Case No. UKUT-00233-(IAC)

(underlining and bold type as in the original) “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, 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: (i) The party who sought permission to appeal must submit further submissions in support of the assertion of an error of law, and on the question whether the First-tier Tribunal’s decision should be set aside if error of law is to be found to be filed and served on all other parties no later than 14 days after this notice is sent out (the date of sending is on the covering letter or covering email); (ii) Any other party must file and serve submissions in response, no later than 21 one days after this notice is sent out ; (iii) If submissions are made in accordance with paragraph (ii) above the party who sought permission to appeal must file and serve a reply no later than 28 days after this notice is sent out . (iv) All submissions that rely on any document not previously provided to all parties in electronic form must be accompanied by electronic copies of any such document. 3. Any party who considers that despite the forgoing directions a hearing is necessary to consider the question set out in paragraph 1 (or either of them) above must submit reasons for that view no later than 21 days after this notice is sent out and they will be taken into account by the Tribunal. The directions in paragraph 2 above must be complied with in every case. 4. If this Tribunal decides to set aside the decision of the First-tier Tribunal for error of law, further directions will accompany the notice of that decision …” 56. One overarching submission made to us was that the existence in all cases of directions to this effect, following the course plotted at paragraphs 11 – 13 of the Guidance Note, was proof that the relevant judge had applied the Guidance Note including the part of it described by Fordham J as the “overall paper norm” and thereby erred in law when applying rule 34. 57. We do not accept this submission. As we have already noted, this was not a submission that found favour with Fordham J: see his judgment in JCWI at paragraph 4.17. No decision to apply rule 34 could be taken without some form of direction to explain what would happen in the event of a no-hearing determination. We can see no problem arising from the practice of making and communicating the provisional view on the application of rule 34. Any consideration of whether to proceed under that rule must start somewhere. A Tribunal does not need to wait until one or the other of the parties suggests the course of action; it can initiate the process itself. From these premises, there is nothing in the directions that requires the conclusion that the subsequent decision in favour of no-hearing determination was unlawful. The request for the parties’ views (paragraph 3) stems from the requirement at rule 34(2). The direction for written submissions on the error of law appeal is necessary so that the parties can comment on the suggestion that the appeal should be determined without a hearing: that response needed to be informed by the arrangements that the Tribunal purposed to adopt in place of a hearing. 58. Nor do we think any significance attaches to the fact that the directions provided that the submissions on the error of law appeal should be filed at the same time as any submission in response to the provisional decision on the use of rule 34. The applicants submit that the fact that the directions at paragraphs 2 and 3 operated in parallel rather than sequentially showed that the provisional rule 34 decision was not provisional at all but was final. We disagree. Rather, the directions assume that before taking the final rule 34 decision the Tribunal judge should have the benefit of considering the submissions on the error of law appeal together with representations on the provisional rule 34 decision and in that way will be better-placed to decide whether a no-hearing determination of the error of law appeal would be fair. This assumption is reflected in each of the decisions before us that is the subject of a rule 43 application. In each the reasons for the rule 34 decision and for the determination of the error of law appeal are part of a single determination. 59. Overall, therefore we do not accept the overarching submission that the directions demonstrate that the Tribunal either reached an unlawful rule 34 decision or proposed to reach a rule 34 decision that would be unlawful. 60. In addition, further submissions were advanced. One was to the effect that these directions were inconsistent with the requirement at rule 34(2) to have regard to the views expressed by the parties before any decision to go ahead with a no-hearing determination. This submission rested on two matters. First , the way in which paragraph 3 of the directions was formulated; it was contended this gave the impression of pre-judgment or at the least that there was a presumption in favour of a no-hearing determination and a requirement to rebut it. The second concerned the direction at paragraph 2 to file submissions on the error of law appeal. It was submitted that the timing of these directions (working in parallel with the direction seeking the parties’ views on a no-hearing determination) showed that so far as concerned the rule 34 decision, the die had been cast. This submission is a variation on the overarching submission we have just considered. The reasons we have given on that submission apply here too. In addition, it is important to consider the effect of the directions, objectively. They state that the Tribunal judge has formed “a provisional view”. There is no reason not to take those words at face value; any suspicion that the provisional view was in fact the final decision would be entirely without foundation. 