- BY CJ McKinney
Immigration judge tried to change his mind after granting child’s asylum appeal
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An immigration judge who tried to change his mind after granting asylum to a 16-year-old Iraqi boy has been overruled by the Upper Tribunal. The case is PAA (FtT: Oral decision – written reasons) [2019] UKUT 13 (IAC).
Notes made by several different people present at a First-Tier Tribunal hearing in May 2018, including the Home Office representative, recorded the judge announcing a decision in the child’s favour. Imagine their horror, then, to receive a written judgment denying him asylum a few weeks later.
To the rescue came the unlikely figure of Mr Ockelton. The Upper Tribunal Vice-President found that the first decision, though oral, was set in stone:
In my judgement it is clear as a matter of law that he gave his decision orally allowing the appeal. He could not subsequently dismiss the appeal.
In this he was fortified by section 29(1) of the First-tier Tribunal procedure rules (SI 2604/2014), which says that “the Tribunal may give a decision orally at a hearing”. The Court of Appeal had decided in Patel v SSHD [2015] EWCA Civ 1175 that “a decision given to the parties in open court under a procedural rule in these terms cannot, after it has been uttered, be revised or reversed”. Mr Ockelton declared that there was “no jurisdiction to give a second decision inconsistent with the first”. The original appeal decision in the child’s favour stands.
Mr Ockelton takes a moment to castigate the legal representatives on both sides for coming to the Upper Tribunal hearing without doing “proper research on what the procedural strictures below actually were… there is no excuse at all for lack of knowledge of the rules”. This spleen does not, however, extend to the First-tier Tribunal judge responsible for the debacle, who is allowed to remain anonymous.
2. If it does so, that is the decision on the appeal, and the effect of Patel v SSHD [2015] EWCA Civ 1175 is that there is no power to revise or revoke the decision later. The requirement to give written reasons does not mean that reasons are required in order to perfect the decision.
3. If the written decision, when issued, is inconsistent with the oral decision, both decisions, being decisions of the Tribunal, stand until set aside by a court of competent jurisdiction; but neither party is entitled to enforce either decision until the matter has been sorted out on appeal.
4. In such a case, as in any other, time for appealing against the decision given at the hearing runs, under rule 33 (2) and (3), from the date of provision of the written reasons, however inappropriate the reasons may appear to be, subject to any successful application for extension of time.
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