Spahiu, R (on the application of) v The Secretary of State for the Home Department

This appeal was originally concerned with whether amendments to the statement of facts and grounds in an application for judicial review in the Upper Tribunal (“UT”), made after the grounds had been served and after the respondent has served an Acknowledgement of Service (“AoS”), require the permission of the UT. In a decision dated 18 April 2016, McCloskey J, the President, decided that Mr Spahiu was entitled to amend his grounds so as to challenge a decision made by the appellant after the proceedings had commenced, and that permission was not required for the amendments because they had been added “prior to the first judicial adjudication”. During the appeal hearing, however, a number of other issues became apparent, including a potentially important point about whether, after refusal by the UT on paper of an application to amend the statement of facts and grounds, an applicant is entitled to seek a review of that decision.

The hearing of this appeal took place against a backdrop of increasing concern about the need for appropriate procedural rigour in judicial review cases, expressed in a trio of recent authorities, namely: R (Talpada) v SSHD[2018] EWCA Civ 841, from paragraph 55 onwards; Hickey v The Secretary of State for Work and Pensions[2018] EWCA Civ 851, from paragraph 69 onwards; and Browne v The Parole Board of England & Wales[2018] EWCA Civ 2024. This case is another reminder that, even in proceedings where unnecessary formality is to be avoided, some formality (and the certainty which it brings) is required.

Mr Spahiu is a citizen of Albania, born on 5 May 1983. He entered the UK illegally around 2012. He was detained in July 2015, and was served with notices concerning his illegal entry and liability to detention and removal. On 23 July 2015 he was issued with directions for his removal to Albania, set for 1 August 2015.

Also on 23 July, Mr Spahiu made Article 8 and asylum claims. He commenced these judicial review proceedings in the UT on 29 July 2015, seeking to challenge the removal directions. In consequence of this challenge, the removal directions were cancelled.

On 19 August 2015, the Secretary of State (“the appellant”) made an offer to Mr Spahiu that the proceedings be withdrawn by consent (because the removal directions had been cancelled) and that his asylum and human rights claims would be considered and determined in 3 months. On the same day the appellant filed an AoS with the UT, which dealt with the reasons why the appellant said that the UT should refuse permission for judicial review.

The appellant’s offer was rejected and instead, on 28 August 2015, Mr Spahiu filed a reply to the summary grounds of defence. On 10 September 2015 the appellant wrote to the UT inviting them to refuse permission to apply for judicial review, on the basis that the claim had become academic.

On 17 September 2015, the appellant considered and determined Mr Spahiu’s asylum and human rights claim. The claims were refused and were certified as “clearly unfounded” under Section 94 of the Nationality, Immigration and Asylum Act 2002. One of the effects of the certificate is that an appeal against the decision could be brought to the First-Tier Tribunal (“FTT”) only from abroad.

On 6 October 2015, Mr Spahiu filed an application notice seeking permission to amend the grounds of judicial review. The amendments sought to challenge the decision of 17 September, contending that that decision was unlawful and that the appellant’s approach to Article 8 was legally flawed.

UT Judge Chalkley considered the application for permission and the application to amend together on the papers. In a decision dated 9 October 2015, he refused the application for permission to apply for judicial review, noting that the challenge to the removal directions was academic as those directions were duly cancelled by the appellant. In addition, he refused permission to amend the grounds of judicial review, noting that they represented “an entirely different challenge” which “will have to be the subject of a fresh application for judicial review”.

Mr Spahiu made an application to the UT seeking a review of both decisions. The status of the proposed amendments was obviously critical, because it was only the challenge made by way of the amendments that now served any purpose. A hearing took place in front of UT Judge Rintoul on 16 December 2015. A variety of arguments were raised, including a point taken by the appellant to the effect that it was not open to the UT to review the decision to refuse permission to amend, pursuant to the Tribunal Procedure (Upper Tribunal) Rules 2008 (“the Tribunal Rules”). It was said that this point was the subject of consideration in another case and eventually, the judge adjourned the applications until after the other case had been decided. He reserved this case to himself and said that he would send out case management directions in due course.

