“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 … without a hearing”
“… provided this is in accordance with the overriding objective, the parties’ ECHR rights and the Chamber’s procedure rules about notice and consent”
‘In those cases where it is in accordance with the overriding objective, the parties’
“judges, in exercising their discretion … should be guided by the overriding objective … and direct a hearing, if one is required, in order to deal justly with the application; or, to use the language of natural justice, if they consider that fairness requires a hearing” (paragraph 24). 3.5 This brings into focus an important truth regarding the interpretation of PPD4 : as a matter of interpretation, PPD4 (at ‘source’) does not mean an ‘overall paper norm’. Put another way, as a matter of interpretation, the proviso is not an ‘exceptionality proviso’. That means it would be wrong in law to say: ‘What PPD4 means, as correctlyinterpreted, is that during the pandemic decisions on appeals should usually be made without a hearing.’ PPD4 : Application – An overall paper norm? 3.6 I have explained that PPD4 could not lawfully be interpreted as communicating an overall paper norm. But what about application? Here, there is another important truth: as a matter of application (on ‘reception’) PPD4 might or might not have the effect, within the work of a tribunal Chamber, of producing an overall paper norm. It could be correct in law to say : “What PPD4 means, as correctly applied to the work of thisChamber, is that during the pandemic, decisions on appeals should usually be made without a hearing”
“34. – (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) [Enables the UTIAC to do various things without a hearing in immigration judicial review proceedings, including deciding paper applications under rule 30]”
“the overriding objective”
“In deciding whether it is necessary to hold a hearing, the judge can be expected to have regard to paragraph 4 of the Practice Direction and rule 2 of the UT Rules”). Mr O’Brien emphasises that the PGN sets out – in terms – and under another self-standing section (Section C) “decisions without a hearing” – the two key provisions. First, there is PPD4 , quoted in full (PGN7). Next, there is Rule 34, quoted in full (PGN8). Nobody – least of all a switched-on UTIAC Judge – could miss the proviso within PGD4, says Mr O’Brien, because there it is set out within PGN7. Nor could they miss the link to the overriding objective within the proviso (PGN7), or its central significance (Section B: PGN4 to PGN6). I accept all of this. Section D is the Operative Section on Hearings and Paper Determination 4.4 Having said all of this, there is no mistaking that it is Section D (“Making Certain Appeal Decisions Without a Hearing”) which contains the ‘operative’ paragraphs, so far as concerns guidance on UTIAC Judges ‘deciding cases without a hearing’ pursuant to Rule 34 and PPD4 . Mr O’Brien accepts that. So – it is Section D which delivers, so far as PPD4 and Rule 34 are concerned, the function which was seen in PGN3: “This Guidance explains what will happen with regard to … the cases … which are before the UTIAC … during the pandemic”
‘decisions should usually made in this way’ 4.5 The first paragraph within the ‘operative’ section on “making certain appeal decisions without a hearing” (section D), is PGN9. As has been seen, it tells UTIAC Judges this: Rule 34 gives the UTIAC power to make decisions in appeals without a hearing. Provided it has regard to any view of a party or parties, the UTIAC may do so without the parties’ consent. Paragraph 4 of the Practice Direction provides that, during the pandemic, decisions should usually be made in this way. There is no getting away from the final sentence of PGN9. The message of that sentence is straightforward. It is saying, by reference to PPD4 , this: during the pandemic, decisions in UTIAC substantive appeals should usually be made without a hearing, pursuant to Rule 34. Those are the words used. PGN9 is ‘correct’ and ‘nobody has lost sight of’ the proviso (overriding objective) 4.6 Mr O’
“In deciding whether it is necessary to hold a hearing, the judge can be expected to have regard to paragraph 4 of the Practice Direction and rule 2 of the UT Rules.”
