EP (Albania) & Ors v Secretary of State for the Home Department

A decision to determine an error of law appeal without a hearing under rule 34 is a procedural irregularity for rule 43 only where the decision was wrong in law because it failed to meet the requirements of fairness. The unlawfulness of the Presidential Guidance Note did not itself invalidate every no-hearing decision made while it was in force. Each decision must be assessed on its reasons and circumstances.

Where such an irregularity is established, the interests of justice will normally require the error of law decision to be set aside. The exception is where it is beyond argument that a rehearing could produce no different outcome. Consent, or a failure to object after being invited to do so, is relevant but not conclusive. A Tribunal must also keep written directions under review and give parties a fair opportunity to address a new dispositive point.

Eighteen applicants sought to set aside Upper Tribunal error of law decisions which had been made without hearings during the Covid-19 pandemic. They relied on rule 43 of the Tribunal Procedure (Upper Tribunal) Rules 2008, following R (JCWI) v President of UT (IAC) [2020] EWHC 3103 (Admin), which had declared material parts of a Presidential Guidance Note unlawful.

The Tribunal considered common jurisdictional questions and the legal effect of the unlawful guidance before determining the individual applications. The central issue was whether a rule 34 decision to decide an error of law appeal without a hearing was a procedural irregularity requiring the substantive decision to be set aside.

1. Applications granted in two cases; otherwise refused. The Tribunal set aside the error of law decisions in Mohammed Karim Chowdhury and RSS (Iraq). It refused the remaining sixteen applications.

2. A rule 43 application may be made where the Upper Tribunal has retained an appeal for remaking but has not completed the remaking exercise. The error of law decision disposes of part of the proceedings. Nor does a pending or determined application for permission to appeal create a jurisdictional bar, although delay, abuse of process, or parallel proceedings may affect the merits of a particular application.

3. A decision under rule 34 to proceed without a hearing is capable of being an “other procedural irregularity” under rule 43(2)(d), but only where it was erroneous in law because the resulting process was unfair. Rule 43 also requires the Tribunal to decide whether setting aside is in the interests of justice. Where the rule 34 decision rested on legal error, that requirement will ordinarily be met unless it is beyond argument that a rehearing could make no difference.

4. R (JCWI) v President of UT (IAC) did not make every no-hearing decision unlawful. It concerned the legality of guidance which promoted an overall paper norm without sufficiently preserving fairness. The lawfulness of an individual rule 34 decision instead depends on an assessment of its reasons, in the round, and on whether the particular appeal could fairly be determined without a hearing.

5. The existence of the Guidance Note, a reference to it, standard directions expressing a provisional view, or the absence of a formulaic reference to every fairness authority is not determinative. Consent to a paper determination, and a represented party's failure to object when invited to do so, may strongly support fairness but do not give the parties a veto.

6. A Tribunal conducting a no-hearing process must keep its directions under review. In Chowdhury, the decision relied on a point neither advanced nor answered by the parties. In RSS, it relied on a later country-information document without giving the parties an opportunity to address it. Both were unfair procedural irregularities. Subject to case-specific matters, a judge may also determine a rule 43 application concerning that judge's own earlier decision without apparent bias.

• Upper Tribunal (Immigration and Asylum Chamber): determined eighteen applications under rule 43 to set aside its earlier error of law decisions made without hearings. Two applications were granted and the related error of law appeals were to be reheard.
• First-tier Tribunal (Immigration and Asylum Chamber): the underlying immigration, protection and human-rights appeals had generated the error of law appeals before the Upper Tribunal. Individual lower decisions are described in the judgment but no consolidated lower-court citation is stated.