Upper Tribunal (Immigration and asylum chamber), 2021-09-02, [2021] UKUT 233 (IAC) (EP (Albania) & Ors. (rule 34 decisions, setting aside))
| Jurisdiction | UK Non-devolved |
| Judge | MR JUSTICE SWIFT, UPPER TRIBUNAL JUDGE BLUNDELL |
| Status | Reported |
| Date | 02 September 2021 |
| Published date | 15 September 2021 |
| Hearing Date | 29 June 2021 |
| Court | Upper Tribunal (Immigration and Asylum Chamber) |
| Subject Matter | rule 34 decisions, setting aside |
| Appeal Number | [2021] UKUT 233 (IAC) |
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Upper Tribunal (Immigration and Asylum Chamber) |
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EP (Albania) & Ors (rule 34 decisions; setting aside) [2021] UKUT 00233 (IAC) |
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THE IMMIGRATION ACTS
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Heard at Field House |
Decision & Reasons Promulgated |
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On 10-11 June and 29 June 2021 |
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Before
MR JUSTICE SWIFT
UPPER TRIBUNAL JUDGE BLUNDELL
Between
(1) EP (albania)
(2) mohammed karim chowdhury
(3) FMR (iraq)
(4) iq (palestine)
(5) cee (nigeria)
(6) sr (jamaica)
(7) TO & Bo (nigeria)
(8) gs (india)
(9) olajide james olatunde
(10) ramanathan annes
(11) golam kibrea
(12) RF (ghana)
(13) RSS (iraq)
(14) wajid hussain
(15) morenike tolulope onayemi
(16) SS, As & SS (iran)
(17) danyal jannat
(18) MB (eritrea)
Applicants
and
SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent
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The Upper Tribunal considered applications under rule 43 made consequent on the judgment in R (JCWI) v President of UT (IAC) [2020] EWHC 3103 (Admin) (“the JCWI judgment”) which had concluded that guidance set out in a Presidential Guidance Note dated 23 March 2020 on the determination of error of law appeals without a hearing was unlawful.
2. A rule 43 application can be made notwithstanding that an appeal has been retained for remaking in the Upper Tribunal but has not yet been remade. The fact that an application for permission to appeal has been made and/or determined, whether by the Upper Tribunal or the Court of Appeal does not give rise to any jurisdictional bar to a rule 43 application.
3. Subject to any matters arising from the circumstances of a particular case, an Upper Tribunal Judge may determine an application under rule 43 to set aside her own decision without offending the rule against apparent bias.
4. The Upper Tribunal rejected the submission that the consequence of the JCWI judgment was that every rule 34 decision to proceed without a hearing taken following the issue of the Presidential 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 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 is whether the decision that it would be fair to determine the appeal in issue without a hearing was wrong in law.
5. The Upper Tribunal gave guidance on matters likely to be relevant or irrelevant to the decision on any rule 43 application made consequent on the JCWI judgment.
6. Where a procedural irregularity is established, it is necessary, pursuant to rule 43, to consider whether the interests of justice require the decision to be set aside. In cases such as the present ones where the conclusion is that the rule 34 decision rested on an error of law, the interests of justice will require that the error of law decision be set aside save where it is beyond argument that the outcome would be the same if the error of law appeal were to be reheard.
Representation:
For the Applicants:
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Lawrence Youssefian, instructed by Prime Solicitors
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Lawrence Youssefian, instructed by Hubers Law
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Rory O’Ryan, instructed by Barnes, Harrild & Dyer Solicitors
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Tassadat Hussain, instructed by Halliday Reeves Solicitors
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Chowdhury Sultan, instructed by Quintessence Solicitors
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Emma Rutherford, instructed by TRP Solicitors
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Rajiv Sharva, instructed by A Seelhoff Solicitors
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Emma Rutherford, instructed by Cartwright King Solicitors
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Pierre Georget, instructed by Perera & Co Solicitors
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Frances Allen, instructed by Paul John & Co Solicitors
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Chowdhury Sultan, instructed by Wildan Legal Solicitors
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Charlotte Kilroy QC and Alasdair Mackenzie, instructed by the Joint Council for the Welfare of Immigrants
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Amarjit Seehra, instructed by Barnes, Harrild & Dyer Solicitors
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Glen Hodgetts, instructed by Clyde Solicitors (written submissions only)
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Charlotte Kilroy QC and Alasdair Mackenzie, instructed by the Joint Council for the Welfare of Immigrants
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Lawrence Youssefian, instructed by Simman Solicitors
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Alasdair Henderson, instructed by Fadiga & Co Solicitors
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Tassadat Hussain, instructed by Fountain Solicitors (Walsall)
For the Respondent: Peter Deller, Senior Presenting Officer
DECISION AND REASONS
A. Introduction
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This is the decision of both members of the Tribunal. On 20 November 2020 Mr Justice Fordham handed down his judgment in JCWI v President Upper Tribunal (Immigration and Asylum Chamber) [2020] EWHC 3103 (Admin) ([2021] PTSR 800, “the JCWI case”). The judgment concerned a challenge to the legality of a Presidential Guidance Note dated 23 March 2020 (“the Guidance Note”) 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 (the 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: on 16 March 2020 the Secretary of State for Health and Social Care had stated in the House of Commons that all unnecessary social contact should cease; on 23 March 2020 the Prime Minister had made a public address instructing 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; on 26 March 2020 the Health Protection (Coronavirus, Restrictions) England Regulations 2020 came into force – the Regulations that gave legal force to the Prime Minister’s “stay at home” instruction.
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Paragraph 4 of the Practice Direction stated:
“Where a Chamber’s procedure rules allow decisions to be made without a hearing, decisions should usually be made in this way, provided this is in accordance with the overriding objective, the parties’ ECHR rights and the Chamber’s procedure rules about notice and consent.”
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The Guidance Note was issued “pursuant to the Practice Direction” and was intended to remain in force only so long as the Practice Direction: see paragraph 2. It set out a narrative that explained how appeals to UTIAC from the First-tier Tribunal (Immigration and Asylum Chamber), 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 (“the Upper Tribunal Rules”). By section 12 of the 2007 Act an appeal lies from the First-tier Tribunal to the Upper Tribunal but only if the decision of the First-tier Tribunal was wrong in law; these appeals are commonly referred to as “error of law” hearings or appeals. If the error of law appeal succeeds, the Upper Tribunal may then either send the matter back to the First-tier Tribunal to be decided again (“remitted hearing”) or retain the matter and re-make the original decision itself (“retained hearing”). The Guidance Note said very little about how remitted or retained hearings should be conducted, and nothing that is material for our purposes.
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The challenge to the Guidance Note before Fordham J focused on paragraphs 9 to 17 of the Note. (The JCWI case as originally pleaded, also included a challenge to the Practice Direction, but that challenge was dismissed at the permission stage.) Fordham J concluded that paragraphs 9 – 17 of the Guidance Note were unlawful. This conclusion rested on his application of the principle referred to in R(Letts) v Lord Chancellor [2015] 1 WLR 4497. He concluded that the content of the Guidance Note was materially in error on a matter of law in that it conveyed what he termed 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 – i.e., the references to the overriding objective (rule 2 of the Upper Tribunal Rules) and fair hearing rights arising at common law or under the ECHR.
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The Order made by Fordham J consequent on his judgment in JCWI, declared that paragraphs 9 - 17 of the Guidance Note were unlawful1. The Order also recorded an undertaking given by the President to use reasonable endeavours to bring the judgment to the attention of claimants in cases...
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