KM (Algeria) v the Secretary of State for the Home Department

The appellant, who in this judgment I will KM, appeals with permission granted by My Lord, McCombe LJ, from decisions made by the Upper Tribunal (Immigration and Asylum Chamber on 30 July 2014 and 23 February 2015.

On 30 July 2014 the Upper Tribunal dismissed KM’s appeal from the First-tier Tribunal’s determination promulgated on 18 February 2014. The UT’s decision was made at a hearing at which KM was neither represented nor present. The First-tier Tribunal had dismissed KM’s appeal, under the Immigration Rules and on Article 8 grounds, from the Secretary of State’s decision on 13 August 2013 to refuse his application for leave to remain and that he should be removed from the United Kingdom.

On 23 February 2015 the Upper Tribunal refused KM’s application for permission to appeal to the Court of Appeal. As will be apparent from what is set out later in this judgment, this determination has been recast during the course of this appeal as, in some respects, a refusal by the Upper Tribunal to review its previous determination of 30 July 2014.

At this hearing, KM is represented by Mr Khan, counsel and Mr Emezie, a solicitor advocate. The respondent is represented by Ms Walker.

KM is an Algerian national, now aged 36. He entered the United Kingdom illegally. His case has been that this occurred in 1998 and that he has remained living in the UK since then.

On 3 July 2012 KM submitted an application for leave to remain on the basis that he had lived in the UK for 14 years. The Secretary of State was not satisfied that he had been living continuously in the UK for 14 years and, accordingly, refused his application. KM’s family life and private life were also considered and neither was found to justify the grant of leave.

KM appealed on a number of grounds, including that the Secretary of State had failed to consider all the evidence submitted by him, and that the refusal of his application was incompatible with the European Convention on Human Rights and the Human Rights Act 1998.

KM was represented by solicitors in that appeal. Both parties were represented by counsel at the hearing, which took place on 28 January 2014. After hearing oral evidence, the judge found that KM had not provided sufficient credible evidence to show that he had been in the UK continuously since 1998. The evidence from two supporting witnesses was, “somewhat vague and lacking in detail”. Neither had been able to give any convincing reasons why they remembered that they had met KM in 1998. The judge had been left with the distinct impression that they did not know KM that well. They had given very brief details about him. She concluded that she could place very little weight on their evidence.

The judge also considered Article 8 separately from the Immigration Rules. She found that KM had established a private life in the UK, the Secretary of State having determined that he had been living in the UK since 2004. However, the refusal to grant him leave to remain was not, in the judge’s assessment, a disproportionate interference with that private life. KM had never had any right to remain in the UK and would in her view be able to re-establish himself in Algeria.

KM appealed from that decision. He was represented by the same solicitors. The grounds are short but comprehensive. I propose only to summarise them. It was contended that the tribunal judge’s factual determination was flawed. She had been wrong to reject the documentary evidence and the evidence from the two supporting witnesses. In respect of Article 8, it was submitted that the judge’s assessment had been inadequate.

Permission to appeal was refused by the First-tier Tribunal on 9 April 2014. Extensive reasons were given. The submission that the factual determination did not stand up to scrutiny was, in reality, merely disagreeing with the judge’s assessment. The judge had given clear, cogent and sufficient reasons for finding that KM had not established the required period of residence. As for the challenge to the Article 8 determination, the First-tier Tribunal judge had been entitled to find, for the clear and sufficient reasons she gave, that the Secretary of State’s decision was proportionate.

Permission to appeal was then sought from the Upper Tribunal. It was argued that the First-tier Tribunal’s decision was inadequately reasoned; that the judge should have accepted the evidence of the supporting witnesses; and that insufficient consideration had been given to Article 8.

The Upper Tribunal gave permission to appeal on 30 May 2014, principally on the basis that, arguably, the decision in respect of the evidence from the supporting witnesses was not adequately reasoned.

The appeal came on for hearing on 24 July 2014. KM was not present nor was he represented. The judge was satisfied that notice of the hearing had been sent to KM’s solicitors and to KM at the solicitors’ address. He also caused the solicitors to be telephoned. The clerk who telephoned was told that a fee earner would call back but this did not happen. After referring to these facts the judge said, “In these circumstances, I considered it appropriate to hear and determine the appeal in the absence of” KM.

