EP (Albania) & Ors v Secretary of State for the Home Department

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.

Paragraph 4 of the Practice Direction stated:

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.

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.

The Order made by Fordham J consequent on his judgment in JCWI , declared that paragraphs 9 - 17 of the Guidance Note were unlawful (Footnote: ¹) . 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 that had been determined without a hearing and in which the Home Secretary had succeeded. That undertaking is, at least in part, the cause of the hearing before us. Following publication of the judgment in the JCWI case, the Upper Tribunal contacted some 285 claimants to bring Fordham J’s judgment to their attention. Some 80 applications under rule 43 of the Upper Tribunal Rules have been received by UTIAC from parties who lost appeals that were determined without a hearing. Whilst such applications would ordinarily be considered on the papers, we have heard 18 such applications with the intention both of determining each rule 43 application and deciding various issues common to these applications and which are likely to inform the outcome in other rule 43 applications which, for now, have been stayed.

The applications were initially due to be heard on 10-11 June 2021, at which time social distancing and capacity constraints were in operation in hearing rooms at Field House. For that reason, half of the cases were listed to be heard on 10 June 2021 with the other half listed to be heard on 11 June 2021. The intention was that general submissions on the law would be made by Ms Kilroy QC on 10 June 2021 and that each of the representatives would then have an opportunity to make any additional submissions on the law, followed by the submissions which were specific to their individual cases. Mr Deller, the Senior Home Office Presenting Officer instructed by the Secretary of State for the purposes of these applications was then to respond, and the rule 43 applicants would then have the opportunity to reply. Provision was made for the proceedings to be viewed remotely (via Microsoft Teams) so that any advocate or applicant who could not be physically present in the hearing room could nevertheless see and hear all the submissions made.

In the event, Ms Kilroy’s general submissions on the law occupied the whole of 10 June 2021; some (but not all) counsel who had been due to make their submissions on that day were unable to return on the following day; and it was necessary to list a third day (29 June 2021) on which we heard their submissions, Mr Deller’s response and any replies. Only one objection was raised (by Mr Sharma for TO & BO) to the procedure followed and we should state – as we did on the final day – that we are satisfied that no applicant has been disadvantaged in any way by the course taken.

Each of the rule 43 applications before us seeks to have set aside the Upper Tribunal’s substantive decision on the error of law appeal on the basis that that decision was reached by reason of a procedural irregularity. Rule 43 of the Upper Tribunal Rules permits the Tribunal to set aside its own decision which disposes of proceedings and remake the decision if (a) any of four prescribed conditions concerning procedural irregularity is met, and (b) it is in the interests of justice to set the decision aside. In each of the applications before us the procedural irregularity relied on is the Upper Tribunal’s decision under rule 34 to determine the appeal on consideration of written representations alone and without a hearing. Our premise when considering each of these applications is that Fordham J’s conclusion that the Guidance Note was unlawful was correct. The Secretary of State did not seek to argue otherwise. One issue for us (both generically and on the facts of each application now before us) has been to determine the significance of that conclusion. Fordham J’s judgment in the JCWI case does not go further than the conclusion that part of the Guidance Note was unlawful; none of the appeals in which rule 43 applications have now been made was before Fordham J; and he reached no conclusion in his judgment as to whether in any specific appeal, the decision under rule 34 to proceed without a hearing was lawful.

The Guidance Note was directed to the application of rule 34(1) – (2) of the Upper Tribunal Rules, which is as follows:

The material part of the Guidance Note, paragraphs 9 to 17, said this (footnotes omitted):

Paragraphs 10 to 13 of the Guidance Note described a process intended to ensure that the requirement in rule 34(2) was met. As Fordham J noted, these paragraphs in the Guidance Note led each Tribunal to give directions to the parties to make representations before any rule 34 decision was made. At paragraph 4.17 he referred to one such set of directions, and commented as follows:

As we have already said, the applications before us were advanced primarily under rule 43 of the Upper Tribunal Rules – i.e., as applications to set aside the decisions in error of law appeals determined without a hearing in exercise of the power under rule 34. At the hearing, some of the applicants suggested other provisions in the Rules and in the 2007 Act that might be used to address any error arising from the rule 34 decisions. For the reasons set out below we do not consider that resort to any power other than rule 43 is either necessary or appropriate. That being so, in this part of the judgment we need only to set out the material part of rule 43.

Thus, the Tribunal may set aside its own decision if any one of the specific conditions is met and a decision to set aside is in the interests of justice. In the applications before us the relevant condition relied on has been the one at rule 43(1)(d), namely that the rule 34 decision was “some other procedural irregularity” occurring during the error of law appeal.

Rule 43(3) requires that any application to set aside a decision must be received by the Tribunal “no later than one month after the date on which the Upper Tribunal sent notice of the decision to the party” . By rule 5(3), case management powers permit the Tribunal to extend time for complying with any rule. The overwhelming majority of rule 43 applications received by the Tribunal following Fordham J’s judgment in the JCWI case were received later than one month following notice of error of law decisions. Fordham J’s judgment was handed down on 20 November 2020. The Order made recorded the President’s undertaking to take such steps as were necessary to bring the judgment to the attention of all individuals who had lost error of law appeals on or after 23 March 2020. We have been told that a so-called “JCWI pack” containing Fordham J’s judgment and order was sent to all relevant parties on 4 December 2020. A further copy, also containing an information note from the JCWI was sent on 11 December 2020. These packs were sent by email to represented parties and by post to those without representation. Most of the parties before us refer to having received the pack at some time in the first half of December. Each of the applicants before us was legally represented at the material time and the packs were sent to those representatives. Given the need on receipt of the JCWI packs for the legal representatives to seek and obtain instructions on whether to make any further application to the Tribunal, and given also the Christmas and New Year period and the disruption at that time caused by the second COVID-19 lockdown, we accept, without need for specific explanation, that an extension of time should be granted in respect of any application received by the Tribunal by or before Monday 18 January 2021. Where applications presently before us were received after that date we will consider whether to grant an extension of time on the facts of the case in hand.

