Published on May 22, 2020
It is no surprise that the impact of the COVID-19 pandemic has affected every corner of society, and the justice system is no different. In the United Kingdom, the government passed the Coronavirus Act 2020 which expanded the use of remote hearings in criminal proceedings. The judiciary took steps also, by directing that all hearings in asylum and immigration chambers be heard remotely. This direction was in the form of a Notice that covered all such hearings in a bid to handle cases in the midst of the pandemic. The remote hearings were to be heard either via telephone or Skype. The judiciary in the UK has been no stranger to criticism when it has come to their lacklustre approach to adopting digital court systems and technology, however, what may manifestly demonstrate the judiciary as finally taking on technological flexibility in the interests of keeping the justice system moving, may, in fact, be discriminating against the client in the case. Research has shown that remote hearings overall do not tend to favour the individual client, and is another layer of disparity on top of the familiar inequality of the state employing its resources against the lonesome individual. In the face of such dire results, there has been a vocal outlash of lawyers, activists and representatives challenging the move to remote hearings.
This short article sets out the reasons why the use of remote hearings may not be appropriate for immigration matters.
Background
On 23 March 2020 the President of the First-tier Tribunal (FTT) issued a bulk Notice that all hearings in the FTT be heard remotely as a Case Management Hearing (CMR), using Skype or the telephone. A similar direction Notice was issued by the President of the Upper Tribunal Immigration and Asylum Chamber (UTIAC) on the same date. These were in accordance with the emergency Practice Directions that were approved by the Lord Chancellor as an Administrative Instruction by the Senior President of Tribunals. The emergency Directions covered all such hearings. Soon after, immigration clients found themselves having their fates decided by remote hearings. There are a myriad of issues that discriminate against the client in remote hearings; especially clients with asylum and similar cases.
Lack of Effective Participation
The first issue is the detriment remote hearings have upon the lay client; that they stifle effective participation of the client with their case and the hearing. This means that clients are less likely to engage with their lawyer and the hearing in general. Once they disengage with their case, the hearing loses its value as the venue for achieving justice. Research has found that almost 70% of lawyers surveyed in a study agreed that video-link hearings hampered communication with their client. Lawyers agreed that such video-link hearings made it difficult for their clients to receive and understand the advice, and for the lawyers to receive instructions themselves. In certain remote hearings, the client and lawyer have but a 15-minute slot to consult; whereas in the normal physical setting they would have much longer to consult. This again impacts heavily upon the client’s quality of legal service and advice received in the preparation of their case.
Most concerningly, such video-link hearings affect those clients with vulnerabilities like mental health problems, learning difficulties, and— most relevant for this article— when English is a second language. The cumulative effect is that research shows that such clients are less likely to participate in the hearing, and are more likely to be deported. This causal link has an explanation. One being that because clients in remote settings are denied the opportunities for exchanges that normally occur in an open and informal setting. This also means that lawyers are unable to provide immediate legal advice that may be of benefit to the client in their hearing.
Another explanation is that because as the clients are physically removed from the tribunal setting, they understand the process far less and are effectively ‘siloed’ from the tribunal environment. Finally, friends and family members cannot be present in the tribunal to assist with supporting the client’s case, including as witnesses or financial support. This hampers the case, which the client’s ought to be given an opportunity to put forward at its strongest, but due to the removed effect of the video hearing is now a depressed state of affairs. With such a detrimental impact on asylum clients, it begs the question whether the right to a fair trial is being upheld with such remote hearings.
Lack of Connectivity
In order to adhere to the remote hearing protocols, the client will need the following knowledge and resources which may not be straightforward or available. The client will need to have access to a laptop or computer; have a secure internet connection, be in a private setting where the tribunal hearing cannot be overheard by others, and have adequate time. This list of requirements will not be readily available to those clients in detention at immigration removal centres or in shared living. The resources and environment required, as set out above, will certainly not be available to clients who have no means, access to computer equipment or residence with any personal space. Therefore, a large swathe of immigration clients will commence their tribunal hearing on an unequal footing in comparison to the Home Office. One particularly serious issue is the lack of privacy in a detention centre, and or shared living. Confidentiality is of high importance in immigration hearings, not least to avoid tainting any live evidence and to ensure the client’s dignity and privacy is protected; allowing them to provide their evidence in a confident manner. Remote hearings have shown to greatly breach privacy of the hearings, and certain judges have been reported to stop hearings when it became clear that others were listening to the hearing. This again discriminates against the client, and furthermore, does not consider the lack of IT knowledge or understanding of the protocol instructions of how to dial in— let alone in the English language which would not be their first language. In a 2017 study, it was found that video-link hearings impacted those with English as a second language in 75.72% of cases; the group was the hardest negatively impacted by such hearings. The negative impact on this group was far greater than unrepresented defendants and minors; such is the severe negative impact of such hearings.
