Radu Marian Ghira v Secretary of State for the Home Department [2025] UKUT 350 (IAC)

[2025] UKUT 00350 (IAC)

Ghira (R 25 – AIP – Fairness)

IN THE UPPER TRIBUNAL

IMMIGRATION AND ASYLUM CHAMBER

Venue Heard at Manchester Civil Justice Centre

Hearing Heard on 9 January 2025

THE IMMIGRATION ACTS

Promulgated on 4 February 2025

Before

JUDGE PLIMMER

PRESIDENT OF THE FIRST-TIER TRIBUNAL (IMMIGRATION AND ASYLUM CHAMBER)

UPPER TRIBUNAL JUDGE O’BRIEN

Between

RADU MARIAN GHIRAAppellant

SECRETARY OF STATE FOR THE HOME DEPARTMENTRespondent

In person (accompanied by his McKenzie Friend, Ms Botorea) for Appellant

Mr Tan, Senior Home Office Presenting Officer for Respondent

1.Where the parties consent to, or do not object to, the matter being decided without a hearing, i.e. proceeding ‘on the papers’, and the exception in rule 25(1)(a) of the FTT Procedure Rules applies, there remains a judicial decision whether to proceed without a hearing. The FTT must still consider whether the appeal can be disposed of fairly and justly without a hearing, in accordance with the overriding objective and common law fairness.

2.When making such a decision, the FTT reformed appeal process together with the relevant Practice Direction dated 1 November 2024, fairness principles and the guidance relevant to appellants in person (‘AIP’), require the judge to: for in person

(i) Consider the material contents of the case record, any directions given and the responses thereto including any legal officer’s and judge’s case notes.

(ii) Identify from the evidence and the respondent’s review, the principal controversial issues (‘PCIs’) to be resolved in order to decide the appeal.

(iii) Address whether it is appropriate in the circumstances to decide the appeal without a hearing by determining whether the case can be dealt with fairly and justly in that manner, in the light of the available evidence and the PCIs. This is likely to be a straightforward assessment, capable of concise (and often highly concise) reasoning.

(iv) In cases involving AIPs, the judge should, in particular:

a.consider whether the AIP’s ‘appeal reasons’ and uploaded documents address each of the PCIs;

b.if not, consider whether the AIP has been given an opportunity to clarify their case and evidence in relation to the PCIs, through ‘clarifying questions’ or otherwise;

c.consider whether it is necessary in accordance with the overriding objective to give directions or order an oral hearing be listed, which would afford the AIP that opportunity.

d.In any event, follow the guidance in SSGA (Disposal without considering merits; R25) Iraq[2023] UKUT 00012 (IAC), which states that a hearing should be held whenever credibility is disputed on any material issue or fact, unless satisfied that it is one of those rare cases in which it would be appropriate and fair to do so (in which case reasons for that conclusion should be given in the decision). It is difficult to envisage AIP cases where this approach would be appropriate.

DECISION AND REASONS

Date 2025-01-29

[1]The appellant, a citizen of Romania, appeals with the permission of the First-tier Tribunal (‘FTT’) against an FTT decision promulgated on 14 May 2024, dismissing his appeal against the respondent’s refusal of his application for pre-settled status under the European Union Settlement Scheme (‘EUSS’). That decision was taken without a hearing.

[2]We have both substantially contributed to this decision.

THE PARTIES’ POSITIONS

[3]The grounds of appeal seeking permission to appeal to the Upper Tribunal (‘UT’) appear to suggest that not all of the documents provided to the respondent were taken into account by the FTT. When granting permission, the FTT recognised that the appellant was acting in person and that the grounds of appeal were not structured as legal challenges. As such, the FTT considered whether there were any obvious issues with the decision and identified the following arguable errors of law: the FTT arguably overlooked the possibility of the appellant satisfying paragraph EU14 of Appendix EU to the Immigration Rules; the FTT arguably failed to consider properly the appellant’s evidence; given the lack of clarity in the appellant’s case, the FTT (via its legal officers) arguably unfairly failed to ask ‘clarifying questions’; and, the FTT arguably unfairly failed to recognise the lack of clarity in the appellant’s case and give appropriate directions.

[4]In her rule 24 response dated 8 July 2024, the respondent submitted that the FTT had directed itself appropriately. The respondent accepted that the decision was inadequately reasoned; however, it was argued that this was an immaterial error. Given the absence of evidence, dismissal of the appeal had been inevitable. The rule 24 notice further observed that the legal officer’s failure to ask clarifying questions may well have been an ancillary decision not amenable to appeal.

