Upper Tribunal Immigration and Asylum Chamber

[2025] UKUT 00350 (IAC)

Fecha: 09-Ene-2025

Determining appeals without a hearing

35.

Rule 2(3) requires the FTT to give effect to the overriding objective when it exercises any power under the Rules or interprets any Rule. Dealing with cases ‘fairly and justly’ in the overriding objective has to be read consistently with the basic requirements of common law procedural fairness. The FTT is therefore duty-bound to seek to give effect to the overriding objective and basic common law requirements when exercising a power under the Rules or interpreting a Rule – see R (Ewing) v Department of Constitutional Affairs [2006] EWHC 504 (Admin), [2006] 2 All ER 993 at paragraph 24, as applied in R (JCWI) v UTIAC President [2020] EWHC 3103 (Admin), [2021] PTSR 800 at paragraph 2.6. This includes the application of rule 25. Where a procedural rule gives a judge discretion to dispense with an oral hearing, there should nevertheless be an oral hearing if fairness requires one – see JCWI at paragraph 6.3.

36.

In SSGA (Disposal without considering merits; R25) Iraq [2023] UKUT 00012 (IAC), the UT gave guidance on the correct approach to rule 25 when considering whether or not to hold a hearing before making a decision. At paragraph 74, the UT said (our underlining added):

‘The following guidance applies when consideration is being given to whether or not an appeal should be disposed of without a hearing:

(i)

Rule 25(1) of the FtT Rules provides that the FtT (IAC) must hold a hearing which disposes of proceedings except where rule 25(1)(a) to (g) apply. Seven exceptions to the general rule are provided for in rule 25(1)(a) to (g).

(ii)

Any decision whether to decide an appeal without a hearing is a judicial one to be made by the judge who decides the appeal without a hearing. The mere fact that a case has been placed in a paper list does not and cannot detract from the duty placed on the judge before whom the case is listed as a paper case to consider for himself or herself whether one or more of the exceptions to the general rule apply. If, having considered rule 25, the judge is not satisfied that at least one of the exceptions in rule 25(1)(a) to (g) is satisfied, the judge must decline to decide the appeal without a hearing and direct the administration to list the appeal for a hearing.

(iii)

If a judge decides that one or more of the exceptions in rule 25(1) is satisfied and therefore decides an appeal without a hearing, the judge’s written decision must explain which exception is satisfied and why by engaging with the pre-requisites specified in the relevant provision and giving reasons for how any discretion conferred by the relevant exception has been exercised and/or how any judgment required to be made is made. Furthermore:

(a)

For the exception in rule 25(1)(e) to apply, mere non-compliance with a provision of the FtT Rules, a practice direction or a direction is not in itself sufficient to permit a judge to decide an appeal without a hearing. The Tribunal must, in addition, be “satisfied that in all the circumstances, including the extent of the failure and any reasons for it, it is appropriate to determine the appeal without a hearing”. The judge's written decision must therefore identify the procedural failure or failures in question, explain the judge's view of their causes on such evidence as is before the judge as well as explain the persistence and gravity of the procedural failure or failures. The written decision must explain the extent to which such failures have obstructed the overriding objective and why the judge is “satisfied that in all the circumstances, including the extent of the failure and any reasons for it, it is appropriate to determine the appeal without a hearing”. If credibility is in issue on any material aspect of the claimant's case, the judge’s written decision must explain why it is nevertheless appropriate in all of the circumstances to decide the appeal without a hearing and the relevance of the procedural failure(s) to it being deemed appropriate by the judge to decide the appeal without a hearing.

(b)

For the exception in rule 25(1)(g) to apply, rule 25(2) has to be satisfied. If a judge proceeds to decide an appeal without a hearing under rule 25(1)(g), the judge’s written decision must demonstrate why rule 25(2) is satisfied and go on to explain why the judge has concluded that the appeal can justly be determined without a hearing notwithstanding any dispute there may be as to the credibility of any material fact.

(iv)

A hearing should be held whenever credibility is disputed on any material issue or fact. Cases in which it would be appropriate to determine an appeal without a hearing if credibility is materially in issue would be rare indeed. In almost all cases, the appropriate course of action would be to list the case for a hearing and decide the case on such material as is before the Tribunal.’

37.

It is clear from the wording of rule 25 and the guidance in SSGA that the FTT ‘must’ hold a hearing, unless one of the exceptions apply. Even where an exception applies, there is an overarching requirement to consider whether fairness requires a hearing. What fairness requires is informed by the circumstances of the particular case, the basic requirements of common law fairness and the overriding objective. It follows that even where each party has consented to, or has not objected to, the matter being decided without a hearing, and the exception in rule 25(1)(a) applies, the FTT must still consider whether the appeal can be disposed of fairly and justly without a hearing, in accordance with the overriding objective and common law fairness. The key themes that emerge to inform the basic requirements of common law fairness are set out in part 6 of JCWI (paragraphs 6.1-6.17).

38.

As the UT stated in SSGA, whenever credibility is disputed on any material issue or fact, it would be rare to proceed without a hearing. This applies even where both parties consent to the matter proceeding on the papers. This is because in such circumstances it is likely to be difficult to dispose fairly and justly of the case without a hearing – see in particular the summary of relevant case-law at paragraph 6.4 of JCWI:

‘The factual content of a case can be a basis why fairness requires a hearing. An oral hearing "is most obviously necessary to achieve a just decision in a case where facts are in issue which may affect the outcome" (West at paragraph 31: Lord Bingham). In cases "where credibility and veracity are at issue … written submissions are a wholly unsatisfactory basis for decision" (Goldberg v Kelly (1970) 397 US 254, 269 (Brennan J), cited in West at paragraph 31 by Lord Bingham). "[A]n oral hearing will … often" be necessary "[w]here facts which appear … to be important are in dispute, or where a significant explanation or mitigation is advanced which needs to be heard orally in order fairly to determine its credibility"(Osborn at paragraph 2(ii)(a): Lord Reed). Even where there is "no dispute on the primary facts" so that "important facts are not in dispute", a court or tribunal "may well be greatly assisted" by an oral hearing because facts may be "open to explanation" or "may lose some of their significance in the light of other … facts" (West at §§34-35 (Lord Bingham). It is an unduly "constricted" approach to "the common law duty of procedural fairness" to apply, as a "test" of whether an oral hearing is required, the question whether "the primary facts" are in "dispute" (West at paragraphs 34-35: Lord Bingham). It is necessary to "guard against any tendency to underestimate the importance of issues of fact which may be … open to explanation" (Osborn at paragraph 2(ii)(a): Lord Reed).’

39.

The importance of close examination by way of an oral hearing where credibility is disputed or dishonesty is alleged is underlined by the demand for anxious scrutiny and the highest standards of procedural fairness in protection and human rights claims – see paragraphs 6.6 and 6.12 of JCWI; and by the importance of what is at stake for the affected individual and the public interest – see paragraph 6.9 of JCWI. Whilst the instant case does not involve fundamental human rights, it is important to note the difficulties faced by AIPs, as identified in the ETBB. These include being ‘ill-informed about ways of presenting evidence’ and the ‘failure to put the salient points in their statement of case’. Where the parties consent to, or do not object to, the matter being decided without a hearing, there remains a judicial decision whether to proceed without a hearing. That decision must be informed by the overriding objective and basic standards of fairness. Judges must be particularly vigilant where an AIP consents to an oral hearing in circumstances where ‘clarifying questions’ have not been asked and it is clear that the AIP has not understood or addressed the evidence relevant to the PCIs.