A common situation at present is where a person – let’s call her Estelle – has not had a lawyer for her asylum claim. Estelle will have had a screening and substantive interview as part of her asylum claim, but these are often very basic and Estelle may not have submitted any evidence, corrections or anything further. She then receives a negative decision and gets help to lodge her appeal or manages to lodge it on her own. Estelle is then sent Directions by the Tribunal that she does not understand and is eventually sent a hearing date. 

Language, literacy and other barriers to engaging in case management, including linked to poor mental health and due to isolation, are very common among appellants in asylum appeals, who are often survivors of torture, trafficking and other human rights abuses. There are also chronic shortages in legal aid and Estelle, who lives in asylum accommodation for people who would otherwise be destitute, cannot pay a legal representative and has not been able to find a legal aid lawyer despite trying her best to do so.  

Estelle will then panic, because she has no idea how to approach the hearing date. She may manage to seek advice from a charity or other service in advance or she may end up attending the hearing and trying to explain she is not ready to proceed to the judge.  

Letter from ILPA to the Tribunal President 

The Immigration Law Practitioners’ Association (ILPA) has written to the President of the First-tier Tribunal (IAC), Judge Plimmer, to raise concerns about shortages of legal representation and access to justice for unrepresented appellants.  

ILPA’s letter notes that demand for legal aid services considerably outstrips supply with ‘swathes of England and Wales described as ‘advice deserts’ due to the dire shortages in those regions. Recent research by Dr Jo Wilding has found that over half of asylum claimants are unable to access a legal aid lawyer’. Whilst the Legal Aid Agency has been tendering for new legal aid providers, more legal aid practitioners are still exiting than entering the sector and payment levels have stagnated meaning legal aid work is no longer financial viable for most providers, with appeals being a particular problem.  

This legal aid crisis has intersected with the Home Office’s backlog clearing exercise, which saw more decisions made in four weeks in late 2023 than were made in the entirety of 2021, including 25,550 refusals of cases in the asylum backlog last year. This has caused a sudden spike in the number of asylum seekers needing legal aid representation for an appeal. ILPA’s letter then explores the often insurmountable barriers to accessing justice that many unrepresented asylum seekers would face in an appeal and asks the First-tier Tribunal if they can collect data on unrepresented appellants, develop a signposting process for regional hearing centres and update guidance on adjournments to recognise the serious barriers to accessing justice caused by the legal aid crisis.    

The Tribunal President’s reply 

Judge Plimmer replied to ILPA’s letter stating that it was not possible to collect data on unrepresented litigants, signposting processes could be created and a summary of ILPA’s concerns could be shared with UTIAC Judges in respect to adjournment applications. There are existing stakeholder engagement meetings (regionally and an IAC Improvement Group) where issues of concern can be raised.  

How applications for adjournment work in the Tribunal 

Sometimes a case will not be listed straight-away if there are concerns that it is not ready to proceed, but usually the Tribunal will go ahead and list a case for final hearing after the Respondent’s evidence has been filed and after the deadline has passed for an Appellant’s evidence to be filed (whether or not they have provided anything). This means that it is common for unrepresented litigants like Estelle to be given a date for their appeal hearing, even if they have not been able to engage in any appeal preparation or to find a legal representative.  

The case management powers in the Tribunal Procedure Rules (R 4(3)(h)) permit the Tribunal to adjourn a hearing. This power must be exercised in line with the overriding objective to deal with cases fairly and justly (R 2, which also sets out some relevant factors that must be considered). The Practice Direction for the FTT (IAC) sets out that adjournment applications must be made no later than 16:00 one clear working day before the date of the hearing, must be supported by full reasons and any later application will need to be made in person at the hearing. In practice, the Tribunal does not always respond to adjournment applications made in advance so it can be necessary to follow these up or otherwise make them on the day of a hearing. If an adjournment is refused by a Tribunal caseworker it is possible to renew the request to a Judge (it is desirable to include additional reasons addressing the reasons the caseworker refused the adjournment) and even if an adjournment application made in advance is refused, it is still possible to apply again at the hearing. The Tribunal does have a Presidential Guidance Note (No.1 of 2014) which covers adjournments, but this pre-dates some important case law on access to justice (see below) so it should not be followed if there is a conflict with this later case law.  