[5]At the hearing, Mr Tan argued that the self-direction on the law at paragraph 6 of the decision under appeal dealt with the tests for settled status and pre-settled status together and was sufficient for us to be satisfied that there had been no misapplication of the law. He did not accept that trying to combine two legal tests in a single self-direction would necessarily lead to error and maintained that there had been no error in the self-direction. Mr Tan appeared to resile from the rule 24 concession on inadequate reasoning, arguing that little more needed to be said when there was no evidence addressing the key issues in the case. However, he maintained that any such error would have been immaterial.

[6]Mr Tan accepted that the appellant’s ‘appeal reasons’, uploaded to the FTT in accordance with its reformed appeal process on 1 December 2023, could properly be considered as part of the appellant’s evidence, but that it had not been listed in the judge’s exposition at paragraph 5 of the documents submitted by the appellant. He argued that it would have been open to the appellant to provide a separate statement rehearsing the facts outlined in his ‘appeal reasons’, if he had wished them to be considered as his evidence.

[7]Mr Tan also accepted that the ‘appeal reasons’ appeared to suggest that the appellant was asserting his presence in the United Kingdom before and perhaps even at the specified date. However, he submitted that these assertions were insufficiently clear. When asked if they therefore begged clarification, Mr Tan submitted that the appellant had been given the opportunity to provide further clarification and/or supporting documentation when directed by the FTT on 18 April 2024 that he should consider the respondent’s response to his appeal and could upload additional documents.

[8]The appellant relied on his grounds of appeal and the grant of permission. He indicated that, if we were persuaded that the FTT decision involved the making of a material error of law, he would wish us to remake the decision. It appeared that Ms Botorea might in such circumstances be able to provide relevant documentary and oral evidence.

[9]Mr Tan agreed that, in the event we found an error of law, it would be appropriate for us to re-make the decision. We indicated to Mr Tan that we would, if minded to take that approach, give him time to talk to the appellant and Ms Botorea and to consider any new evidence before rehearing the appeal. LEGAL FRAMEWORK The EUSS

LEGAL FRAMEWORK

[10]Paragraph EU3 of Appendix EU (‘Requirements for limited leave to enter or remain other than as a joining family member of a relevant sponsor’) provides that an applicantwill be granted five years’ limited leave to enter (where the application is made outside the UK) or five years’ limited leave to remain (where the application is made within the UK) where:• A valid application has been made in accordance with paragraph EU9;

• The applicant does not meet the eligibility requirements for indefinite leave to enter or remain in accordance with paragraph EU11 or EU12, but meets the eligibility requirements for limited leave to enter or remain in accordance with paragraph EU14; and

• The application is not to be refused on grounds of suitability in accordance with paragraph EU15 or EU16.’

[11]Paragraph EU11 of Appendix EU (‘Persons eligible for indefinite leave to enter or remain as a relevant EEA citizen or their family member, or as a person with a derivative right to reside or with a Zambrano right to reside’) provides amongst other things that an applicant meets the eligibility requirements for indefinite leave to enter or remain as a relevant EEA citizen where the Secretary of State is satisfied, including (where applicable) by the required evidence of family relationship, that, at the date of application, one of conditions 1 to 7 set out in the table under that paragraph is met.

[12]The only condition in that table relevant to this case is condition 3, which is met when:

‘(a) The applicant: (i) is a relevant EEA citizen; or (ii) is (or, as the case may be, for the relevant period was) a family member of a relevant EEA citizen; or (iii) is (or, as the case may be, for the relevant period was) a family member who has retained the right of residence by virtue of a relationship with a relevant EEA citizen; or (iv) is a person with a derivative right to reside; or (v) is a person with a Zambrano right to reside; or (vi) is a person who had a derivative or Zambrano right to reside; and (b) The applicant has completed a continuous qualifying period of five years in any (or any combination) of those categories; and (c) Since then no supervening event has occurred in respect of the applicant’

[13]Paragraph EU14 of Appendix EU provides that an applicant meets the eligibility requirements for limited leave to enter or remain where the Secretary of State is satisfied, including (where applicable) by the required evidence of family relationship, that, at the date of application, condition 1 or 2 set out in the table under that paragraph is met.

