Ms AVB v Upper Tribunal (Immigration and Asylum Chamber)
| Jurisdiction | England & Wales |
| Judge | Mrs Justice Ellenbogen DBE |
| Judgment Date | 19 July 2021 |
| Neutral Citation | [2021] EWHC 2013 (Admin) |
| Court | Queen's Bench Division (Administrative Court) |
| Docket Number | Case No: CO/1907/2019 |
The Queen on the application of
[2021] EWHC 2013 (Admin)
THE HONOURABLE Mrs Justice Ellenbogen DBE
Case No: CO/1907/2019
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
Morgan Read (instructed by Bindmans) for the Claimants
The Defendant was not represented
The Interested Party was not represented
Hearing date: Friday 9 July 2021
APPROVED JUDGMENT
Introduction and material facts
This judgment follows the substantive hearing of the Claimants' claim for judicial review of a decision of the Upper Tribunal, promulgated on 7 March 2019. In circumstances described below, the Claimants seek to amend their claim form to add a further ground of review, and ‘object to’ part of an order which I made in these proceedings, served on 17 June 2021 (‘the 17 June Order’). Both matters were set out in a document settled by counsel for the Claimants, dated 28 June 2021, sent to the Court on 29 June 2021 (‘the 28 June Document’). I shall return to them later in this judgment.
The Claimants are mother and daughter who appealed from the refusal of their human rights claim, on 10 October 2017, by the Secretary of State for the Home Department. Their appeals came before the First Tier Tribunal (‘the FTT’) on 11 April 2018, when they were represented by Mr Read, who now appears before me. They were dismissed.
On 13 June 2018, the Claimants applied to the Upper Tribunal for permission to appeal from the decision of the FTT, following its earlier refusal by the latter. In section G of their respective applications for permission, each Claimant answered ‘no’ to the following pro forma questions:
a) If you are given permission to appeal by the Upper Tribunal, do you want the appeal to be dealt with at an oral hearing?
b) Do you want this application for permission (as opposed to the appeal itself) to be considered at an oral hearing?
Permission to appeal from the decision of the FTT was granted by the Upper Tribunal on 19 September 2018. As described at paragraph 8 of the 2018 Decision (defined below), ‘It was found to be arguable that the judge had provided insufficient reasons on the issues of the best interests of the second appellant and reasonableness of return as the facts were similar to those in MT and ET (Nigeria) [2018] UKUT 88 (IAC). Reference was also made to MA (Pakistan) [2016] EWCA Civ 705 — significant weight should be given to the fact that the appellant had been in the United Kingdom for over seven years.’ Notwithstanding the first answer provided by the Claimants at section G of their applications for permission to appeal, the appeal was heard by Upper Tribunal Judge Warr, at a hearing on 13 November 2018, who promulgated his reserved decision and reasons on 3 December 2018 (‘the 2018 Decision’).
Paragraph 2 of the 2018 Decision recorded:
‘ The appellants were unrepresented and did not make an appearance at the hearing. The clerk made enquiries and no messages had been received. Notice of the proceedings appeared to have been correctly served. There was no explanation for the non-attendance of the appellants. [The respondent's representative] had no updated information about the whereabouts of the appellants. In all the circumstances I was satisfied that it was appropriate to proceed with the hearing under Rule 38 and that it was in the interests of justice to do so.’
The appeal was dismissed, on the basis that the FTT had made no material flaw in law, such that its decision should stand. An anonymity direction was made, whereby the appellants are referred to, respectively, as Ms AVB and Miss ACB.
