Immigration: False economy

The COVID-19 pandemic and the consequent lockdown restrictions have resulted in a substantial shift across the legal profession, both in the way that criminal and civil lawyers conduct their day-to-day operations, and in the operation of the courts and tribunals. For immigration and asylum practitioners, there has been a marked increase of appeals, mainly those in the Upper Tribunal (“UT”), which deals with appeals from the First-tier Tribunal (“FTT”), being determined “on the papers” (on the basis of written submissions and without an oral hearing).

The basis for the increasing determination of appeals on the papers came from the President of the UT, Mr Justice Lane, in his Presidential Guidance Note No 1 2020. Part of that guidance note essentially laid out the circumstances in which decisions on some appeals might be made without an oral hearing being required. For any practitioners working in the immigration and asylum sphere, it has become very much commonplace throughout the pandemic for this to be the course adopted by the UT. The Joint Council for the Welfare of Immigrants (“JCWI”) recently sought judicial review of the relevant part of the guidance note, namely paras 9-17, on the basis that it created an “overall paper norm” or, in other words, a presumption in favour of hearings being determined on the papers.

Overriding objective

Fordham J heard the case in the England & Wales High Court, the resultant judgment of which is JCWI v President of the UT (IAC) [2020] EWHC 3103 (Admin). The issue in the case was a relatively narrow one, given that counsel for the President accepted that if it was held that the guidance note created an overall paper norm, it therefore followed that the guidance was unlawful.

The learned judge determined this issue in the affirmative. Having regard to basic common law requirements, he held that the guidance note was unlawful as it directed judges to proceed on the basis that appeals should normally be decided on the papers rather than at remote hearings (something else which has become more common in the immigration and asylum sphere and looks to be here to stay for the foreseeable future). Fordham J held that this was because such basic common law requirements “inform the overriding objective of just and fair disposal, with which judges are duty-bound to comply”.

On the point of fairness, Fordham J’s judgment was particularly scathing insofar as it relates to the following part of the guidance note: “The fact that the outcome of the appeal is of importance to a party (or another person) will not, without more, constitute a reason to convene a hearing to decide the relevant questions”. 

Fordham J considered this advice from President Lane to be both erroneous in law and capable of encouraging unlawful acts. It was considered that the guidance note unlawfully focused on complex and novel issues as justification for an oral hearing, by consequence failing to consider other relevant and important factors which might justify same.

Do it all again?

So, what next? The ramifications of the judgment are already beginning to be seen by practitioners. The consequence of Fordham J’s decision and the resultant order was that the UT must bring to the attention of all appellants, whose UT substantive appeals (i.e. not permission to appeal applications which are routinely determined on the papers) were decided in favour of the Home Office since 23 March 2020, Fordham J’s judgment, order and a statement: “if you have not taken legal advice on your position, you are strongly advised to do so now”.

Furthermore, the part of the guidance note which was declared unlawful by Fordham J has now been withdrawn by the UT and a revised guidance note issued. It is clear that the number of affected appellants is potentially significant, given the guidance note was being applied in practice for a period of around eight months.

JCWI has now set up a helpline to assist those who have potentially been affected. The best method for challenging decisions reached on the basis of the unlawful guidance note remains to be seen. However, rule 43 of the Tribunal Procedure (Upper Tribunal Rules) 2008, para (2)(d) of which empowers the UT to set aside or remake a decision where “there has been some other procedural irregularity in the proceedings”, would appear to apply. An alternative may be to appeal the decision to the Inner House (or the Court of Appeal in England & Wales).

What is certain is that the significant backlog of cases which the UT had sought to reduce is likely to grow further, with many of these cases being reopened and oral hearings having to take place.