[14]According to that table, condition 1 is met when:

‘(a) The applicant is: (i) a relevant EEA citizen; or (ii) a family member of a relevant EEA citizen; or (iii) a family member who has retained the right of residence by virtue of a relationship with a relevant EEA citizen; or (iv) a person with a derivative right to reside; or (v) a person with a Zambrano right to reside; and (b) The applicant is not eligible for indefinite leave to enter or remain under paragraph EU11 of this Appendix solely because they have completed a continuous qualifying period of less than five years; and (c) Where the applicant is a family member of a relevant EEA citizen, there has been no supervening event in respect of the relevant EEA citizen’

[15]The term ‘continuous qualifying period’ is defined in Annex 1 to Appendix EU thus (insofar as is relevant to the appellant):

‘a period of residence in the UK and Islands…: (a) which, unless the person is a joining family member of a relevant sponsor, is a specified relevant person of Northern Ireland (or is the dependent relative of such a person) or relies on sub-paragraph (b)(i)(cc), (b)(i)(dd) or (b)(i)(ee) below, began before the specified date; and (b) during which none of the following occurred: (i) absence(s) from the UK and Islands which exceeded a total of six months in any 12-month period, except for: (aa) a single period of absence which did not exceed 12 months and was for an important reason (such as pregnancy, childbirth, serious illness, study, vocational training or an overseas posting, or because of COVID-19); or (bb) a single period of absence which did not exceed 12 months and which, although the absence was not originally for an important reason, is to be treated as being for an important reason as it exceeded six months because of COVID-19; or (cc) (following a period of absence under sub-paragraph (b)(i)(aa) above because of COVID-19 or under sub-paragraph (b)(i)(bb) above) a second period of absence which did not exceed 12 months and was for an important reason (such as described in sub-paragraph (b)(i)(aa) above) which, save for caring for someone with a serious illness, was not because of COVID-19; where this is the case, the period of absence under this sub-paragraph exceeding six months will not count towards any period of residence in the UK and Islands on which the person relies; or (dd) (following a period of absence under sub-paragraph (b)(i)(aa) above which, save for caring for someone with a serious illness, was not because of COVID-19) either a second period of absence which did not exceed 12 months and was for an important reason, where that reason was because of COVID-19, or a period of absence under sub-paragraph (b)(i)(bb) above; where this is the case, the period of absence under this sub-paragraph exceeding six months will not count towards any period of residence in the UK and Islands on which the person relies; or (ee) a period of absence under sub-paragraph (b)(i)(aa), (b)(i)(bb), (b)(i)(cc) or (b)(i)(dd) above which exceeded 12 months because COVID-19 meant that the person was prevented from, or advised against, returning earlier; where this is the case, the period of absence under this sub-paragraph exceeding 12 months will not count towards any period of residence in the UK and Islands on which the person relies; or… … (iii)…and, (c) which continues at the date of application, unless…’

[16]We have not recited the numerous exceptions then listed under subparagraph (c) as none are relevant to the appellant. They can be summarised briefly. The continuous qualifying period need not be continuing at the date of application if: it is of at least five years’ duration; the applicant has a right of permanent residence (or would have acquired such a right had the EEA Regulations not been revoked and the applicant had a reasonable excuse for not making an in time application); the period relates to a relevant EEA national or relevant sponsor (and certain conditions are satisfied); the applicant has indefinite leave to enter or remain in the United Kingdom; or the applicant is applying under specified provisions of Appendix EU (none of which apply to the appellant). Procedural Matters AIPs

Procedural Matters

[17]Many cases in the FTT are conducted by parties who do not have professional legal representation and who represent themselves. These are known as appellants in person (‘AIPs’) in the FTT, and litigants in person (‘LIPs’) elsewhere. The FTT is an expert tribunal well accustomed to and experienced in ensuring AIPs are treated fairly. The Senior President of Tribunals’ Practice Direction of the Immigration and Asylum Chamber of the First-tier Tribunal dated 1 November 2024 (‘the 2024 PD’) says this at paragraph 1.5:

‘This Practice Direction applies to appellants without representatives in the same way as it does to parties represented by lawyers. However, the Tribunal recognises the difficulties faced by appellants who are preparing and presenting their own appeal. The tribunal will ensure that they are treated fairly and enabled to explain their case. Judges should take account of the Equal Treatment Bench Book. The Bench Book provides guidance on the Tribunal's duty to litigants in person who are referred to in this Practice Direction as appellants in person. Account will be taken of the particular needs of appellants in person when dealing with the management of the appeal and at the hearing.’

