There is no right of appeal against a refusal by the Upper Tribunal (Immigration and Asylum Chamber) to set aside a decision disposing of proceedings. So held the Court of Appeal in DJ (Pakistan) v Secretary of State for the Home Department [2022] EWCA Civ 1057, another case dealing with the fallout from outgoing President Lane’s unlawful Covid-19 guidance note on determining appeals without a hearing.

Background

The anonymised appellant, DJ, was one of many whose appeals to the Upper Tribunal were determined “on the papers” (meaning without a hearing) following a Covid-19 Presidential Guidance Note later found by Mr Justice Fordham to be unlawful. Following that finding, DJ applied for the Upper Tribunal to set aside its decision, arguing that reliance on the guidance note was a ‘procedural irregularity’. His application, made under rule 43 of the Tribunal Procedure (Upper Tribunal) Rules 2008, was refused alongside several others from people in a similar position (see EP (Albania) and others (rule 34 decisions, setting aside) [2021] UKUT 233 (IAC)).

In the meantime, DJ had challenged the UT’s dismissal of his appeal on its merits, and the Court of Appeal subsequently granted him permission to appeal. He asked the Court to hear an appeal against the rule 43 decision at the same time. The issue for the Court was whether it had jurisdiction to do so.

The Court of Appeal’s reasoning

Generally speaking, there is a right of appeal on a point of law against any UT decision other than an ‘excluded decision’. One type of excluded decision, and the one at issue in DJ’s case, is ‘any procedural, ancillary or preliminary decision made in relation to an appeal against a decision under… section 82 of the Nationality, Immigration and Asylum Act 2002’. DJ was appealing against the refusal of a protection claim, which comes under section 82 – so was the rule 43 decision ‘procedural, ancillary or preliminary’?

Lady Justice Macur, giving the lead judgment, held that it was, and therefore that there was no right of appeal against it. A rule 43 decision is, she said, analogous to an error of law finding by the UT before it goes on to redetermine the appeal for itself, in that it is

an intermediate decision; that is, a decision whether it is in the interests of justice to set aside a final dispositive decision, or part of it, and remake the same because of a procedural irregularity.

She rejected DJ’s argument that there are policy reasons for recognising a separate right of appeal against a rule 43 decision; none was needed because the relevant matters could, if necessary, be raised in an appeal against the UT’s substantive decision.

So DJ couldn’t appeal against the refusal to set aside the decision made under the unlawful guidance note. As things turned out, though, this didn’t really matter; the Home Office agreed that there were errors in the UT’s substantive decision to dismiss his appeal, and his case was remitted to the First-tier Tribunal by consent.

Comment

Macur LJ noted that there were ‘other applications for permission to appeal adjourned behind the determination of this appeal’. Insofar as they challenge rule 43 decisions, DJ means they are now likely to be refused for want of jurisdiction.

But it doesn’t follow that a flawed UT decision to proceed on the papers can never be challenged in the higher courts. As Macur LJ pointed out, any procedural irregularities in the UT’s determination of the appeal can be raised in an ordinary appeal against the UT’s substantive decision. If the irregularities led to material unfairness, the appeal may succeed. That is in fact what happened in Hussain and another v Secretary of State for the Home Department [2022] EWCA Civ 145, another case involving paper decisions under the unlawful guidance note. Both appellants won in the Court of Appeal because the decisions to proceed on the papers led to the UT unfairly failing to consider their written submissions.

So if an appellant identifies a procedural irregularity in an adverse UT decision, should they appeal, or should they apply under rule 43? The answer, according to DJ, is probably both. Macur LJ pointed out that it’s possible to ‘make concurrent applications for a rule 43 decision and, in the alternative for permission to appeal to the Court of Appeal’. The permission to appeal application provides a route to challenging the decision if the rule 43 application fails – and if the rule 43 application succeeds, then the appeal isn’t needed. Making both at the same time avoids the risk of failure on timeliness grounds.