This rule 43 application was made by letter of 16 December 2020 and was further particularised on 22 March 2021. EP was the respondent to the error of law appeal. The Upper Tribunal allowed the Secretary of State’s appeal, set aside the decision of the First-tier Tribunal and remitted the matter to the First-tier Tribunal for redetermination.

The rule 34 decision was taken following directions in the standard form given on 26 June 2020 and sent to the parties in July 2020. EP did not file representations on the rule 34 issue or on the merits of the error of law appeal. Mr Ayodele Modupe, the solicitor acting for EP, has made a statement explaining that it was only 11 June 2021 that he became aware of the directions that had been sent by the Tribunal in July 2020. The statement explains that he found the email in the deleted items file. He says that in July 2020 his offices were closed because of the pandemic. However, the firm was receiving an unprecedented amount of email. At that time the firm did not have email addresses for each fee-earner. Rather there was a single email address and a shared inbox. Mr Modupe says that he can only assume that the email was received in July 2020 but deleted in error. He did not see the email at that time (he only saw it in June 2021); the email was not marked for his attention and had no title save for the case number.

We have considered whether these facts disclose any procedural irregularity falling within any of the categories at rule 43(2)(a) to (d). We do not think they do. The directions were sent by the Tribunal and were received by EP’s representatives but were then misfiled in error and not acted on.

Turning to the rule 34 determination itself, the reasons given by the Judge (Upper Tribunal Judge Lane) are brief. This is not surprising given that neither party had made representations in response to the Tribunal’s provisional view. The decision makes no express reference to the Guidance Note, the Practice Direction, the overriding objective, or any case law concerning the requirements of fairness either at common law or under the ECHR. Nevertheless, we are satisfied that the conclusion on rule 34 was not the result of any error in principle. It is clear from paragraph 2 of the decision that the Judge recognised that a no-hearing determination was a significant departure from usual practice. He made no assumption of any “overall paper norm” . He also, quite properly, considered the nature of the issues in the appeal. He regarded the First-tier Tribunal decision as “so deeply flawed by legal error that it cannot stand” and took that into account when deciding that the appeal could properly be decided without a hearing. We consider this was a conclusion he was entitled to reach. There is nothing in this decision that is inconsistent with application rule 34 in accordance with the overriding objective and the requirement of fairness. There was no procedural irregularity which engages rule 43(2)(d).

Had we reached the contrary conclusion on the decision to proceed without a hearing, we would nevertheless have declined to set aside the decision. To do so would not be in the interests of justice. The decision of the First-tier Tribunal was described by Upper Tribunal Judge Lane as “so deeply flawed by legal error that it cannot stand”. We agree; there is no possibility that a different result might be reached if the appeal were considered at a hearing. The judge in the First-tier Tribunal concluded that section 117B(6) of the Nationality, Immigration and Asylum Act 2002 applied, but that provision clearly did not apply on the facts of this case because the applicant is not a parent. The judge further concluded that paragraph 276ADE(1)(iv) of the Immigration Rules applied, but that provision did not apply either; the applicant had not (and still has not) been in the United Kingdom for seven years.

There were also factual irregularities in the reasoning which suggest the decision was directed to a different case. At paragraph 23 of her decision, the judge referred to the applicant’s wife, but he is unmarried. At paragraph 24, she stated that she was allowing appeals brought by “the first, second and fourth appellants” but there was only one appellant before her.

Mr Youssefian, for EP, acknowledged these points but submitted that the first five pages of the seven-page decision contained a lawful disposal of the appeal and that what followed was merely a “bad cut and paste job” which did not undermine the analysis which preceded it. We cannot agree. The decision is to be read as a whole and it is quite clear that the Judge’s article 8 ECHR analysis cannot stand given the errors described above. If the Judge had in mind that the applicant was able to succeed on article 8 grounds by reference to determinative provisions of the 2002 Act or the Immigration Rules, her approach was so badly flawed that no Upper Tribunal Judge, properly directing herself to the law and the facts, could conclude that the decision of the First-tier Tribunal should stand. The interests of justice are not served by this applicant having a further opportunity to defend an indefensible decision. This rule 43 application is refused.

This rule 43 application was received on 15 January 2021, and an extension of time for the application was granted by the Tribunal on 26 January 2021.

This appeal was allowed by the First-tier Tribunal and the Secretary of State was granted permission to appeal. The Upper Tribunal gave directions on 23 June 2020. Mr Chowdhury’s representatives filed written submissions in response on 16 July 2020. Those submissions set out detailed reasons objecting to a no-hearing determination. The Tribunal decided to proceed under rule 34 and set out its reasons at paragraphs 10 – 15 of its decision. Looking at those reasons in isolation we would have concluded against setting aside the rule 34 decision. The Judge did have regard to the overriding objective; he considered whether a no-hearing determination could take place by reference to the nature of the issues in the appeal and the parties’ respective positions on them: see the decision at paragraphs 14 – 15. Read as a whole, the decision shows the Judge neither assumed nor applied an “overall paper norm” .