Thereafter, nothing more was heard until 18 March 2016 when, without warning, the parties received a written judgment (“the March judgment”) from the President of the UT. He decided that UT Judge Chalkley had been wrong to refuse permission to amend; indeed, he suggested that permission was not even required. The relevant parts of his reasoning were as follows:

Exactly a month later, on 18 April 2016, again without warning, the parties received a second judgment (“the April judgment”) from the President. This was in similar terms to the March judgment but contained some crucial differences. It was not explained what had prompted the changes. It is the April judgment which is reported at [2016] UKUT 230 (IAC). It has a Headnote, apparently prepared by the President, in these terms:

The relevant paragraphs now read:

One important change in paragraph 5 is that, instead of the earlier formulation of the test (that permission is unnecessary “at any time up to the judicial adjudication of whether permission to apply for judicial review should be granted”), the President said instead that amendments without permission could only be made prior to “the lodgement of the respondent’s Acknowledgement of Service”. However, this potentially important difference is not reflected in paragraph 12, which still applies the rubric “prior to the first judicial adjudication”. That is a point to which I revert in paragraphs 31-33 below.

The appellant complained that the decisions were wrong and had been made unfairly without any representations from either side. Following oral argument, by an order dated 26 July 2016, Judge Ockelton, the then Vice President of the Upper Tribunal, granted permission to appeal.

Although Mr Malik put his grounds of appeal in one sequence, it is convenient for the court to take the points that arise on appeal in a slightly different order. In my view, the issues which this court needs to decide are as follows:

Issue 1: What is the correct characterisation of the decision of the President? Was it a decision that the respondent did not need to make an application to amend (because the amendments were provided before the AoS or alternatively before the first judicial engagement), or was it a decision that, although an application was necessary, permission to amend would be granted?

Issue 2: To the extent that the decision was one that no application to amend was necessary, was it correct? What is the correct approach to amendments to the statement of grounds in a judicial review/UT claim: at what stage does it become necessary to obtain permission for such amendments?

Issue 3: To the extent that the decision was one to allow the amendments, was that decision valid? This raises 3 sub-issues, namely:

Whether the President had the jurisdiction to review the decision of UT Judge Chalkley;

Whether the President was entitled to conclude, on the merits, that permission to amend should be granted;

Whether his approach was procedurally unfair and amounted to a material breach of natural justice.

Mr Malik submitted that the decision was a ruling that an amendment application was unnecessary because the amendments had been provided prior to the AoS (or alternatively, prior to the first judicial engagement). In consequence, he said that the President applied the wrong test and/or if he had applied his own test he would have come to a different conclusion on the facts. Mr Southey QC, on the other hand, submitted that the decision should be characterised as one by which the President allowed Mr Spahiu’s application to amend, which he said was a decision which the President was entitled to make and cannot be said to be wrong.

At first blush, the President’s decision appears to say that no amendment application was necessary in this case because the amendment preceded the lodgement of the AoS, or the first judicial engagement. That is the thrust of the first paragraph of the President’s headnote; the second sentence of paragraph 5; and the fact that in paragraph 12 he said that, for the reasons set out in paragraph 5, UT Judge Chalkley’s order refusing permission to amend was “superfluous”.

But there are other parts of these same paragraphs which suggest that the President was considering and deciding afresh the application for permission to appeal. That impression is supported by the first sentence of paragraph 5 and from the passage in paragraph 12 where he says that “the applicant should be permitted to rely on the additional grounds…furthermore, no significant issue of delay or prejudices are identifiable. Finally, no further fee is payable”.

In the end, I have concluded that, although the wording is opaque, the President was making two separate decisions. First, he was saying that, in his view, an amendment application was unnecessary because of the early stage at which the amendments were provided. But secondly, he was going on to say that, if he was wrong about that (so that an amendment application was required), that application should be granted. It is therefore necessary for this court to deal with the appeal on the basis that the President reached two separate decisions. That has the further advantage of allowing this court to resolve the argument about when in principle permission to amend is required (and when it is not), and to address the appellant’s overriding concern about the President’s decision, which is the breadth and width of Headnote 1. Mr Malik indicated that it was this, above all else, to which the appellant objected.

In my view, the starting point is the CPR. Part 17.1 is in the following terms:

Rule 17.3 deals with amendments to statements of case with the permission of the court. There is extensive guidance as to the correct approach to amendments where permission is required, much of it summarised in the relevant section of the White Book 2018 at paragraphs 17.3.1 to 17.3.8.

