DJ (Pakistan) v The Secretary of State for the Home Department
| Jurisdiction | England & Wales |
| Judge | Macur LJ,Dingemans LJ,Lewison LJ |
| Judgment Date | 29 July 2022 |
| Neutral Citation | [2022] EWCA Civ 1057 |
| Docket Number | Case No: CA-2020-001202 |
| Court | Court of Appeal (Civil Division) |
[2022] EWCA Civ 1057
Lord Justice Lewison
Lady Justice Macur
and
Lord Justice Dingemans
Case No: CA-2020-001202
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE UPPER TRIBUNAL
(IMMIGRATION AND ASYLUM CHAMBER)
UPPER TRIBUNAL JUDGE MACLEMAN
PA/01481/2017(P)
Royal Courts of Justice
Strand, London, WC2A 2LL
Charlotte Kilroy QC and Alasdair Henderson (instructed by Fadiga & Co Solicitors) for the Appellant
Rob Harland (instructed by Government Legal Department) for the Respondent
Hearing date: 12 July 2022
Approved Judgment
Introduction:
The primary issue in this appeal is one of jurisdiction, namely: can this Court entertain an appeal from a decision made pursuant to rule 43 of Tribunal Procedure (Upper Tribunal) Rules 2008 (“UTR”) by the Upper Tribunal (Asylum and Immigration Chamber) (“UT”)?
This case is subject to an anonymity order and the appellant will be referred to by the initials DJ.
Background:
Mr DJ is a Pakistani national of Kashmiri ethnicity. He entered the United Kingdom on 18 December 2011 on a student's visa. He was arrested and detained by the Home Office. He claimed asylum on 1 July 2016.
The Secretary of State for the Home Department (“SSHD”) refused Mr DJ's claim on credibility grounds; she did not accept that four documents on which he relied were genuine documents.
The First-tier Tribunal (“FtT”) refused Mr DJ's asylum appeal by a decision promulgated on 6 December 2019. Permission to appeal was granted. The appeal was due to be heard on 2 April 2020 but was adjourned following the first national lockdown due to the COVID-19 pandemic.
On 23 March 2020 Lane J, President of the UT, issued a Presidential Guidance Note (“PGN”) which contained guidance on determining ‘error of law’ appeals made from the FtT to the UT pursuant to section 12 of the Tribunal, Courts and Enforcement Act 2007 (“the TCEA”) without a hearing pursuant to rule 34 of the UTR.
Consequently, on 30 April 2020, UT Judge Mandalia gave notice that he considered it was appropriate for Mr DJ's appeal to be determined without a hearing and seeking the parties' views in accordance with UTR rule 34.
Mr DJ indicated he was content for the appeal to be dealt with on the papers in submissions filed on 12 May 2020. The SSHD filed submissions on 4 June 2020 which agreed that an oral hearing was not required, and for the first time contested the appeal.
By its determination on 24 August 2020 the UT dismissed the error of law appeal. Mr DJ's application to the UT for permission to appeal was refused on 27 October 2020. Mr DJ then made an application for permission to appeal to the Court of Appeal on 18 November 2020.
On 20 November 2020, the judgment in R (JCWI) v President Upper Tribunal (Immigration and Asylum) Chamber [2020] EWHC 3103 (Admin) was handed down. The judgment concluded that the PGN was materially in error on a matter of law in that it conveyed “an overall paper norm”, without adequate reference to paragraph 4 of the “ Pilot Practice Direction: Contingency Arrangements in the First Tier Tribunal and the Upper Tribunal” issued by the Senior President of the Tribunals on 19 March 2020, which referred to the necessity to bear in mind when considering disposing of an appeal without a hearing, “the overriding objective, the parties' ECHR rights and the Chamber's procedure rules about notice and consent”.
The President of UTIAC gave an undertaking to use reasonable endeavours to bring the judgment in JWCI to the attention of claimants, whose appeals had been considered without a hearing in which SSHD had succeeded. It was brought to Mr DJ's attention on 27 November 2020.
Mr DJ made an application under Rule 43 of the UTR to set aside UT Judge Macleman's decision, and for an oral hearing to be convened to consider the error of law appeal.
