KM (Algeria) v the Secretary of State for the Home Department

A tribunal may proceed in a party’s absence where it is satisfied that notice was given, or reasonable steps were taken to give notice, and considers that proceeding is in the interests of justice. The judge must give sufficient reasons, but need not refer expressly to the overriding objective if its principles were evidently applied. The interests of justice depend on the individual circumstances, including the nature and merits of the appeal. An appeal from a full merits determination, limited to a reasons challenge, may properly proceed despite the party’s absence caused by the default of legal representatives. The Upper Tribunal was not obliged, of its own motion, to set aside its earlier determination where no application to do so had been made.

An Algerian national appealed against the Upper Tribunal’s dismissal of his appeal from the First-tier Tribunal. The First-tier Tribunal had dismissed his challenge to the refusal of leave to remain and removal, finding that he had not proved 14 years’ continuous residence and that removal was proportionate under article 8. The Upper Tribunal heard the appeal in his absence after finding that notice had been given and dismissed it as a reasons challenge. It later refused permission to appeal and did not set aside its earlier determination under the Tribunal Procedure (Upper Tribunal) Rules 2008. The Court of Appeal considered whether the Upper Tribunal had misapplied rule 38, whether determining the appeal in the appellant’s absence was a procedural irregularity, and whether it had been required to act of its own motion under rule 43.

1. Appeal dismissed.

2. The Upper Tribunal had properly applied rule 38 of the Tribunal Procedure (Upper Tribunal) Rules 2008. It was entitled to proceed because the appellant and his solicitors had been notified, the appellant was absent and unrepresented, the respondent was represented, the tribunal was ready to hear the matter, and a telephone call to the solicitors had produced no response. The reasons were sufficient under the approach in English v Emery Reimbold and Strick Ltd [2002] 1 WLR 2409. It was unnecessary to refer expressly to the overriding objective.

3. Whether proceeding in the absence of a party is in the interests of justice depends on the circumstances of the individual case. Relevant considerations may include the right to a fair hearing, the impact of the decision, and the nature and merits of the appeal. The present appeal followed a full hearing before the First-tier Tribunal and was confined to a challenge to the adequacy of its reasons. It could therefore properly be determined in the appellant’s absence.

4. The case was materially different from HM (Iraq) v Secretary of State for the Home Department [2011] EWCA Civ 1536, which concerned country guidance with only one side represented. FP (Iran) v Secretary of State for the Home Department [2007] INLR 224 did not concern an appeal of this kind. The principle stated in Al-Mehdawi v Secretary of State for the Home Department [1990] 1 AC 876 was relevant, but the court declined to treat the matter as falling within a fixed category. The decisive question remained what the interests of justice required in the particular circumstances.

5. The Upper Tribunal was not obliged, of its own motion, to consider setting aside its determination under rule 43. No application had been made, and the judge had given reasons showing that he saw no basis for setting aside the earlier decision. The court therefore did not need to determine the further arguments concerning sections 10 and 13 of the Tribunals, Courts and Enforcement Act 2007.

• Court of Appeal (Civil Division): Appeal dismissed. The court upheld the Upper Tribunal’s decisions of 30 July 2014 and 23 February 2015.
• Upper Tribunal (Immigration and Asylum Chamber): On 30 July 2014, dismissed the appeal from the First-tier Tribunal’s determination. On 23 February 2015, refused permission to appeal to the Court of Appeal.
• First-tier Tribunal: On 18 February 2014, dismissed the appeal against refusal of leave to remain and removal.