Case No. UKUT-00233-(IAC)

50. Various submissions were made by the applicants on the significance attaching to reference or lack of reference to specific documents. The point most often made was that if a Tribunal judge’s reasons in support of a conclusion to determine an error or law appeal without a hearing referred to the Guidance Note, the judge must be assumed to have followed the Guidance Note, applied Fordham J’s “overall paper norm” , failed to attach weight or sufficient weight to general considerations of fairness, and have decided unlawfully to determine the error of law appeal on the basis of written representations rather than at a hearing. Related submissions were made by reference to whether the reasons for one or other decision did or did not make express reference to the Practice Direction, or the overriding objective, or leading authority on the common law duty to act fairly, or some or all the “key themes from the common law principles” listed by Fordham J at Part 6 of his judgment in the JCWI case. (A specific variant of this latter submission was made in the application made by SR (Jamaica) (HU/8693/2017), which could also be applied to all other applications; we address this below at paragraph 83.) 51. We reject the logic that lies behind these submissions: they either prove too little or prove too much. Determining the legality of a decision under rule 34 to decide an error of law appeal without a hearing requires overall assessment of the reasons given, not an exercise in the nature of playing bingo. Simple reference to the Guidance Note cannot invalidate a rule 34 decision. The error in the Guidance Note identified by Fordham J was that it failed to communicate what he referred to as the proviso to paragraph 4 of the Practice Direction: i.e., the need to consider the overriding objective (rule 2 of the Upper Tribunal Rules) and fairness at common law and under ECHR. Reference to the Guidance Note does not prove such matters have been left out of account. The reasons must be considered in the round. Conversely, reasons for a rule 34 decision that do not refer to the Guidance Note are not, by reason of that alone, impregnable. Any such conclusion would be blinkered to the obvious. Even if in a particular appeal a particular judge does not mention the Guidance Note, it would be entirely unrealistic to assume this meant that judge was unaware of the Guidance Note. 52. The same general point applies to the submission that a rule 34 decision is wrong in law if the judge has not, each in turn, listed and addressed all the “key themes” set out at Part 6 of Fordham J’s judgment in JCWI . As we understand that part of his judgment it was not intended as being some form of rule 34 checklist. Rather it was part of the judge’s explanation of why an “overall paper norm” was unlawful on application of the principles stated in Letts . A lawful decision in exercise of rule 34 to determine an error of law appeal without a hearing does not depend on rote consideration of the generic merits of using hearings to decide appeals. Instead, the focus needs to be on whether the appeal in hand can be fairly determined without a hearing. 53. For these reasons, and for the purposes of the rule 34 applications before us, we do not consider that particular significance attaches in the abstract either to the presence or the absence of reference to the Guidance Note. We reach the same conclusion on an allied submission: that given the existence of the Guidance Note and given also that Upper Tribunal judges must plainly have been aware of it, a rule 34 decision will be unlawful unless the reasons for it expressly disavow the contents of the Guidance Note. Given the status of the Guidance Note (there was no obligation to apply it) and given the principle of judicial independence, the suggestion that disavowal might be required is artificial. (6)