Case No. UKUT-00233-(IAC)

151. 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: “It is contended that any re hearing of the Appellant’s case be it as a resumed hearing before the Upper Tribunal or before the FTT, it is requested that such a hearing be dealt with by way of an oral hearing. It is contended that on such resumed hearing the Upper Tribunal or the FTT will be invited to make findings on issues of credibility which we respectively contend will require oral evidence from the Appellant.” The effect of this was noted by the judge at paragraph 7 of his decision. There was an issue before us as to whether this amounted to any form of consent or agreement that the error of law appeal could be determined on the basis of the Tribunal’s directions for written submissions. It was also submitted that the Tribunal’s decision had failed to address some parts of the grounds of appeal. 152. 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. 153. 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. E.