Case No. UKUT-00233-(IAC)

32. Rule 34(1) of the Upper Tribunal Rules permits the Upper Tribunal to “make any decision without a hearing” . Before reaching any such decision the Upper Tribunal “must have regard to any view expressed by a party when deciding whether to hold a hearing to consider any matter and the form of any such hearing” (rule 34(2)). The first question for us is whether, if a decision under rule 34 to proceed without a hearing is wrongly taken, that decision is capable of being the subject of a rule 43 application. Putting the matter in the language of rule 43, can a decision under rule 34 to proceed without a hearing be a “procedural irregularity”? We consider that such a decision is capable of giving rise to a relevant procedural irregularity for rule 43 purposes, but only if the rule 34 decision was in error of law in the sense contemplated in SH(Afghanistan) v Secretary of State for the Home Department [2011] EWCA Civ 1284 (i.e., that the consequence of the decision to proceed without a hearing was unlawful as a breach of the requirement to act fairly when determining the error of law appeal). 33. We accept that no similar requirement will attach when the rule 43 application is made based on any of the conditions at rule 43(2)(a) to (c). Where those provisions are relied on, the rule 43 Tribunal need only be satisfied that the relevant factual condition is met, and when it is so satisfied it moves to consider whether setting the decision aside for that reason is in the interests of justice. The same approach will also apply on an application made in reliance on rule 43(2)(d) if the irregularity claimed is a factual irregularity. The difference of approach so far as concerns the cases before us, is that the irregularity alleged is that the Tribunal’s rule 34 decision was wrong in law (whether because of the Guidance Note or otherwise). Thus, the issue for us in these applications is whether the rule 34 decision rested on some error of legal principle or was one that no Tribunal properly directing itself on the law could have reached. However, if any of the applicants before us succeeds in demonstrating the rule 34 decision rested on an error of law it is likely to follow directly that it will be in the interests of justice for the rule 34 decision to be set aside. The scope for argument over what the interests of justice require will be much more limited in these applications than, for example, in applications where the initial condition is one of the factual matters listed at any of rule 43(2)(a) – (c). As we see it, the only scenario in which it might not be in the interests of justice to set aside a rule 34 decision that rested on an error of law would be where for some reason or other, it is beyond argument that were the error of law appeal to be reheard the outcome would be the same. 34. We do not accept the submission – made by reference to authorities including General Medical Council v Spackman [1943] AC 627 and R(Pathan) v Secretary of State for the Home Department [2020] UKSC 41; [2020] 1 WLR 4506 – that the decision must be set aside if there is a procedural irregularity. Rule 43 requires that it must also be in the interests of justice to set the decision aside and those interests are plainly not served by ordering a hearing when the outcome of that hearing would be a certainty. Nothing said in Pathan or any other authority causes us to doubt the correctness of that statement, expressed in John v Rees [1970] Ch 345 and applied in SH (Afghanistan) v Secretary of State for the Home Department [2011] EWCA Civ 1284. 35. These matters set the approach we shall apply when considering the rule 43 applications before us when they are directed only to the rule 34 decision itself. 36. There is one further point to make at this stage. A rule 34 decision to decide an error of law appeal without a hearing will not necessarily be a self-contained event. Any decision that an appeal can be determined without a hearing will usually entail directions setting out the steps to be taken in place of the hearing. For example, in each of the applications before us the Tribunal gave directions on the submissions to be filed and then reached its decision taking those submissions into account together with the pleadings already served pursuant to rules 23 to 25 of the Upper Tribunal Rules. Any Tribunal that embarks on a no-hearing determination will need to keep under review whether the directions it has given for the purposes of reaching its determination on the appeal continue to work fairly or whether events require additional steps to be taken to ensure the fairness of the no-hearing determination. Where necessary, the Tribunal must be prepared to act, by way of further directions or otherwise, to ensure a fair process is followed. For example, where one party has raised a point in its written submissions that the other party has not had the opportunity to address and ought as a matter of fairness to have that chance. A failure to give further appropriate directions could itself amount to a “procedural irregularity” for the purposes of rule 43 if the failure went to the fairness of the proceedings. 37. However, the subsequent event must be one that goes to the fairness of the proceedings. Such errors are distinguishable from one submission made by all advocates for the applicants in the rule 43 applications before us. That submission was to the effect that, looking at the reasons given by the Tribunal for its decision on the error of law appeal (not its decision on the rule 34 issue), there were points that could have been made had there been an oral hearing, which either might or would have meant that the error of law appeal would have been decided differently. Although the outcome of every rule 43 application must depend on its own circumstances, submissions on these lines are unlikely to succeed. This type of submission depends both on speculation and hindsight. The starting point is the Tribunal’s written reasons; the next step is the submission that if the rule 43 applicant (the losing party in the error of law appeal) had realised that a point relied on by the Tribunal would or might be significant (or more significant than anticipated when the skeleton argument was drafted), there was something the applicant could have said on that point, had there been a hearing, which might or would have meant that the error of law appeal would have been decided differently. 38. We do not consider that a submission along these lines is likely to make good the existence of any procedural irregularity. Whenever a hearing takes place, it is always possible that, in the ebb and flow of the hearing, some point (either not in the skeleton argument at all or, if in the skeleton, not set out prominently) might be made that turns out to be decisive. That is in the nature of a hearing. This point is one that is relevant to the rule 34 decision itself. It will be well-known to any judge who has ever conducted a hearing; and will weigh in the balance against a decision that there should be a no-hearing determination. However, simply being able, after the event, to point to a matter that might have been said, does not of itself point to procedural irregularity for the purposes of a rule 43 application. Whether or not a rule 34 decision amounts to a rule 43 procedural irregularity depends on whether the decision to proceed without a hearing rested on legal error. The submission that starts from the premise that the Tribunal’s decision on the appeal should have been different (for example because a matter was overlooked), will not of itself demonstrate that the rule 34 decision was wrong, save for the situation where the difference in outcome is the consequence of procedural error in the course of the no-hearing determination which goes to the fairness of the proceedings. Put another way, an argument that an error of law decision made without a hearing was wrong might form the basis for an appeal, but of itself will say little that is likely to be relevant to whether there was procedural irregularity. The benchmark for a legally permissible rule 34 decision is not that the subsequent decision on the error of law appeal is free from substantive error. It is both speculative and contrary to common experience to contend that a decision on an error of law appeal that follows a hearing will always be error-free. Where applying rule 43 the Tribunal should be astute to ensure that any decision in favour of an applicant rests on genuine procedural irregularity, not simply on its scrutiny of the merits of the decision on the error of law appeal (which if undertaken at all will properly fall within the scope of a review pursuant to rule 45). (3)