[18]All represented appellants have been mandated to follow the FTT reformed appeal process unless not reasonably practicable so to do (2024 PD, paragraph 3.1). For the time being, it is deemed not reasonably practicable for detained appellants to use this online procedure. Put simply, appeals are submitted, managed and disposed of via an online platform with the parties and the FTT communicating primarily via the platform with automatic email notifications informing relevant participants when an event has occurred requiring their attention. Each participant accesses the online platform via slightly different interfaces but we shall refer to the system as it is colloquially known by the parties and judges - ‘CCD’.

[19]AIPs are permitted but not mandated to use the reformed process (2024 PD, paragraph 3.2). The majority of AIP appeals are commenced using the online procedure, although some are unavoidably taken offline.

[20]The 2024 PD outlines the appeal process in Part 2. Paragraph2.1 summarises the appeal process in this way:

(a) the appellant provides a notice of appeal in accordance with rules 19 to 21 of the Procedure Rules;

(b) the Tribunal reviews the validity of the appeal and territorial jurisdiction;

(d) the appellant provides a bundle and an explanation of their case or, where represented, a skeleton argument in accordance with rule 24A of the Procedure Rules;

(e) the respondent provides a meaningful review of the decision under appeal;

(f) a hearing before a judge;

(g) the judge making a decision, either at the hearing or in writing after the hearing, subject to rule 29; and

(h) where relevant, an application for permission to appeal to the Upper Tribunal. Paragraph

2.2 continues:

‘2.2. The process may be modified or described differently for appellants in person but will generally involve similar steps to those set out above.’

[21]Paragraph 7.10 provides:

‘where the appellant is not legally represented, the Tribunal will make directions in accordance with 1.5 above for the appellant to explain their case and provide any evidence or material in support of their case that is not in the respondent’s bundle.’

[22]Consequently, in order to best facilitate meaningful access to the FTT for AIPs upon implementation of reform, an AIP ‘reform journey’ was designed in a manner that is considerably simpler and less formal than that expected of represented parties.

[23]In practical terms, the represented ‘journey’ to hearing comprises: submission of an appeal indicating at that point only the statutory ground(s) of appeal relied upon and including a copy of the challenged decision; provision by the respondent of a bundle of the documents considered by her to be relevant to the appeal; provision by the appellant of an appeal skeleton argument setting out clearly and concisely their legal challenge to the decision, and a bundle of any further relevant documents not already provided by the respondent; and a review of the case by the respondent, with a view to narrowing the issues and evidence, if not to avoiding a hearing altogether. It is in this manner that the principal contentious issues (‘PCIs’) are identified, in order for procedural rigour to be applied in accordance with the principles outlined in Lata (FtT: principal controversial issues)

[2023] UKUT 163 (IAC)

and TC (PS compliance - “issues-based” reasoning) Zimbabwe

[2023] UKUT 164 (IAC)

. The issues-based approach as well as the requirement to approach the PCIs with procedural rigour are also mandated by the 2024 PD at paragraphs 1.1, 7.1, 7.6, 7.11, 9.11, 10.5 and 11.1-11.4.

[24]The AIP ‘journey’, on the other hand, requires the appellant initially to give some basic personal information, to indicate the ‘type of appeal’ (explained by reference to the type of decision to be challenged, rather than by reference to statutory grounds of appeal), how they would wish the appeal to be decided (with or without a hearing) and to upload the challenged decision. Whilst the respondent’s next step is no different to that for a represented party, the appellant in response is simply asked to explain in their own words, ‘Why do you think the Home Office decision is wrong?’, and asked if they want to provide supporting evidence. The appellant’s answer to that question is then stored and displayed on CCD as their ‘appeal reasons’. Whilst the AIP is encouraged to provide supporting evidence, there is no obligation on them to do so and a hyperlink to access guidance on supporting evidence is only provided if the appellant answers ‘yes’ when asked if they want to provide some.

[25]As the 2024 PD says at 7.10, the FTT will make directions for the AIP ‘to explain their case and provide any evidence or material in support of their case that is not in the respondent’s bundle’. Unlike on the represented journey, a FTT legal officer can then ask ‘clarifying questions’ if the AIP does not appear to have addressed in their ‘appeal reasons’ and supporting evidence the PCIs in the case. Recognising that AIPs might not understand the legal framework applicable to the challenged decision or be able to identify or understand the PCIs in their case and/or the evidence, legal officers are trained in the use of ‘clarifying questions’. This is an important aspect of the AIP appeal ‘journey’ in the FTT. FTT legal officers resources are presently overstretched; however, judges must consider for themselves whether the PCIs demand further clarification from the AIP, absent ‘clarifying questions’ or sufficient clarification from the legal officer. This will usually take place at the beginning of any hearing but where the appeal has been listed to be determined on the papers, this remains an important aspect to consider in order to ensure fairness to the AIP.

