[2025] UKUT 00350 (IAC)

Many cases in the FTT are conducted by parties who do not have professional legal representation and who represent themselves. These are known as appellants in person (‘AIPs’) in the FTT, and litigants in person (‘LIPs’) elsewhere. The FTT is an expert tribunal well accustomed to and experienced in ensuring AIPs are treated fairly. The Senior President of Tribunals’ Practice Direction of the Immigration and Asylum Chamber of the First-tier Tribunal dated 1 November 2024 (‘the 2024 PD’) says this at paragraph 1.5:

All represented appellants have been mandated to follow the FTT reformed appeal process unless not reasonably practicable so to do (2024 PD, paragraph 3.1). For the time being, it is deemed not reasonably practicable for detained appellants to use this online procedure. Put simply, appeals are submitted, managed and disposed of via an online platform with the parties and the FTT communicating primarily via the platform with automatic email notifications informing relevant participants when an event has occurred requiring their attention. Each participant accesses the online platform via slightly different interfaces but we shall refer to the system as it is colloquially known by the parties and judges - ‘CCD’.

AIPs are permitted but not mandated to use the reformed process (2024 PD, paragraph 3.2). The majority of AIP appeals are commenced using the online procedure, although some are unavoidably taken offline.

The 2024 PD outlines the appeal process in Part 2. Paragraph 2.1 summarises the appeal process in this way: (a) the appellant provides a notice of appeal in accordance with rules 19 to 21 of the Procedure Rules; (b) the Tribunal reviews the validity of the appeal and territorial jurisdiction; (c) the respondent provides a bundle in accordance with rules 23 and 24 of the Procedure Rules; (d) the appellant provides a bundle and an explanation of their case or, where represented, a skeleton argument in accordance with rule 24A of the Procedure Rules; (e) the respondent provides a meaningful review of the decision under appeal; (f) a hearing before a judge; (g) the judge making a decision, either at the hearing or in writing after the hearing, subject to rule 29; and (h) where relevant, an application for permission to appeal to the Upper Tribunal. Paragraph 2.2 continues:

Paragraph 7.10 provides:

Consequently, in order to best facilitate meaningful access to the FTT for AIPs upon implementation of reform, an AIP ‘reform journey’ was designed in a manner that is considerably simpler and less formal than that expected of represented parties.

In practical terms, the represented ‘journey’ to hearing comprises: submission of an appeal indicating at that point only the statutory ground(s) of appeal relied upon and including a copy of the challenged decision; provision by the respondent of a bundle of the documents considered by her to be relevant to the appeal; provision by the appellant of an appeal skeleton argument setting out clearly and concisely their legal challenge to the decision, and a bundle of any further relevant documents not already provided by the respondent; and a review of the case by the respondent, with a view to narrowing the issues and evidence, if not to avoiding a hearing altogether. It is in this manner that the principal contentious issues (‘PCIs’) are identified, in order for procedural rigour to be applied in accordance with the principles outlined in Lata (FtT: principal controversial issues) [2023] UKUT 163 (IAC) and TC (PS compliance - “issues-based” reasoning) Zimbabwe [2023] UKUT 164 (IAC). The issues-based approach as well as the requirement to approach the PCIs with procedural rigour are also mandated by the 2024 PD at paragraphs 1.1, 7.1, 7.6, 7.11, 9.11, 10.5 and 11.1-11.4.

The AIP ‘journey’, on the other hand, requires the appellant initially to give some basic personal information, to indicate the ‘type of appeal’ (explained by reference to the type of decision to be challenged, rather than by reference to statutory grounds of appeal), how they would wish the appeal to be decided (with or without a hearing) and to upload the challenged decision. Whilst the respondent’s next step is no different to that for a represented party, the appellant in response is simply asked to explain in their own words, ‘Why do you think the Home Office decision is wrong?’, and asked if they want to provide supporting evidence. The appellant’s answer to that question is then stored and displayed on CCD as their ‘appeal reasons’. Whilst the AIP is encouraged to provide supporting evidence, there is no obligation on them to do so and a hyperlink to access guidance on supporting evidence is only provided if the appellant answers ‘yes’ when asked if they want to provide some.

As the 2024 PD says at 7.10, the FTT will make directions for the AIP ‘to explain their case and provide any evidence or material in support of their case that is not in the respondent’s bundle’. Unlike on the represented journey, a FTT legal officer can then ask ‘clarifying questions’ if the AIP does not appear to have addressed in their ‘appeal reasons’ and supporting evidence the PCIs in the case. Recognising that AIPs might not understand the legal framework applicable to the challenged decision or be able to identify or understand the PCIs in their case and/or the evidence, legal officers are trained in the use of ‘clarifying questions’. This is an important aspect of the AIP appeal ‘journey’ in the FTT. FTT legal officers resources are presently overstretched; however, judges must consider for themselves whether the PCIs demand further clarification from the AIP, absent ‘clarifying questions’ or sufficient clarification from the legal officer. This will usually take place at the beginning of any hearing but where the appeal has been listed to be determined on the papers, this remains an important aspect to consider in order to ensure fairness to the AIP.

The appellant is offered the opportunity to provide supporting evidence for those answers and is also asked, ‘Do you want to tell us anything else about your case?’ . If no clarifying questions are asked, or once the answers to any ‘clarifying questions’ are received, the respondent is then directed to review the appeal (as with the represented journey). The AIP is notified of the outcome of that review and, unless the respondent has decided to withdraw her decision, the AIP is offered the opportunity to reply to the review by uploading further documents.

It is the duty of all parties, whether represented or not, to bring all relevant facts and information to the attention of the FTT, particularly matters relevant to the PCIs. AIPs must comply with the relevant procedure and practice but where appropriate, as explained above, the FTT will have regard to the fact that an appellant is unrepresented and will ensure an AIP is treated fairly and in accordance with the guidance in the 2024 PD and the Equal Treatment Bench Book (‘ETBB’), to which we now turn.