Immigration appeals decided without a hearing under the Upper Tribunal’s notorious COVID-19 guidance don’t automatically fall to be set aside, the Court of Appeal has held in Hussain and another v Secretary of State for the Home Department [2022] EWCA Civ 145. In so finding, the court confirmed the reasoning of the Upper Tribunal last year in EP (Albania) & others (rule 34 decisions, setting aside) [2021] UKUT 223 (IAC).

Unlawful guidance on paper appeals

The background to the case was an attempt by the President of the Upper Tribunal (Immigration and Asylum Chamber), Mr Justice Lane, to ensure that work didn’t grind to a halt in the early stages of the pandemic. On 23 March 2020, with in-person hearings suspended and remote ones not yet established, he issued a guidance note on the circumstances in which Upper Tribunal judges could determine cases on the papers – that is, without an oral hearing. A judicial review brought by the Joint Council for the Welfare of Immigrants resulted in a finding by Mr Justice Fordham that the guidance was unlawful because it communicated an “overall paper norm”, risking unfairness.

What, then, should happen to the people whose appeals had been determined on the papers under the guidance note before the decision in JCWI? That was the issue for the Court of Appeal in Hussain.

Mr Hussain and anonymous appellant GA, whose cases were otherwise unconnected, had both been granted permission to appeal to the Upper Tribunal after losing in the First-tier. Both had requested an oral hearing. In each case, a judge determined the case on the papers and found no error of law in the First-tier Tribunal’s decision. They appealed.

Status of decisions under unlawful process

By the time of the hearing before the Court of Appeal, the appellants and the Home Office all agreed that the unlawfulness of the guidance note didn’t mean that no appeal could be determined on paper. The issue was whether it was fair to do so in the circumstances of a particular case. Lord Justice Dingemans, who gave the leading judgment, agreed, stating at paragraph 71:

UTIAC could, after the guidance note had been issued on 23 March 2020, determine an error of law appeal from the FTT on the papers, so long as it was fair to do so. Therefore the critical issue on any appeal, or application for permission to appeal, will be whether such a paper determination by UTIAC of the appeal from the FTT satisfied the common law requirements of fairness.

This was the same conclusion reached in EP (Albania), when the Upper Tribunal refused to set aside the paper determinations in 16 out of the 18 cases before it, on the basis that no individual unfairness had been shown.

So the appellants in Hussain weren’t entitled to have their adverse error of law determinations set aside purely because they were made on the papers under the unlawful guidance note.

Individual appeals allowed

That wasn’t the end of the matter, however. Both succeeded before the Court of Appeal on the basis that there had been procedural unfairness in the handling of their individual appeals. In each case, the Upper Tribunal judge deciding the case on the papers had overlooked written submissions made on the appellant’s behalf.

In the case of GA, an Ethiopian asylum seeker, there was a further problem. The judge had decided to depart from the country guidance case of MB (OLF and MTA, risk) Ethiopia CG [2007] UKAIT 30 without inviting submissions from GA’s representatives. Dingemans LJ emphasised that this was no “mere formality” given that a subsequent country guidance case has found that MB remains accurate.

The appeals were therefore allowed. Both now go back to the Upper Tribunal to decide again whether or not the First-tier Tribunal decision contained an error of law.

What about other people in this position?

Dingemans LJ noted that the correct approach to paper decisions following the JCWI case had been raised in “a considerable number of other applications for permission to appeal to the Court of Appeal”.

Following Hussain, those applications still outstanding are likely to be refused unless they can point to specific unfairness (or another error of law) on their individual facts. The mere fact that an appeal was determined on the papers when the unlawful part of the guidance note was in force will not be enough. Any application for the Upper Tribunal to set aside its own decision under rule 43 will be subject to the same considerations.

Interestingly, the Home Office sought to argue that JCWI was wrongly decided because Mr Justice Fordham hadn’t applied the correct legal test for determining the lawfulness of guidance documents. That argument relied on a Supreme Court case that post-dated JCWI. Ultimately, however, the Court of Appeal didn’t need to decide this issue in order to determine the appeals before it.