[2024] UKUT 00028 (IAC)

The second paragraph of the Assistant Resident Judge’s direction of 14 April 2022 contained a clearly defined sanction in the event of non-compliance. Although it would have been preferable if the directions was not phrased in mandatory terms, we do not consider that a future judge hearing the appeal would consider themselves bound to apply the sanction. We find, for reasons given below, that the judge who did hear the appeal did not consider himself bound to apply the sanction. The appellant had already been given an extension of time to provide the documents that were the subject of the directions issued on 7 February 2022. There had been no challenge to the earlier directions, and no further application to extend time, and the sanction did not prevent the appellant from relying on the Embassy letter itself. If the appellant considered that she was unable to comply with the directions it was open to her to make appropriate submissions in a timely manner. Nor is there any merit in the appellant’s submission that the effect of the disclosure direction was to “effectively edit” the key reasoning of the appellant’s deprivation decision as the direction sought the production of evidence that was already in existence when the deprivation decision was made and which had been relied on by the appellant in reaching that very decision. Although the Assistant Resident Judge did not expressly state that she considered the proposed sanction to be just, there is no reason to believe that she did not have rule 6 of the Procedure Rules in mind when the direction was formulated.

The Legal Officer’s sanction decision of 4 June 2022 flowed from the appellant’s failure to comply with the Assistant Resident Judge’s decision. In the absence of any challenge to the earlier direction or any application to extend time, or any reason for the failure, we are satisfied that the sanction decision was just and lawful.

In refusing to grant relief from the sanction by admitting the documents the judge was demonstrably aware of the history of the proceedings, the appellant’s failure to challenge the directions of 14 April 2022 or seek an extension of time, and the absence of any reason for the non-compliance. The appellant was aware of what would happen if she failed to comply with the sanction direction as the sanction was clearly prescribed. There is nothing to indicate that the judge failed to take into account all relevant circumstances or that his reasoning was inadequate. The judge was aware of and took into account both the importance of the documents to the appellant’s case and the fact that the documents had eventually been made available. The judge noted the circumstances of the breach of the directions issued by the Tribunal and considered that the breach was serious. We again note the absence of any reason for the failure to comply with the directions issued on 14 April 2022. The judge weighed the relevance of the documents against the seriousness of the breach and the consequences for the appellant and reached a conclusion that was within the range of reasonable conclusions open to him. While another judge may have reached a different conclusion, we cannot say that the judge’s decision was one he was not entitled to make for the reasons given.

Having holistically considered the judges’ reasoning at [23] and [24] we are not persuaded that the judge considered himself bound to follow the decision of 4 June 2022, or that he was unaware of or failed to exercise his own judgement. The judge demonstrably took into account the relevant circumstances and reached his own view as to whether he should provide relief from the sanction. The judge weighed the relevant considerations and reached a conclusion that was rationally open to him. Although there was no express reference to the overriding objective in the Procedure Rules or to the requirement in rule 6 that the judge considered his action to be just, we are satisfied that the judge would have had these in mind in reaching his decision.