Background

On 2 September 2021 the Upper Tribunal gave judgment in a number of linked cases (18 in total). In all cases, the question of whether an error of law had occurred, was decided on the papers, under rule 34 of the Tribunal Procedure (Upper Tribunal) Rules 2008 (“Rules”). This followed the Presidential Guidance Note (“PGN”), issued on 23 March 2020 in response to the Covid-19 pandemic. The PGN was declared unlawful in November 2020 - R (The Joint Council for the Welfare of Immigrants) v The President of the Upper Tribunal (Immigration and Asylum Chamber) [2020] EWHC 3103 (Admin). In summary, it was found that the PGN was unlawful as its guidance that asylum and human rights appeals should normally be determined on the papers was ultra vires (beyond the President’s powers), contrary to the common law principles of procedural fairness and misstated the law. Our earlier detailed note on the judgment can be found here.  

 

The need for guidance - UT test case litigation and outcome

Following the High Court judgment, all 18 appellants (in addition to some 70 others) applied to set aside the error of law determinations under rule 43 of the Rules. The UT rightly identified the need for guidance on how these cases should be determined. The cohort of 18 was chosen on the basis that they were all at different stages of the appeal process and so they would be able to consider different scenarios. Following a case management hearing at which the panel of Mr Justice Swift and UTJ Blundell encouraged dialogue from the parties as to the issues which needed to be considered, directions were issued. 

Following a three-day hearing, in what can only be described as a disappointing judgment, the UT set aside just two of the rule 34 decisions for reasons which were not connected to the unlawfulness of the PGN.

Reasoning  

The Upper Tribunal’s judgment states as follows:

1. They have the power to set aside a decision of this nature, regardless of the stage of proceedings [§§14-31];
2. The decision to hold a paper rather than an oral hearing could be a procedural irregularity for the purposes of the set aside application if the decision to proceed on the papers was unlawful due to a breach of the requirement to act fairly. The starting point for consideration of these applications was whether the paper decision rested on some error of legal principle, whether because of the PGN or otherwise, or was one that no Tribunal properly directing itself on the law could have reached [§32-38];
3. Interestingly, the Home Office took the position that the Upper Tribunal should only not exercise its power to set aside a paper determination taken pursuant to the overall paper norm in the PGN where the parties are entirely content with the outcome. This argument was rejected by the Upper Tribunal who found that the submission was without legal basis [§39-44];
4. The mere fact that the PGN existed does not found an error of law. The High Court judgment in JCWI does not conclude that all cases decided without a hearing were unlawful and there was no legal obligation on judges to follow the PGN [§45-49];
5. Reference to or a failure to reference the PGN is not determinative of whether the rule 34 decision was unlawful. Nor is it necessary for judges to list and address the factors identified in JCWI as relevant to whether a paper determination is fair. It would be artificial to require judges to disavow the guidance in the PGN. What is required is a focus on whether the individual appeal could fairly be determined without a hearing [§50-53];
6. When considering the significance of the directions on mode of hearing, just because a preliminary view that a case was suitable for paper determination was made does not mean that the subsequent decision in favour of a paper determination was unlawful [§54-61];
7. Where a party consented to disposal on the papers, such a position would strongly support the fact that the rule 34 decision was lawful. The submission that no genuine consent could be given when the PGN pointed so clearly in favour of a hearing was rejected. Legal representatives ought to have realised the Tribunal genuinely sought their views. Where a party did not respond to the directions regarding mode of hearing, this can be treated as tacit consent to determination without a hearing [§62-64];
8. There was no appearance of bias where the same judge had formed the preliminary view and the final view that the case was suitable for paper determination, nor did bias occur where the same judge undertook the rule 43 consideration. Judges routinely undertake such exercises objectively and candidly. It is part and parcel of the judicial function. However, each situation must be considered on its own terms [§65-66];
9. In summary, the judgment of the High Court in JCWI does not require all error of law appeals determined without a hearing after the PGN was issued in March 2020 to be set aside [§67-69]. The JCWI judgment concluded that the PGN was unlawful to the extent that it did not include or refer to the proviso that any decision in favour of no-hearing determination had to be in accordance with the overriding objective and fairness rights. Judges were well used to exercising their functions applying the overriding objective and well known principles of fairness. Each decision should be considered based on the reasons given in the round, and inferences drawn.
10. As to timeframes for submission of a rule 43 application in reliance on the JCWI judgment, it was accepted that time should generally be extended until 18 January 2021. This was deemed to have allowed time for the parties to consider their positions and seek advice taking into account the Christmas break and the limitations on practitioners imposed by Covid-19. For applications submitted after this date, there will need to be individual consideration as to whether there is a good reason to extend time [§70];
11. The remainder of the judgment considers the facts of the 18 cases in turn, and whether they should be set aside. Interestingly, only 2 of the 18 were set aside under rule 43, both based on a procedural irregularity outside the scope of the JCWI In HU/11561/2019 the First-tier Tribunal’s determination was set aside on a ground not taken by the Secretary of State in response to the appeal, so a point on which the Appellant was not offered the opportunity to respond. In PA/11981/2019, the decision was set aside as the error of law determination was reasoned by reference to a country policy and information note published after the pleadings in the case had been filed, and so which the parties did not have the opportunity to address;
12. In refusing the 16 applications, the UT appears to have assumed, without any reasoning, evidence or disclosure to that effect, that none of the judges followed the PGN, and also to have concluded that a failure to refer to the relevant principles set out in the jurisprudence on whether an oral hearing was required in the interests of fairness carries very little weight [§88]. This shows a real and worrying departure from the reasoning of the Supreme Court in Osborn and West and the High Court in JCWI.