After setting out some of the evidence, the judge concluded that the First-tier Tribunal judge’s findings were entirely open to her on the evidence. She had, in his view, considered all the evidence - holistically - and had given proper reasons for deciding that the required period of residence had not been established. She had found the friends’ evidence lacking in detail and vague and the judge considered that she had been entitled to conclude that she could place very little weight on it.

The other evidence included pay slips, HMRC documents and an employment contract which all contained the same typographical error in that they referred to the restaurant at which KM was said to have worked as Postofolio instead of Portfolio.

The Upper Tribunal judge decided that the evidence had been properly and sufficiently analysed by the First-tier Tribunal. Accordingly, he decided that no material error of law had occurred and he dismissed the appeal. This determination was not promulgated until 30 July 2014, during which time nothing was heard from KM’s representatives.

By letter dated 21 January 2015 KM’s solicitors wrote to the Upper Tribunal stating that they had never received notice of the appeal hearing from the Upper Tribunal leading to KM being unable to participate in that hearing. Three substantive grounds of appeal were advanced on behalf of KM.

First, that the judge had misdirected himself as to the correct approach under rule 38 of The Tribunal Procedure (Upper Tribunal Rules) 2008 (“the 2008 Rules”) when a party is absent. Secondly, that the decision of 30 July 2014 should have been set aside under rule 43 given that there was a good reason for KM’s absence. Thirdly, that, in the interests of justice and fairness, the judge should have adjourned the hearing. Not to have done so was a breach of Article 6 and was a procedural irregularity.

On 23 February 2015, the Upper Tribunal refused permission to appeal to this court. The judge repeated his conclusion that the First-tier Tribunal had made no error of law in its determination. He did not consider that his decision to determine the appeal in KM’s absence had been wrong or that the case raised any point of practice or principle.

Sullivan LJ refused the application for permission to appeal on paper. In his view there was no arguable error of law in the Upper Tribunal’s decision to proceed in the absence of KM. Notice had been given, and the fact of the telephone call had not been challenged. Further, this was not a case in which KM’s presence or representation was essential. The appeal could be determined by consideration of the First-tier Tribunal’s determination, because the sole issue was the adequacy of the reasons in respect of its finding relating to the two supporting witnesses. It was also noted that no application had been made on behalf of KM under rule 43.

At the renewed oral application on 10 February 2016, KM was represented by Mr Emezie. My Lord, McCombe LJ, was helpfully provided with further written submissions. Mr Emezie relied in particular on FP (Iran) v Secretary of State for the Home Department [2007] INLR 224. He submitted that there were two aspects to the proposed appeal, not one, as identified by Sullivan LJ. In addition to whether the First-tier Tribunal had given adequate reasons for its findings in respect of the evidence of the two witnesses, it was also being argued that those reasons did not stand up to scrutiny and disclosed an arguable error of law.

My Lord was persuaded to grant permission to appeal. I hope I accurately summarise his reasons for doing so in this way. He considered, first, that there was force in the submission that KM should not have to bear the consequences of his solicitors’ default and, secondly, that there was sufficient force in the submission that oral advocacy might have produced a successful outcome at the hearing of the appeal before the Upper Tribunal, to grant permission to appeal.

Before turning to the party’s submissions, I propose first to set out rules 38 and 43 of the 2008 Rules.

Rule 38 is headed “Hearings in a Party’s Absence”. It provides:

is satisfied that the party has been notified of the hearing or that reasonable steps have been taken to notify the party of the hearing; and

considers that it is in the interests of justice to proceed with the hearing.”

Rule 43 provides:

the Upper Tribunal considers that it is in the interests of justice to do so; and

one or more of the conditions in paragraph (2) are satisfied.”

At this hearing Mr Khan has advanced his client’s case succinctly but comprehensively. His submissions in respect of the three grounds of appeal, the first two of which overlap to a degree, can be summarised as follows.