This application, along with 17 similar applications, was considered by the UT on three days in June 2021. Judgment was handed down on 2 September 2021. Mr DJ's application was refused: see EP (Albania) and ors (Rule 34 decisions; setting aside) [2021] UKUT 233 (IAT) at [149] – [150]. In Hussain v Secretary of State for the Home Department [2022] EWCA Civ 145 the Court of Appeal held that although the PGN had been held to be unlawful in R(JCWI) that did not mean that all determinations made after the PGN had been published had to be set aside. The question in each case was whether the determination had in fact been unfair. Mr DJ sought permission to amend his notice of appeal to include an appeal against the UT's decision in EP (Albania), in addition to those already aimed at the substantive decision of the FtT. On 17 March 2022, the single judge gave permission to appeal on the three original substantive grounds, and also granted the application to amend the Notice of Appeal to include grounds asserting that the UT (i) acted unlawfully in deciding A's asylum appeal without a hearing once it became clear that the SSHD was contesting the appeal, and that the UT was minded to dismiss it on new grounds, and, (ii) was wrong to treat Mr DJ's consent to a paper determination as conclusive at a point when the SSHD had not made any submissions in response to Mr DJ's asylum appeal.
On 31 May 2022, the SSHD sent open correspondence conceding that the determination of the FtT, and therefore the decision of the UT in August 2020, should be quashed, and Mr DJ's case should be remitted to the FtT to be determined afresh. However, she did not consent to the quashing or setting aside of any aspect of the UT's determination in EP (Albania). She has maintained this position.
Subsequently, on 10 June 2022 my Lord, Dingemans LJ, as supervising judge in charge of the public law list, directed that Mr DJ should file a supplementary skeleton on the question of whether the Court of Appeal has jurisdiction to set aside parts of the judgment in EP (Albania) in light of the fact that “[c]ertain decisions of the Upper Tribunal are “excluded decisions” which cannot be further appealed. The list of “excluded decisions” is set out in section 13(8) of the Tribunals, Courts and Enforcement Act 2007 (“the 2007 Act”).”
The outcome of this appeal has no practical consequences to the ostensible appellant, Mr DJ. As indicated in [14] above, the SSHD concedes that the case should be remitted to the FTT for rehearing de novo with no order as to costs of the rule 43 application. It would be inappropriate to seek to pursue an appeal to a conclusion merely to secure an advantage as to costs (see for example, R v Holderness BC ex p James Robert Developments Ltd (1993) 5 Admin L.R. 470 and R (Tshikangu) v Newham LBC [2001] EWHC Admin 92) and, if this was the only point of the appeal, then certainly when seen in the context of the disorderliness I refer to above I would, subject to my Lords, have refused to entertain this appeal as an inappropriate use of the Court's resources. However, the appeal acts as a vehicle to determine the point of principle of general importance, namely the finality of a UTR rule 43 determination, subject to public law considerations in judicial review, and we were told that there are other applications for permission to appeal adjourned behind the determination of this appeal.
The first question then for us to decide is whether this Court has jurisdiction to hear an appeal from a decision of the UT pursuant to UTR rule 43, refusing to set aside judgment. My answer to that question is that this Court does not have jurisdiction for the reasons I give below. However, regardless of that answer, I have nevertheless addressed the substantive merits of grounds 4 and 5, as they have now become; see [13] above.
Jurisdiction
Sections 13(1) and (2) of the TCEA confer a right of appeal to the Court of Appeal, or other relevant appellate court, on any point of law arising from a decision made by the UT “other than an excluded decision”, subject to permission to appeal being granted by the UT or, if refused by the UT, “the relevant appellate court”: see sections 13(4) and (5).
Section 13(8) defines what is an “excluded decision” for the purposes of section 13(1). It includes at section 13(8)(d), “a decision of the UT under section 10 of TCEA (i) to review, or not to review, an earlier decision of the tribunal, (ii) to take no action, or not to take any particular action, in the light of a review of an earlier decision of the tribunal, or (iii) to set aside an earlier decision of the tribunal.” On first reading, this appears pertinent to the issue we have to determine. However, there is no issue, and I am satisfied, that this type of section 10 review is governed by the provisions of rules 45 and 46 of the UTR and does not require our consideration.
Rather, the power to set aside pursuant to rule 43 clearly derives from section 22 and Schedule 5, paragraph 15 of the TCEA, namely:
“15 (2) Rules may make provision for the setting aside of a decision in the First-tier Tribunal or Upper Tribunal –
(a) where a document relating to the proceedings was not sent to, or was not received at an appropriate time by, a party to the proceedings or a party's representative,
(b) where a document relating to the proceedings was not sent to the First-tier Tribunal or Upper Tribunal at an appropriate time,
(c) where a party to the proceedings, or a party's representative, was not present at a hearing related to the proceedings, or
(d) where there has been any other procedural irregularity in the proceedings.”
Section 22 of TCEA provides for Tribunal Rules to govern practice and procedure in the FtT and UT, and to be made by the Tribunal Procedure Committee. Notably, pursuant to subsection 22(4), the power to make “Tribunal Procedure Rules” is to be...
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