Although the Tribunal Rules deal with the UT’s case management powers at Rule 5, there is nothing that specifically addresses when amendments can be made without permission. By contrast, one reading of the FTT Immigration and Asylum Chamber Rules 2014 suggests at Rule 19(7) that every amendment in the FTT requires permission, no matter how early in the process the amendment is formulated.

In judicial review proceedings in the UT, the claim starts with the service of the statement of facts and grounds (Tribunal Rule 28(4)(g)). That is then served (in an Immigration and Asylum case, in accordance with Tribunal Rule 28A(2)) and the respondent has a set period in which to serve an AoS (Tribunal Rule 29(1)). In judicial review claims, the AoS tends to include a detailed response to the statement of facts and grounds. Thereafter the application for permission will be considered by a judge, often on the papers.

The statement of facts and grounds is therefore broadly equivalent to the particulars of claim, because it is the document which sets out the detailed basis for the applicant’s challenge. By analogy with CPR r.17.1, an applicant seeking permission to bring judicial review proceedings in the UT would be entitled to amend his statement of facts and grounds without permission, provided that the amendments were made before that statement was served on the respondent. Conversely, once the statement of facts and grounds had been served on the respondent, r.17.1 would indicate that any amendments thereto would require the permission of the UT.

Is there any reason why this straightforward approach should not be applied to judicial review proceedings in the UT? In my view, the answer is No. Given the well-established CPR regime, I would have expected that, if a different approach was going to be taken by the Tribunal Rules, it would have been clearly spelt out. But no part of the Tribunal Rules says anything about amendments which do not require permission. On the face of it, therefore, I would conclude that the same procedure as set out in r.17.1 applies, at least by analogy, and that amendments to the statement of facts and grounds can be made without permission up to the date of their service, but not thereafter. In my view, there is no legal or practical basis for identifying a separate or different rule for judicial review proceedings in the UT.

I also consider that to be a sensible outcome. If the respondent has not yet received the statement of facts and grounds, he or she does not know what it says so, at least in the vast majority of cases, there is no harm in allowing the applicant a wide latitude to amend the statement before it is received by the respondent, the better to reflect the applicant’s real challenge. But once it has been received, and the respondent starts work on preparing his or her defence, it would create confusion, lead to delay and waste costs if an applicant was entitled then to serve further versions of the statement of facts and grounds as and when new thoughts (or new events) occurred.

On behalf of the respondent, Mr Southey QC was unable to point to any authority for the proposition that the approach in r.17.1 should not apply to the statement of facts and grounds in a judicial review claim in the UT. He was also unable to identify any principle of law which prevented such an approach. The only place where his skeleton argument touched on this point is at paragraph 13 where he submitted:

In my view, that passage could not be described as a principled explanation of how and why the approach in r.17.1 should not apply to the statement of facts and grounds, in just the same way as it applies to particulars of claim. Whilst unnecessary formality is to be avoided in public law claims, it is not unnecessary (but instead a fundamental right) that the respondent understands the claim that it has to meet when it provides its detailed response with the AoS. That can only happen if the grounds of challenge have been ‘frozen’ at the time of the service of proceedings, subject always to amendments which receive the subsequent permission of the court.

I note that the President advanced two different tests in the two different judgments. In the March judgment, he said that amendments without permission were permitted at any time prior to “the judicial adjudication of whether permission to apply for judicial review should be granted”. In the April judgment, he said that there was no need for a formal application for permission to amend “provided that this [the amendment] proceeds the lodgement of the respondent’s Acknowledgement of Service”. He set out no basis for either of these tests: he made no reference at all, in either judgment, to the CPR, or to the Tribunal Rules, or to any authority. On one view, his decision was contrary to his own judgment in SN v SSHD[2015] UKUT 00227 (IAC) which suggests at [35] that permission to amend “must be sought proactively and timeously in every case”.

In addition, it is not easy to say which test the President actually applied. Although he appeared to change his formulation of the test between the March and April judgments, it would appear that he continued to apply the March version when dealing with the validity of the application to amend in the April judgment. This can be seen in two ways.

First, although he said at paragraph 5 of the April judgment that a formal application was not required provided that the amendment proceeded the lodgement of the AoS, he failed to apply that test to the facts of this case. Mr Spahiu’s proposed amendments were provided after the AoS had been filed (see paragraph 5 above), yet the President still found that permission was not required. Thus, on a proper application of the President’s restated test, the conclusion ought to have been that permission to amend was required, because the AoS had been filed before the amendments had been formulated.

