Case No. UKUT-00233-(IAC)

86. In this case too, the Secretary of State was the appellant in the error of law proceedings. The Tribunal gave directions on 7 May 2020 in the form we have set out above at paragraph 55. The Secretary of State responded, late, on 5 June 2020 stating only that she intended to rely on the matters set out in her Notice of Appeal. IQ did not respond to the request for submissions on the rule 34 issue. The submission to us was that IQ “received a clear view that a provisional view had been taken” . That was entirely correct; the directions stated the Tribunal’s provisional view. But that was no reason not to comply with direction 3 if there was an objection to be made. It was also submitted that the directions put IQ under pressure of time. If that was why the submissions invited by direction 3 could not be made the proper course would have been to request an extension of time. 87. The reasons for the rule 34 decision are at paragraphs 3 – 9 of the Tribunal’s decision promulgated on 28 July 2020. The conclusion was reached by reference to consideration of the overriding objective and the assessment that a no-hearing determination of the issues in the appeal would not prejudice the parties: see the decision at paragraph 9. We do not consider this conclusion rested on any incorrect legal premise or any incorrect application of the relevant legal principles. 88. The submission made to us was that the reasons did not refer to the judgment of the Supreme Court in R(Osborn) v Parole Board [2014] AC 1115 (an authority which considered the Parole Board’s practice of taking decisions on whether to release tariff-expired life sentence prisoners without a hearing), and that the Tribunal’s decision could have “benefitted from oral advocacy” . We do not consider either of these matters carries weight. The Parole Board function scrutinised by the Supreme Court in Osborn is very different to the function of the Upper Tribunal when determining error of law appeals. Failure to refer to the Osborn judgment, of itself, says little as to whether a Tribunal has directed itself properly when taking a rule 34 decision. The submission that the Upper Tribunal may have been assisted by oral advocacy is directed to the Tribunal’s reasons on the article 3 ECHR issue in the appeal: see paragraphs 27 – 31. We do not consider there is anything inherently wrong with the Tribunal’s reasoning on this issue. It addresses matters that had been canvassed in the pleadings. The submission to the effect that had there been a hearing something might have been said on behalf of IQ that might have influenced the Tribunal is speculative and more importantly does not point to the existence of procedural irregularity. 89. The one specific point advanced was that at paragraph 69 of its decision the First-tier Tribunal recorded that, in her decision letter, the Secretary of State had not sought to advance any internal relocation argument. That is correct. The decision letter did not rely on the possibility of internal relocation, only the conclusion that on the facts IQ was not at risk of article 3 ill-treatment. The submission is to the effect that, at paragraphs 24 to 25 of its decision, the Upper Tribunal appears to have allowed the Secretary of State to submit that the First-tier Tribunal had erred in failing to consider the possibility that IQ should relocate. This, it is submitted, was wrong. We tend to agree. However, these matters do not reveal procedural irregularity. Notwithstanding the reasons in the decision letter, the internal relocation issue was part of the Secretary of State’s Grounds of Appeal (Notice of Appeal, Ground 1, second paragraph); it was therefore a matter of which IQ was on notice, and which he did have the opportunity to address in his submissions on the error of law appeal. In any event, this point – that any attempt now by the Secretary of State to rely on internal relocation is inconsistent with her decision letter – is one that IQ will be at liberty to raise when the Upper Tribunal comes to remake the decision on the appeal on its merits (this having been retained by the Upper Tribunal and not remitted to the First-tier Tribunal). 90. For these reasons the rule 43 application in this case is refused. (5)