As we announced back in
December the Asylum and Immigration Tribunal has now come to an end. Since Monday 15 February 2010 the Tribunal has been replaced by the two Immigration and Asylum Chambers of the First Tier Tribunal and the Upper Tribunal.
This has been achieved by the Transfer of Functions of the Asylum and Immigration Tribunal Order 2009. So smooth has the transfer been that appellants against immigration decisions are unlikely to have noticed any difference in the day to day business of immigration appeals being carried out in the courts. The judges come into court, hear appeals and then issue determinations, just as they did before.
This is because the Immigration Judges are still Immigration Judges – it’s just that they are now "transferred in judges of the First-Tier Tribunal".
Despite appearances the system is however very different to the now defunct Asylum and Immigration Tribunal.
When it was introduced in 2005 the Asylum and Immigration Tribunal was proclaimed as being a “single tier” appellate body. It effectively heard appeals against its own decisions – but because it only had one tier or level – such appeals couldn’t be called appeals and were instead labelled “reconsiderations”.
The unwieldy and initially incomprehensible system of applying for reconsideration, followed by first and second stage reconsideration hearings has disappeared and has been replaced by a more conventional appeal structure.
It works like this. Appeals against immigration decisions are now made to the Immigration and Asylum Chamber of the First Tier Tribunal. The First Tier Tribunal operates under the same procedure rules which applied to appeals before the Asylum and Immigration Tribunal, subject to the amendments set out in the consolidated
Asylum and Immigration Tribunal (Procedure) Rules 2005.
After the First Tier Tribunal promulgates its decision an application for permission to appeal can be made to the Immigration and Asylum Chamber of the Upper Tribunal. The necessary alterations to the Nationality Immigration and Asylum Act 2002 as well as the intricate transitional provisions to cover appeals begun in the Asylum and Immigration Tribunal but which may be continued in the new Tribunal structure are made by the Transfer of Functions of the Asylum and Immigration Tribunal Order 2009.
The Upper Tribunal has its own procedure
rules into which special rules relating to asylum and to immigration cases have been inserted. These rules provide for the Upper Tribunal to exercise a judicial review jurisdiction – but the Immigration and Asylum Chamber of the Upper Tribunal will not be doing this for the moment at least.
Needless to say – the way in which the two Chambers will operate in practice remains to be seen. There is potential for these new Chambers, with their new President of the Immigration and Asylum Chamber of the Upper Tribunal, radically to alter the way in which immigration and asylum appeals are conducted. The change has taken place as the legislation to be applied by the Tribunals has become all the more complex – due both to the UK government’s unrelenting legislative programme and to developments in Europe; not least of which is the obligation following the Treaty of Lisbon to apply the European Union’s Directives in the light of their object and purpose.
In the short term it is essential that anyone served with a decision made by the UKBA is properly advised as to his or her rights of appeal and how they can be exercised. This is particularly the case in relation to appeals which have been begun under the old system but must continue in the new structure.