Upper Tribunal (Immigration and asylum chamber), 2023-10-19, UI-2022-005459 & UI-2022-002505
| Appeal Number | UI-2022-005459 & UI-2022-002505 |
| Hearing Date | 16 May 2023 |
| Date | 19 October 2023 |
| Published date | 03 November 2023 |
| Status | Unreported |
| Court | Upper Tribunal (Immigration and Asylum Chamber) |
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Case Nos: UI-2022-005459 UI-2022-002505 |
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First-tier Tribunal No: PA/50787/2021 |
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IN THE UPPER TRIBUNAL IMMIGRATION AND ASYLUM CHAMBER |
Case Nos: UI-2022-005459 UI-2022-002505 |
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First-tier Tribunal No: PA/50787/2021 IA/04111/2021 |
THE IMMIGRATION ACTS
Decision & Reasons Issued:
On the 19 October 2023
Before
UPPER TRIBUNAL JUDGE McWILLIAM
UPPER TRIBUNAL JUDGE STEPHEN SMITH
Between
AA (Bangladesh)
(ANONYMITY DIRECTION MADE)
Appellant
and
Secretary of State for the Home Department
Respondent
Representation:
For the Appellant: Mr P. Jorro, Counsel instructed by Lawmatic Solicitors
For the Respondent: Mr E. Terrell, Senior Home Office Presenting Officer
Heard at Field House on 16 May 2023
Order Regarding Anonymity
Pursuant to rule 14 of the Tribunal Procedure (Upper Tribunal) Rules 2008, the appellant is granted anonymity.
No-one shall publish or reveal any information, including the name or address of the appellant, likely to lead members of the public to identify the appellant. Failure to comply with this order could amount to a contempt of court.
DECISION AND REASONS
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By a decision promulgated on 16 May 2022, First-tier Tribunal Judge Cary (“the judge”) dismissed an appeal brought by the appellant, a citizen of Bangladesh born in 1969, against a decision of the Secretary of State dated 12 February 2021 to refuse his asylum and humanitarian protection claim.
Procedural history
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The appellant applied to the First-tier Tribunal for permission to appeal against the decision of the First-tier Tribunal. The application was refused. He renewed the application to the Upper Tribunal.
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By a decision dated 1 November 2022, served on the parties on 9 November 2022, Upper Tribunal Judge Kebede refused the appellant’s application for permission to appeal on all grounds.
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An administrative error resulted in the appellant’s renewed application for permission to appeal being allocated to Judge Keith, with no reference to Judge Kebede’s earlier refusal of permission to appeal, which had already been served on the parties. Unaware of the previous refusal of permission to appeal, Judge Keith refused permission to appeal on grounds one to three, while granting permission to appeal on ground four alone. Judge Keith’s limited grant of permission to appeal was dated 30 November 2022 and was served on the parties on 20 January 2022.
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On 7 February 2023, the Secretary of State submitted a rule 24 notice resisting the appeal for which permission was granted by Judge Keith.
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We are grateful to Mr Jorro for drawing the conflict between the two permission to appeal decisions to the Upper Tribunal’s attention in his skeleton argument dated 15 March 2023. On 20 March 2023, Upper Tribunal Judge O’Callaghan gave directions for the Secretary of State to serve an additional rule 24 notice, addressing the procedural implications of the two permission to appeal decisions. The Secretary of State submitted a supplementary rule 24 notice dated 15 May 2023.
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It was against that background that the matter was listed before us on 16 May 2023. We heard argument on both the preliminary procedural issue identified above and the substantive issues in the case.
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We record our gratitude to Mr Terrell and Mr Jorro for the high quality of their written and oral submissions, on both the procedural and substantive issues.