Next Steps – onward appeal

On Friday 10 September 2021, JCWI lodged grounds with the Upper Tribunal for permission to appeal to the Court of Appeal in HU/13731/2019 and amended grounds for permission to appeal in HU/13583/2019. In summary, our arguments are:

1. The rule 43 decisions are not excluded and so there is an onward appeal to the Court of Appeal;
2. The UT was not reasonably entitled to conclude that the individual judges had not followed the PGN when deciding not to hold a hearing and/or to infer that the errors of law made in the PGN had not occurred;
3. Further and/or alternatively, the Tribunal misunderstood and misapplied the High Court’s judgment in JCWI; the principal basis for the conclusion the PGN was unlawful was not, as the Tribunal stated repeatedly, that the PGN did not refer to the need to apply the overriding objective or principles of fairness. The PBN was unlawful because of how it said those principles should be applied in the context of asylum and human rights appeals;
4. Further and/or alternatively the Tribunal was wrong to conclude that there was no need for a judge assessing whether to dispense with an oral hearing to give reasoned consideration of the matters relevant to whether an oral hearing should have been held as a matter of fairness, as explained in R (West) v Parole Board [2005] 1 WLR 350, R (Osborn) v Parole Board [2014] AC 1115 and JCWI (§6-1-6.14) and wrong not to have made an assessment of that question for itself;
5. The Tribunal was also wrong to refuse to set aside the Error of Law decision on the basis of the concessions made by the Respondent that it should do so;
6. The second-tier appeals test is met because:
   1. The proper consequence of the unlawfulness of the PGN for the lawfulness of Rule 34 decisions taken before the PGN was declared unlawful and/or the question of whether and in what circumstances such decisions of the Tribunal should be set aside under Rule 43 for failure to hold an oral hearing constitutes an important point of principle or practice; and
   2. The need for clear guidance on the issues raised by this appeal from the Court of Appeal also constitutes a compelling reason to grant permission;

 The stayed rule 43 applications

We understand that the Upper Tribunal will shortly be working its way through the stayed applications. If your case or your client’s case was stayed pending EP (Albania) and you now receive a decision on your rule 43 application, we would like to hear from you.

Please get in touch – [email protected]

Thank you

Thanks to our counsel team – Charlotte Kilroy QC of Blackstone Chambers, Alasdair Mackenzie of Doughty Street Chambers and Naina Patel of Blackstone Chambers.