[26]The appellant is offered the opportunity to provide supporting evidence for those answers and is also asked, ‘Do you want to tell us anything else about your case?’ . If no clarifying questions are asked, or once the answers to any ‘clarifying questions’ are received, the respondent is then directed to review the appeal (as with the represented journey). The AIP is notified of the outcome of that review and, unless the respondent has decided to withdraw her decision, the AIP is offered the opportunity to reply to the review by uploading further documents.

[27]It is the duty of all parties, whether represented or not, to bring all relevant facts and information to the attention of the FTT, particularly matters relevant to the PCIs. AIPs must comply with the relevant procedure and practice but where appropriate, as explained above, the FTT will have regard to the fact that an appellant is unrepresented and will ensure an AIP is treated fairly and in accordance with the guidance in the 2024 PD and the Equal Treatment Bench Book (‘ETBB’), to which we now turn.

The ETBB

[28]In common with all judicial officer holders, FTT judges are trained on and expected to be familiar with and apply the guidance in the ETBB. The ETBB recognises the challenges faced by LIPs and places such importance on the issue that its guidance on dealing with LIPs is to be found in its first chapter. That chapter ‘aims to identify the challenges both faced – and caused – by LIPs before,during and after the litigation process, and to provide guidance to judges with a view to ensuring that both parties receive a fair hearing where one or both is not represented by a lawyer’ (paragraph 2).

[29]Chapter 1, paragraph 13 of the ETBB states:

‘13. In 2013, a judicial working party chaired by Mr Justice Hickinbottom summed up the position as follows: “Providing access to justice for litigants in person within the constraints of a system that has been developed on the basis that most litigants will be legally represented poses considerable and unique challenges for the judiciary. Cases will inevitably take more time, during a period of severe pressure on judicial time. However, litigants in person are not in themselves ‘a problem’; the problem lies with a system which has not developed with a focus on unrepresented litigants. We consider it vital that, despite the enormous challenge presented, judges are enabled and empowered to adapt the system to the needs of litigants in person, rather than vice versa.”’

[30]Amongst the challenges faced by LIPs, the ETBB notes being ‘ill-informed about ways of presenting evidence’ and being ‘unable to understand the relevance of law and regulations to their own problem, or to know how to challenge a decision that they believe is wrong’ (chapter 1, paragraph 15), which ‘have an adverse effect on the preparation and presentation of their case’ (paragraph 16). The chapter details the common procedural misunderstandings in case preparation, the first of which is in statements of case, including ‘failure to put the salient points in their statement of case’ (paragraph 31).

[31]Amongst the guidance given on areas of difficulty for LIPs and how to help is the following (paragraph 35):

‘• Particularisation of their case/issues for hearing: Lawyers find it relatively easy to precis and identify key points of an argument. For many other people, this can be extremely difficult. As a result, when ordered to provide particulars, LIPs tend to either miss the deadline, avoid the task altogether or do it incorrectly – either omitting key information or overloading with excess information, often beyond the scope of the original pleading. Similar problems can arise in jurisdictions where parties are required to produce a list of issues for the hearing. • How to help: Where practical, avoid making orders that LIPs must particularise their case beyond one or two very simple questions on a clear point. Ordering LIPs to provide complex schedules of their claim is rarely a good idea. Where necessary, it is better to hold a case management hearing and talk the LIP through their claim, extracting the required particulars and recording them in the case management order. In regard to the list of issues, if the other party is represented, they can be asked to prepare the first draft from what the LIP has so far put in writing.’

Procedure Rules

[32]S. 22 of the Tribunal, Courts and Enforcement Act 2007 (‘the 2007 Act’) confers on the Tribunal Procedure Committee the function of making Procedure Rules ‘governing –(a) the practice and procedure to be followed in the First-tier Tribunal, and

(b) the practice and procedure to be followed in the Upper Tribunal’ (s.22(1)). That function is statutorily required to be exercised ‘with a view to securing – (a) that, in proceedings before the First-tier Tribunal and Upper Tribunal, justice is done, (b) that the tribunal system is accessible and fair,

(d) that the rules are both simple and simply expressed, and

(e) that the rules where appropriate confer on members of the First-tier Tribunal, or Upper Tribunal, responsibility for ensuring that proceedings before the tribunal are handled quickly and efficiently’. Schedule 5(1), which makes further provision about the content of Procedure Rules, provides by paragraph 7 that they ‘may – (a) make provision for dealing with matters without a hearing; (b) make provision as respects allowing or requiring a hearing to be in private or as respects allowing or requiring a hearing to be in public’.

