Case No. UKUT-00233-(IAC)

9. Rule 34 gives the UTIAC power to make decisions in appeals without a hearing. Provided it has regard to any view of a party or parties, the UTIAC may do so without the parties' consent. Paragraph 4 of the Practice Direction provides that, during the pandemic, decisions should usually be made in this way. 10. In view of this, a UTIAC judge will examine on the papers, any case where permission has been granted to appeal against a decision of the First-tier Tribunal, and where a hearing has not yet taken place in UTIAC. This will happen, irrespective of whether an adjournment of the hearing has been sought. 11. The judge will consider whether, in all the circumstances known to the judge, his or her provisional view is that it would be appropriate for UTIAC to decide the following questions without a hearing: (a) whether the making of the First-tier Tribunal's decision involved the making of an error on a point of law; and, if so (b) whether the First-tier Tribunal's decision should be set aside. 12. Where the judge reaches that provisional view, he or she will give directions to the parties, including a direction to the party who has been given permission to appeal to make further submissions on the error of law and set aside issues; a direction for the other party to file and serve any submissions in response; and (where there is such a response), directions to the appellant to file and serve a reply. 13. The process just described will include a direction to enable the parties, within a stated time, to express their respective views, if any, on whether there should be a hearing to decide the questions in paragraph 11(a) and (b) above, giving reasons for any such views. The judge will have regard to any such views, pursuant to rule 34(2). 14. In formulating the process, the UTIAC is drawing on its expertise since 2010 in making error of law decisions and decisions on whether, in the light of finding an error of law, the First-tier Tribunal's decision should be set aside. It is unusual for the questions in paragraph 11(a) and (b) above to require oral evidence and/or findings of fact by UTIAC; but, if that is the position, the judge may decide a hearing is necessary. The presence of particularly complex or novel/important issues of law may also be such as to necessitate a hearing. 15. The judge can also be expected to have regard to whether a party is unrepresented, in deciding whether a hearing is necessary to decide the questions in paragraph 11(a) and (b). It is important to appreciate that the fact a party is unrepresented will not necessarily lead the judge to conclude a hearing is necessary. On the contrary, a person with no or limited English language ability may find it easier to make their submissions in writing, with the assistance of a relative, friend or other third party, rather than to address the UTIAC orally, through an interpreter, on what are legal issues. Here, as elsewhere, the judge will have regard to all relevant circumstances. 16. In deciding whether it is necessary to hold a hearing, the judge can be expected to have regard to paragraph 4 of the Practice Direction and rule 2 of the UT Rules. The fact that the outcome of the appeal is of importance to a party (or another person) will not, without more, constitute a reason to convene a hearing to decide the relevant questions. Almost all appeals in the immigration jurisdiction are important to the individuals affected; and to the Secretary of State, in the discharge of her statutory responsibilities. In particular, human rights and protection appeals necessarily involve the prospect of an individual being removed from the United Kingdom. 17. It is important to emphasise the limited scope of the process described in this Part of the Guidance. It is confined to whether the First-tier Tribunal's decision should stand. If the decision reached is that the First-tier Tribunal's decision should be set aside, the UTIAC will then need to determine whether to remit the case to the First-tier Tribunal or re-make the decision. In reaching its determination on that issue, the UTIAC will require the parties' submissions, if it does not already have them. If the outcome is that the appeal should be re-made in the UTIAC, then, again, the parties can expect further directions. In the event that oral evidence needs to be given and findings of fact made, in order to re-make, the UTIAC is more likely to proceed by way of a hearing; but where some or all of this evidence is uncontroversial, UT rule 15(1)(e), permitting evidence to be given by witness statement, may be of assistance.” Fordham J’s criticisms of the Guidance Note were directed to the passage at paragraph 9 and from paragraphs 14 – 16 (see his judgment at paragraphs 4.5 and 4.9 – 4.13). 11. 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: “4.17 I was shown a template Standard Directions document which falls into that category: it was a document provided to UTIAC Judges after the PGN was issued. It states: “1. I have reviewed the file in this case. In the light of the present need to take precautions against the spread of Covid-19, and the overriding objective expressed in the Procedure Rules [fn. The overriding objective is to enable the Upper Tribunal to deal with cases fairly and justly: rule 2(1) of the Tribunal Procedure (Upper Tribunal) Rules 2008; see also rule 2(2) to (4)], I have reached the provisional view that it would in this case be appropriate to determine the following questions without a hearing: (a) whether the making of the First-tier Tribunal’s decision involved the making of an error of law, and, if so (b) whether that decision should be set aside. 2. I therefore make the following DIRECTIONS …” This document is consistent with the message that there was to be an ‘overall paper norm’. But I do not accept that this document materially assists the exercise in interpretation of the PGN. It is the PGN which communicates the 'guidance'. These Standard Directions could have been issued alongside guidance which communicated an overall paper norm, or an overall hearing norm, or no overall norm. Ms Kilroy QC, rightly, did not place any real weight on the Standard Directions .” What this makes clear is that Fordham J did not consider these procedural matters said anything one way or the other as to the merits of the substantive provisions in the Guidance Note. In submissions to us, various of the applicants did maintain that the directions given were material when deciding whether the relevant rule 34 decision had given rise to a procedural irregularity for rule 43 purposes. 12. 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. “ 43. — Setting aside a decision which disposes of proceedings (1) The Upper Tribunal may set aside a decision which disposes of proceedings, or part of such a decision, and re-make the decision or the relevant part of it, if— (a) the Upper Tribunal considers that it is in the interests of justice to do so; and (b) one or more of the conditions in paragraph (2) are satisfied. (2) The conditions are— (a) a document relating to the proceedings was not sent to, or was not received at an appropriate time by, a party or a party’s representative; (b) a document relating to the proceedings was not sent to the Upper Tribunal at an appropriate time; (c) a party, or a party's representative, was not present at a hearing related to the proceedings; or (d) there has been some other procedural irregularity in the proceedings. (3) Except where paragraph (4) applies, a party applying for a decision, or part of a decision, to be set aside under paragraph (1) must make a written application to the Upper Tribunal so that it is received no later than 1 month after the date on which the Upper Tribunal sent notice of the decision to the party. (4) In an asylum case or an immigration case, the written application referred to in paragraph (3) must be sent or delivered so that it is received by the Upper Tribunal— (a) where the person who appealed to the First-tier Tribunal is in the United Kingdom at the time that the application is made, no later than twelve days after the date on which the Upper Tribunal or, as the case may be in an asylum case, the Secretary of State for the Home Department, sent notice of the decision to the party making the application; or (b) where the person who appealed to the First-tier Tribunal is outside the United Kingdom at the time that the application is made, no later than thirty-eight days after the date on which the Upper Tribunal sent notice of the decision to the party making the application. (5) Where a notice of decision is sent electronically or delivered personally, the time limits in paragraph (4) are ten working days.” 13. 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. C.