61. The other submission was directed to the timetable at paragraph 2 of the directions and was to the effect that this was too compressed and put an unreasonable burden on the parties. We do not regard this as a point of any substance. The timetable is not unreasonable of itself; the time given for each step reflects an approach commonly adopted. If that timetable was not achievable in a particular case, for whatever reason, it was open to any party to apply to vary the directions and explain the reasons why variation was necessary. It is certainly not unreasonable to expect litigants (in particular, legally represented litigants like all the applicants before us) to participate in this sort of case management process: this is no less than is expected and required by rule 2(4) of the Upper Tribunal Rules. (7) Consent; failure to comply with the direction permitting submission in opposition to the provisional view. 62. Rule 34(2) requires the Tribunal to have regard to the views of the parties before deciding to make any decision without a hearing. We consider that where parties consent to a no-hearing determination, that will ordinarily provide strong support for the conclusion that the decision to proceed without a hearing was lawful. Although the rule 34 decision is for the Tribunal not for the parties, the parties to an error of law appeal will usually be well-placed to assess whether and if so, why a determination without a hearing would or might be unfair. Each party will know the nature of its own case; each party will be able to assess from its own perspective the relative advantages and disadvantages of a no-hearing determination. In the circumstances of the appeals which have resulted in the applications that we are now considering we have in mind both that the possibility of no-hearing determinations arose only in the respect of the error of law appeal (and would not apply to any subsequent redetermination of the appeal, whether retained by the Upper Tribunal or remitted to the First-tier Tribunal), and also that as of March 2020 parties to any error of law appeal faced, in consequence of the pandemic, a choice between an earlier no-hearing determination of that appeal, or a later, delayed hearing (either remote or in person). Either of these considerations might have been significant to the parties when deciding whether to consent to a no-hearing determination of the error of law appeal. Each reflects a different aspect of the rule 2(1) overriding objective, for example that cases should be dealt with proportionately and that so far as possible delay should be avoided. Either can provide an explanation of why consent was given. We draw attention to these matters only for the purpose of explaining that the fact that a party might consent to a no-hearing determination would not, of itself, be out of the ordinary. 63. The applicants submitted that for the purpose of deciding whether a procedural irregularity has occurred, little or no weight should be attached to a party’s consent to a no-hearing determination because of the context provided by the Guidance Note. The submission was that no genuine consent could be given when the Guidance Note so clearly pointed in favour of no-hearing determinations. We do not agree with this submission. All applicants before us were legally represented at the relevant time. Those legal representatives must have realised (or if they did not, they ought to have realised) that the directions issued by the Tribunal genuinely sought their views and the views of their clients on whether there should be a no-hearing determination. 64. Another scenario to consider is that in which a party did not take the opportunity to make representations provided by paragraph 3 of the Directions. Paragraph 3 permitted each party to make submissions on the provisional rule 34 decision but did not require “a nil return”. Therefore, all other matters being equal, it would be open to the Tribunal when taking the rule 34 decision to assume that no response under paragraph 3 of the Directions was tacit consent to a no-hearing determination, the party concerned having considered the pros and cons of that course of action in the context of its own appeal. That inference would be particularly strong where the parties had filed submissions in response to paragraph 2 of the Directions on the merits of the error of law appeal. It is of course possible that there might be good reason why no submissions were filed in response to direction 3: for example, if the Directions had not been received. But absent such circumstances, we do not think it is consistent with rule 2(4) of the Upper Tribunal Rules (the parties’ duty to cooperate with the Tribunal and help the Tribunal to further the overriding objective) to assert that a failure to file submissions in response to direction 3 should be regarded as irrelevant. (8) Appearance of bias 65. Two submissions were made in this regard. The first concerned whether an appearance of bias would arise if the same Tribunal judge took both the provisional view on the application of rule 34 (and issued directions as set out above), and the final view that there should be a no-hearing determination. This was what happened in one of the cases before us as a rule 43 application. We do not consider this scenario to be problematic. Two linked questions are relevant: are there any matters which could be identified giving rise to an appearance of bias; if there are such matters, would they, considered alone or together, cause a fair-minded and informed observer to conclude there was a real possibility or danger of bias? The scenario in which the same Tribunal judge both forms the provisional view on the application of rule 34 and then takes the final decision on the application of that rule does not give rise to any appearance of bias. The expression of a provisional view and then a final view on the application of rule 34 is part of regular case management. It is neither unusual for one judge to have responsibility for successive case management decisions, nor is it unusual in the course of case management for a judge to propose steps of her own motion and then, in light of representations made by the parties, decide whether those steps should be taken. In the premises, any fair-minded and informed observer would recognise this scenario as an ordinary part of judicial case management. 