However, during the submissions on this application it became apparent that a different procedural irregularity had occurred. The Tribunal’s reasons at paragraphs 24 and 25, the primary basis on which the Tribunal concluded that the First-tier Tribunal’s decision should be set aside, rest on a point that did not form part of the Secretary of State’s Grounds of Appeal or her further written submission made in response to the Tribunal’s Directions. The point was therefore not one that Mr Chowdhury’s representatives had the opportunity to address. We say nothing about the merits of the conclusion at paragraphs 24 to 25 of the Upper Tribunal’s decision. Suffice it to say that before relying on those matters the Tribunal should, as a matter of fairness, have given further directions to permit the parties the opportunity to address the matter. As stated above at paragraph 36, if a Tribunal decides in favour of a no-hearing determination hearing and gives directions to that end, it must keep those directions under review to ensure they remain sufficient for the purposes of a fair determination of the appeal. In this instance, the failure to do this resulted in a procedural irregularity: the appeal was decided based on a submission which had been neither advanced by the appellant nor addressed by the respondent. In the premises, it is in the interests of justice to set aside the decision dated 14 September 2020 on the error of law appeal.

FMR was the respondent to the error of law appeal. The Tribunal gave directions on 9 June 2020. His written submissions (dated 16 June 2020) responded to the Secretary of State’s grounds of appeal. The final paragraph of those submissions (paragraph 39) requested an oral hearing but provided no observations in support of that request. The failure to give reasons amounted to a failure to comply with paragraph 3 of the Tribunal’s directions. No explanation has been given for that failure.

Judge Kekic’s decision on the rule 34 issue and the error of law appeal was promulgated on 15 September 2020. The reasons for the rule 34 decision are at paragraphs 6 – 9 of the decision. It appears that in reaching her conclusion to determine the appeal without a hearing, Judge Kekic overlooked the request for a hearing at paragraph 39 of FMR’s submissions. At paragraph 9 of her decision she said that neither party had raised objection to the matter being decided without a hearing. (Strictly speaking, it could be said this is correct. FMR had not stated any reasoned objection; but he had requested a hearing.) However, we do not consider this error to be a matter of substance. The judge did not make her rule 34 decision simply because the parties had not objected. We are satisfied by the reasons at paragraph 8 and 9 of the decision that the judge had the requirements of fairness well in mind.

The submission made to us was that because the reasons refer to the Guidance Note that made it inevitable that the overriding objective was not applied and that the Judge did fall into error. We disagree. Looking at the reasons in the round, the Judge did not apply an “overall paper norm” ; there was no presumption in favour of a no-hearing determination. The Judge considered the requirements of fairness taking account of the nature of the issues in the appeal. Her reasons show no error of principle, and the conclusion she reached was a conclusion open to her.

The further submission made by counsel for FMR was that the Judge had been wrong to conclude (at paragraph 28 of the decision) that at the remitted hearing there was no article 3 ECHR issue that would need to be decided. We consider that submission may well be correct. However, it is not a matter that demonstrates any procedural error on the part of the Tribunal. Whether or not the article 3 issue would remain to be determined at the remitted hearing was a matter canvassed in the written submissions (see FMR’s written submissions dated 16 June 2020 paragraph 29). As we have explained above at paragraph 38, whether the Tribunal determined the error of law appeal correctly is not a benchmark for existence of procedural irregularity.

For all these reasons, this rule 43 application is refused.

In this case too, the Secretary of State was the appellant in the error of law proceedings. The Tribunal gave directions on 7 May 2020 in the form we have set out above at paragraph 55. The Secretary of State responded, late, on 5 June 2020 stating only that she intended to rely on the matters set out in her Notice of Appeal. IQ did not respond to the request for submissions on the rule 34 issue. The submission to us was that IQ “received a clear view that a provisional view had been taken” . That was entirely correct; the directions stated the Tribunal’s provisional view. But that was no reason not to comply with direction 3 if there was an objection to be made. It was also submitted that the directions put IQ under pressure of time. If that was why the submissions invited by direction 3 could not be made the proper course would have been to request an extension of time.

The reasons for the rule 34 decision are at paragraphs 3 – 9 of the Tribunal’s decision promulgated on 28 July 2020. The conclusion was reached by reference to consideration of the overriding objective and the assessment that a no-hearing determination of the issues in the appeal would not prejudice the parties: see the decision at paragraph 9. We do not consider this conclusion rested on any incorrect legal premise or any incorrect application of the relevant legal principles.

The submission made to us was that the reasons did not refer to the judgment of the Supreme Court in R(Osborn) v Parole Board [2014] AC 1115 (an authority which considered the Parole Board’s practice of taking decisions on whether to release tariff-expired life sentence prisoners without a hearing), and that the Tribunal’s decision could have “benefitted from oral advocacy” . We do not consider either of these matters carries weight. The Parole Board function scrutinised by the Supreme Court in Osborn is very different to the function of the Upper Tribunal when determining error of law appeals. Failure to refer to the Osborn judgment, of itself, says little as to whether a Tribunal has directed itself properly when taking a rule 34 decision. The submission that the Upper Tribunal may have been assisted by oral advocacy is directed to the Tribunal’s reasons on the article 3 ECHR issue in the appeal: see paragraphs 27 – 31. We do not consider there is anything inherently wrong with the Tribunal’s reasoning on this issue. It addresses matters that had been canvassed in the pleadings. The submission to the effect that had there been a hearing something might have been said on behalf of IQ that might have influenced the Tribunal is speculative and more importantly does not point to the existence of procedural irregularity.