‘what matters is the overriding objective and I am able, whatever this guidance says or means – normally to have hearings, because that is my assessment of what fairness typically requires’
‘the proof of the pudding’
“No appellant will lose their right to a hearing”. 5.7 The second way it was put was contemporary. Even leaving aside the history, submits Ms Kilroy QC, the use of “may make any decision without a hearing” in Rule 34 of the UTPR 2008 (§2.7 above) is a structure and language which ‘assumes that the usual position is a hearing’, because a decision to decide without a hearing is a ‘departure from the norm’. Further support can be found, according to Ms Kilroy QC, in (1) the statement of Lord Phillips in R (Cart) v Upper Tribunal[2012] AC 663 at paragraph 86: “what must, I believe, be beyond doubt is that it was Parliament’s intention that the two tier structure set up by the [2007 Act] would provide a statutory right of appeal in relation to decisions of tribunals that would, in most cases, provide a satisfactory alternative to judicial review”; and (2) the ‘second appeals test’ applied by the Court of Appeal on appeals from UTIAC substantive appeals, which is premised on there being a full judicial process at both FTT and UTIAC levels (citing PR (Sri Lanka) v SSHD[2012] 1 WLR 73 at paragraph 41). The contemporary legislative scheme and principled application thus, says Ms Kilroy QC, clearly indicates an ‘overall hearing norm’ for UTIAC substantive appeals. 5.8 I will discuss the historical argument at §§5.9-5.13 below. But I will deal first with the contemporary points. I readily accept that the language of “may” in Rule 34 is qualified by the overriding objective (Rule 2) and thereby the basic requirements of common law procedural fairness (which the principle of legality would in any event achieve). I would also accept that Parliament intended a “satisfactory alternative to judicial review”; that the approach to judicial review in immigration and asylum cases is based on an assessment that a UTIAC substantive appeal is a suitable alternative remedy; and that the ‘second appeals test’ in the Court of Appeal is based on the idea that an appeal to UTIAC is a full judicial process. I can quite see how all of these points dovetail with the imperative – reflected in the proviso to PPD4 – that UTIAC appeals must be determined justly and fairly, consistently with the overriding objective and basic requirements of common law procedural fairness. None of this, in my judgment, extends any further than that. The word “may” in Rule 34 does not mean “may, but only as a departure in exceptional circumstances from the usual position”
“Rule 35(1)(e) is designed, in the view of the Tribunal, to deal with appeals where there is clearly no merit in the case or where the parties have ignored directions under Rule 23”
“In the view of the Tribunal rule 35(1)(e) is not designed to preclude an appellant from the opportunity of presenting his case before an adjudicator at an oral hearing, if the Appellant has indicated that he is desirous of an oral hearing and he wishes to submit evidence which is material to a point raised by the [SSHD] in his letter of refusal. In such circumstances, and such circumstances exist in the instant case, the Tribunal would express the view that at the preliminary hearing, if these matters are considered, the adjudicator should direct that the appeal should be determined at a full hearing”
“[o]nly at [an] oral hearing could the issue of credibility be determined by the [SA]”
“The risk to an individual if a state acts in breach of this obligation is so obvious and so potentially serious that the courts have habitually treated asylum cases as calling for particular care at all stages of the administrative and appellate processes”: R v SSHD, ex p Onibiyo[1996] QB 768 at 778C (Sir Thomas Bingham MR), and see 785A (referring to judicial review under the approach in Bugdaycay). (6) Reactive Engagement/Effective Representations 6.7 A hearing brings a dynamic engagement between those involved in the process and the decision-making authority. In a paper determination, “written submissions do not afford the flexibility of oral presentations; they do not permit the recipient to mould his argument to the issues the decision maker appears to regard as important” (Goldberg v Kelly (1970) 397 US 254, 269 (Brennan J), cited in West at paragraph 31: Lord Bingham). “It may often be very difficult to address effective representations without knowing the points which are troubling the decision-maker” (West at paragraph 35: Lord Bingham). A hearing will “often” be necessary “[w]here it is maintained on tenable grounds” that it involves an “encounter” which “is necessary for … [a party] or his representatives to put their case effectively” (Osborn at paragraph 2(ii)(c), also paragraph 82: Lord Reed). (7) The Power of Oral Argument 6.8 A basic element of knowledge of our “legal culture” is recognition of “the central place accorded to oral argument in our common law adversarial system”, for “oral argument is perhaps the most powerful force there is, in our legal process, to promote a change of mind by a judge. That judges change their minds under the influence of oral argument is not an arcane feature of the system; it is at the centre of it” (Sengupta v Holmes[2002] EWCA Civ 1104 at paragraph 38: Laws LJ). Oral argument, through the ‘engagement’ of the hearing, can persuade a Judge to take a different view from one formed, or which would be formed, when considering papers alone. The “benefit enjoyed by the court of listening to oral argument … is a fundamental part of our system of justice and … is a process which as a matter of common experience can be markedly more effective than written argument” (Sengupta