[33]Rule 2 of the First-tier Tribunal (Immigration and Asylum) Procedure Rules 2014 (‘Overriding objective and parties’ obligation to co-operate with the Tribunal’) provides:

‘(1) The overriding objective of these Rules is to enable the Tribunal to deal with cases fairly and justly. (2) Dealing with the case fairly and justly includes: (a) dealing with the case in ways which are proportionate to the importance of the case, the complexity of the issues, the anticipated costs and the resources of the parties and of the Tribunal; (b) avoiding unnecessary formality and seeking flexibility in the proceedings; (c) ensuring, so far as practicable, that the parties are able to participate fully in the proceedings; (d) using any special expertise of the Tribunal effectively; and (e) avoiding delay, so far as compatible with proper consideration of the issues. (3) The Tribunal must seek to give effect to the overriding objective when it— (a) exercises any power under these Rules; or (b) interprets any rule or practice direction. (4) Parties must— (a) help the Tribunal to further the overriding objective; and (b) co-operate with the Tribunal generally.’

[34]Rule 25 (‘Consideration of decision with or without a hearing’) also materially provides:

‘(1) The Tribunal must hold a hearing before making a decision which disposes of proceedings except where— (a) each party has consented to, or has not objected to, the matter being decided without a hearing; (b) the appellant has not consented to the appeal being determined without a hearing but the Lord Chancellor has refused to issue a certificate of fee satisfaction for the fee payable for a hearing; (c) the appellant is outside the United Kingdom and does not have a representative who has an address for service in the United Kingdom; (d) it is impracticable to give the appellant notice of the hearing; (e) a party has failed to comply with a provision of these Rules, a practice direction or a direction and the Tribunal is satisfied that in all the circumstances, including the extent of the failure and any reasons for it, it is appropriate to determine the appeal without a hearing; (f) the appeal is one to which rule 16(2) or 18(2) applies; or (g) subject to paragraph (2), the Tribunal considers that it can justly determine the matter without a hearing. (2) Where paragraph (1)(g) applies, the Tribunal must not make the decision without a hearing without first giving the parties notice of its intention to do so, and an opportunity to make written representations as to whether there should be a hearing.’

Determining appeals without a hearing

[35]Rule 2(3) requires the FTT to give effect to the overriding objective when it exercises any power under the Rules or interprets any Rule. Dealing with cases ‘fairly and justly’ in the overriding objective has to be read consistently with the basic requirements of common law procedural fairness. The FTT is therefore duty-bound to seek to give effect to the overriding objective and basic common law requirements when exercising a power under the Rules or interpreting a Rule – see R (Ewing) v Department of Constitutional Affairs

[2006] EWHC 504 (Admin)

[2006] 2 All ER 993

at paragraph 24, as applied in R (JCWI) v UTIAC President

[2020] EWHC 3103 (Admin)

[2021] PTSR 800

at paragraph 2.6. This includes the application of rule 25. Where a procedural rule gives a judge discretion to dispense with an oral hearing, there should nevertheless be an oral hearing if fairness requires one – see JCWI at paragraph 6.3.

[36]In SSGA (Disposal without considering merits; R25) Iraq

[2023] UKUT 00012 (IAC)

, the UT gave guidance on the correct approach to rule 25 when considering whether or not to hold a hearing before making a decision. At paragraph 74, the UT said (our underlining added):