The one specific point advanced was that at paragraph 69 of its decision the First-tier Tribunal recorded that, in her decision letter, the Secretary of State had not sought to advance any internal relocation argument. That is correct. The decision letter did not rely on the possibility of internal relocation, only the conclusion that on the facts IQ was not at risk of article 3 ill-treatment. The submission is to the effect that, at paragraphs 24 to 25 of its decision, the Upper Tribunal appears to have allowed the Secretary of State to submit that the First-tier Tribunal had erred in failing to consider the possibility that IQ should relocate. This, it is submitted, was wrong. We tend to agree. However, these matters do not reveal procedural irregularity. Notwithstanding the reasons in the decision letter, the internal relocation issue was part of the Secretary of State’s Grounds of Appeal (Notice of Appeal, Ground 1, second paragraph); it was therefore a matter of which IQ was on notice, and which he did have the opportunity to address in his submissions on the error of law appeal. In any event, this point – that any attempt now by the Secretary of State to rely on internal relocation is inconsistent with her decision letter – is one that IQ will be at liberty to raise when the Upper Tribunal comes to remake the decision on the appeal on its merits (this having been retained by the Upper Tribunal and not remitted to the First-tier Tribunal).

For these reasons the rule 43 application in this case is refused.

CEE was the respondent to the error of law appeal, having succeeded in his appeal before the First-tier Tribunal. Directions were issued on 15 July 2020. Both parties filed submissions; each agreed expressly with the Upper Tribunal’s proposal to determine the error of law appeal without a hearing. The Tribunal promulgated its decision on 2 November 2020.

The Judge noted at paragraph 6 of her decision that the parties had agreed to the error of law issue being determined on the papers. She observed correctly that she was required by rule 34 to have regard to their views. She considered the overriding objective, the Practice Direction and the Guidance Note and she assessed whether fairness demanded that there should be a hearing in order to determine the error of law appeal. She concluded that it did not.

Before us, it was submitted for CEE that consent that the error of law appeal be determined without a hearing was not determinative. We agree it was not determinative but, for the reasons we have set out above, it was highly relevant. The Judge did not treat the consent as determinative. She had regard to all material considerations, and she was entitled to proceed without a hearing, for the reasons she gave. Her decision to do so disclosed no procedural irregularity – there was no breach of the obligation to act fairly. The application under rule 43 is refused.

The Secretary of State was the appellant in these proceedings. Judge O’Connor gave directions which were sent to the parties on 26 May 2020. Written submissions were filed on behalf of SR on 4 June 2020, and supplementary written submissions were filed on 16 June 2020. SR did not object to the proposal that the error of law appeal should be determined without a hearing.

The submissions made in support of the rule 43 application were to the effect: (a) that lack of objection to a no-hearing determination is not conclusive because the requirement to act fairly gives rise to an obligation that error of law appeals must be decided at hearings; (b) that there is no requirement on a rule 43 application to demonstrate its specific prejudice; and (c) in any event, in this case the Tribunal would have benefited from oral argument at a hearing.

We do not accept the first of these submissions (that appeals must be decided at hearings). Put very shortly, the submission proves too much. If correct it would negate the existence of rule 34. There has been no challenge to the legality of rule 34, and it was no part of Fordham J’s conclusions in the JCWI case that rule 34 was unlawful. Applicants (SR and others) have submitted that the application of rule 34 is not limited to decisions taken by UTIAC (it applies to all chambers of the Upper Tribunal) and even within UTIAC’s jurisdiction it does not apply only to decisions on error of law appeals (it applies to any decision which the Tribunal may take, whether interlocutory or final). It follows from this, so the submission goes, that by reason of the “Key Themes from the Common Law Principles” listed at Part 6 of Fordham J’s judgment, an error of law appeal in UTIAC cannot be determined other than at a hearing – effectively disapplying rule 34 from this class of appeal. We can see no reason in principle which singles out error of law appeals in UTIAC as a class of decision that is in principle unsuited to the application of rule 34.

The point on prejudice (the second submission) has also been addressed already. We accept that if the Tribunal misapplies rule 34 by reaching a conclusion without regard to relevant legal principle or by reaching a conclusion unsupportable in the circumstance of the case at hand, that would be a procedural irregularity that would require an error of law decision to be set aside, save where a convincing “no difference” submission could be made. However, on the facts of this case, this point leads nowhere. The rule 34 decision was contained in the decision of Judge Keith, promulgated on 16 July 2020. The material passage in the decision is at paragraph 16.

There is no error in that approach. The Judge considered the specific issues in the appeal and recognised the significance of the overriding objective. There is no basis on which to infer or conclude that he applied any presumption in favour of a no-hearing determination, or that his rule 34 decision rested on any other error of principle.

The third submission for SR is directed to the Tribunal’s conclusion on Grounds of Appeal 3 – 5. The submission is to the effect that considering the Tribunal’s reasons there were further points that could have been made and might have been said at a hearing which would have caused the Tribunal to decide these grounds of appeal differently. We do not agree that this submission – even assuming that it is good at the level of principle – identifies the existence of any procedural irregularity on the facts of this case.

As to the merits of the point at the level of principle, see above at paragraphs 37 – 38. The advantages of determining cases at hearings are well-known to all experienced judges and advocates. The ebb and flow at a hearing will sometimes bring points to the fore that might have otherwise been overlooked or undervalued. However, to decide in favour or a no-hearing determination, a Tribunal judge does not need to be satisfied that would be the best way of taking the decision concerned; only that it would be a fair way of taking that decision. In assessing fairness, any judge will have the advantages that hearings can bring well in mind (for example for those listed at Part 6 of Fordham J’s judgment in JCWI ) but those matters may not be determinative in every case.