Summary of conclusions
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For the reasons set out below, we have reached the following conclusions:
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The decisions of Judge Kebede and Judge Keith are decisions of the Upper Tribunal and remain in force until set aside;
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Judge Kebede’s decision to refuse permission to appeal was not infected by any procedural irregularity and there is no basis to set it aside;
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Judge Keith’s decision was tainted by procedural irregularity, through no fault of the judge. It was taken after Judge Kebede’s decision disposing of proceedings in circumstances where Judge Keith was plainly unaware of the earlier decision;
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There is no power under the Tribunal Procedure (Upper Tribunal) Rules 2008 to set aside or review Judge Keith’s decision; the criteria for a “review” are not satisfied, and it was not a decision disposing of proceedings for the purposes of rule 43(1) of the rules;
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The Upper Tribunal enjoys the power to set aside Judge Keith’s decision pursuant to section 25 of the Tribunals, Courts and Enforcement Act 2007 (“the 2007 Act”), on the basis that the High Court would enjoy the power to do so, either pursuant to part 3.1(7) of the Civil Procedure Rules (power to make an order includes power to revoke an order), or the High Court’s inherent jurisdiction to set aside an order infected by a procedural irregularity arising from a mistake of fact. We exercise that power, with the consequence that the appellant does not enjoy permission to appeal against the decision of the First-tier Tribunal;
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Had the appellant enjoyed permission to appeal, we would have (i) refused the appellant’s application to rely on grounds one to three, and (ii) dismissed the appeal on all four grounds in any event;
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Although the appeal of the appellant has been dismissed, we consider that it is appropriate to make an order for anonymity, lest the appellant be exposed to a risk he currently does not face, upon his return to Bangladesh.
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The procedural issue
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It was common ground that there were two valid decisions of the Upper Tribunal, both of which would remain in force until one or both were set aside (as to which, see R (oao Majera) v Secretary of State for the Home Department [2021] UKSC 46 at para. 56, and by analogy, PAA (FtT: Oral decision - written reasons) Iraq [2019] UKUT 13 (IAC), at para. 7, headnote para. 3).
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The question then arises as to which, if either, decision should be set aside.
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In relation to Judge Kebede’s decision, it was a decision which disposed of proceedings in the Upper Tribunal. In principle, it is of a class of decision that could be set aside under rule 43(1) of the Tribunal Procedure (Upper Tribunal) Rules 2008. Rule 43(1) provides:
“43.— Setting aside a decision which disposes of proceedings
(1) The Upper Tribunal may set aside a decision which disposes of proceedings, or part of such a decision, and re-make the decision or the relevant part of it, if—
(a) the Upper Tribunal considers that it is in the interests of justice to do so; and
(b) one or more of the conditions in paragraph (2) are satisfied.
(2) The conditions are—
(a) a document relating to the proceedings was not sent to, or was not received at an appropriate time by, a party or a party's representative;
(b) a document relating to the proceedings was not sent to the Upper Tribunal at an appropriate time;
(c) a party, or a party's representative, was not present at a hearing related to the proceedings; or
(d) there has been some other procedural irregularity in the proceedings.”
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However, none of the rule 43(2) criteria are met, and so the rule 43 power is not engaged in the circumstances of these proceedings in relation to the Kebede decision. Judge Kebede’s decision was, if we may respectfully observe, appropriately taken, in circumstances where there was (and could not be) any suggestion of any procedural irregularity. The procedural irregularity occurred after her decision had already disposed of the proceedings and related wholly to the circumstances in which the application, that had already been refused, was placed before Judge Keith.
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Mr Jorro submitted that the effect of Judge Keith’s decision was to set aside Judge Kebede’s decision. We reject that submission. The circumstances in which a decision disposing of proceedings may be set aside are prescribed by rule 43. Those criteria were plainly not met. We find that Judge Keith’s decision could not have the effect of setting aside a decision of which he was unaware, in circumstances where, first, the rules of procedure would not have permitted the decision to be set aside, and, secondly, there was no basis to do so in any event. Certainly, Judge Keith did not expressly seek to set aside Judge Kebede’s decision. There is no authority to support any doctrine of implied set aside.
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In the alternative, Mr Jorro applied for us to set aside Judge Kebede’s decision, on the basis that a procedural irregularity occurred by virtue of there being two conflicting decisions of judges of the Upper Tribunal on the appellant’s application for permission to appeal. That state of affairs, he submitted, was itself a procedural irregularity, and merits the Upper Tribunal utilising the jurisdiction it enjoys pursuant to section 25 of the 2007 Act.
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Section 25 of the 2007 Act provides, where relevant:
“25 Supplementary powers of Upper Tribunal
(1) In relation to the matters mentioned in subsection (2), the Upper Tribunal–
(a) has, in England and Wales or in Northern Ireland, the same powers, rights, privileges and authority as the High Court, and
(b) has, in Scotland, the same powers, rights, privileges and authority as the...
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