The key test for judges considering an adjournment application is fairness not reasonableness, so if a hearing cannot proceed fairly then that hearing should adjourn (Nwaigwe (adjournment:fairness) [2014] UKUT 418). 

The charity Migrants Organise has provided an advice flyer for clients with a link to an example adjournment template (drafted by Jennifer Blair). However key issues the Tribunal will want information about if a person is asking for an adjournment to help them find a lawyer are:  

  • What exact steps have been taken to look for a lawyer – this could include a detailed list of dates and attempts – as a guide people should try as many lawyers as possible and keep trying every week or so – it is fine to rely on a charity making referrals on the person’s behalf; 
  • Is a charity or support service helping the person to find a lawyer? If so they should provide a detailed supporting letter; 
  • Why does the person need a lawyer (this should really be obvious in most asylum appeals but judges still require it to be set out why the person cannot proceed unrepresented – see below); 
  • Will an adjournment make any difference (eg if the Tribunal delays the final hearing for eg six weeks-three months or so is the person likely to have found a lawyer by then) – if not then it will be harder to get an adjournment because it will be necessary to show why going ahead would be unfair and unjust (see below).  

Explaining why an asylum seeker needs a legal representative 

The Article 6 ECHR right to a fair trial does not cover immigration appeals (because they do not relate to a ‘civil right or obligation’), but there is a right to a fair hearing in British common law and there are procedural protections to other ECHR rights (including Articles 2, 3 and 8) which are commonly engaged in asylum appeals. These procedural protections mean that those rights must be practical and effective rather than theoretical and illusory and so there is a right to participate effectively without obvious unfairness in legal proceedings to establish that right.  

The case R (Gudanaviciene) v the Director of Legal Aid Casework [2014] EWCA Civ 1622 provides a good overview of when access to a lawyer may be required. Examples of reasons that a lawyer may be needed include: 

  • The vulnerability of the appellant (inc. language barriers, illiteracy, destitution limiting access to information/preparation, disability or other mental illness etc), 
  • The nature of the proceedings (inc. the consequences of an unjust outcome – such as destitution, detention and refoulement, the importance of the case to the individual, that immigration advice is regulated so there is no other way to get assistance, asylum appeals can be very emotive/distressing, if credibility is challenged it is difficult to address that unrepresented or to present other aspects of the case at the same time), and 
  • The complexity of the proceedings (evidential, procedural and legal complexity – this is much harder for unrepresented people to comment on as this can require legal advice to ascertain).  

If a person has access to one-off, outreach or partial immigration advice then it would be helpful if they could obtain a letter for the Tribunal from that immigration adviser explaining that the person needs representation due to the complexity of the proceedings and why. Examples of key matters an appellant needs to address in an asylum appeal which may or may not be matters in issue in an individual case are:  

  • Convention ground/s for claiming asylum, 
  • History of past persecution and any credibility issues raised (this can require tracing evidence from abroad which may need to be translated/authenticated and/or a medico-legal expert report if evaluating injuries caused by past persecution will be important), 
  • Risk of persecution on return in home area for someone with the appellant’s specific risk profile and the absence of sufficiency of protection (this can require detailed country information, checking Home Office country information and any country guidance case law and sometimes commissioning a country expert report), 
  • Safety and reasonableness of internal relocation (again this can require detailed country information and country expert/medico-legal expert or sometimes independent social worker expert evidence can all be relevant, as well as tracing evidence from the UK and abroad to establish the quality of current and prospective support networks), 
  • Any Article 8 ECHR human rights claim, eg under Appendix Private Life of the Immigration Rules (which may require fairly similar evidence to the internal relocation test).  

