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Discussion
Discussion
Ground 1: Procedural rigour
The first ground of appeal raises issues concerning procedural rigour in the context of directions issued by the Tribunal that include, as a sanction for non-compliance, the non-admittance of late evidence.
The concept of procedural rigour must be considered in the context of the overriding objective of the Tribunal Procedure (First-tier Tribunal) (Immigration and Asylum Chamber) Rules 2014 (the Procedure Rules). The overriding objective of the Procedure Rules is to enable the Tribunal to deal with cases fairly and justly (rule 2). This includes dealing with cases in ways which are proportionate to their importance, the complexity of the issues, the anticipated costs and the resources of the parties and of the Tribunal. It also includes ensuring, so far as practicable, that the parties are able to participate fully in the proceedings, the avoidance of unnecessary formality and the seeking of flexibility in the proceedings, and the avoidance of delay, so far as compatible with proper consideration of the issues. Under rule 2(3) the Tribunal must seek to give effect to the overriding objective when it exercises any power under the Procedure Rules or interprets any rule or practice direction. Rule 2(4) states that parties must help the Tribunal to further the overriding objective and co-operate with the Tribunal generally.
The ability of the First-tier Tribunal to issue directions stems from the case management powers in rule 4. This states, in relevant part:
4.— (1) Subject to the provisions of the 2007 Act and any other enactment, the Tribunal may regulate its own procedure.
The Tribunal may give a direction in relation to the conduct or disposal of proceedings at any time, including a direction amending, suspending or setting aside an earlier direction.
…
Rule 4(3) gives particular examples of directions that can be given in relation to the conduct or disposal of proceedings. These include the extension or shortening of time for complying with any direction (rule 4(3)(a)). Although there is no express example relating to the exclusion of evidence following non-compliance with a time limit contained in a direction, rule 4(3) is written in non-exhaustive terms (the examples are given “without restricting the general powers” in 4(1) and 4(2)).
Rule 5 sets out the procedure for applying for and giving directions. Rule 5(1) states that the Tribunal may give a direction on the application of one or more of the parties or on its own initiative. Unless there is a good reason not to do so, rule 5(4) requires the Tribunal to send written notice of any direction to every party and any other person affected by the direction. Rule 5(5) states:
If a party or any other person sent a notice of the direction under paragraph (4) wishes to challenge the direction which the Tribunal has given, they may do so by applying for another direction which amends, suspends or sets aside the first direction.
Rule 6 is concerned with failure to comply with any requirement of the rules, a practice direction or a direction.
6.— (1) An irregularity resulting from a failure to comply with any requirement in these Rules, a practice direction or a direction, does not of itself render void the proceedings or any step taken in the proceedings.
If a party has failed to comply with a requirement in these Rules, a practice direction or a direction, the Tribunal may take such action as it considers just, which may include—
waiving the requirement;
requiring the failure to be remedied;
exercising its power under paragraph 3
Rule 6(3) enables the Tribunal to request the Upper Tribunal to exercise its power under section 25 (supplementary powers of Upper Tribunal) of the Tribunals, Courts and Enforcement Act 2007 in relation to any failure by a person to comply with a requirement imposed by the Tribunal relating to a closed list of scenarios. These are not relevant to the issues in this appeal.
Rule 6(2)(a) to (c) contains examples of the action that the Tribunal ‘may’ take. Rule 6(2) does not restrict the action that the Tribunal may take, as long as the Tribunal considers that action to be ‘just’. We take the reference to the word ‘just’ in rule 6(2) to encompass fairness as well, by reference to the overriding objective in rule 2. What is just and fair will depend on the particular circumstances of a case.
The Practice Statement No 1 of 2022 (‘PS’) is dated 13 May 2022. The PS contains model directions (at annexes A to C) which are applicable depending on the manner in which the appeal is lodged. Each of the annexes contains a section dealing with ‘late material’. Although the word ‘material’ is not defined we take it to be synonymous with ‘evidence’. These sections state that any material provided to the First-tier Tribunal outside the relevant time limits may not be relied upon without permission from the First-tier Tribunal. Where any material is provided after 5 working days prior to the hearing, including on the day of the hearing, the judge must deal with the admissibility of that material at the hearing as a preliminary matter.
The effect of the PS is that where the model directions are applied, even in the absence of a specific direction that includes a sanction leading to the potential exclusion of evidence, if the evidence is provided outside of the time limits it may not be relied on without obtaining the permission of the Tribunal.