Secondly, paragraph 12 of the April judgment (set out at paragraph 13 above) said that the respondent should be permitted to rely on additional grounds because “they were added prior to the first judicial adjudication”. So they were: but that is not the test which the President himself had set out at paragraph 5 of the same judgment that would appear to be a reference to the test from the March judgment, which had apparently been superseded. It is noteworthy that it is the first and most open-ended version of the test which Mr Southey QC sought to support at paragraph 13 of his skeleton argument.

In my view, neither of the tests advanced by the President was correct. There is no stated basis for either of them. Although the test advanced in the April judgment was slightly more rigorous than the one in the March judgment, they both suffer from the same fundamental flaw: they give an applicant too much leeway to create confusion, by chopping and changing the basis of the judicial review claim, which would cause the respondent to run up unnecessary costs.

For the reasons set out above, to the extent that the President concluded that no amendment application was necessary in this case, I consider that he was wrong because he applied the wrong test(s). In judicial review proceedings, the statement of facts and grounds can be amended without permission prior to their service, but at any time thereafter, permission to amend is required. On that basis, therefore, Mr Spahiu required permission to amend.

To the extent that the President granted permission to amend, the appellant submits that his decision was invalid. There are three elements to that:

Did the President have the jurisdiction to review UT Judge Chalkley’s refusal of the amendment application?

If so, was he entitled to take a view of the merits of the application so as to grant permission to amend?

If so, should the court set aside the President’s order because his approach was procedurally unfair and amounted to a material breach of natural justice?

Mr Southey QC argued, principally by reference to Rules 5 and 6 of the Tribunal Rules, that there is a power to review any case management decision of the UT, even those which are properly characterised as a case management direction. Mr Malik said that the decision made by UT Judge Chalkley refusing permission to amend was a final decision, not a direction, which was not capable of being reviewed.

The power of the UT to review its own decisions is set out in Section 10 of the Tribunals, Courts and Enforcement Act 2007 (“the 2007 Act”) as follows:

It is necessary to set out some of the Tribunal Rules. Those dealing with case management are as follows:

Under the heading ‘Part 4 Judicial review proceedings in the Upper Tribunal’, there are rules concerned with the grant and refusal of applications for permission to bring judicial review proceedings. Certain of them were referred to by Mr Malik, including:

Part 7 of the Tribunal Rules is called ‘Correcting, setting aside, reviewing and appealing decisions of the Upper Tribunal’. That Part contains a number of lengthy rules: Rule 42, which is concerned with “clerical mistakes and accidental slips or omissions”; Rule 43, which is concerned with “setting aside a decision which disposes of proceedings”; Rule 44, which is concerned with applications for permission to appeal; and Rule 45, which is concerned with the UT’s consideration of applications for permission to appeal. Rule 46 is concerned with a review of a decision pursuant to Rule 45.

Mr Malik also drew our attention to two authorities. The first, Patel v The Secretary of State for the Home Department[2015] EWCA Civ 1175; [2016] INLR 289, was concerned with whether the UT had the power to reverse a decision, given orally, to grant permission to appeal to itself. The Court of Appeal concluded that the first decision (to grant permission) was an excluded decision within the meaning of Section 13 of the Act so it could not be the subject of a review. As a result, the UT judge had no jurisdiction to make the second ruling (the reversal).

Patel was considered more recently by the UT in Fawad Jan v The Secretary of State for the Home Department[2016] UKUT 336 (IAC). That was another case about permission to appeal and what constituted an excluded decision. The UT concluded:

Mr Malik advanced three arguments as to why, on the basis of the Tribunal Rules and these two authorities, the President had no jurisdiction to review the decision made on the papers by UT Judge Chalkley. First, he said that the decision to refuse the amendments was not a case management direction under Rule 5, but a case management decision, which did not bring with it a right of review under Rule 6(5). Secondly, he said that Rules 30(3) and 30(4) – which did suggest a right of review - did not apply to decisions of this kind. Thirdly, he said that, in accordance with Patel and Fawad Jan, the UT’s power to review was limited to the situations referred to in Rules 43 – 45 and 46 of the Tribunal Rules, which did not include case management decisions.

I reject Mr Malik’s first argument for six reasons.

First, there is no justification for distinguishing between directions and decisions in the way that Mr Malik attempted. Once made, whether it is called a case management direction or a case management decision, it becomes an order of the UT pursuant to Rule 5. As I see it, there is an unequivocal right to a review of that order, pursuant to Rule 6(5).

