Remote hearings in the immigration tribunal: what could possibly go wrong?

Over recent weeks we have all had to spend more of our personal and professional lives online. The justice system is also shifting towards holding hearings via live video or audio link wherever possible. Taking stock of what we stand to lose from the expansion of these technologies may help us navigate the challenges ahead. 

The immigration tribunal goes remote

During the coronavirus pandemic, Immigration and Asylum Chamber cases that cannot be decided on the papers will most likely be heard remotely. A Pilot Practice Direction of 19 March 2020 informs us that hearings should be conducted remotely “where it is reasonably practicable and in accordance with the overriding objective” to do so. Notices from First-Tier Tribunals and a Presidential Guidance Note from the Upper Tribunal elaborate further on the logistics of remote hearings.

It is concerning that the widespread use of remote hearings in the Immigration and Asylum Chamber during a time of crisis may provide a precedent for its continued use beyond the six months that the Pilot Policy Direction is initially set to run for.

But for the foreseeable future, remote hearings look set to become the new normal and so are worth engaging with.

We currently lack the “clear, published guidance for both judges and parties on how to ensure effective participation in the proceedings” that Public Law Project has called for.

Monitoring the use of remote hearings

Many obstacles presented by the use of video link cannot be countered through individual action. Careful monitoring must be built into this expansion of remote hearings from the very beginning.

In her Coronavirus Bill briefing, Natalie Byrom has suggested a number of important elements to monitor. Public Law Project says that the recording of hearings should be required and HM Courts and Tribunals Service must maintain “a comprehensive and accurate register of which hearings have been dealt with remotely”. This will be vital in understanding how remote processes affect proceedings.

Remote hearings pose a number of significant challenges and, as yet, have a very poor evidence base to suggest that they are a suitable substitute for in-person hearings. Yet whilst we are forced to live with them, we must consider the steps available to make them as fair and effective as possible.