at paragraph 47: Keene LJ). (8) Importance of What is at Stake 6.9 In the context of oral hearings, “[i]n considering what procedural fairness … requires, account must first be taken of the interests at stake” (West at paragraph 30: Lord Bingham). Generally, an oral hearing should be held “wherever fairness … requires such a hearing in the light of the facts of the case and the importance of what is at stake” (Osborn at paragraph 2(i), also paragraph 81: Lord Reed). The “importance of what is at stake” includes all of “the interests at stake” and embraces the interests of an affected individual, but also important interests advanced by an arm of the State (West at paragraph 30: Lord Bingham). (9) Better decision-making/the potential to make a difference 6.10 One “purpose of holding an oral hearing is … to assist [the court or tribunal] in its decision-making” (Osborn at paragraph 2(v), also paragraph 82: Lord Reed). That is linked to “one of the virtues of procedurally fair decision-making” being “that it is liable to result in better decisions, by ensuring that the decision-maker receives all relevant information and that it is properly tested” so as “to improve the chances of the tribunal reaching the right decision” (Osborn at paragraph 67: Lord Reed). An oral hearing may “guarantee better decision in terms of the uncovering of facts, the resolution of issues and the concerns of the decision-maker” where an oral hearing has “utility … in assisting in the resolution of the issues” (Osborn at paragraph 66: Lord Reed). It is relevant that “an oral hearing has the potential to make a difference”, and whether the case is one in which “that potential … exist[s]”: Osborn at §81 (Lord Reed). However, it is wrong to consider that “in determining whether an oral hearing [is] necessary, what [falls] to be considered [is] the extent to which an oral hearing would guarantee better decision making”, and it is wrong to place “the emphasis … on the utility of the oral procedure in assisting in the resolution of the issues”, because “the purpose of a fair hearing is not merely to improve the chances of the tribunal reaching the right decision”; there are “other important values … engaged” (Osborn at paragraphs 66-67: Lord Reed). (10) Participatory interests (beyond utility): appearances, dignity and the rule of law 6.11 A “purpose of holding an oral hearing”, distinct from it being “to assist [the court or tribunal] in its decision-making”, is “to reflect the [party’s] legitimate interest in being able to participate in a decision with important implications for him, where he has something useful to contribute” (Osborn at paragraph 2(iv), also paragraph 82: Lord Reed). One of the “important values” which is “engaged” by procedural fairness in the context of whether a tribunal should have an oral hearing – independently of whether the process “is liable to result in better decisions” or “improve the chances of the tribunal reaching the right decision” – is “the avoidance of the sense of injustice which the person who is the subject of the decision will otherwise feel”, the “reason for [which] sense of injustice” is that “justice is intuitively understood to require a procedure which pays due respect to persons whose rights are significantly affected by decisions taken in the exercise of administrative or judicial functions”; where “respect” and the protection of “dignity” entail that “such persons ought to be able to participate in the procedure by which the decision is made, provided that they have something to say which is relevant to the decision to be taken”: Osborn at §§67-68 (Lord Reed). That is why fairness can be seen to involve a hearing even where an “omniscient” decisionmaker does not “require to hear [the person affected] in order to improve the quality of [the] decision-making”: Osborn at §69 (Lord Reed, discussing God allowing Adam to “make his defence”). Another of the “important values”which is “engaged” by procedural fairness in the context of whether a tribunal should have an oral hearing – independently of whether the process “is liable to result in better decisions” or “improve the chances of the tribunal reaching the right decision” – is “the rule of law”, for “[p]rocedural requirements that decision-makers should listen to persons who have something relevant to say promote congruence between the actions of decision-makers and the law which should govern their actions”: Osborn at §§67, 71 (Lord Reed).This theme was discussed most recently in R (Pathan) v SSHD[2020] UKSC 41 . (11) Protection/human rights appeals: the highest standards of procedural fairness 6.12 It is recognised as “plain that asylum decisions are of such moment that only the highest standards of fairness will suffice” (SSHD v Thirukumar [1989] EWCA Civ 12 [1989] Imm AR 402 at paragraph 46: Bingham LJ). That principle was first articulated in the context of decision-making by the SSHD, in identifying appropriate standards for asylum interviews (Thirukumar). It was applied in the context of FTT protection appeals in R (Detention Action) v FTT[2015] EWCA Civ 840 [2015] 1 WLR 5341 at paragraph 27, where Lord Dyson MR referred to “the importance of the principle that only the highest standards of fairness will suffice in the context of asylum appeals”