The need to ensure procedural rigour in the context of public law proceedings has been stressed by the higher courts (R (Spahiu) v Secretary of State for the Home Department [2018] EWCA Civ 2604; [2019] Imm AR 524; R (Dolan) v Secretary of State for Health and Social Care [2020] EWCA Civ 1605).
In R (AB) Chief Constable of Hampshire Constabulary [2019] EWHC 3461 (Admin) the Divisional Court held (per Dame Victoria Sharp P, [108]):
The conduct of litigation in accordance with the rules is integral to the overriding objective set out in the first part of the CPR and to the wider public interest in the fair and efficient disposal of claims. Public law cases do not fall into an exceptional category in any of these respects. If the rules are not adhered to there are real consequences for the administration of justice.
In R (Talpada) v Secretary of State for the Home Department [2018] EWCA Civ 841, Singh LJ stated [67]:
I turn finally to the question of procedural rigour in public law litigation. In my view, it cannot be emphasised enough that public law litigation must be conducted with an appropriate degree of procedural rigour. I recognise that public law litigation cannot necessarily be regarded in the same way as ordinary civil litigation between private parties. This is because it is not only the private interests of the parties which are involved. There is clearly an important public interest which must not be overlooked or undermined. In particular procedure must not become the master of substance where, for example, an abuse of power needs to be corrected by the court. However, both fairness and the orderly management of litigation require that there must be an appropriate degree of formality and predictability in the conduct of public law litigation as in other forms of civil litigation.
Having deprecated the habit of “evolving” grounds of appeal in proceedings Singh LJ then stated [69]:
These unfortunate trends must be resisted and should be discouraged by the courts, using whatever powers they have to impose procedural rigour in public law proceedings. Courts should be prepared to take robust decisions and not permit grounds to be advanced if they have not been properly pleaded or where permission has not been granted to raise them. Otherwise there is a risk that there will be unfairness, not only to the other party to the case, but potentially to the wider public interest, which is an important facet of public law litigation.
The Upper Tribunal has also considered the requirements of procedural rigour. The headnote in Shabir Ahmed and others (sanctions for non – compliance) [2016] UKUT 00562 (IAC) reads:
Persistent and egregious non-compliance with Upper Tribunal orders, directions and rules will attract appropriate sanctions.
The need for general procedural rigour, including compliance with directions, has received comment in the decision of TC (PS compliance - “issues based” reasoning) Zimbabwe [2023] UKUT 00164 (IAC); [2023] Imm AR 1427. Headnote 5 reads:
The need for procedural rigour at every stage of the proceedings applies with equal force when permission to appeal to the UT is sought and in the UT, including a focus on the principal important controversial issues in the appeal and compliance with directions. The requisite clear, coherent and concise ‘issues-based’ approach continues when a judge considers whether to grant permission to appeal. This means that the judge should consider whether a point relied upon within the grounds of appeal was raised for consideration as an issue in the appeal.
When considering whether to grant relief from sanctions, or the appropriate action consequent to a failure to comply with procedural requirements such as those contained in the PS, or the appropriate action following a failure to comply with a specific direction sanctioning the exclusion of evidence in the event of non-compliance, we consider that paragraphs 93, 94 and 95 of the Court of Appeal's judgment in SSHD v SS (Congo) and Others [2015] EWCA Civ 387; [2015] Imm AR 1036 are relevant. The test is the familiar tripartite one laid down by the Court of Appeal in Mitchell v NGN [2013] EWCA Civ 1537; [2014] 1 WLR 795 and Denton v TH White Ltd [2014] EWCA Civ 906; [2014] 1 WLR 3926 (see also SA (Non-compliance with rule 21(4)) Bangladesh [2022] UKUT 00132 (IAC); [2022] Imm AR 1049).
It is common ground that the governing principles are those laid down in R (Hysaj) v Secretary of State for the Home Department [2014] EWCA Civ 1633, in which this court held that applications for extension of time for filing a notice of appeal should be approached in the same way as applications for relief from sanction under CPR rule 3.9 and in particular that the principles to be derived from Mitchell v News Group Newspapers Ltd [2013] EWCA Civ 1537, [2014] 1 WLR 795 and Denton v TH White Ltd [2014] EWCA Civ 906, [2014] 1 WLR 3926 apply to them. According to the Denton restatement of the Mitchell guidance, in particular at paras. [24]-[38] of the judgment of the Master of the Rolls and Vos LJ in Denton, a judge should address an application for relief from sanction in three stages, as follows:
The first stage is to identify and assess the seriousness or significance of the failure to comply with the rules. The focus should be on whether the breach has been serious or significant. If a judge concludes that a breach is not serious or significant, then relief will usually be granted and it will usually be unnecessary to spend much time on the second or third stages; but if the judge decides that the breach is serious or significant, then the second and third stages assume greater importance.
