In Hussain & Anor v Secretary of State for the Home Department [2022] EWCA Civ 145 (11 February 2022), the Appellants, Hamid Hussain and GA, were granted permission to appeal on the papers by  the Court of Appeal, with that Court noting,  “….the appeals raised issues relating to: the guidance note; the decision in JCWI v President of UTIAC; and the decision in EP(Albania). These issues had been raised in a considerable number of other applications for permission to appeal to the Court of Appeal …”

In both appeals in Hussain, on deciding the appeals on the papers following the grant of permission to appeal from the FTT, different Upper Tribunal Judges at different periods in time in 2020, dismissed the appeals on paper without having been provided by the Upper Tribunal itself with the Appellants’ respective submissions dated 2 April 2020 and 23 July 2020, in which they requested oral hearings.

In essence, the issue in the appeals was whether the Upper Tribunal’s paper determination of the Appellants’ appeals from the First Tier Tribunal satisfied the requirements of common law fairness.

The Court of Appeal’s overall conclusion at paragraph 71 of its judgement in Hussain was:

“For the detailed reasons set out above: (1) UTIAC could, after the guidance note had been issued on 23 March 2020, determine an error of law appeal from the FTT on the papers, so long as it was fair to do so. Therefore the critical issue on any appeal, or application for permission to appeal, will be whether such a paper determination by UTIAC of the appeal from the FTT satisfied the common law requirements of fairness. The UT was, therefore, right in EP(Albania) to reject the submission that, as a result of the judgment in JCWI v President of UTIAC, all determinations on paper made by UTIAC after the guidance note had been produced, should be set aside; (2) the paper determination by UTIAC of Mr Hussain’s appeal from the FTT did not satisfy the requirements of common law fairness because his submissions dated 2 April 2020 were overlooked; and (3) the paper determination by UTIAC of GA’s appeal did not satisfy the requirements of common law fairness because his submissions dated 23 July 2020 were overlooked and because the UT Judge did not give GA an opportunity to address the UT’s concerns about whether the Country Guidance in MB CG should be followed”.

Applicable Upper Tribunal Rules:

Rules 34 and 43 of the Upper Tribunal Rules were in issue:

Rule 34 of the Upper Tribunal Rules provides:

“34.— Decision with or without a hearing

(1) Subject to paragraphs (2) and (3), the Upper Tribunal may make any decision without a hearing.

(2) The Upper Tribunal must have regard to any view expressed by a party when deciding whether to hold a hearing to consider any matter, and the form of any such hearing.

(3) In immigration judicial review proceedings, the Upper Tribunal must hold a hearing before making a decision which disposes of proceedings.

(4) …”

Rule 43 of the Upper Tribunal Rules states:

“43.— Setting aside a decision which disposes of proceedings

(1) The Upper Tribunal may set aside a decision which disposes of proceedings, or part of such a decision, and re-make the decision or the relevant part of it, if— (a) the Upper Tribunal considers that it is in the interests of justice to do so; and (b) one or more of the conditions in paragraph (2) are satisfied.

(2) The conditions are— (a) a document relating to the proceedings was not sent to, or was not received at an appropriate time by, a party or a party’s representative; (b) a document relating to the proceedings was not sent to the Upper Tribunal at an appropriate time; (c) a party, or a party’s representative, was not present at a hearing related to the proceedings; or (d) there has been some other procedural irregularity in the proceedings.

(3) …”

Relevant Guidance:

As summarised in Hussain by way of background, the President of UTIAC issued Guidance Note on 23 March 2020 at the beginning of the COVID-19 pandemic.

The guidance note had been issued after the Senior President of Tribunals (“the SPT”) had issued a Pilot Practice Direction on 19 March 2020, which included, at paragraph 4:

“Decisions on the papers without a hearing “Where a Chamber’s procedure rules allow decisions to be made without a hearing, decisions should usually be made in this way, provided this is in accordance with the overriding objective, the parties’ ECHR rights and the Chamber’s procedure rules about notice and consent”.

As per Hussain {28}, material provisions of the guidance note are set out in paragraphs 3.9 and 3.10 of the judgment in  Joint Council for the Welfare of Immigrants v President of the Upper Tribunal (Immigration and Asylum Chamber) [2020] EWHC 3103 (Admin); [2021] PTSR 800 (“JCWI v President of UTIAC”).