Secondly, any distinction between a case management decision and a case management direction of the sort urged by Mr Malik would be unnecessarily technical and impossible to operate in practice. Indeed, during the hearing, Mr Malik tried to draw various fine distinctions between, say, a direction under Rule 5(3)(i) regarding the preparation of bundles, and a decision on other, more significant case management matters, such as refusal of amendments. That approach became difficult because, as he accepted, there was no demarcation in the Rules between the directions and decisions.

Thirdly, I consider that a reading of Rules 5 and 6 which acknowledges the width of Rule 6(5) is consistent with s.10 of the 2007 Act. That provides a general power to review pursuant to s.10(1) and although, pursuant to s.10(3), the Tribunal Rules could have restricted the right to review so as to exclude some or all case management decisions, they do not do so. I consider that Mr Southey QC was right to say that, if it was intended to exclude some or all case management decisions/directions from the category of those capable of being reviewed under s.10, Rules 5 or 6 would have expressly said so.

In order to address a subsidiary point raised by Mr Malik, I should add that, in accordance with s.10(8), any right to review is not limitless. There will be one original decision, which is capable of being reviewed and affirmed or set aside on one occasion only.

Fourthly, it would be counter-intuitive to read Rules 5 and 6 as preventing a review of a substantial case management decision (a strike out, say) but permitting a review of a decision about the preparation of the bundles. No substantive justification for such a curious interpretation was provided.

Fifthly, it would be similarly curious – as Mr Southey QC pointed out – if an applicant could apply for a review when permission to bring judicial review proceedings has been refused on paper, but had no equivalent right to review an equally fatal decision from the applicant’s perspective (such as one to strike out or, as here, to refuse the amendments which raised the single live issue between the parties), merely because such a decision was a case management matter. The Rules would have to spell that out if that was the intention, and they do not do so.

Finally, I consider that this approach is also consistent with common sense. Many case management decisions in the UT are made on the papers, so the right of review is an important safeguard.

For these six reasons, I consider that Rule 6(5) provided the necessary jurisdiction to allow the President to review UT Judge Chalkley’s decision. I therefore deal briefly with Mr Malik’s other two arguments about the Rules simply out of completeness.

I consider that Mr Malik’s second argument, about Rules 30(3) and 30(4), is a red herring although, in fairness to him, Mr Spahiu’s requested review was originally made under these Rules. Of course, by the time of the hearing, Mr Southey QC was rightly relying, not on these Rules, but Rules 5 and 6. I agree that Rules 30(3) and (4) relate to substantive decisions on the merits, not case management decisions.

I also reject Mr Malik’s third argument. It seems to me that the decisions in Patel and Fawad Jan are concerned with completely different questions, namely applications for permission to appeal and the concept of excluded decisions. They were not concerned with case management matters or the operation of Rule 6(5).

For these reasons, therefore, I consider that there is a general power to review case management decisions in the UT because the statutory power to review in s.10 was not excluded by the Tribunal Rules and was instead expressly preserved by Rule 6(5). The President had the jurisdiction to review Judge Chalkley’s order refusing permission to amend.

There are two possible reasons why this court might set aside the President’s decision to allow the application to amend on its merits: if there was a procedural reason that meant that the amendments should not have been allowed, or if there was a reason of principle that should inevitably have led to the amendments being refused.

As to the procedural history, there can be no issue. The President said that “no significant issue of delay or prejudice is identifiable” if the amendments were allowed. Mr Malik did not suggest to the contrary. There is therefore no procedural reason to prevent the amendment of the statement of facts and grounds. Is there a reason of principle?

UT Judge Chalkley’s decision is set out at paragraph 9 above. He concluded that permission to amend should not be granted because the target of the original judicial review challenge had disappeared (because the removal directions were cancelled) and the amendments, which related solely to the subsequent decision, were a completely different challenge and required different proceedings.

Mr Malik supported that conclusion. He said that, if the amendments were allowed, the respondent would be using these judicial proceedings as a sort of “rolling review”, endeavouring now to capture claims arising out of an event – the decision of 17 September 2015 – which only occurred after the proceedings had commenced. He submitted that this court has repeatedly said that judicial review proceedings should not be used for the purposes of a rolling review: see (amongst others) R (Tesfay) & Ors v The Secretary of State for the Home Department [2016] EWCA Civ 415; [2016] 1 WLR 4853; and R (Ahmed) v The Secretary of State for the Home Department [2017] EWCA Civ 118.