(1) The Upper Tribunal judge erred in law by failing to address whether it was in the interests of justice to proceed with the hearing and, as a result, failed properly to apply the rules. This, he submits, is apparent from the fact that the judge does not give any or any sufficient reasons and does not weigh the relevant factors, which include those under the overriding objective, when determining where the balance of justice lay in this case.

In support of this submission Mr Khan has referred us to a number of authorities including in English v Emery Reimbold and Strick Ltd [2002] 1 WLR 2409, paragraphs 18 and 19; HM (Iraq) v Secretary of State for the Home Department [2011] EWCA Civ 1536, paragraphs 47 and 50; and R (Geller & Anor) v Secretary of State for the Home Department [2015] EWCA Civ 45, paragraph 31.

(2) In respect of the asserted procedural irregularity, Mr Khan made a number of points in support of this ground. (i) KM did not attend the hearing and was not represented because of his solicitors’ default. (ii) There is no rule that a party in a case involving a human rights claim is fixed with the default of his legal representatives. (iii) The underlying merits of the appeal were irrelevant, so that the question of whether KM’s or his representative’s attendance at the hearing would or might have made a difference is irrelevant. (iv) If the merits are relevant, the result would or might have been different. This was, Mr Khan submits, a reasons challenge because KM’s case was that inadequate reasons were given for the First-tier Tribunal’s factual determination. There was scope for KM or his legal representative to persuade the Upper Tribunal that the First-tier Tribunal’s decision was flawed and this might have prevailed.

In this context Mr Khan referred in particular to FP (Iran) , paragraphs 20, 43, 45, 63 and 80; R v Thames Magistrates’ Court [1974] 1WLR 1371, at pages 1375H to 1376A; Ex-parte Mehta [1975] 1 WLR 1087, at page 1091, letters B/C to F/G; Ex-parte Andrew Brett Cotton [1990] WL 753309; BR (Iran) v Secretary of State for the Home Department [2007] 1 WLR 2278, paragraph 18; and MM (unfairness, E&R) Sudan v Secretary of State for the Home Department [2014] UKUT 105 (IAC), paragraphs 14 and 25.

In summary he submits that it was a procedural irregularity to determine the appeal in KM’s absence.

(3) In respect of rule 43, Mr Khan submits that the Upper Tribunal should, of its own motion, have considered whether to set aside its July 2014 determination following receipt of the letter from KM solicitors of 21 January 2015. In his submission it fell into error in not doing so. Further, he submits that, if this had happened, the Upper Tribunal would have set the decision aside. There had been no previous adjournments. This was the first time there had been no attendance by or on behalf of KM. It was an important case because it concerned a human rights appeal.

Ms Walker on behalf of the respondent has equally argued her case succinctly but comprehensively.

(1) As to ground one, she submits that the Upper Tribunal judge clearly did decide that it was in the interests of justice to proceed with the hearing. The reasons for coming to that decision are, she submits, apparent or sufficiently apparent from the judgment of 30 July 2014 and from the reasons given for refusing permission to appeal on 23 February 2015. In her submission HM (Iraq) is a very different case. She relied on English v Emery Reimbold , in particular paragraph 19.

Ms Walker also referred to the following factor. This was an appeal from a First-tier Tribunal decision which was a merits determination after a full hearing. The appeal was limited in its scope; it was not a rehearing but a reasons challenge.

(2) On the issue of whether there had been a procedural irregularity, Ms Walker submits, again, that the context of this case is significant. It is, she submits, a very different case and very different circumstances from FP (Iran) and MM v Secretary of State . Both of those concerned, what could be described as, first instance decisions and as a result there had been no merits determination by a tribunal. She relies in particular on Al-Mehdawi v Secretary of State for the Home Department [1990] 1 AC 876.

(3) As to the set aside ground, Ms Walker submits that there was no reason for the Upper Tribunal, of its own motion, to consider whether to set aside its earlier decision. No application had been made for it to do so.

She made further submissions as to whether the failure by the tribunal, of its own motion, to review its earlier decision amounted or amounts to a decision giving rise to a right of appeal within section 13 of the Tribunals Courts and Enforcement Act 2007. She also made submissions as to the effect of section 10 of the 2007 Act combined with section 13.

