In response to the pandemic, the President of The Upper Tribunal (Immigration And Asylum Chamber) issued a COVID practice direction which introduced a fundamental change to the way error of law hearings are considered with paper consideration becoming the norm, as opposed to the Tribunal holding an oral hearing. Hundreds of asylum and human rights appeals have been determined without a hearing since then.
The case was brought by the Joint Council for the Welfare of Immigrants (JCWI). JCWI said it challenged the guidance so that individuals, including those without legal representation, would have access to a fair procedure, and to stop a precedent being set for claims to be decided without in-person hearings. Law firm Freshfields acted pro bono in this case.
In his judgment, Judge Fordham found that this guidance was ultra vires and unlawful. He held that the guidance weighed too heavily in favour of deciding cases on the papers rather than having a hearing, a situation that is “inconsistent with basic common law requirements”. The “key question” for Fordham J was whether these paragraphs created an “overall paper norm” or a presumption that the matter would be decided on the papers rather than at remote hearings – a question which was answered in the affirmative and was found therefore to be unlawful. There has been commentary that the judgment contains an authoritative re-articulation of "Letts unlawfulness" – this is essentially the principle that guidance is unlawful if it misdescribes the law. Letts adds a gloss to Gillick, in particular biting against guidance which not only promulgates advice which is erroneous in law or leads to unlawful acts but also guidance which "permits or encourages such acts".
The Court also found that the position was inconsistent with basic common law requirements which inform the overriding objective of just and fair disposal, with which Judges are duty-bound to comply. Interestingly, the fact that the Guidance Note misdescribed the effect of the practice direction was significant – had the Guidance Note been consistent with those common law requirements, it would have lawfully described the effect of the practice direction and would have been lawful.
The Guidance Note was also unlawful because it said: “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”. The Guidance Note also omitted important factors recognised at common law which support holding a hearing. That also makes it advice which is erroneous in law and would, if followed, lead to, permit or encourage unlawful acts. Finally, Part 6 of the judgment also sets out a skilful overview of the twelve key themes of common law (procedural) fairness in the context of oral hearings and human rights cases which may be of interest to practitioners in this area.
In response to the Judgment, the President has withdrawn the unlawful guidance. He has also undertaken to use all reasonable endeavours to notify all individual appellants who lost their appeals, or who unsuccessfully defended appeals by the Secretary of State, of this judgment and to indicate that they should seek legal advice. Most importantly, all immigration appellants who lost their Upper Tribunal case without a hearing from 23 March may now be able to re-open their case.
Click here for the judgment.