‘The following guidance applies when consideration is being given to whether or not an appeal should be disposed of without a hearing: (i) Rule 25(1) of the FtT Rules provides that the FtT (IAC) must hold a hearing which disposes of proceedings except where rule 25(1)(a) to (g) apply. Seven exceptions to the general rule are provided for in rule 25(1)(a) to (g). (ii) Any decision whether to decide an appeal without a hearing is a judicial one to be made by the judge who decides the appeal without a hearing. The mere fact that a case has been placed in a paper list does not and cannot detract from the duty placed on the judge before whom the case is listed as a paper case to consider for himself or herself whether one or more of the exceptions to the general rule apply. If, having considered rule 25, the judge is not satisfied that at least one of the exceptions in rule 25(1)(a) to (g) is satisfied, the judge must decline to decide the appeal without a hearing and direct the administration to list the appeal for a hearing. (iii) If a judge decides that one or more of the exceptions in rule 25(1) is satisfied and therefore decides an appeal without a hearing, the judge’s written decision must explain which exception is satisfied and why by engaging with the pre-requisites specified in the relevant provision and giving reasons for how any discretion conferred by the relevant exception has been exercised and/or how any judgment required to be made is made. Furthermore: (a) For the exception in rule 25(1)(e) to apply, mere non-compliance with a provision of the FtT Rules, a practice direction or a direction is not in itself sufficient to permit a judge to decide an appeal without a hearing. The Tribunal must, in addition, be “satisfied that in all the circumstances, including the extent of the failure and any reasons for it, it is appropriate to determine the appeal without a hearing”. The judge's written decision must therefore identify the procedural failure or failures in question, explain the judge's view of their causes on such evidence as is before the judge as well as explain the persistence and gravity of the procedural failure or failures. The written decision must explain the extent to which such failures have obstructed the overriding objective and why the judge is “satisfied that in all the circumstances, including the extent of the failure and any reasons for it, it is appropriate to determine the appeal without a hearing”. If credibility is in issue on any material aspect of the claimant's case, the judge’s written decision must explain why it is nevertheless appropriate in all of the circumstances to decide the appeal without a hearing and the relevance of the procedural failure(s) to it being deemed appropriate by the judge to decide the appeal without a hearing. (b) For the exception in rule 25(1)(g) to apply, rule 25(2) has to be satisfied. If a judge proceeds to decide an appeal without a hearing under rule 25(1)(g), the judge’s written decision must demonstrate why rule 25(2) is satisfied and go on to explain why the judge has concluded that the appeal can justly be determined without a hearing notwithstanding any dispute there may be as to the credibility of any material fact. (iv) A hearing should be held whenever credibility is disputed on any material issue or fact. Cases in which it would be appropriate to determine an appeal without a hearing if credibility is materially in issue would be rare indeed. In almost all cases, the appropriate course of action would be to list the case for a hearing and decide the case on such material as is before the Tribunal.’

[37]It is clear from the wording of rule 25 and the guidance in SSGA that the FTT ‘must’ hold a hearing, unless one of the exceptions apply. Even where an exception applies, there is an overarching requirement to consider whether fairness requires a hearing. What fairness requires is informed by the circumstances of the particular case, the basic requirements of common law fairness and the overriding objective. It follows that even where each party has consented to, or has not objected to, the matter being decided without a hearing, and the exception in rule 25(1)(a) applies, the FTT must still consider whether the appeal can be disposed of fairly and justly without a hearing, in accordance with the overriding objective and common law fairness. The key themes that emerge to inform the basic requirements of common law fairness are set out in part 6 of JCWI (paragraphs 6.1-6.17).

[38]As the UT stated in SSGA, whenever credibility is disputed on any material issue or fact, it would be rare to proceed without a hearing. This applies even where both parties consent to the matter proceeding on the papers. This is because in such circumstances it is likely to be difficult to dispose fairly and justly of the case without a hearing – see in particular the summary of relevant case-law at paragraph 6.4 of JCWI:

‘The factual content of a case can be a basis why fairness requires a hearing. An oral hearing "is most obviously necessary to achieve a just decision in a case where facts are in issue which may affect the outcome" (West at paragraph 31: Lord Bingham). In cases "where credibility and veracity are at issue … written submissions are a wholly unsatisfactory basis for decision" (Goldberg v Kelly (1970) 397 US 254, 269 (Brennan J), cited in West at paragraph 31 by Lord Bingham). "[A]n oral hearing will … often" be necessary "[w]here facts which appear … to be important are in dispute, or where a significant explanation or mitigation is advanced which needs to be heard orally in order fairly to determine its credibility"(Osborn at paragraph 2(ii)(a): Lord Reed). Even where there is "no dispute on the primary facts" so that "important facts are not in dispute", a court or tribunal "may well be greatly assisted" by an oral hearing because facts may be "open to explanation" or "may lose some of their significance in the light of other … facts" (West at §§34-35 (Lord Bingham). It is an unduly "constricted" approach to "the common law duty of procedural fairness" to apply, as a "test" of whether an oral hearing is required, the question whether "the primary facts" are in "dispute" (West at paragraphs 34-35: Lord Bingham). It is necessary to "guard against any tendency to underestimate the importance of issues of fact which may be … open to explanation" (Osborn at paragraph 2(ii)(a): Lord Reed).’

