Case No. UKUT-00233-(IAC)

14. In the course of submissions an issue arose as to whether any limitation within rule 43 might mean that some of the applications before us fell outside the scope of the rule. 15. The eighteen cases before us had been selected to ensure we could explore any such jurisdictional issues. In cases (1) and (2), the Upper Tribunal had allowed an appeal by the Secretary of State and had remitted the appeals to the First-tier Tribunal. In cases (3) – (6), the Upper Tribunal had allowed an appeal by the Secretary of State and had retained the appeal for remaking. In cases (7) – (11), the Upper Tribunal had dismissed an appeal brought by the applicant and there had been no application for permission to appeal to the relevant appellate court. In cases (12) – (14), the Upper Tribunal had dismissed appeals brought by the applicant and an application for permission to appeal was pending against that decision. In cases (15) – (16), the applicant’s appeals had been dismissed by the Upper Tribunal and applications for permission to appeal to the relevant appellate court had been refused. Amongst these classes of case, there was scope for concern that rule 43 could not apply, whether because the Upper Tribunal was no longer seized of the appeal or because its determination of the appeal was not complete. 16. In the event, it was largely uncontroversial between the parties that the Upper Tribunal had power to set aside its own decision regardless of the stage the statutory appeal had reached. There can be no dispute that the Upper Tribunal can apply rule 43 to a decision in which it has set aside the decision of the First-tier Tribunal and remitted the appeal to that Tribunal for redetermination. Nor can it be controversial that rule 43 is available when an appeal has been dismissed and there has been either no application for permission to appeal or no decision on such an application. It is in the other classes of case in which it might be said that rule 43 cannot apply. 17. The first class of applications it was said might fall outside the scope of a rule 43 application were those where the Upper Tribunal had allowed the error of law appeal but decided (as permitted by section 12(2)(b)(ii) of the 2007 Act) to remake the decision itself rather than remit the matter to the First-tier Tribunal for re-determination. This submission rested on case law which had considered the point at which a right of appeal arises from the Upper Tribunal to the Court of Appeal. In Terzaghi v Secretary of State for the Home Department [2019] EWCA Civ 2017, the Court of Appeal considered a submission to the effect that an appeal against the Upper Tribunal’s decision on an error of law appeal had been brought out of time because before appealing, the appellant had waited for the Upper Tribunal to complete its further consideration of the case remaking the decision of the First-tier Tribunal. The Court of Appeal rejected this submission. It noted that by reason of section 13(1) of the 2007 Act and article 3(m) of the Appeals (Excluded Decisions) Order 2009, no right of appeal to the Court of Appeal arose in respect of any “procedural, ancillary or preliminary decision…” . It then concluded by reference to earlier case law of the Upper Tribunal, that where following an error or law determination, the Upper Tribunal retained further consideration of the appeal to itself to remake the First-tier Tribunal’s decision, the error of law decision was an “intermediate” decision which did not become an appealable decision until the Upper Tribunal had re-made the decision of the First-tier Tribunal and finally disposed of the appeal. 18. Based on this conclusion, the submission made to us was that where following the error of law decision the Upper Tribunal retained re-making of the First-tier Tribunal’s decision to itself, there was no “decision which disposes of proceedings or part of such a decision” that could be the subject of rule 43 application. We do not agree with this submission. At rule 1 of the Upper Tribunal Rules “disposal of proceedings” is defined as including “… unless indicated otherwise, disposing of a part of the proceedings”. We see no reason why rule 43 should not be read by reference to this definition. Thus, a rule 43 application can be made in respect of a decision which disposes of part of the proceedings. 19. One possible reading of the judgment of the Court of Appeal in Terzaghi is that where the Upper Tribunal retains a final decision to itself the proceedings are not complete until the Tribunal has remade the decision originally taken by the First-tier Tribunal: until that time, to the use the language of rule 43, there is no “decision which disposes of proceedings”. However, even on that premise, reading rule 43 together with the definition at rule 1 permits the power to set aside to be applied to a decision that disposes of part of proceedings. We can see no reason why the error of law decision cannot be regarded as a decision that disposes of part of proceedings. Applying rule 43 in this way will not give rise to any difficulty: the decision to which each rule 43 application is directed is logically and practically distinct from the further decision that the Upper Tribunal is yet to take under section 12(2)(b)(ii). Nor does this approach to rule 43 present procedural or practical difficulty. One consideration that lay behind the Court of Appeal’s reasoning in Terzaghi was that appeal rights should not be balkanised since that risked undue complexity and increased expense and unnecessary appeal proceedings (see the judgment of Dingemans LJ at paragraph 42). The position is not the same in the context of rule 43. This permits a decision to be set aside if (put very generally) it is consequent on significant procedural error. In that context, the reasons for limiting applications until after the final disposal of the whole proceedings is significantly less compelling. Where the Upper Tribunal, following an error of law hearing, retains to itself the decision on the merits of the immigration proceedings, there is sense in treating each decision as a distinct part of the proceedings; permitting the application of rule 43 to each part does not give rise to the potential difficulties that informed the conclusion reached by the Court of Appeal in Terzaghi . 