“important implications” and “something useful to contribute” (§6.11). That is not because of anything particular about the case. It arises in the mainstream of cases. Mr O’Brien carves out sub-categories of cases which are ‘non-contentious’ or ‘obvious’. But his logic is that in all contentious and ‘non-obvious’ cases, the importance of the case together with the inherent fact that the individual can be taken to have ‘something to contribute’ can be a sufficient reason to require an oral hearing. Once that is accepted, it is in my judgment misleading to say that the importance of the outcome will not “without more” be a reason for a hearing. It is misleading, in my judgment, to say that the importance of the case “without more” can never be a sufficient reason for a hearing. On analysis the “more” is simply the fact that it is a mainstream substantive appeal (§2.10 above) which is neither conceded nor ‘obvious’. In my judgment, there is an added problem with “obvious”, if it is intended to include a category of cases in which the UTIAC Judge is minded – having considered the papers – to decide the appeal against the individual and in favour of the SSHD. The problem with carving out “obvious” is that it risks falling into the same error as did the Court of Appeal in Osborn: focusing on whether it is assessed that an oral hearing could assist the quality of the decision-making. The broader considerations identified in Osborn may be inherent in an appeal to UTIAC in which the case is important. Contribution to the process engages not just utility but the appearance of justice and the rule of law. For these reasons, I am not persuaded that Mr O’Brien is right to ‘carve out’ his sub-category of “obvious” cases, as cases where the importance of the case and having ‘something to contribute’ could not of themselves be a reason to require an oral hearing. 7.6 Then there is the importance of an appeal, given features inherent in the appeal process. During Mr O’Brien’s submissions, a question arose as to whether he accepted that: ‘the importance of the case, together with the importance of the rule of law and the importance of the appearance of justice, could in combination be a sufficient reason to require a hearing.’ On reflection, Mr O’Brien did not accept that proposition. In my judgment, it is a proposition which is correct, when the relevant common law principles are borne in mind (§§6.6, 6.11-6.12). Moreover, there are other features which are inherent in a UTIAC substantive appeal which could, with importance, be a sufficient reason for a hearing: for example, that the case involves what has been recognised to be an arguable point of law (§2.10 above) given the potency of engagement and oral argument (§§6.7-6.8 above). Once importance together with features inherent in a UTIAC appeal can be a sufficient reason to require a hearing, it is misleading to say that “more” is needed than importance. 7.7 In my judgment, for all these reasons, PGN16 infringes Letts Unlawfulness. It is, in my judgment, erroneous in law. It would, at minimum, if followed, lead to, permit or encourage unlawful acts. The importance of the outcome of a case given its inherent facts, or given that it is a mainstream (contentious, or even a non-obvious, case) where the individual is to be taken to have something useful to contribute, or given features inherent in UTIAC substantive appeals, can all be reasons to require a hearing. They are all, on analysis, situations where the ‘importance of the appeal’ is sufficient, and where it is artificial to suggest that something “more” is needed than is already a given orinherent. The elements which can require a hearing are necessary parts of the case or the importance of the case or the appeal process. They are aspects necessarily linked to the importance of the outcome of the appeal within this appeal process. I would reach the same conclusions if PGN16 had stood within guidance which did not otherwise communicate an ‘overall paper norm’. In this PGN, however, the problems with PGN16 are part of what informs the conclusion that the PGN is communicating an ‘overall paper norm’. The problems with PGN16 are, moreover, exacerbated by what is communicated elsewhere in the PGN. Ground (2)(b) succeeds. Whether “particularly complex or novel/important issues of law” in PGN14 is unlawful 7.8 I have described this as Ground (2)(c) (§1.2 above). It was a pleaded point: that PGN14 is contrary to common law principles, with the consequence that (i) it is erroneous in law and/or (ii) it would, if followed, lead to, permit or encourage unlawful acts, in stating that “The presence of particularly complex or novel/important issues of law may also be such as to necessitate a hearing”
“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 presence of particularly complex or novel/important issues of law may also be such as to necessitate a hearing”. [Ground (2)(c)] (5) 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)] Consequences 8.2 It was common ground, as Mr O’Brien put it in his skeleton argument, that: “were the Court to find any aspect of the paragraphs under challenge to be unlawful, … (absent agreement) the Court should consider the question of any relief in separate submissions after judgment”
“If you have not taken legal advice on your position, you are strongly advised to do so now”. 5. The Defendant shall by 4pm on Friday27 November 2020 file and serve a letter stating by what means and in what timeframe he is approaching the discharge of paragraph 4 of this Order. 6. Liberty to the parties to apply on notice in writing for further order or directions regarding the discharge of paragraphs 4 and 5 of this Order. 8.10 Having received my reasons (§§8.6-8.8 above) giving my ruling on the disputed point (§8.5 above), and having received the draft of the order which I was proposing (§8.9 above), the Defendant through Mr O’Brien did two things. The first was, correctly, to point out that the word “ensure” (§8.9 above) was inappropriate as it was not an outcome that the Defendant was in a position to achieve and did not reflect the appropriate degree of latitude which I had described: appropriate wording would be “shall use all reasonable endeavours to bring to the attention …”