Small Firms Discriminated
On the other side of the remote hearing will be the client’s lawyer. The lawyer, a solicitor in most cases, will have their own issues in dealing with remote hearings. The lawyer will be required to prepare effectively for the hearing. This means having the client’s file to hand, which contains the whole of the client’s case. This may be possible for large firms with sophisticated IT infrastructures who can quickly access their client’s complete file digitally. However, for the bulk of the lawyers representing immigration clients, they will be predominantly from small high-street firms. Some will be one-person firms, with bare minimal IT capabilities, others will be modest high-street firms whose financial margins are thin like slivers. What all such firms will have in common is the lack of digitisation of their clients files; with most holding them in physical form within the office.
Due to the COVID-19 advice from the Government, the country is in lockdown; people are in isolation with their families, and many are too afraid to take the risk to venture out just in case they bring the virus into the home. In such a state of lockdown, it is near impossible for lawyers to travel to their office to pick up their client files, bring them home— which is also against Law Society guidelines— and then drop them back to the office in order to pick up the next batch. More often than not, lawyers are often provided with last-minute evidence by the client on the day of the hearing, and this potential ‘last minute reprieve’ evidence will no longer be open to the client to provide. This has meant that the lawyers are ill-prepared for the hearings or simply cannot present the client’s case. Practical tasks that the lawyer will need to undertake such as taking witness statements: obtaining files from previous lawyers, submitting Subject Access Requests, have all been curbed due to the lockdown. Furthermore, most asylum and refugee cases rely on assistance from MPs’ offices’, and as offices are closed it is nearly impossible to obtain much needed references. Furthermore, MPs’ offices will require additional evidence and information, all contained in the client’s file which is in many respects unobtainable. The client’s file, therefore, operates as the backbone of the case and contains key evidence to support the client, without which the case will be weak.
Live Evidence and Interpreters
In-person hearings are immensely important for cases such as immigration, family or crime. The physical presence of the client or witnesses provides vital body language information to judges who rely on it when considering the evidence. With such presence removed in the hearing of the case, the quality of justice is compromised. The in-person hearing provides assistance not only to the client but also to the judge and others in the courtroom; and its omission removes the soul and character of the client’s case, the passion or distress in giving evidence will not exist as a powerfully in a Skype video hearing and less so in an audio telephone hearing.
There are further perils in remote hearings that simply cannot compare to live in-person hearings. Comments or statements given by the client will not necessarily convey the tone or manner in which the client intended for them to be delivered in, and will therefore be open to interpretation or lack of context thereby further compromising the client’s case.
A major detriment to the client is the fact that almost all immigration cases require interpreters as English is not their first language. Some lawyers have expressed concern that interpreters would have to interpret their client’s oral evidence remotely, as this could lead to misinterpretation and thereby diminish or worse pervert the client’s intended evidence. This issue had recently garnered media attention when an international Olympic sportsman, Sun Yang, was before the Court of Arbitration for Sport for doping allegations. The interpretation was so problematic that the judge apologised for the poor quality of translation— Sun Yang reprimanded lawyers that he had not finished speaking, and the lawyers were unable to understand if Sun Yang was being evasive or simply being misunderstood. Such issues are of constant concern to the client and their lawyers, because the live evidence of the client will form a substantive portion of the client’s case, and any detriment to its quality will negatively impact the client’s case and hamper the right to a fair trial.
As the above explanations demonstrate, remote hearings hamper an immigration client’s right to a fair trial and chances of obtaining justice. With such a detrimental impact on an immigration client’s case, and in the absence of any emergency, there is scope to argue that remote hearings should be abandoned and cases adjourned to a further date when in-person hearings can recommence. Otherwise, it seems that in the haze of expediency during a pandemic, the justice system is compromising on a fundamental right to a fair trial.
The Authors