No blanket relief for appellants denied hearing under unlawful pandemic guidance

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At the outset of the pandemic, on 23 March 2021, Upper Tribunal President Lane issued guidance for making deciding immigration appeals “on the papers”, without an oral hearing. As all immigration practitioners know, oral hearings are essential for appellants to put their case properly and having the decision made on the papers would generally be a big disadvantage. JCWI came to the rescue and successfully challenged the guidance in the High Court: Joint Council for the Welfare of Immigrants v President of the Upper Tribunal (Immigration and Asylum Chamber) [2020] EWHC 3103 (Admin).

Off the back of the JCWI decision, the Upper Tribunal listed 18 applications to set aside decisions made under the unlawful guidance, and called in Mr Justice Swift from the Administrative Court to help. The resulting judgment is EP (Albania) (rule 34 decisions, setting aside) [2021] UKUT 233 (IAC).

Unusually, the appellants and the Home Office were basically on the same page. The Home Office submitted that the appropriate course of action would be for the Upper Tribunal to set aside the decision, unless the parties agreed otherwise or, exceptionally, where it was obvious that an oral hearing would not have made a difference.

The Upper Tribunal disagreed, ruling that decisions should only be set aside where the appellant can establish that there was an error of law in the decision to proceed without an oral hearing. By error of law, the Tribunal means some sort of procedural irregularity in the decision to proceed without an oral hearing.

The substantive decisions made on the 18 applications demonstrate how difficult it will be to succeed in having an appeal decision made under the unlawful guidance set aside. 16 of the applications were dismissed.

Of the two that were granted, one involved the Upper Tribunal taking a point against the appellant which the Home Office itself had not raised. In the other, the tribunal had relied upon a country evidence document which the parties had not had the chance to comment on. Neither were really about the unlawful guidance and the decision to proceed without a hearing.

Despite the strong findings about the unlawful guidance made by the High Court, the individual decisions indicate that unless the Upper Tribunal made some kind of howler when making the error of law determination on the papers, it will be impossible to set aside. The 16-2 result is particularly surprising given that the Home Office had effectively conceded that all of the applications should be allowed.

There are similarities here with the Supreme Court’s decision last week that decisions made under the unfair and unlawful Detained Fast Track Rules are not necessarily unlawful.

The official headnote

1. The Upper Tribunal considered applications under rule 43 made consequent on the judgment in R (JCWI) v President of UT (IAC) [2020] EWHC 3103 (Admin) (“the JCWI judgment”) which had concluded that guidance set out in a Presidential Guidance Note dated 23 March 2020 on the determination of error of law appeals without a hearing was unlawful.

2. A rule 43 application can be made notwithstanding that an appeal has been retained for remaking in the Upper Tribunal but has not yet been remade. The fact that an application for permission to appeal has been made and/or determined, whether by the Upper Tribunal or the Court of Appeal does not give rise to any jurisdictional bar to a rule 43 application.

3. Subject to any matters arising from the circumstances of a particular case, an Upper Tribunal Judge may determine an application under rule 43 to set aside her own decision without offending the rule against apparent bias.

4. The Upper Tribunal rejected the submission that the consequence of the JCWI judgment was that every rule 34 decision to proceed without a hearing taken following the issue of the Presidential Guidance Note amounted to a procedural irregularity. A decision made under rule 34 to determine an error of law appeal without a hearing would amount to a procedural irregularity for the purposes of rule 43 if the rule 34 decision rested on an error of law. Whether or not a relevant procedural irregularity occurred must depend on scrutiny of each rule 34 decision, and the reasons given for it. The question is whether the decision that it would be fair to determine the appeal in issue without a hearing was wrong in law.

5. The Upper Tribunal gave guidance on matters likely to be relevant or irrelevant to the decision on any rule 43 application made consequent on the JCWI judgment.

6. Where a procedural irregularity is established, it is necessary, pursuant to rule 43, to consider whether the interests of justice require the decision to be set aside. In cases such as the present ones where the conclusion is that the rule 34 decision rested on an error of law, the interests of justice will require that the error of law decision be set aside save where it is beyond argument that the outcome would be the same if the error of law appeal were to be reheard.