On the facts of SR’s’ case the arguments on each side on Grounds 3 – 5 were properly addressed in the written submissions. It is apparent that the Tribunal properly understood the submissions made and reached its decision taking them into account. There was no procedural irregularity affecting the rule 34 decision.

For these reasons, this rule 43 application is refused.

The applicants’ human rights appeals were dismissed by the First-tier Tribunal, and they secured permission to appeal to the Upper Tribunal. Directions were given by Judge Reeds on 10 June 2020. The Secretary of State did not object to the error of law appeal being decided on the papers (see written submissions dated 16 June 2020). The applicants’ solicitors made additional submissions on 30 June 2020; the covering email stated that the applicants were “content for the matter to now be considered on the papers”.

The Judge considered whether to proceed without a hearing: see paragraph 8 of her decision. She noted what had been stated by both parties. She noted (correctly) that the issues in the appeal were limited. She decided to determine the appeal without a hearing stating that ‘no unfairness arises from doing so’. The reasoning in respect of rule 34 is certainly compressed but that is to be seen in context. The applicants (who were legally represented) had expressly consented to a no-hearing determination. The Judge was entitled to treat that view as militating strongly in favour of a conclusion that it was fair to proceed without a hearing.

In support of the application to set aside the Judge’s decision, the applicants’ solicitor filed a statement for the purposes of the rule 43 application in which he states that consent to paper consideration had only been given because the sponsor “could not afford a procedural challenge” (of the sort made in the JCWI litigation). But this is not to the point. All that needed to be done in response to the Tribunal’s directions was to set out the reasons why the provisional view that the appeal could be fairly determined without a hearing, was wrong. Further, we do not accept the submission made by Mr Sharma that the consent which was given was not given freely or in full knowledge of the fact that Judge Reeds’ directions made provision for an oral hearing to be requested. As we have explained above, the directions given cannot fairly be seen as any form of pre-determination of the application of rule 34; they set out a view that was provisional and invited the parties’ representations in response.

Mr Sharma’s remaining submissions went to the merits of the Upper Tribunal’s decision and are irrelevant to the question of whether the decision was marred by procedural irregularity. The mere existence of the Guidance Note did not render the rule 34 decision wrong.

This application under rule 43 is refused.

GS made submissions in response to the Tribunal’s provisional view that the error of law appeal could be determined without a hearing. GS’s preference was for a remote hearing, either by phone or video (see submissions dated 15 April 2020 at paragraph 3). GS’s submissions pointed out that a determination based only on written submissions would remove the possibility of interaction between the advocates and the Tribunal; it would not provide as good a way of deciding the error of law appeal.

These matters were directly addressed by the Tribunal at paragraphs 10 – 11 of its decision. The Tribunal was satisfied that the issues in the appeal could be fairly determined on the basis of written submissions; see in particular at paragraph 11. It is also clear from paragraph 10 of the decision that the Tribunal took account of both the requirements of fairness at common law and the principles that underlay the overriding objective.

The submissions made to us focused on generic issues (the advantages of hearings generally) and pointed to certain matters in the Tribunal’s decision which it is said were examples of factual inaccuracy. We do not agree that these matters warrant setting aside the Tribunal’s error of law decision. We have already addressed the generic issues. The matters said to be factually inaccurate are not material and, as we have explained already, simply being able to point to respects in which the Tribunal was in error will not, in the overwhelming majority of instances, make good the submission that the no-hearing determination was unfair. This rule 43 application is therefore refused.

The applicant’s appeal against the Secretary of State’s refusal of his human rights claim was dismissed by the First-tier Tribunal. Directions in the appeal were given by Judge Frances on 12 August 2020. The submissions made in response to the directions included a request for an oral hearing of the error of law appeal (see the submissions at section E of the written submissions).

The Tribunal’s decision was promulgated on 30 November 2020, after Fordham J’s judgment in the JCWI case. The decision on rule 34 is at paragraphs 2 to 4 of the decision. The Judge noted the objections raised by the applicant but concluded the appeal could be determined fairly without a hearing. Full written submissions had been lodged which failed to identify any respect in which oral argument would be ‘helpful or necessary’. The Judge’s reasons take account of the Practice Direction, the JCWI judgment (“including the benefits of an oral hearing and requirements of procedural fairness”), and the overriding objective.

The submission in support of the rule 43 application was that notwithstanding her consideration of Fordham J’s judgment in the JCWI case, the Judge had applied the “overall paper norm”. There is no sustainable basis for that submission. It is clear from the Judge’s decision that the Judge applied rule 34 having regard to the shortcomings of the Guidance Note identified in Fordham J’s judgment. Her decision was that it was in accordance with the overriding objective to determine the appeal without a hearing. There is no error of law in the decision to proceed as she did. That decision was certainly not tainted – as Mr Georget sought to submit – by the provisional view expressed by Judge Frances. We have already explained our reasons for rejecting the submission that the provisional view stated in the directions amounted to some form of pre-determination.

Mr Georget also submitted that the Judge’s decision to proceed without the hearing had deprived the applicant of an opportunity to make the submission that there was unlikely to be any cogent public interest in requiring him to leave the United Kingdom because an application for entry clearance (as the spouse of a settled person) would inevitably succeed. The difficulty with that submission is that it overlooks the content of the grounds of appeal, the grant of permission to appeal and the additional submissions made by counsel. There is not a glimmer of any such argument (or any of the relevant authorities) in those documents. We therefore reject Mr Georget’s submission that the Upper Tribunal’s decision to proceed without a hearing somehow deprived the applicant of an argument which would otherwise have been available. That argument had never been identified in this case before Mr Georget settled his skeleton argument on 27 May 2021. It is not possible to demonstrate any form of procedural irregularity by developing an argument which was altogether missed by those with conduct of the matter at an earlier stage.