Hussain also summarised{3} that paragraphs 9 to 17 of the guidance note had subsequently been held to be unlawful by the High Court in  JCWI v President of UTIAC by decision  made on 20 November 2020. In that case it was held that guidance in the guidance note was unlawful because, objectively interpreted, it gave advice which was wrong in law and which would tend to encourage unlawful decisions about when to determine appeals on paper.  This was because the guidance note did not make it sufficiently clear that any decision to determine an error of law appeal without a hearing had to be consistent with principles of fairness.

In Hussain, the Court of appeal referred to EP(Albania) and others [2021] UKUT 233 (IAC), noting :

“6.  In EP(Albania) and others [2021] UKUT 233 (IAC) eighteen of these Rule 43 applications were heard by UTIAC (Swift J and UTJ Blundell) (“EP(Albania)”) on 10, 11 and 29 June 2021. The decision and reasons in EP(Albania) were promulgated on 2 September 2021 (although the date does not appear on the decision). The UT held that not all appeals which had been determined on the papers after the guidance note had been issued should be set aside. Each Rule 34 decision to have a paper determination was a reasoned decision and the merits of the Rule 43 applications must be determined on consideration of the reasons given in each case.

7.At paragraphs 67 to 69 of the judgment in EP(Albania) the Upper Tribunal concluded that there was “no single, one size fits all, answer to the Rule 43 applications”. The Upper Tribunal held that a decision to determine the appeal on the papers would be unlawful if there had been a failure to act fairly and there would be a need to consider whether the “reasons expressly or by inference point to a conclusion reached without consideration of the principles that make up the overriding objective, or without consideration of whether determination of the error of law appeal without a hearing would be consistent with the principles of fairness”. It was held that sixteen of the applications to set aside the paper determinations under Rule 43 should be refused. In two applications there had been specific errors in the decisions to have a paper determination which led to the setting aside of those determinations”.

Refined issues identified by the Court of Appeal and endorsement of EP(Albania) :

In relation to the issues that applied in Hamid Hussain and GA’s appeal, following some consideration, the Court of Appeal refined them as follows:

• It was common ground that UTIAC could, after the guidance note had been issued on 23 March 2020, determine an error of law appeal from the FTT on the papers, so long as it was fair to do so. Therefore the critical issue for the Court of Appeal in the present appeals would be to decide whether such a paper determination by UTIAC of the appeal from the FTT satisfied the common law requirements of fairness.
• It was sufficient for the purposes of the appeals to say only that what fairness requires will depend on the circumstances of the particular case.
• It was also common ground between the parties that, if there had not been a fair determination of the appeal in UTIAC then, absent showing that the result of the appeal would inevitably have been the same, UTIAC’s determination should be set aside.
• It was in these circumstances that it was clear that it would not be necessary for the Court in Hussain to determine the issue raised by the Secretary of State’s late amended Respondent’s Notice about whether the decision JCWI v The President of UTIAC was rightly decided. That particular issue could be determined, if necessary, in an appeal in which it arises.
• The reason that it was not necessary to determine whether JCWI v The President of UTIAC was rightly decided was because that judgment was looking at a different issue, namely whether the objective interpretation of the guidance note communicated a usual position whereby UTIAC substantive appeals would be determined on the papers (which Fordham J. had called “an overall paper norm”) which would have been inconsistent with the proviso in paragraph 4 of the Practice Direction issued by the SPT on 20 March 2020, and common law fairness.
• The position in the present appeals in Hussain was different. The Court was not looking at whether, objectively judged, the guidance note had the potential to mislead UT judges to make unfair, and therefore unlawful, determinations on paper. The issue before the Court was whether the paper determinations were in fact unfair.
• For broadly similar reasons, the Upper Tribunal was right in EP(Albania)to reject the submission that, as a result of the judgment in JCWI v President of UTIAC, the determinations on paper made by UTIAC after the guidance note had been produced, should be set aside. This was because the question was whether it was fair to determine the matter on the papers.

What went wrong in Mr Hussain’s appeal in the Upper Tribunal?

