Immigration case: Oral hearings and paper determinations
Great result for JCWI in the High Court:
This judicial review case is about oral hearings and paper determinations in substantive appeals dealt with by the Upper Tribunal (Immigration and Asylum Chamber) (UTIAC) during the Covid-19 pandemic. The Claimant challenges as unlawful the President’s Guidance Note (PGN) issued by the Defendant pursuant to a statutory power on 23 March 2020 ...
The following question is at the heart of this case:
Does the PGN, read objectively and as a whole, communicate to its audience of UTIAC Judges an ‘overall paper norm’ for determining UTIAC substantive appeals during the pandemic?
The President’s Guidance Note, directed to Upper Tribunal (Immigration and Asylum Chamber) Judges, is unlawful because it communicated that appeals should normally be decided on the papers rather than at remote hearings during Covid. That position is inconsistent with basic common law requirements which inform the overriding objective of just and fair disposal, with which Judges are duty-bound to comply. That means the Guidance Note misdescribed the effect of the Senior President of Tribunals’ Covid Pilot Practice Direction. [Ground (1)(b) and (2)(a)]
... The Guidance Note is 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”. That is advice which (a) is erroneous in law and (b) would, if followed, lead to, permit or encourage unlawful acts. [Ground (2)(b)]
... Because of the way the Guidance Note is written, it is also unlawful because it has omitted important factors recognised at common law which support holding a hearing. That also makes it advice which (a) is erroneous in law and (b) would, if followed, lead to, permit or encourage unlawful acts. [Ground (2)(d)]
As a result, the Court has ordered:
(i) In all cases of a UTIAC substantive appeal (as described in paragraph 2.10 of the Judgment) where, between 23 March 2020 and the date of this Order either (a) the appeal has been determined without a hearing and in favour of the Secretary of State for the Home Department (“SSHD”) or (b) a UTIAC Judge has decided that the appeal will be determined without a hearing, the Defendant shall use all reasonable endeavours to bring to the attention of the person who is party to the appeal (and who is not the SSHD), in writing: (i) the Judgment (ii) this Order (iii) the statement: “If you have not taken legal advice on your position, you are strongly advised to do so now”; and that
(ii)The Defendant will by 4pm on Friday 27 November 2020 file and serve a letter stating by what means and in what time-frame he is approaching the discharge of the undertaking at (i) above.