In the circumstances, we do not find that there was any procedural irregularity in the Tribunal’s decision and the application to set the decision aside is refused.

The applicant was the appellant in the error of law appeal. Judge Kamara issued directions on 30 April 2020 which included the provisional view that the error of law appeal could properly be determined without a hearing. Responses to those directions were filed by both parties. The applicant’s response relied on the grounds of appeal and stated that there were no further submissions to make. There was no response to the suggestion that the appeal should be determined without a hearing.

One of us (Judge Blundell) was the judge who determined the error of law appeal and took the rule 34 decision. He noted there had been no response to Judge Kamara’s provisional view on the application of rule 34. He referred to the provisions of rule 34 and to the fact that the lack of response to the directions objecting to determination of the appeal without a hearing was relevant but not determinative. He considered the overriding objective and what had been said in R(Osborn) v Parole Board [2014] 1 AC 1115. He noted that there were no live issues of fact. His conclusion was that it was fair and just to determine the appeal without a hearing. The reasons in support of his substantive decision on the appeal were set out in four comparatively short paragraphs, which began with an observation that the grounds of appeal were misconceived.

Ms Allen, for the applicant, sought the removal of this case from the cohort of test cases because Judge Blundell is one of the judges hearing these rule 43 applications. We see no proper reason to remove the case from the cohort so that it might be considered by a judge other than Judge Blundell. We have set out the generic position above – at paragraph 66. There is nothing in the specific circumstances of this case which displaces those general considerations. There is nothing that might lead any informed and fair-minded observer to conclude that there was any risk of bias in the determination of the rule 43 application.

Ms Allen next submitted that the lack of reference in the rule 34 decision to the Guidance Note placed the Tribunal and the advocates in an invidious position because it was not possible to know whether Judge Blundell was aware of the Guidance Note when he considered the appeal. There is nothing in this point. As explained above, we have approached all the rule 43 applications before us on the assumption that all UTIAC judges were aware of the Guidance Note.

Ms Allen’s further submissions relied on generic arguments (a) that the simple existence of the Guidance Note rendered the rule 34 decision unlawful; and (b) that the lack of objection to the provisional decision to determine the appeal without a hearing could not be determinative. We do not agree with the former submission, for the reasons we have already set out. The latter submission is correct, but does not, in this case, mean either the rule 34 decision was wrong or the decision on the error of law appeal must be set aside (see Judge Blundell’s reasons at paragraphs 13 – 15).

Ms Allen next submitted that the First-tier Tribunal had failed to engage with the possible application of section 117B of the 2002 Act to the facts of this case. This does not assist the rule 43 application because the point was not raised either in the grounds of appeal to the Upper Tribunal or even in the written submissions made in response to the Tribunal’s directions. As such, the fact that the Upper Tribunal did not deal with this point does not indicate the existence of any procedural irregularity. The submission that, had there been a hearing, the point might have been raised is no more than speculation. Finally, Ms Allen made submissions by reference to the substantive merits of the Tribunal’s decision to dismiss the error of law appeal. However, if there is any substance to these matters, they are points for an appeal, not for an application under rule 43.

Overall, the reasons for the rule 34 decision in this case do not disclose any error of principle (the relevant principles were demonstrably borne in mind), or any conclusion that was in error of law. In the premises, the rule 43 application in this appeal is refused.

The applicant was the appellant in the error of law appeal. On 30 June 2020 Judge Gill issued directions in the form we have set out above, stating her provisional view that the appeal could be determined under rule 34 without a hearing, and seeking the parties’ representations on that view, and on the substantive merits of the appeal. The Secretary of State agreed with Judge Gill’s provisional view on the application of rule 34. The written submissions settled by leading counsel for the applicant said nothing on the application of rule 34 but addressed the substantive merits of the error of law appeal.

The main point taken for the hearing of the rule 43 application is that the Judge was improperly influenced by the Guidance Note such that the rule 34 decision was wrong and the decision on the error of law appeal was vitiated by procedural irregularity. That is not borne out by consideration of the reasons at paragraphs 4 to 8 of the Judge’s decision which give no indication that he was influenced by an “overall paper norm”. He observed that the parties had agreed that the error of law consideration could properly be undertaken without a hearing. He considered the overriding objective and the care and effort which had been taken in the preparation of the written submissions. He concluded that it was appropriate to proceed under rule 34. The Judge clearly had in mind the relevant considerations, even if he did not set out every principle and every authority. His conclusion that this was a case in which the error of law appeal could be determined without a hearing does not rest on any error of principle or error of law.

There are various arguments in the applicant’s skeleton argument on the merits of the decision on the error of law appeal. If any of these has merit, it is a matter for an appeal, not for an application under rule 43.

The applicant’s appeal to the First-tier Tribunal rested on an article 8 ECHR ground. Judge Buckwell dismissed the appeal, concluding that the applicant did not have a genuine and subsisting relationship with his son, who was two years old at the time. Permission to appeal was granted by the Upper Tribunal (Upper Tribunal Judge Gill). Directions were given on the same date in the form we have set out above.

The submissions in response to Judge Gill’s directions were silent on the question of whether the error of law appeal should be determined without a hearing. There was a request that “where an error of law is found in the First-tier Tribunal’s decision, the decision be set aside and re-made in the Upper Tribunal”. In deciding under rule 34 to proceed without a hearing, the Judge noted the absence of objection to Judge Gill’s provisional view. She also referred to the judgment in Osborn v Parole Board , the Practice Direction, the Guidance Note and the overriding objective. She concluded that the parties had been able to participate fully and that it was fair and just to determine the appeal without a hearing.