As observed by the Court, it was clear that the issue in Mr Hussain’s appeal was whether there was a fair paper determination of his appeal generally and specifically because his written submissions dated 2 April 2020 were not considered, and because the UT Judge did not engage with a number of arguments as to why the FTT Judge had erred in law in making certain findings of fact.

The key sequence of events were as follows in Mr Hussain’s appeal:

• Having applied for a residence card in 2018 as an extended family member of an EEA national (his uncle) pursuant to the Immigration (European Economic Area) Regulations 2016, the application was refused by the Secretary of State. On 26 September 2019, an FTT Judge dismissed the appeal as it was considered that none of the documents evidenced the financial dependency of Mr Hussain on the uncle when Mr Hussain was living in Pakistan.
• After Mr Hussain applied for permission to appeal to the Upper Tribunal on the basis that the FTT Judge had erred in assessing the evidence of dependency in Pakistan, on 28 February 2020 the application for permission to appeal was granted by the First Tier Tribunal. This included the then standard directions for an oral hearing.
• As a result of the developing COVID-19 pandemic, on 18 March 2020 the Vice President of UTIAC sent out written directions. He stated that he had reached a provisional view that it would be appropriate to determine the error of law and the decision whether to set aside the FTT decision without a hearing. He directed that any party who considered a hearing to be necessary should make written submissions.
• The SPT’s Practice Direction was issued on 20 March 2020. The guidance note was issued on 23 March 2020. The Vice President’s direction in Mr Hussain’s appeal to the UT pre-dated the guidance note dated 23 March 2020.
• Written submissions dated 2 April 2020 were filed on behalf of Mr Hussain and at paragraph 3 of these submissions it was stated: “The appellant submits that some form of hearing in the instant case is appropriate and is (at least arguably) necessary in order to provide the appellant with an effective hearing of this error of law appeal. In line with the said directions, the appellant may provide reasons in support of this proposition in a separate document which is to be filed by 9 April. He reserves the right to do so”.

Following further filing of written submission by the parties, on 1 May 2020 the Upper Tribunal Judge issued written directions and referred to the Vice President’s directions stating:

 ‘…What is clearly anticipated by such directions was that there will be a sequential opportunity for the parties to comment upon each other’s further observations. Despite that the first document to be received was that of 3 April 2020 from the Secretary of State. The first communication from the appellant was not received until 9 April 2020 which, rather than dealing with the specific terms of the Vice President’s direction, applied for an adjournment claiming the hearing should be stayed for a face-to-face hearing after the Covid 19 emergency had subsided relying upon the letter from ILPA dated 2 April 2020 which was annexed… There then followed further written submissions received on 16 April 2020 from the appellant described as being submissions in reply. Whilst these seek to respond to those provided by the Secretary of State’s representative they are the first detailed submissions made as to the making of an error of law and the failure to provide the same in the first submissions deprived the Secretary of State with the opportunity to respond to the same. This is procedurally unfair.’

The UT Judge then made directions providing for the Secretary of State to file and serve submissions if so advised. Mr Hussain’s solicitors emailed the Upper Tribunal on 12 May 2020 and 18 May 2020 to point out that submissions had in fact been lodged on 2 April 2020 in accordance with the directions. On 15 May 2020 the Secretary of State confirmed by email that she had received the submissions dated 2 April 2020.

On 27 May 2020 the UT Judge promulgated a written decision and reasons. The decision and reasons were headed in the top left “On the papers, pursuant to COVID-19 UTIAC directions, on 18 May 2020″.  At paragraph 2 of the decision it was stated:

“Following the closure of Field House and adjournment of UTIAC hearings outside London a direction was sent to the parties on 20 March 2020 indicating a preliminary view that the error of law hearing was suitable for determination remotely and providing an opportunity for the parties to respond. A response was received but not in the terms anticipated by the directions. Accordingly further directions were issued and sent [to] the parties on 12 May 2020 a copy of which is set out at Annex A. On 14 May 2020, the respondents representative emailed UTIAC advising that the Secretary of State did not wish to file any further submissions.”

The UT Judge recorded that it was for the Upper Tribunal to determine what form of hearing should take place and that there was no right to face to face hearings enshrined in law but it was a protected concept that there should be fairness and the interests of justice in the manner in which a case was decided.

