Court of Appeal confirms Upper Tribunal Rule 43 paper determinations should only be set aside in cases where there has been a failure to act fairly

24 Feb 2022

One Pump Court’s Emma Turnbull explains an important Court of Appeal decision around fairness in immigration determinations by the Upper Tribunal. Emma is a first six pupil in the Immigration and Housing Team and will be taking instructions from April 2022.

21 February 2022

In Hussain v Secretary of State for the Home Department [2022] EWCA Civ 145, the Court of Appeal (“CA”) has confirmed that paper determinations of appeals from the First-tier Tribunal carried out by the Upper Tribunal (“UT”) during the Covid-19 pandemic should not automatically be set aside on appeal to the CA, only in individual cases where the UT’s decision is tainted by procedural unfairness.

This is significant because a large number of error of law appeals were determined by the UT on the papers as a result of guidance issued at the height of the pandemic. A group of unsuccessful appellants challenged the guidance and it was found to be unlawful by the High Court (Joint Council for the Welfare of Immigrants v President of the Upper Tribunal (Immigration and Asylum Chamber) [2020] EWHC 3103 (Admin), [2021] PTSR 800 (“JCWI v President of UTIAC”)). However, what happens to the appeals of individuals whose appeals were already dismissed on the papers was still an unsettled question. Hussain answers that by saying there will be no blanket setting aside of Rule 43 paper determinations.

Background

Rule 43 of the Upper Tribunal Rules (available here) allows the UT to determine appeals without a hearing in certain circumstances. A Guidance Note issued by President of UTIAC on 23 March 2020 (available here) stipulated that decisions would usually be made without an oral hearing.

Paragraphs 9-17 of the Guidance Note were held to be unlawful by the High Court in JCWI v President of UTIAC. It did not make it sufficiently clear that any decision to determine an error of law appeal without a hearing had to be consistent with principles of fairness.

Following that case some appellants who had lost their appeals on the papers, made an application under Rule 43 to set those determination’s aside the paper determinations. 18 such applications were heard in EP(Albania) and others [2021] UKUT 233 (IAC). The UT dismissed all but 2. It held that not all the paper determinations after the Guidance Note should be set aside, that there was “no single, one size fits all, answer to the Rule 43 applications” (at [67]) and the merits of each case had to be considered. It held that a paper determination would be unlawful where there had been a failure to act fairly, including where the Tribunal had failed to consider whether determining the error of law appeal without a hearing “would be consistent with the principles of fairness” (at [69).

Hussain and GA

In Hussain, two appeals against paper determinations were heard together.

It was common ground that the UT could in principle, after the Guidance Note was published, determine an error of law appeal from the First-tier Tribunal on the papers, so long as it was fair to do so. The critical issue, therefore, is whether the individual UT paper determination satisfied the common law requirements of fairness.

In both cases, the UT had given a provisional view that the appeal was appropriate for determination on the papers, and directed any party who considered a hearing necessary should make written submissions.

However, in Mr Hussein’s appeal, the UT had not received or therefore considered a set of submissions before disposing of the appeal which (i) requested an oral hearing and (ii) made submissions on the grounds of appeal which were not all repeated in later documents which the UT did have. They would therefore not have been considered by the UT at all. This created unfairness. The UT had also mistakenly blamed Mr Hussein for a procedural unfairness by not filing initial submissions before the SSHD, which the CA thought unfortunate and of itself unfair.

In GA’s appeal, there was again missing submissions. The SSHD also introduced a new matter in response to the UT’s directions inviting it to depart from the County Guidance in MB (OLF and MTA – risk) Ethiopia CG [2007] UKAIT 00030 (“MB CG”). The UT did so on the basis of the SSHD’s new Country Policy and Information Note) which the CA thought unfair when GA had not been able to make submissions on that.

The CA’s conclusions

The CA therefore concluded that EP(Albania) was correctly decided: the result of JCWI v President of UTIAC was not that all paper determinations should be set aside, but only where the determination had been unfair. The CA did not, however, set out any guidance as to what constitutes unfairness. Nor did it decide whether the JCWI case had been correctly decided, a point taken late in the day by the SSHD. Both appeals were allowed because common law requirements of fairness were not satisfied for specific reasons as set out above rather than any wider general reasoning. The cases were remitted to the UT to reconsider whether the FTT decisions contain errors of law.

The key point for advisers who are seeking to challenge such determinations, is that it will be necessary to identify specific aspects of the UT’s handling of the appeal which amount to a procedural unfairness in order to persuade the CA to set aside the paper determination.

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