It was submitted on behalf of the applicant that the Judge’s decision to determine the appeal without a hearing was marred by procedural irregularity and unfairness. To the extent the contentions relied on are generic, we have considered those submissions above. We have already explained why neither the existence of the Guidance Note per se , nor simple reference to it in a decision suffices to establish procedural irregularity that engages rule 43.

It was also submitted that the Judge had failed to engage in a “case-specific” analysis of the propriety of proceeding without a hearing. We do not agree. The Judge plainly had well in mind that the case concerned the best interests of the applicant’s son, since she made reference to that in paragraph 8 of her decision; in this respect she clearly had the importance of the proceedings to the applicant well in mind. It was also submitted that the Judge failed to appreciate the complexity of the case and that this level of complexity militated in favour of determination of the appeal at a hearing. We do not agree that the case was complex or, as Ms Kilroy submitted that it was an appeal “crying out” for an oral hearing. As the Judge’s analysis shows, the case essentially involved an assessment of the First-tier Tribunal’s conclusion that the applicant did not have a genuine and subsisting relationship with his son, and a consideration of the application to adduce further evidence said to bear on that question.

The submissions next criticised the Judge’s reliance (for the purposes of the rule 34 decision) on the need to avoid delay in the determination of the error of law appeal. We do not accept that criticism. Avoidance of delay in UTIAC proceedings (so far as compatible with proper consideration of the issues) is recognised at rule 2(1)(e) of the Upper Tribunal Rules, as one facet of the overriding objective. The Judge was entitled to place weight on this matter.

Submissions were also made on the substantive merits of the decision on the error of law appeal. In particular, the submission was made that certain issues had been missed, or misunderstood, or examined with insufficient scrutiny. These points do not begin to bear on whether the Judge’s decision to determine the appeal without a hearing gave rise to any procedural irregularity in the disposal of the error of law appeal.

In the premises, none of the matters relied on in support of the rule 43 application demonstrates that the rule 34 decision was wrong, or that any other procedural irregularity affected the error of law appeal. The rule 43 application is therefore refused.

In the course of submissions on this application it became apparent that there had been a significant procedural irregularity in the course of the no-hearing determination of the error of law appeal.

The First-tier Tribunal hearing took place in February 2020. The case was argued and decided on the basis of the Iraq country guidance then in force. RSS’s Grounds of Appeal were formulated on the same premise, as was the Secretary of State’s response and the written submissions of the parties (made pursuant to directions given by the Upper Tribunal on 29 July 2020). However, the Upper Tribunal’s determination of the error of law appeal (decision promulgated on 12 October 2020) was reasoned by reference to information in a Country Policy and Information Note published by the Secretary of State on 30 June 2020. The parties had not been given the opportunity to address the contents of this document. The parties should have had that opportunity; the Tribunal should have given further directions for that purpose. This rule 43 application is granted, and the Tribunal’s decision of 12 October 2020 is set aside.

We heard no oral submissions in support of Mr Hussain’s application to set aside the Upper Tribunal’s decision on the error of law appeal. A skeleton argument, settled by Mr Hodgetts of counsel, had been filed in compliance with directions, but the applicant’s solicitors wrote in advance of the hearing stating that he would not be represented at the hearing.

The applicant’s appeal was dismissed on human rights grounds by the First-tier Tribunal, which concluded that although he had not cheated in an English language test, his removal from the United Kingdom would not be in breach of his article 8 rights. Permission to appeal was granted by the First-tier Tribunal.

The Tribunal gave directions proposing that the error of law appeal be determined without a hearing. The applicant filed written submissions in compliance with those directions and requested that the appeal be determined at a remote hearing, submitting that an oral hearing of the appeal would be fairer, that a remote hearing was feasible, and that a paper determination was not consistent with the highest standards of fairness, which were to be observed given that the outcome of the appeal would affect the applicant’s relationship with his wife (a British national). The remainder of the submissions concerned the merits of the error of law appeal, in particular the adequacy of the First-tier Tribunal’s conclusion that there were no insurmountable obstacles to continuation of family life in Pakistan.

The Judge decided to determine the appeal without a hearing. The reasons for that conclusion are set out in the decision, which was promulgated on 8 October 2020, which also dismissed the error of law appeal on its merits. In deciding to proceed under rule 34, the Judge noted the reasons relied on in support of the contention that the appeal should be determined at a hearing. At paragraph 4 of his reasons, the Judge explained that for the purpose of his rule 34 decision he had taken account of the overriding objective and had regard to the narrow focus of the grounds of appeal and to the full written submissions which had been made. He considered it appropriate “in light of the covid-19 pandemic” to determine the error of law appeal without a hearing.

The applicant’s criticisms of the rule 34 decision are based in substance on the general points made orally and in writing by leading counsel in RF and Onayemi . We have considered those points in some detail above and have rejected them. In this case we are satisfied the Judge took account of the overriding objective and the nature of the case before him. He reached a reasoned decision that it was appropriate in all the circumstances to proceed without a hearing. This application under rule 43 is accordingly refused.

The applicant was the appellant in the error of law proceedings. Directions were given by Judge Mandalia on 2 July 2020. Written submissions consequent on those directions were filed on 10 July 2020, directed to the merits of the appeal; nothing was said about the provisional view that the appeal should be determined without a hearing.

