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More ex tempore Judgements in the First Tier Tribunal: Coming Soon?

by Kenworthy's Chambers 05/12/2017

Earlier this year, at the Manchester IAC, the First Tier Tribunal ran a short pilot involving cases which were deemed to be suitable for the giving of ex tempore decisions following the substantive hearing. Ex tempore (latin for "at the time") decisions involve a change from the usual procedure in immigration and asylum cases where decisions are usually written up and forwarded to the Appellant or their representative following the hearing, to one where the Judge will give a, heavily abridged, version of the decision at the conclusion of the hearing.

The pilot was headed by, and most of the eligible appeals were heard by, the Senior Resident Judge in Manchester. In addition to the giving of oral reasons, these cases featured heavily modified case management directions aimed at settling the disputed issues and evidence to be relied upon at the hearing.

There were a number of cases piloted, but the results of the pilot remain unknown. Most cases were identified as being factually straightforward (or so it was thought). One case of George Brown's that featured in the pilot was adjourned and taken out the scheme, due to its complexity, and still remains undecided. Another of Chambers' cases that featured in the pilot is now under appeal to the Upper Tribunal.

The current FTT procedure rules permit ex tempore Judgments to be given. Rule 29 of the Tribunal Procedure (First-tier Tribunal) (Immigration and Asylum Chamber) Rules 2014 provides:

"Decisions and notice of decisions

29.-(1) The Tribunal may give a decision orally at a hearing."

Of course, the decision to give such decisions orally at the end of the hearing must depend on the factual and legal complexity of the cases in question. It is not hard to see that many of the cases put before the Tribunal raising protection and article 8 issues are both factually and legally complex.

This is perhaps why the Presidential Guidance note in 2014 provides for a delay in order that a full statement of reasons can be given. Paragraph 21 of the Presidential Guidance Note No 1 of 2014: The Tribunal Procedure (First-tier Tribunal) (Immigration and Asylum Chamber) Rules 2014 deals with the point:

"Decisions
21. Notwithstanding that there is power in rule 29 to give a decision notifying the parties of the outcome of an appeal orally at the hearing the Tribunal will continue to reserve the substantive decision in an appeal and issue a notice of decision and statement of reasons as a single document in every case. It will be inappropriate to give an ex tempore decision without giving a full statement of reasons at the same time. This is because the factual questions and other issues in dispute in appeals to the Immigration and Asylum Chamber are usually complex and the parties are entitled to receive a full statement of reasons for the decision." [emphasis added]

It was recently stated by the Resident Judge at the First Tier Tribunal in Bradford that practitioners across the country can expect to have more ex tempore judgements in cases at before the First Tier Tribunal. The type of case was not specified, but if the Presidential Guidance Note is to remain unchanged, then it can surely only be in those cases where it can be said the factual questions and other issues in dispute in the appeal are neither "complex", nor perhaps deserving of a "full statement of reasons for the decision." Given the "constantly shifting body of law, and lore, which is shamefully complicated and is confusing even to experts" that the Tribunal is to apply, it is hard to see many cases falling into such a category, and in the absence of careful case management and plain guiding criteria as to when an oral decision is appropriate, there is a real risk that cases which are wholly unsuitable for an oral decision will nevertheless find themselves subject to one.