Each of these points involves very complex legal tests set out in international law, the Nationality and Borders Act 2022, case law and often also in complex Home Office caseworker guidance. In Patel v SSHD [2013] UKSC 72, Lord Carnwath agreed that immigration law is ‘an impenetrable jungle of intertwined statutory provisions and judicial decisions’. 

In an appeal the person would want to rely on evidence to address the matters in issue in the appeal and make submissions on the law and that evidence. Without being able to do that the reality is the appellant will be left with the Home Office refusal decision as the last word on their case. Recently in R (Karim) v Upper Tribunal (IAC) and SSHD [2024] EWHC 438 (Admin), Fordham J confirmed that an adjournment was necessary to allow an appellant to have legal representation, stating: ‘Oral hearings and the engagement which they bring are a central value to our legal system and there is all the difference in the world between any litigant – whether the SSHD or a claimant – appearing in person and being represented by specialist Counsel’. 

Will an adjournment make any difference? 

There can be a strong instinct among immigration judges to try and avoid delay in listing and hearing appeals. The 2014 Presidential Guidance Note (as above) argues against granting an adjournment where the ‘application is speculative’ such as where there is no reasonable basis to presume evidence exists or could be produced ‘within a reasonable period’ or where the ‘application does not show that anything material would be achieved by the delay’ including where an appellant wants more time to instruct a legal representative, but there is no evidence that funds or legal aid is available.  

Even though this guidance pre-dates important case law on access to justice like Gudanaviciene (as above) and R (Unison) v Lord Chancellor [2017] UKSC 51 this resistance to ‘speculative’ delay is still extremely common when the Tribunal addresses adjournment applications.  

It is therefore best for asylum seekers to address this issue when they apply for an adjournment. It can be explained that asylum is in scope for mainstream legal aid and the appellant is financially eligible for legal aid (eg if they are in asylum support accommodation). It will generally not be possible for an unrepresented litigant to address the merits test for legal aid, so unless a person has been positively assessed for this by an immigration advisor this will not usually be addressed. If a charity is helping the person to apply for an adjournment then they can explain how long they anticipate it will take before they find a legal representative, based for example on the timeframe in other cases they are working on.  

However if there simply is no way to give any timeframe due to the severe shortages of legal representation that is affordable to the appellant then it may be necessary to state that, but then also explain that it would even so be procedurally unfair to proceed with the appellant unrepresented. 

Where there is no timeframe available for the adjournment then the focus will need to be on the procedural unfairness of going ahead while the Appellant is unrepresented and why they need a representative (as above).  

Cases which proceed to a hearing and are dismissed when they should have been adjourned can be overturned on appeal and this ultimately costs more time and money for the Tribunal. In AK (Iran) [2008] EWCA Civ 94, the Court of Appeal allowed an appeal where the judge refused to adjourn to allow an appellant to obtain legal representation in circumstances where ‘it is apparent that legal representation would be of benefit to him‘ [para 22]. The judge was required to consider whether ‘there are issues with which he is not going to be able to cope on his own or to cope as well as he would with a representative’, para [23]. In that case it was an error of law not to adjourn, even though there had been a previous adjournment and even though the Judge proceeded with the hearing taking ‘manifest care’ in the absence of representation, para [31]. 

Similarly in SH (Afghanistan) v SSHD [2011] EWCA Civ 1284, the judge had refused to adjourn to admit expert evidence or an age assessment on the basis that a lengthy adjournment based on only a rough time estimate was not acceptable, para [6]. The Court of Appeal found that approaching a challenge to the refusal to adjourn through the lens of reasonableness was a ‘serious error’, because the sole test was whether ‘it was unfair’, para [13]. An unfair hearing must be set aside unless the decision ‘would inevitably be the same’ following the adoption of a fair procedure, para [15]. 

Top tip – convert to Case Management rather than Final Hearing 

If there is a clear timeframe available then it makes sense to try and adjourn a case for a set time to a future hearing date. This will happen where the adjournment is for a specific expert report to be obtained or where a lawyer has offered to take on a case, but only if an imminent hearing adjourns giving them a specific period of time to prepare the case properly.  