In her decision dismissing the appeal, the Upper Tribunal Judge referred to the absence of objection to a paper determination and continued as follows:

Considering the nature of the issues before her and the absence of any objection to the provisional view expressed by Judge Mandalia, we do not consider that anything more was required. The applicant had professional representation and detailed written submissions had been settled by counsel. We accept that the absence of submissions in response to the provisional view to determine the appeal without a hearing was not determinative; the judge was still required to consider whether it was fair to proceed to determine the error of law appeal without a hearing. However, her reference to the interests of justice at the end of paragraph 2 of her decision shows that she had the correct considerations in mind. We see nothing in error in her decision to proceed without a hearing.

Extensive submissions were made orally and in writing about the merits of the applicant’s article 8 ECHR case (rejected by the First-tier Tribunal) and the Upper Tribunal’s resolution of the substantive issues in the appeal. It was submitted there were various issues which had not received the scrutiny they deserved or were points that should have been clarified by the Secretary of State. We do not consider these points establish any procedural irregularity in the Tribunal’s consideration of the appeal. If it is to be submitted that the Upper Tribunal failed to provide adequate reasons for its conclusions or that it failed to take material matters into account, that is an argument for an appeal.

For these reasons, we decline to set aside the Tribunal’s decision of 30 August 2020.

In this appeal the applicants made written submissions in opposition to the provisional view that rule 34 should be applied (written submissions dated 14 May 2020 at paragraphs 4 – 13). The applicants emphasised the well-established and well-known advantages of oral hearings. The submissions identified that one issue in the appeal concerned a challenge to the First-tier Tribunal’s approach to assessing the applicants’ credibility and contended this was a “nuanced” matter that needed exposition at a hearing. They suggested that a hearing could take place by phone or by video.

These points were carefully considered by the Tribunal: see the decision at paragraphs 3 – 8. At paragraph 8, Upper Tribunal Judge Macleman concluded as follows:

In submissions to us, this paragraph was criticised as failing to refer to the importance of the case to the applicants, failing to refer to the careful scrutiny that determination of the appeal would require, and failing to refer to the overriding objective. We do not consider there is force in any of these points. Although there is no express reference to the overriding objective, paragraph 8 of the decision explains the Judge’s conclusion by referring to the substance of the overriding objective. Judge Macleman does make express reference to the paragraphs in the applicants’ submissions which refer to the importance of the outcome of the appeal and the need for careful consideration of the issues in it. We do not consider it material that these matters are not themselves written-in to the decision. It is important to consider written reasons fairly, and in-the-round, and not to nit-pick one’s way through them.

Overall, our conclusion is that in this case the rule 43 decision was taken by reference to relevant principle; the specific features raised in the appeal were carefully considered from the perspective of whether a decision taken on the basis of written representations would be fair; and no presumption in favour of a no-hearing determination, no “overall paper norm” was applied. We have also carefully considered the Tribunal’s treatment of the issues in this appeal. This does not reveal any procedural irregularity. For these reasons, this rule 43 application is refused.

The Tribunal gave directions in this appeal on 30 April 2020 both parties consented to a no-hearing determination. The written submissions for Mr Jannat dated 12 May 2020 included the following:

The submission made to us was that this agreement was “reluctant” and only given because the alternative was a delayed decision; that paragraph 3 of the Directions suggested that the provisional decision on the application of rule 34 was final, not provisional; and that oral argument at a hearing may have assisted the Tribunal. The latter two submissions are essentially generic. We have addressed them in Section C of this judgment. There is nothing in the circumstances of this case which gives any significance to either of them. We reject the first submission on the nature of the consent given. At the material time Mr Jannat was represented by solicitors and counsel. The written submission on this point was clear and unconditional. The gloss that Mr Jannat’s representatives (the same as instructed by him in May 2020) now seek to put on the matter is opportunistic. This rule 43 application is therefore refused.

The Tribunal gave directions in this appeal on 7 April 2020. The Secretary of State (the respondent to the appeal) consented to a no-hearing determination. MB’s representatives filed written submissions in support of his error of law appeal under cover of a letter dated 5 May 2020. The covering letter included the following:

We do not consider there is any substance to the latter point. The Tribunal identified the Grounds of Appeal at paragraph 18 of the decision, and then addressed each in turn. As to the former submission, we consider, in context, the passage in the 5 May 2020 letter set out above is consent to a no-hearing determination. It is notable that the letter distinguishes between the decision on the error of law appeal and the decision on any subsequent retained or remitted hearing by reference to the nature of the issues at each stage respectively. By inference, this recognises that the issues in the error of law appeal could be fairly determined on the basis of written submissions. As we have pointed out in the previous section of this judgment, a conclusion that the issues raised in an error of law appeal could be fairly addressed in this way is not at all surprising. As we have also said above, in the context of any specific error of law appeal, the parties to the appeal are well-placed to assess what fairness requires. All this being so, the Tribunal was entitled to attach significant weight to the view set out in the 5 May 2020 letter.

Apart from this it is fair to observe that the Tribunal’s reasons for its rule 34 decision are brief. Nevertheless, it is apparent from paragraph 5 of the decision that the Tribunal did not approach the matter on any basis of presumption in favour of a no-hearing determination; the significance of the common law duty of fairness was well-recognised. This rule 43 application is therefore refused.

For the reasons above the rule 43 applications in Mohammed Chowdhury (HU/11561/2019), and RSS (Iraq) (PA/11981/2019) are granted. In these cases, the error of law decisions of the Tribunal are set aside, and the error of law appeals will need to be reheard. The remaining rule 43 applications are refused.