Turning now to my determination. I propose to address each of the grounds in turn although, as I have said, there is significant overlap between grounds one and two.

The manner in which and the extent to which a tribunal is required to give reasons for its determination is an issue which has been considered on many occasions and expressed in a variety of ways. I propose only to quote from English v Emery Reimbold . Lord Phillips MR, as he then was, gave the judgment of the court; in paragraph 19 he said:

Applying that approach, I can understand why the judge reached his decision. In my view, it is apparent why he decided that it was in the interests of justice to proceed with the hearing. The appeal had been listed for determination. KM’s solicitors and KM, through his solicitors, had been notified of the hearing. KM was neither present nor represented but the respondent was represented. The judge and the court were ready to determine the appeal. The telephone call to KM solicitors had elicited no response. Putting it bluntly, in my view the administration of justice would not work if those circumstances were not sufficient to entitle a judge to decide to continue with a hearing. Further, this was an exercise of discretion with which this court is always slow to interfere.

This case is very different from HM (Iraq) which involved the determination of Country Guidance with only one side being represented. I would also add that, in my view, it was not necessary for the judge to refer specifically to the overriding objective. As has been said on many occasions, it can be assumed, unless the contrary is shown, that a judge will have the relevant principles in mind.

Accordingly, I reject the submission that the judge erred in law by failing to apply rule 38 because, in my view, he did apply rule 38 and gave sufficient reasons.

Mr Khan’s case in respect of procedural irregularity is, in essence, based on the submission that it was contrary to the interests of justice for the Upper Tribunal to determine the appeal in KM’s absence, and without giving him a further opportunity to attend by adjourning the hearing.

Having regard to the circumstances of this case and the conclusions I have reached on the merits of this appeal, I do not propose to embark on any extensive review of the authorities to which we have been referred. This is because I consider that context is particularly important when the court is determining what the interests of justice require in the individual case. Mr Khan can of course identify core common law and human rights principles, such as the right to a fair hearing and that justice must be seen to be done. He can also point to the relevance of the potential impact of the decision, such as in FP (Iran) . However, there is my view nothing in this case which demonstrates that the decision to determine KM’s appeal in his absence was contrary to the interests of justice.

KM had had a full hearing before the First-tier Tribunal. The appeal was a reasons challenge. Despite Mr Khan’s submissions at this hearing I consider that the nature and merits of the appeal being determined by the Upper Tribunal are relevant features. I do not regard it as being helpful to consider whether this might be described as an Al-Mehdawi type of case or an FP (Iran) type of case. As Lord Bridge said in Al-Mehdawi , at page 898 E/G, a party in a public law case cannot complain that he has been the victim of “procedural impropriety or that natural justice has been denied to him” if he has lost the opportunity to have his case heard through the default of his own advisors. It is also relevant to note that that was said in the context of what would now be a First-tier Tribunal hearing.

In the absence of any such principle, what is or is not required in the interests of justice will depend on the individual circumstances of the case, which can include the nature and merits of the appeal. As I have already noted, FP (Iran) did not concern an appeal, nor did any of the other cases relied on by Mr Khan. Simply expressed, I repeat, the judge’s decision to determine the appeal in KM’s absence did not amount to a procedural irregularity. He was entitled to decide, given in particular the nature and scope of the appeal, that it could properly be determined in KM’s absence.

Turning then to the third ground, which I can deal with very shortly. In my view, there was no reason for the Upper Tribunal of its own motion to consider whether to set aside its determination of the appeal. No application had been made for it to do so. It is also clear, from the reasons given by the judge for refusing permission to appeal, that he saw no reason to consider setting aside his earlier determination.

None of Mr Khan’s submissions have persuaded me that there was any obligation on the Upper Tribunal to undertake that exercise in this case. In those circumstances, and given the rather detailed nature of the submissions and their potentially broader implications, I do not propose to address the competing arguments dealing with the provisions of the 2007 Act.

For those reasons, if My Lord agrees, I would dismiss this appeal.