Mr Southey QC sought to rely on other decisions where, on the particular facts of the case in question, the court had found it convenient to deal with a challenge to a subsequent decision in the existing proceedings. Those decisions include R v Secretary of State (ex parte Turgut) [2001] 1 All ER 719 and R (O) v Hammersmith and Fulham London Borough Council[2012] 1 WLR 1057.

I consider that the present approach of the courts to this issue is best summarised by Lloyd-Jones LJ (as he then was) in Tesfay at paragraph 78:

In short, there is no hard and fast rule. It will usually be better for all parties if judicial review proceedings are not treated as “rolling” or “evolving”, and it is generally simpler and more cost-effective for the reviewing court to avoid scrutinising post-decision material. But there will also be a need to maintain a certain procedural flexibility so as to do justice as between the parties.

In my view, this was a case in which the President was entitled to reach the view he did, and to adopt a measure of flexibility. The challenge to the removal directions was based on the respondent’s Article 8 claim. The challenge to the decision to reject his Article 8 claim (the subject of the amendments) was necessarily concerned with the very same claim. This is not a case about supplementary decisions and the like. The claim has always been founded on the same basis. So the President was entitled to conclude that, on the particular facts of this case, fresh proceedings were not necessary such that the application for permission to amend should be granted. Other judges may have reached a different conclusion, but there was no error of law.

I should add by way of completeness that, although Mr Southey QC said that the funding for legal representation may be adversely affected if the amendments were refused, I consider that it is a bad point for two reasons. First, although Regulation 5A of the Civil Legal Aid (Remuneration) Regulations 2013 provides that there is no right to payment if a fresh decision is taken, that does not apply if the earlier decision is withdrawn. Here the earlier decision (to set removal directions) was withdrawn. There is therefore no issue. Secondly, R (Bhatti) v Bury MBC[2013] EWHC 3093 (Admin), at [27], is authority for the proposition that matters such as funding cannot dictate the procedure that a court or tribunal should follow.

Although there were a number of aspects to Mr Malik’s submission that the procedure followed by the President was unfair, they boil down to two: his review was conducted on paper, and the result came out of the blue, at a time when the parties were waiting to hear back from UT Judge Rintoul.

As to the first complaint, although the Tribunal Rules do not require that any review be conducted by way of an oral hearing, I agree that, following the earlier hearing before UT Judge Rintoul, there may have been a reasonable expectation of a further oral hearing in this case.

As to the second complaint, I also agree with Mr Malik that the parties should have been told that the President was conducting a review in this case (particularly given that he apparently wanted to use it to give general guidance as to when amendments could be made without permission). The parties should have been told in advance of the preparation of the March (and April) judgments, so they could make the appropriate submissions. Mr Malik is also right to say that the President decided issues which had not previously been argued. For these reasons, I accept that there was a clear breach of natural justice.

But I do not consider that the breach was material. If there had been argument, whether oral or written, the President would have been told that some of the issues had already been debated before UT Judge Rintoul. But that would not ultimately have led anywhere, since that judge had not decided the principal point which had been argued before him (as to jurisdiction) and we have now ruled against the appellant on that point anyway.

Furthermore, although the President came to the wrong view as to when permission was required for amendments, that too has now been corrected. As to the merits of the application to amend, the arguments before this court have confirmed that he came to a view that he was entitled to reach.

Accordingly, any breach of natural justice (because the appellant was unable to make submissions prior to the March or April judgments being provided) was not material, and do not affect the validity of the President’s decision to allow the amendments.

For all those reasons, therefore, I consider that, insofar as the President’s April judgment decided that permission was not required for amendments made after the filing of the statement of facts and grounds, it was wrong. Permission is required for any amendments produced after service of the statement of facts and grounds.

Insofar as the President’s April judgment decided that the application for permission to amend should be granted, it should be affirmed. There was jurisdiction; the President was entitled to reach the view he did on the merits; and the breach of natural justice was not, in the end, material.

This matter must now be remitted to the UT for a substantive decision on the Article 8 claim. In this way, the matters raised in Mr Spahiu’s cross-appeal, which was made simply to preserve his position, will be addressed by the UT.

I agree.

I also agree.