Case No. UKUT-00233-(IAC)

71. 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. 72. 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. 73. 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. 74. 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). 75. 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. 76. 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. 77. 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. (2)