The Joint Council for the Welfare of Immigrants v The President of the Upper Tribunal (Immigration And Asylum Chamber)

Guidance for an appellate tribunal may not communicate an overall norm that substantive appeals will normally be decided on paper where the governing procedure requires decisions to remain consistent with fairness and the overriding objective. The question whether an oral hearing is required is contextual and cannot be reduced to disputed primary facts, exceptional complexity, or the importance of the outcome being insufficient without something more. Relevant considerations include the factual content of the case, the need for closer examination, the interests at stake, effective participation, oral argument, the rule of law and the particular importance of protection and human-rights appeals. Guidance which omits positive indicators for a hearing, while emphasising reasons against one, may be legally erroneous and unlawful if followed.

The claimant, an immigration and refugee-law organisation, sought judicial review of Presidential Guidance Note No 1 of 2020 issued by the President of the Upper Tribunal (Immigration and Asylum Chamber) during the Covid-19 pandemic. The Guidance concerned whether substantive appeals should be determined without a hearing and how necessary hearings should be conducted remotely. The challenge focused on whether the Guidance communicated an overall paper norm, whether it unlawfully limited the circumstances justifying an oral hearing, and whether it omitted relevant common-law fairness considerations. The Pilot Practice Direction itself was not under challenge at the substantive hearing.

1. Claim allowed. Paragraphs 9–17 of the Presidential Guidance Note were declared unlawful. The defendant withdrew those paragraphs and undertook to use all reasonable endeavours to notify affected parties and advise them to seek legal advice.
2. The Guidance had to be read objectively, straightforwardly and as a whole, having regard to its function and its judicial audience. Its operative section communicated that decisions in substantive appeals should usually be made without a hearing. That was an overall paper norm.
3. The Pilot Practice Direction lawfully created only a contingent paper norm. Paper determination was permitted where consistent with the overriding objective, ECHR rights and the applicable procedural rules. The proviso had primacy and could not be treated as an exception applying only in unusual cases.
4. An overall paper norm for UTIAC substantive appeals was inconsistent with the overriding objective and the basic requirements of common-law procedural fairness. Those requirements are contextual and require an oral hearing whenever fairness requires one. They cannot be reduced to whether primary facts are disputed, whether the legal issues are particularly complex, or whether an oral hearing would improve decision-making.
5. The court identified relevant considerations including facts open to explanation, credibility, closer examination, the gravity of protection and human-rights issues, effective representations, oral advocacy, participatory interests, dignity, the rule of law, and the potential importance of the outcome. Protection and human-rights appeals require the highest standards of fairness. It may be prudent to allow a hearing where the tribunal is in doubt.
6. The statement that the importance of the appeal would not, without more, justify a hearing was erroneous in law. The importance of the outcome, viewed in the context of the case and the appeal process, could itself be sufficient. The Guidance was also unlawful because it omitted positive indicators supporting hearings while presenting fact, law and importance largely as reasons against them.
7. The challenge based on a freestanding statutory policy that hearings were always the usual position failed. A contingent paper norm consistent with fairness and the overriding objective would not, merely because it changed practice, be ultra vires or contrary to the statutory scheme.

First-instance judicial review in the Administrative Court. Permission was granted by Steyn J on specified grounds; the claim was subsequently allowed by Fordham J. The court declared paragraphs 9–17 of the Guidance Note unlawful and made consequential publication, notification and costs orders.