EP (Albania) and Others (Rule 34 Decisions; Setting Aside)
| Jurisdiction | UK Non-devolved |
| Judge | Blundell,Swift J |
| Judgment Date | 02 September 2021 |
| Neutral Citation | [2021] UKUT 233 (IAC) |
| Court | Upper Tribunal (Immigration and Asylum Chamber) |
[2021] UKUT 233 (IAC)
Swift J and Blundell UTJ
UPPER TRIBUNAL (IMMIGRATION AND ASYLUM CHAMBER)
Procedure and process — procedure rules — rule 34 of the Upper Tribunal Rules — decision with or without a hearing — rule 43 of the Upper Tribunal Rules — setting aside a decision — Presidential Guidance Note — JCWI v President of the Upper Tribunal (Immigration and Asylum Chamber)[2020] EWHC 3103 (Admin) applied
On 23 March 2020, a Presidential Guidance Note (“the Guidance Note”) was issued by Mr Justice Lane, President of the Upper Tribunal Immigration and Asylum Chamber (“UTIAC”). The Guidance Note took its lead from a Practice Direction issued by Sir Ernest Ryder, then Senior President of Tribunals, on 19 March 2020, Pilot Practice Direction: Contingency Arrangements in the First-tier Tribunal and the Upper Tribunal, (“the Practice Direction”). Both the Practice Direction and the Guidance Note were issued in the face of the first wave of the COVID-19 pandemic in response to which the United Kingdom government instructed the public to stay at home. On 25 March 2020, section 55 of the Coronavirus Act 2020 came into force making provision for court and tribunal hearings to be conducted remotely by video.
The Practice Direction stated in paragraph 4 that where a Chamber's procedure rules allowed decisions to be made without a hearing, decisions should usually be made in that way, provided it was in accordance with the overriding objective, the parties' ECHR rights and the Chamber's procedure rules about notice and consent. The Guidance Note was issued “pursuant to the Practice Direction”. It set out a narrative that explained how appeals to UTIAC from the First-tier Tribunal, brought pursuant to section 12 of the Tribunals, Courts and Enforcement Act 2007 (“the 2007 Act”) could be decided without a hearing, using the power at rule 34 of the Tribunal Procedure (Upper Tribunal) Rules 2008 (“the Upper Tribunal Rules”).
On 20 November 2020, Fordham J handed down his judgment in JCWI v President of the Upper Tribunal (Immigration and Asylum Chamber)[2020] EWHC 3103 (Admin) in which he concluded that paragraphs 9 – 17 of the Guidance Note were unlawful, applying the principle referred to in R (on the application of Letts) v Lord Chancellor[2015] EWHC 402 (Admin). He concluded that the content of the Guidance Note was materially in error on a matter of law in that it conveyed an “overall paper norm” meaning that it promoted the use of no-hearing determinations as the usual or general way in which error of law appeals should be decided without reference to the provisos at paragraph 4 of the Practice Direction.
Following publication of the judgment in the JCWI case, the Upper Tribunal (“UT”) contacted some 285 claimants to bring Fordham J's judgment to their attention. Some 80 applications under rule 43 of the Upper Tribunal Rules were received by UTIAC from parties who had lost appeals that were determined without a hearing. The instant judgment considered 18 such applications with the intention both of determining each rule 43 application and deciding various issues common to those applications and which were likely to inform the outcome in other rule 43 applications which had been stayed. Each of the rule 43 applications sought to set aside the UT's substantive decision on the error of law appeal on the basis that that decision was reached by reason of a procedural irregularity, namely, the decision under rule 34 to determine the appeal on consideration of written representations alone and without a hearing.
Held, allowing the applications in Chowdhury and RSS (Iraq) and refusing the remaining applications:
(1) The UT had power to set aside its own decision regardless of the stage the statutory appeal had reached. That included circumstances where the UT had retained determination of the merits of the immigration proceedings to itself but had not yet completed the retained hearing. A rule 43 application could be made in respect of a decision which disposed of part of the proceedings: Terzaghi v Secretary of State for the Home Department[2019] EWCA Civ 2017 distinguished. Moreover, the fact that an application for permission to appeal had been made and/or determined, whether by the UT or the Court of Appeal, did not give rise to any jurisdictional bar to a rule 43 application (paras 14 – 31).