66. The other scenario arises in the case of Annes (HU/11949/2019). One of us (Judge Blundell), took the rule 34 decision and the decision on the error of law appeal. Is it objectionable that Judge Blundell is one of the judges now hearing the rule 43 application in that appeal? By reference to the standard of the fair-minded and informed observer we do not consider it is. Various provisions in Part 7 of the Upper Tribunal Rules (the part that includes rule 43) provide for the Upper Tribunal to revisit its own decisions. The Rules do not specify whether any such exercise (whether it be review under rule 45, an application to set aside pursuant to rule 43, or otherwise) be taken by the same Upper Tribunal judge or a different judge. We suspect that practice will vary in this regard and will take account of judicial deployment. In many situations the judge who has heard the error or law appeal will be well-placed to determine any post-hearing application. For example, this will be so in the case of many rule 43 applications where the application arises out of some issue of fact going to the conduct of the proceedings. The present situation is a little different in that the submission is that it is the judge’s rule 34 decision that is the procedural irregularity giving rise to the rule 43 application, and that application requires the judge to revisit his own decision. Whether or not this is significant in terms of giving rise to a real possibility of danger or bias will depend on context. At the level of principle, we do not consider there is a problem; it is not uncommon for judges to have to revisit their decisions for one or other purpose (the most common example being when considering applications for permission to appeal). Undertaking such exercises objectively and candidly is part and parcel of the judicial function. This would be recognised by any fair-minded and informed observer. We accept, however, that matters arising from a particular context may suggest a different conclusion in a particular case. To this extent, each such situation must be considered on its own terms. (9) Final observations on generic matters 67. Our overall conclusion is that there is no single, one size fits all, answer to the rule 43 applications made consequent on Fordham J’s judgment in the JCWI case. We do not accept the submission that the judgment in JCWI requires all error of law appeals determined without a hearing after the Guidance Note was issued in March 2020 be set aside. This is not to negate Fordham J’s judgment, rather it recognises the scope of the issue before him. The JCWI judgment only concerned the legality of the Guidance Note when assessed against the Letts principle i.e., whether the Note contained a statement that was wrong in law or permitted or encouraged unlawful acts. On application of that principle, the JCWI judgment concluded that the Guidance Note was unlawful to the extent that it did not include or refer to the proviso to paragraph 4 of the Practice Direction that any decision in favour of no-hearing determination had to be in accordance with the overriding objective and fairness rights. 68. The JCWI litigation did not concern the “what happened next?” question. It did not address the merits of any rule 34 decision taken after the Guidance Note was published. It is not possible to conclude that simply because the Guidance Note had been issued and simply because the Administrative Court concluded that the note as formulated did not comply with the Letts principle, it must follow that every subsequent rule 34 decision was unlawful. That would overlook that each subsequent decision was in exercise of a judicial function and the product of consideration by a judge of the Upper Tribunal, well-used to conducting error of law hearings on a regular (if not daily) basis and exercising their functions in accordance with the overriding objective and well-known principles of fairness. 69. Moreover, each rule 34 decision is a reasoned decision. The merits of the rule 43 applications must be determined on consideration of the reasons given in each case. If those reasons whether expressly or by inference point to a conclusion reached without consideration of the principles that make up the overriding objective, or without consideration of whether determination of the error of law appeal without a hearing would be consistent with the principles of fairness, or a conclusion reached on application of an “overall paper norm” , then the rule 34 decision should be set aside because it proceeded on incorrect premises. As we have said already, the conclusion reached on any subsequent rule 43 application is unlikely to depend simply on whether in the case in hand, certain matters are or are not expressly mentioned (for example the Guidance Note itself). The reasons must be considered in the round to see what inferences and what conclusions may properly be drawn. It was submitted that this approach was at odds with conclusions stated at paragraphs 4.19 – 4.20 of the judgment in JCWI . We do not agree. The point considered by Fordham J at that point in his judgment was (and can only have been) a generic one: was the Guidance Note not Letts unlawful (i.e., not guidance that permitted or encouraged unlawful acts) because of the way it would necessarily be understood and applied by Tribunal judges? Fordham J answered that question in the negative but could only address the matter at the generic or in-principle level. By contrast, the rule 43 applications require us to consider and assess the legality of each rule 34 decision, on its own terms. D. Decisions on the rule 43 applications before us Applying the rule 43(3) time limit; applications for an extension of time 70. 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. (1) EP(Albania) (HU/18412/2019) 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) Mohammed Karim Chowdhury (HU/11561/2019) 78. 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. 79. 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” . 80. 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. (3) FMR (Iraq) (PA/09206/2019) 81. 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. 82. 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. 83. 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. 84. 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. 85. For all these reasons, this rule 43 application is refused. (4)