20. Mr Deller submitted (paragraph 7 of his skeleton argument) that a decision to find an error of law and to retain the appeal in the Upper Tribunal for remaking is an excluded decision which is not ‘susceptible’ to rule 43. It is undoubtedly correct that such a decision is an excluded decision against which an appeal cannot be brought. So much is clear from Terzaghi v SSHD and its endorsement of VOM (Error of law - when appealable) Nigeria [2016] UKUT 410 (IAC). The fact that a decision of that type is an excluded decision also precludes the possibility of it being reviewed under section 10 of the 2007 Act. But the Upper Tribunal’s jurisdiction to set aside a decision under rule 43 is not conferred by section 10 of the 2007 Act. Rule 43 was made in the exercise of specific powers derived from section 22 of the 2007 Act and set out in paragraph 15 of Schedule 5 to the 2007 Act, and the power conferred is available whether or not the decision is an excluded decision which may not be the subject of an appeal or a review. 21. For these reasons we conclude that rule 43 applications directed to the Upper Tribunal’s error of law decision are available in circumstances where the Upper Tribunal has retained determination of the merits of the immigration proceedings to itself but has not yet completed the retained hearing. 22. The other class of case where it was thought a rule 43 application might not be possible was where an application for permission to appeal to the Court of Appeal had been made under section 13 of the 2007 Act, either to the Upper Tribunal or where such an application had been made and refused, directly to the Court of Appeal. The premise for this submission was that by the time of the Upper Tribunal’s refusal of permission to appeal or of the application for permission to appeal made to the Court of Appeal, the Upper Tribunal would be functus officio with the consequence that it lacked jurisdiction to entertain a rule 43 application. 23. We do not consider that either refusal by the Upper Tribunal of an application for permission to appeal under section 13 of the 2007 Act or the filing of an application for permission to appeal with the Court of Appeal prevents resort to rule 43. Where, as here, the Tribunal’s jurisdiction is defined by statute, applying the label functus officio is no more than a conclusion on construction of the relevant statutory provisions that identify the scope and extent of the Tribunal’s jurisdiction. For present purposes, the question is whether as a matter of construction, any limits have been placed on the power under rule 43 of the Upper Tribunal Rules for the Upper Tribunal to set aside its decisions, by reference to whether an application for permission to appeal to Court of Appeal has been made. 24. There is nothing directly on point in the provisions of the 2007 Act. The Upper Tribunal is established by section 3 of the 2007 Act to exercise such functions as are conferred on it under that Act or any other statute. This of course, includes hearing of appeals from the First-tier Tribunal made pursuant to section 11 of the 2007 Act. We cannot see anything in section 11 (or in section 13, which provides for the right of appeal from the Upper Tribunal to the Court of Appeal) that says anything material to the availability of the rule 43 power. As to the Upper Tribunal Rules, Part 7 contains a range of provisions which permit the Tribunal to take further action in respect of its own decisions. There is a power to correct minor errors (rule 42); the rule 43 power to set aside decisions; the power under rule 44 to entertain and determine applications for permission to appeal; the power under rule 46 to review a decision if an application for permission to appeal has been made to the Upper Tribunal in respect of that decision; and finally, rule 48 which permits the Tribunal to treat an application made under any of these powers as an application to exercise any other of the Part 7 powers. Putting rule 43 itself to one side, we see nothing in any of the other rules that tends to limit when a rule 43 application can be made. For example, there is no suggestion that making an application to the Upper Tribunal for permission to appeal to the Court of Appeal excludes the possibility of an application under rule 43. Rule 43 does contain specific time limits within which applications to set aside must be made: see rule 43(3) to (5). However, those time limits apply subject to the Upper Tribunal’s power under rule 5(3)(a) to extend time. 25. Drawing all this together, we do not consider there is any jurisdictional cut-off point, beyond which a rule 43 application may not be made. There is a requirement to make any rule 43 application within the time permitted by rule 43(3) – (5); but that time limit can be extended if the Upper Tribunal considers it appropriate. Thus while there may be a practical restriction on how long after a decision an application under rule 43 might successfully be raised (because good cause would always be needed before any extension of time would be granted), there is no relevant jurisdictional cut-off point; an application under rule 43 can be made even if an application for permission to appeal to the Court of Appeal has been made to the Upper Tribunal, and even if that application for permission to appeal has been determined. Nor, if the application for permission to appeal is refused by the Upper Tribunal, is there any jurisdictional bar to a rule 43 application if the rule 43 applicant then applies directly to the Court of Appeal for permission to appeal. If such an application for permission to appeal has been made, a subsequent rule 43 application might encounter difficulties, for example on grounds of lateness, or perhaps even on the ground that pursuing a rule 43 application in parallel with the application to the Court of Appeal might be some form of abuse of process. But the success or failure of any such objection to a rule 43 application would depend on the circumstances in which the application had been made, not any jurisdictional barrier. 