If there is not a clear timeframe available then it is not a good idea to ask for the hearing just to be put back for a short time. That creates a significant risk that the appellant will be back asking for a second adjournment after a short time, which is likely to be even more difficult to obtain.  

Instead, when asking for an adjournment to provide more time to find a legal representative try to persuade the Tribunal to convert the final hearing to a case management hearing and to adjourn to a further case management hearing. This makes sense to avoid wasting everyone’s time and because even when a lawyer takes on the case they will need to collect and file relevant evidence which can take some time. This process and any subsequent review of the refusal by the Home Office then be overseen by the Tribunal as part of any case management process.  

If an adjournment is refused and the appeal dismissed 

If the refusal of an adjournment led to an appeal hearing that was procedurally unfair then it is possible to apply for permission to appeal to the Upper Tribunal. There is a 14 day deadline for this once the asylum seeking appellant is sent the decision. It is possible to apply out of time, but the delay needs to be explained and the later the delay the better the reason for the delay needs to be.  

An unrepresented appellant could submit or be helped to submit their own application for permission to appeal explaining that proceeding with the appeal when the appellant was unrepresented was procedurally unfair. The form for this should be sent with the determination and is also online. The charity Right to Remain have a detailed asylum toolkit which provides information on appealing to the Upper Tribunal.  

However, the test for permission to appeal to the Upper Tribunal is whether there is an arguable error of law and it is exceptionally difficult for unrepresented appellants to make arguments about errors of law. Most appellants will need expert legal assistance to make an effective application for permission to appeal. If such an appellant cannot find a representative, then they could see if they could obtain a referral to the pro bono charity Advocate for free assistance. However, Advocate take some weeks to assess cases usually so appellants may need to lodge their appeal with initial grounds anyway to avoid the appeal becoming out of time. Even if a barrister did agree to help pro bono with drafting grounds of appeal, they would still need access to the papers in the appeal case and information from the appellant about what happened during the hearing.  

An application for permission to appeal can also include a separate application to set aside a decision arising from a procedurally unfair hearing, which should usually be addressed first. The Tribunal has a power under its procedural rules to set aside a procedurally unfair decision (R 34) and in EP (Albania) & Ors (rule 34 decisions; setting aside) [2021] UKUT 00233 (IAC), it was found that a decision to proceed with a hearing (in that case a decision to proceed on the papers) could constitute a procedural irregularity where it was an error of law as contemplated by SH Afghanistan (as above), namely where the consequence was a breach of the requirement to act fairly, para [32].  

Challenging the Lord Chancellor’s failure to secure adequate legal aid 

Section 1(1) of the Legal Aid, Sentencing and Punishment of Offenders Act 2012 (LASPOA 2012) states that ‘The Lord Chancellor must secure that legal aid is made available in accordance with this Part’. Section 9 requires civil legal aid services ‘to be made available to an individual’ if they are eligible. Schedule 1 para 30 includes international protection claims within the scope of mainstream legal aid.  

Many appellants, like the example of Estelle above, cannot get much needed legal representation, because the Lord Chancellor has failed to meet a duty to secure adequate legal aid. This is an exceptional circumstance going beyond shortages or lapses in individual cases and that seems relevant to the Tribunal’s assessment of what is ‘fair’ for an appellant in an individual case. Legal representatives taking on cases at onward appeal stage may wish to address this issue head on in their submissions. Legal charity the Public Law Project has also been engaged with pre-litigation work on the legal aid shortages in this sector, so there may eventually be a direct legal challenge to the Lord Chancellor.  

In the meantime, it is important that the thousands of appellants like Estelle, who are struggling to secure legal representation, are not rapidly and unfairly refused and removed from the UK to face risks of persecution and serious harm.  

Jennifer Blair is an associate tenant in the Immigration Team at No5 Chambers. She also works with the Lexis Nexis UK Immigration Practical Guidance team and the charity Migrants Organise.