setting out why your appeal should succeed. They will refer to their Appeal Skeleton Argument – a document prepared earlier in the appeal process outlining the legal arguments in favour of the appeal being allowed.
Some judges are content just to hear the submissions and note them down. Other judges can be more involved and interventionist and may ask your lawyer or the presenting officer questions during their submissions.
The judge will signal the end of the hearing by thanking the parties. Sometimes the judge will speak to you directly and tell you how long it will be until a decision is made.
Although judges are allowed to give their decision on the day, in practice they rarely do. There is usually a very large bundle of paperwork for them to consider. A written determination should normally be expected a few weeks after the hearing.
This article was originally written by John Vassiliou. It was revised by Iain Halliday.
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