The UT Judge dismissed the appeal on the merits on the basis that the FTT Judge had considered all the relevant evidence and reached a permissible decision on the facts about Mr Hussain’s lack of dependency on his uncle.

At the end of the decision and reasons there was a stamp above the UT Judge’s name and the decision was dated “18 May 2020”. Immediately below that date was an annexe A. This annexe comprised the directions made by the UT Judge on 1 May 2020. This included the statement in those written directions by the UT Judge that although the Vice President’s directions contemplated submissions from the appellant to be filed first, “despite that the first document to be received was that of 3 April 2020 from the Secretary of State.”

Mr Hussain sought permission to appeal to the Court of Appeal, with Ground two of the grounds of appeal submitting that the Upper Tribunal had committed a procedural error by failing to consider correspondence from the parties identifying those submissions dated 2 April 2020 had been filed on behalf of Mr Hussain.

Why the Court of Appeal allowed Mr Hussain’s appeal:

In allowing, the appeal, the Court reasoned as follows:

• It was clear that the UT Judge did not have Mr Hussain’s submissions dated 2 April 2020 before making the directions dated 1 May 2020. This is because those directions specifically recorded what submissions had been received, wrongly stated that the Secretary of State’s response was the first document received, and stated that the failure to file submissions first on behalf of Mr Hussain had been “procedurally unfair”.
• It was unfortunate that Mr Hussain should have been blamed for a failing which had not taken place.
• It was apparent that those then acting on behalf of both Mr Hussain and the Secretary of State attempted to draw the attention of the UT Judge to the submissions dated 2 April 2020 in emails to the UT. However it seemed clear that these could not have been received by the UT Judge before the paper determination of the appeal. This was because the decision expressly recorded at the outset that directions had been sent out and “a response was received but not in the terms anticipated by the directions”, which must have been a reference to what was (wrongly) considered to have been the failure on behalf of Mr Hussain to comply with the directions. This conclusion was supported by the fact that the directions dated 1 May 2020, in which it was expressly stated that what had been done on behalf of Mr Hussain was “procedurally unfair”, were annexed as part of the decision and reasons. There was nothing in the decision and reasons promulgated by the UT Judge to suggest that that comment had been recognised to have been mistaken.
• It was clear that whatever was thought by the UT Judge when dealing with the application for permission to appeal, which application was determined on 8 September 2020, nearly four months after the decision and reasons dated 18 May 2020, the submissions dated 2 April 2020 were not taken into account by the UT Judge.
• The fact that documents which had been filed on behalf of parties might not have been supplied to judges is not particularly surprising given the disruption caused to office systems during the pandemic, and particularly during the early phases of the pandemic.
• The UT Judge had expressly stated that Mr Hussain’s failure to follow the direction was procedurally unfair. This would have been a perfectly proper conclusion if it had been accurate, but it was based on mistaken information and Mr Hussain would be entitled to feel a sense of grievance at having been wrongly accused of having been responsible for some procedural unfairness.

The Court of Appeal concluded that the determination of Mr Hussain’s appeal on the papers did not satisfy the requirement of common law fairness.

His appeal against the decision and reasons promulgated on 27 May 2020 was allowed and remitted to the UT.

What went wrong in GA’s case and why the Court of Appeal allowed his appeal:

In Hussain, the Court noted from early on in its judgement that so far as GA’s appeal was concerned, the Secretary of State accepted that there was an error of law in the proceedings before UTIAC and that GA’s appeal should be allowed. In brief, this was because the UT Judge did not appear to have given express consideration to whether it was fair to determine the appeal on the papers, and because the UT Judge did not appear to have been shown submissions by GA dated 23 July 2020 requesting an oral hearing.

The Court of Appeal concluded that UTIAC’s paper determination of GA’s appeal from the First Tier did not satisfy the requirements of common law fairness.

The Court allowed GA’s appeal against the decision and reasons promulgated on 2 September 2020 by the Upper Tribunal and remitted GA’s error of law appeal from the FTT to be determined by the Upper Tribunal, observing that the way in which the Upper Tribunal should determine the appeal was a matter for the Upper Tribunal to determine on a fair basis.