DJ (Pakistan) v The Secretary of State for the Home Department

A decision by the Upper Tribunal on an application under rule 43 to set aside a decision is an intermediate and excluded decision. The Court of Appeal therefore has no jurisdiction under section 13 of the Tribunals, Courts and Enforcement Act 2007 to hear an appeal directed only to the rule 43 decision. That decision merges with the substantive decision, whether remade by the Upper Tribunal or left as the original First-tier Tribunal decision. Any appeal lies against the substantive outcome. Rule 43 derives from the statutory rule-making power and is distinct from section 10 review. Concurrent rule 43 and permission-to-appeal applications are permissible, subject to possible objections based on lateness or abuse of process. The appeal was allowed by consent on the substantive grounds and remitted for rehearing; the remaining grounds were rejected.

The appellant, a Pakistani national, claimed asylum after entering the United Kingdom on a student visa. The First-tier Tribunal dismissed his appeal on credibility grounds. The Upper Tribunal dismissed his error-of-law appeal without a hearing on 24 August 2020 and refused permission to appeal on 27 October 2020.

The appellant then applied under rule 43 of the Tribunal Procedure (Upper Tribunal) Rules 2008 to set aside the Upper Tribunal’s decision. The application was refused in EP (Albania) and ors at [2021] UKUT 233 (IAT), paras [149]–[150]. The Secretary of State later conceded that the First-tier Tribunal and Upper Tribunal determinations should be quashed and the case remitted. The principal issue was whether the Court of Appeal had jurisdiction to entertain an appeal from the rule 43 decision.

Macur LJ gave the judgment. Dingemans LJ and Lewison LJ agreed.

1. Disposition. The appeal was allowed on grounds 1–3 by consent. The First-tier Tribunal and Upper Tribunal determinations were to be quashed and the case remitted to the First-tier Tribunal for a fresh hearing. Grounds 4 and 5 were rejected.
2. Jurisdiction. Sections 13(1) and 13(2) of the Tribunals, Courts and Enforcement Act 2007 confer a right of appeal only from a decision of the Upper Tribunal which is not an excluded decision. The rule 43 power derives from section 22 and Schedule 5, paragraph 15(2), rather than the section 10 review jurisdiction. Rule 43 is therefore distinct from the review procedure governed by rules 45 and 46.
3. A rule 43 decision is procedural, ancillary and preliminary for the purposes of article 3(m) of the Appeals (Excluded Decisions) Order 2009 (SI 2009/275). It is procedural because it arises under procedural rules and concerns procedural irregularity. It is ancillary because it supports the substantive appellate task. It is preliminary because it precedes the final decision. It consequently merges with the remade or original substantive decision, and there is no separate right of appeal against it.
4. The statutory and procedural scheme permits concurrent applications under rule 43 and for permission to appeal against the substantive decision. A later rule 43 application may nevertheless face objections based on lateness or abuse of process. Judicial review relief remains discretionary and does not provide a reason to treat the rule 43 decision as appealable.
5. The Court of Appeal considered R on application of AVB v Upper Tribunal to be wrongly decided and per incuriam insofar as it held that a refusal to set aside was not an excluded decision.
6. Although it was arguable in theory that the Upper Tribunal should have reconsidered the need for a hearing after the Secretary of State contested the appeal, those points had not formed the basis of the rule 43 application. The rule 43 determination was correct on the arguments advanced below, so grounds 4 and 5 failed.
7. The Secretary of State was ordered to pay costs up to and including 15 May 2022, but not the costs of the hearing in EP (Albania); there was no order as to costs of the rule 43 application.

1. Court of Appeal (Civil Division): In [2022] EWCA Civ 1057, allowed the appeal on grounds 1–3 by consent, remitted the case to the First-tier Tribunal for rehearing, and rejected grounds 4 and 5.
2. Upper Tribunal (Immigration and Asylum Chamber): In EP (Albania) and ors, [2021] UKUT 233 (IAT), refused the appellant’s rule 43 application to set aside the Upper Tribunal’s earlier determination.
3. Upper Tribunal (Immigration and Asylum Chamber): Dismissed the error-of-law appeal on 24 August 2020 and refused permission to appeal on 27 October 2020.
4. First-tier Tribunal: Dismissed the asylum appeal in a decision promulgated on 6 December 2019.