On 19 December 2018, the First Claimant filed an application to set aside the 2018 Decision under rule 43 of the Tribunal Procedure (Upper Tribunal) Rules 2008 (‘the Rules’), supported by a short witness statement, dated 18 December 2018. Three ‘grounds of appeal’ were advanced. In summary, those were:
a) apparent bias: it was said that the appellants had applied for the matter to be determined ‘on the papers’. Instead, it had been determined at a hearing, at which the respondent's representations had been taken into account and which had been unfair because the appellants had been unable to be heard. Although entirely possible that this had resulted from a mistake, the Tribunal had been unduly influenced by the respondent and given rise to an appearance of bias;
b) irrationality: the Tribunal's finding, at paragraph 3 of the 2018 Decision that, ‘… the appellant had in the case of a previous application submitted a false United States of America passport and birth certificate claiming that the second appellant was a citizen of the United States when in fact she was a Nigerian national’ had been based upon ‘the totally unsubstantiated claim of the respondent’. The Tribunal had undertaken no independent analysis of the relevant documents and, accordingly, its conclusion was one which no properly directed tribunal could have reached. [I interpose to observe that, in fact, paragraph 3 of the 2018 Decision was, on its face, an account of the SSHD's reasons for refusing the appellants' human rights claim, not the Upper Tribunal's independent assessment of the relevant documentation, or summary of the respondent's submission.]; and
c) unlawful conduct: the Tribunal's assessment of the impact on the child had been entangled with the conduct of her mother and no assessment had been made of how reasonable it would be for the second appellant to remain in the UK without her mother; ‘…in the absence of any clear process of balancing the proportionalities of the child's best interests against that of the public interest in removing those without leave to remain the Tribunal has failed to properly assess the best interests of the child and then properly balance those interests against any wrongdoing of the parent in light of the law as it stood at the time of decision.’
On 7 March 2019, Upper Tribunal Judge Kekic promulgated his decision and reasons (‘the 2019 Decision’). In a document headed ‘Application for Permission to Appeal to the Court of Appeal’, he dismissed the Claimants' application, for reasons which are set out, in full, below:
‘The appellants are mother and daughter. They did not attend the hearing before the Upper Tribunal which was then determined in their absence.
The grounds argue that it was unfair for the Tribunal to have proceeded without the appellants and to have heard arguments from the respondent because this gives the appearance of bias. It is also argued that the decision was irrational in that the Tribunal found that the appellant had presented a false US passport in a previous application. It is maintained that there was no evidence that the passport was false. Thirdly, it is argued that the best interests of the child appellant were not properly considered.
There is no arguable merit in the arguments made. In the absence of the appellants and their failure to provide any explanation for their non-appearance, it was open to the judge to proceed without them under Rule 38. The grounds fail to provide any explanation for their failure to attend. Contrary to what is argued, the best interests of the child were fully considered. As the first appellant has several convictions and prison sentences for offences involving fraud, including the use of false documentation, the judge was entitled to make the findings that he did.
The appeal does not raise any important point of principle or practice and there is no other compelling reason for it to be heard.’
The claim for judicial review
On 8 May 2019, the Claimants filed a claim form for judicial review of the 2019 Decision, by which they sought permission to challenge the Upper Tribunal's failure to consider their application for an order setting aside a decision which disposes of proceedings under Rule 43 of the Rules. The stated ground was that there was an error apparent on the face of the record, for two reasons:
a) The Claimants' application had been for an order setting aside a decision under Rule 43, whereas the tribunal had refused a purported application to appeal to the Court of Appeal, under rule 44 of the Rules, which had not been made;
b) The tribunal had stated that no explanation had been provided for the Claimants' non-attendance on 13 November 2018, yet it had been apparent from their application notices that the Claimants' rationale had been their election not to have an oral hearing.
The Claimants sought the quashing of the 2019 Decision; a decision in their favour (i.e. setting aside the 2018 Decision); remission of the matter to a differently constituted Upper Tribunal; an order mandating the Interested Party to provide to the Second Claimant such Home Office papers as are necessary to allow her to attend sixth form college; and costs.
Permission to seek judicial review of the 2019 Decision was refused, initially on paper and, again, on a renewed oral application. On 10 November 2020, the Court of Appeal granted permission to bring a claim for judicial review, for the reasons set out below:
‘I consider that there is an arguable point here. It is true, as Yip J said, that the UT has the right by r 48 UTR to treat a r43 application to set aside as if it were an application for permission to appeal. That might no doubt be a reasonable thing to do in many cases where there had been a procedural irregularity but the UT thought it had had no significant impact on the decision. But here the ground for the r 43 application was that the applicant had asked for – and so no doubt expected – her case to be dealt with on the papers. That arguably gave her a good...
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DJ (Pakistan) v The Secretary of State for the Home Department
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