26. In these circumstances, we are satisfied that we can determine each of the rule 43 applications before us on its merits. That being so, we need not say much about the other provisions to which we were referred as possible bases to reconsider the rule 34 decision if a rule 43 application was not available. We were referred to section 10 and section 22 of the 2007 Act, and to paragraph 15 of Schedule 5 to the Act. None of these provisions provides any basis for entertaining complaints about Tribunal decisions based on procedural error that goes beyond the scope of rule 43. 27. Section 22 is the general enabling power that includes power to make procedural rules for proceedings in the Upper Tribunal. We cannot see that resort to it, per se , would assist to plug any gap left by the Rules, as made. Section 22 is an enabling provision; litigants gain nothing from its simple existence, only from the product once it has been used. Schedule 5 to the 2007 Act contains various more closely formulated powers to make rules for specific purposes; paragraph 15 is the specific power that lies behind rule 43. Here too, there is nothing to which litigants might have resort save to the extent that the power has been exercised. Section 10 of the 2007 Act contains the Upper Tribunal’s power to review its own decisions. It is a provision that is then shaped by rules 46 and 45 of the Upper Tribunal Rules. We do not consider that direct resort to section 10 could provide any basis for the Upper Tribunal to entertain an application to set aside a decision on grounds of procedural error or failure that fell beyond the range of rule 43. 28. Lastly on this matter, we were referred to section 25 of the 2007 Act. Headed “Supplementary powers of the Upper Tribunal” , section 25 states that in respect of matters specified at section 25(2) the Upper Tribunal “… has in England and Wales … the same powers, rights privileges and authority as the High Court” . The specified matters are: (a) attendance and examination of witnesses; (b) the production and inspection of documents; and (c) all other matters incidental to the Upper Tribunal’s functions. Reliance was placed on (c). Had we concluded that any of the rule 43 applications before us fell outside the scope of rule 43, we doubt that section 25(2)(c) would have helped. We accept that rule 43 identifies one of the functions of the Upper Tribunal. However, we doubt that an application to set aside that for one reason or another falls outside the scope of rule 43, may properly be regarded as a matter “incidental” to the Tribunal’s exercise of its rule 43 function. 29. In this context, incidental is not synonymous with something that is a “near miss” to any of the Upper Tribunal’s express functions; rather, it is something sufficiently closely connected to the exercise of an express function, which the Tribunal does for the purpose of exercising that express function. In support of the submission made by reference to section 25 we were referred to the judgments of the Court of Appeal in Forcelux Limited v Binnie [2010] HLR 20, and R(Singh) v Secretary of State for the Home Department [2019] EWCA Civ 1014. In the former case, the Court of Appeal considered the power of the County Court to make a possession order at a hearing where the tenant was not present. When making the order, at a hearing that took place pursuant to the provisions of CPR 55.8, the District Judge had relied on the power at CPR 39.3 to proceed with a trial in the absence of a party. The Court of Appeal decided that a hearing under CPR 55.8 was not a trial for the purposes of CPR 39.3: see per Warren J at paragraph 36 to paragraph 49. The court concluded that the District Judge’s decision to go ahead in the absence of the defendant had been permissible as a step taken “for the purpose of managing the case and furthering the overriding objective” as permitted by CPR 3.1(2)(m): see per Warren J at paragraph 56. 30. The submission made to us was to the effect that by reason of section 25(2)(c) of the 2007 Act, the power at CPR 3.1(2)(m) or a power equivalent to it is available to the Upper Tribunal. We do not consider this submission accurately captures the meaning and effect of section 25(2)(c). Section 25(2)(c) is undoubtedly broadly framed. However, it does not simply give the Upper Tribunal all the powers etc. of the High Court. Rather it permits such power to the Upper Tribunal only to the extent that resort to it is necessary to do something incidental to any one or more of the Upper Tribunal’s own functions. Thus, in this instance, the issue is whether determining an application that would otherwise fall outside the scope of rule 43 can be a matter incidental to the rule 43 function. For the reasons we have already given, we do not think that it can. 31. The other case cited – Singh – is entirely consistent with this conclusion. In Singh the questions concerned the procedures available to the Upper Tribunal under Part 4 of the Upper Tribunal Rules for the purposes of deciding applications for judicial review. The specific issue was whether the Upper Tribunal had the power to set aside a decision granting permission to apply for judicial review which had been taken at a hearing held pursuant to rule 30 on the ground that one of the parties had not attended the hearing. The Rules made no provision one way or the other. (Rule 43 has no application to judicial review claims before the Upper Tribunal.) The Court of Appeal noted that had the application for judicial review been in the High Court a relevant power to set aside would have been available under CPR 23.11(2). It then concluded that by reason of section 25(2)(c) of the 2007 Act, the Upper Tribunal should be regarded as having the same power because it was a power incidental to the Tribunal’s function of determining applications for judicial review. That application of section 25(2)(c) was, with respect, both entirely orthodox and some way distant from the section 25 submission made to us in these applications. (2)