The second stage is to consider why the failure occurred, that is to say whether there is a good reason for it. It was stated in Mitchell (at para. [41]) that if there is a good reason for the default, the court will be likely to decide that relief should be granted. The important point made in Denton was that if there is a serious or significant breach and no good reason for the breach, this does not mean that the application for relief will automatically fail. It is necessary in every case to move to the third stage.
The third stage is to evaluate all the circumstances of the case, so as to enable the court to deal justly with the application. The two factors specifically mentioned in CPR rule 3.9 are of particular importance and should be given particular weight. They are (a) the need for litigation to be conducted efficiently and at proportionate cost, and (b) the need to enforce compliance with rules, practice directions and court orders. As stated in para. [35] of the judgment in Denton:
"Thus, the court must, in considering all the circumstances of the case so as to enable it to deal with the application justly, give particular weight to these two important factors. In doing so, it will take account of the seriousness and significance of the breach (which has been assessed at the first stage) and any explanation (which has been considered at the second stage). The more serious or significant the breach the less likely it is that relief will be granted unless there is good reason for it …."
The court in Hysaj added some points of particular relevance to the present context. At para. [41] of his judgment, Moore-Bick LJ (with whom the other members of the court agreed) said that it would be quite wrong to construct a special regime for applications for extensions of time in public law cases, but he accepted that "the importance of the issues to the public at large is a factor that the court can properly take into account when it comes at stage three of the decision-making process to evaluate all the circumstances of the case". At para. [42] he rejected the contention that the court could construct a special rule for public authorities, which "have a responsibility to adhere to the rules just as much as any other litigants". He added that the nature of the proceedings and the identification of the responsibility for delay are factors which it may be appropriate to take into account at the third stage.
Another point concerned the merits of the substantive appeal, as to which Moore-Bick LJ said this at para. [46]:
"If applications for extensions of time are allowed to develop into disputes about the merits of the substantive appeal, they will occupy a great deal of time and lead to the parties' incurring substantial costs. In most cases the merits of the appeal will have little to do with whether it is appropriate to grant an extension of time. Only in those cases where the court can see without much investigation that the grounds of appeal are either very strong or very weak will the merits have a significant part to play when it comes to balancing the various factors that have to be considered at stage three of the process. In most cases the court should decline to embark on an investigation of the merits and firmly discourage argument directed to them ….."
The assessment of whether the ‘action’ that can be taken by the Tribunal under rule 6(2) is ‘just’ will encapsulate the principles set out above in SS (Congo).
In assessing whether to grant relief from a sanction imposed by way of earlier directions SSGA (Disposal without considering merits; R25) Iraq [2023] UKUT 00012 (IAC); [2023] Imm AR 380 is relevant. Headnote 2 reads:
Every judge seized of an appeal must reach his or her own decision on the case and must exercise for himself or herself any available discretion. Judges who give directions must be careful to ensure that the wording of their directions does not and cannot be perceived to direct how another judge should dispose of the appeal or exercise any available discretion. If a judge tasked with deciding an appeal is faced with any direction that may be so perceived, the judge must make it clear in the decision that he/she has considered the matter for himself/herself.
Having regard to the Procedure Rules, and in particular rules 2, 4, 5 and 6, and to the authorities cited above in respect of procedural rigour and relief from sanctions, we are satisfied that the First-tier Tribunal is empowered to issue directions regulating the filing and service of evidence in proceedings which provide sanctions in the event of non- compliance that lead to the exclusion of evidence if the Tribunal considers this to be ‘just’. This is necessary to ensure that proceedings are conducted in accordance with the overriding objective. Non-compliance with directions imposing specified time limits may impact on judicial and administrative resources, on the ability of the other party to participate fully in the proceedings, and could delay the administration of justice. It is also disrespectful of the judicial process and the rule of law. Parties must appreciate that if they fail to comply with directions they run the risk that the Tribunal will refuse to consider evidence that is not provided in accordance with those directions. What is ‘just’ will depend on the particular circumstances of each case but will be informed by the principles set out in SS (Congo).