Case No. UKUT-00233-(IAC)

1. 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. 2. Paragraph 4 of the Practice Direction stated: “Where a Chamber’s procedure rules allow decisions to be made without a hearing, decisions should usually be made in this way, provided this is in accordance with the overriding objective, the parties’ ECHR rights and the Chamber’s procedure rules about notice and consent.” 3. 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. 4. 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. 5. The Order made by Fordham J consequent on his judgment in JCWI , declared that paragraphs 9 - 17 of the Guidance Note were unlawful 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. 6. 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. 7. 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. 8. 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. B.