(2) The consequence of the JCWI judgment was not that every rule 34 decision to proceed without a hearing taken following the issue of the Guidance Note amounted to a procedural irregularity. A decision made under rule 34 to determine an error of law appeal without a hearing would amount to a procedural irregularity for the purposes of rule 43(2)(d) if the rule 34 decision rested on an error of law. Whether or not a relevant procedural irregularity occurred must depend on scrutiny of each rule 34 decision, and the reasons given for it. The question was whether the decision that it would be fair to determine the appeal in issue without a hearing was wrong in law: SH (Afghanistan) v Secretary of State for the Home Department[2011] EWCA Civ 1284 applied. Where a procedural irregularity was established, it was necessary, pursuant to rule 43(1)(a), to consider whether the interests of justice required the decision to be set aside. Any Tribunal that embarked on a no-hearing determination would need to keep under review whether the directions it had given for the purposes of reaching its determination on the appeal continued to work fairly or whether events required additional steps to be taken to ensure the fairness of the no-hearing determination. The submission that there were points that could have been made had there been an oral hearing, which either might or would have meant that the error of law appeal would have been decided differently, was unlikely to succeed. Simply being able, after the event, to point to a matter that might have been said, did not of itself point to procedural irregularity for the purposes of a rule 43 application (paras 32 – 38).
(3) Although Chamber Presidents had the power to issue guidance under paragraph 7 of Schedule 4 to the 2007 Act, Tribunal judges were not required to follow the guidance or even have regard to it. In practice, guidance issued by a Chamber President would come to the attention of the judges in that chamber, and no doubt would be carefully considered. But that practice was grounded only in judicial comity. It did not support the conclusion that the existence of the Guidance Note, per se, required the conclusion that rule 34 decisions were taken unlawfully. Instead, each decision must be assessed on its own terms. No particular significance attached in the abstract either to the presence or the absence of reference to the Guidance Note in a rule 34 decision. The submission that a rule 34 decision would be unlawful unless the reasons for it expressly disavowed the contents of the Guidance Note was also rejected. Given the status of the Guidance Note and given the principle of judicial independence, the suggestion that disavowal might be required was artificial (paras 45 – 53).
(4) Paragraphs 11 – 13 of the Guidance Note set out steps that could be taken to decide whether to determine an error of law appeal without a hearing. If the judge reached a provisional view that a no-hearing determination might be appropriate, the judge should give directions to ensure that any decision to determine an error of law appeal without a hearing met the requirement at rule 34(2) to have regard to the views of the parties. Directions to that effect were not proof that the relevant judge had applied the Guidance Note including the part of it described by Fordham J as the “overall paper norm” and thereby erred in law when applying rule 34. No problem arose from the practice of making and communicating the provisional view on the application of rule 34. Furthermore, no significance attached to the fact that the directions provided that the submissions on the error of law appeal should be filed at the same time as any submission in response to the provisional decision on the use of rule 34. The directions assumed that, before taking the final rule 34 decision, the Tribunal judge should have the benefit of considering the submissions on the error of law appeal together with representations on the provisional rule 34 decision. There was no reason not to take the words “a provisional view” at face value; any suspicion that the provisional view was in fact the final decision would be entirely without foundation. Finally, if the suggested timetable was not achievable in a particular case, for whatever reason, it was open to any party to apply to vary the directions and explain the reasons why variation was necessary (paras 54 – 61).
(5) Where parties consented to a no-hearing determination, that would ordinarily provide strong support for the conclusion that the decision to proceed without a hearing was lawful. As of March 2020, parties to any error of law appeal faced, in consequence of the pandemic, a choice between an earlier no-hearing determination of that appeal, or a later, delayed hearing, either remote or in person. The submission that no genuine consent could be given when the Guidance Note so clearly pointed in favour of no-hearing determinations was rejected. All applicants in the instant case were legally represented at the relevant time. Those legal representatives must have realised, or ought to have realised, that the directions issued by the Tribunal genuinely sought their views and the views of their clients on whether there should be a no-hearing determination. A failure to file submissions in response to a direction regarding rule 34 should not be regarded as irrelevant (paras 62 – 64).
(6) The scenario in which the same Tribunal judge both formed the provisional view on the application of rule 34 and then took the final decision on...
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