The shift towards conducting hearings remotely during the pandemic represents a significant departure from ‘traditional’ ways of conducting hearings in person. Social distancing measures are set to continue for some time and HM Courts & Tribunals Service (HMCTS) is increasingly embracing digital processes as part of its wider reform programme.1Transforming our justice system, Ministry of Justice (MoJ)/HMCTS, September 2016.
In light of this, it is worth considering what the consequences might be if remote hearings become a more permanent fixture in the justice landscape. But what do we know about remote hearings in the immigration tribunal so far?
What does the existing research tell us?
Government research into remote video links is notably limited to four pieces of research,2Matthew Terry, Dr Steve Johnson and Peter Thompson, Virtual court pilot outcome evaluation, MoJ Research Series 21/10, December 2010; Dr Meredith Rossner and Martha McCurdy, Implementing video hearings (party-to-state): a process evaluation, MoJ, September 2018; Professor Nigel Fielding, Professor Sabine Braun and Dr Graham Hieke, Video enabled justice evaluation, University of Surrey, March 2020; and Dr Meredith Rossner and Martha McCurdy, Video hearings process evaluation (phase 2) final report, HMCTS, July 2020.
which primarily undertook small-scale evaluations of specific projects within the HMCTS reform programme. Academic research is perhaps more instructive when it comes to the impact of remote hearings in immigration tribunals specifically. Existing research3For a summary of the value of in-person hearings, see Jo Hynes, Nick Gill and Joe Tomlinson, ‘In defence of the hearing? Emerging geographies of publicness, materiality, access and communication in court hearings’, Geography Compass, Wiley, 31 March 2020.
tells us that when parties are no longer physically gathered together (co-present) in a courtroom:
What have immigration lawyers told us?
As part of research exploring the recent shift towards adopting digital ways of working in the immigration tribunal,10See our report, Jo Hynes et al, Online immigration appeals: a case study of the First-tier Tribunal (August 2020). The material discussed here emerged as part of our research for this associated report.
PLP has been speaking to immigration lawyers about their experiences of remote hearings.
Between 20 April and 24 June 2020, we conducted interviews with 43 lawyers, appellants, representative bodies and appellant support organisations about their experiences of digital processes in the First-tier Tribunal (Immigration and Asylum Chamber) (FtT (IAC)). At the time of our interviews, the FtT (IAC) was only conducting limited types of hearing via telephone, with some later hearings heard via the video-conferencing platform Cloud Video Platform (CVP). From July onwards, substantive hearings began to be listed, primarily taking place via CVP.
Four key points arose:
1. Remote hearings have some benefits.
One interviewee noted that remote hearings made it easier to secure expert witnesses for substantive hearings. While they might not be prepared to spend all day travelling to the hearing and sitting through it, this interviewee had found that they ‘don’t mind logging in for five or ten minutes’.
2. There was significant concern about appellants not being co-located with their interpreter or legal representative.
Some interviewees expressed uneasiness about conducting remote substantive hearings where the appellant required an interpreter. They suggested that any communication problems between the appellant and the interpreter would be more difficult to notice and rectify as a result. Interviewees also felt that a lack of co-location may curtail their ability to build trust with their clients. They noted that this limited rapport may lead to reduced appellant engagement and openness during the hearing.
3. Appellants in the FtT (IAC) lack technology and private space.
Many interviewees identified significant practical barriers to the use of remote hearings in the FtT (IAC). These centred on appellants’ lack of access to technology and private space, which raises concerns around participation and witness contamination. FtT (IAC) appellants are often living in shared accommodation with poor internet connections and have many personal, and often traumatic, details to share in their hearings.
4. There were concerns about a two-tier system developing.
As a result of these practical barriers, some were worried that a particular ‘class of clients’ was being created that was ‘too poor to be able to engage with the video hearing’. It was suggested that this group might either be forced to adopt a less desirable hearing format (eg, via telephone rather than video link) or have to wait longer for their appeal to be heard.
In light of these concerns, we recommend a cautious, evidence-based approach to the future use of remote hearings. For this, further research is needed, particularly in relation to how outcomes and engagement levels in remote proceedings interact with protected characteristics. In tandem with this research, good practice should be developed in each jurisdiction and the comprehensive and thoughtful guidance produced by the Judicial College Equal Treatment Bench Book Committee taken as a starting point.11Judicial College Equal Treatment Bench Book Committee, Good practice for remote hearings, Judicial College, May 2020.
For the FtT (IAC), this could take the form of a guidance note produced by the tribunal about good practice for remote hearings. The judiciary, user groups and interested stakeholders could make valuable contributions to this.