[39]The importance of close examination by way of an oral hearing where credibility is disputed or dishonesty is alleged is underlined by the demand for anxious scrutiny and the highest standards of procedural fairness in protection and human rights claims – see paragraphs 6.6 and 6.12 of JCWI; and by the importance of what is at stake for the affected individual and the public interest – see paragraph 6.9 of JCWI. Whilst the instant case does not involve fundamental human rights, it is important to note the difficulties faced by AIPs, as identified in the ETBB. These include being ‘ill-informed about ways of presenting evidence’ and the ‘failure to put the salient points in their statement of case’. Where the parties consent to, or do not object to, the matter being decided without a hearing, there remains a judicial decision whether to proceed without a hearing. That decision must be informed by the overriding objective and basic standards of fairness. Judges must be particularly vigilant where an AIP consents to an oral hearing in circumstances where ‘clarifying questions’ have not been asked and it is clear that the AIP has not understood or addressed the evidence relevant to the PCIs. ERROR OF LAW Procedural unfairness

ERROR OF LAW

[40]The appellant submitted his appeal on 14 September 2023, when he made it clear that he wanted the appeal to be decided without a hearing.

[41]In response to the question ‘Why do you think the Home Office decision is wrong?’, the appellant gave the following response on 1 December 2023:

‘Dear Sir/ Madam, I appeal my decision from Home office because, based on all the documents I provide them I was hopping to recive the pre settle status. Because of COVID 19 which affected me a lot on my job but also in my personal life I lose a lott during this time. First at all COVID 19 I lose my first job just after few days I start it and I wasn't qualifeid in furlough scheme, I was lucky because my best friends they suport me during this time financialy but also with accomodation in them house. Also, COVID 19 slow down all the proces with my documents, because of lock down I wasn't allowed to travel to change my old passport, because of not changeing my old passport I cannot apply for any of the necesary documents after Brexit. I try to apply for NINO and they refuse me because I didn't have pre settle status, I try to open a bank account and I was refused also for the same reason. I'm a hard worker and I realy need some help with my documents, I have a job now and I'm happy and glad to having this job, I don't want to lose my job, but unfortunatley if I don't get the pre settle status I will lose this job. I'm a serios guy, I pay tax and also pension, I will attache all the documents I have to prove this. Unfortunatley, I don't have any other documents them this one. Please,I kindly ask you to considerate that I was already one time in position and lose my job please help me to don't lose my job again, I want to work and pay tax and be good with all my documents I don't want to stay more under stress that I can be without job again. Kind regards, Radu Marian Ghira’

[42]We mean no discourtesy to the appellant by including the mistakes in spelling and grammar. The appellant was no doubt doing the best he could in English, when his first language is Romanian. This summary of the appellant’s case would have been displayed to the judge and the respondent on CCD as the appellant’s ‘appeal reasons’.

[43]Mr Tan accepts that this response was in itself evidence, albeit that the appellant could perhaps have been asked to put it in a formal witness statement, and that it was capable of establishing that he had been present in the United Kingdom before 31 December 2020, but that it did require some clarification.

[44]The ‘appeal reasons’ were reviewed on 11 February 2024 by a legal officer who noted:

‘Appeal reasons brief but slightly deal with issue in appeal of appellant's circumstances’

[45]The fact that the legal officer thought that the appeal reasons ‘slightly deal’ with the issues in the appeal appears to have been the reason why no clarifying questions were asked. This ‘case note’ would not have been visible to the respondent but was visible to the judge on CCD.

[46]The respondent undertook her review of the appeal on 16 April 2024. She consented at paragraph 10 for the appeal to ‘proceed on the papers’ and identified one PCI:

‘Has the A provided sufficient evidence to show he was a resident in the UK and Islands prior to the specified date (31 December 2020)?’

. In respect of that PCI, the review materially stated:

‘6. The A has provided no evidence that he was a resident in the UK prior to the specified date. 7. The R has reviewed the documents submitted by the A and they do not evidence residency in the UK and Islands prior to 31 December 2020.’

[47]This was, given Mr Tan’s acceptance of how the appellant’s ‘appeal reasons’ could be understood, an implicit rejection of their veracity and the appellant’s credibility.

[48]The appellant was notified on 25 April 2024 that he should consider the respondent’s response and, if he wished to respond, he could upload an additional document or documents. He did not.

[49]The matter was put before a judge to be dealt with ‘on the papers’ on 14 May 2024, in other words to be decided without a hearing pursuant to rule 25. It was incumbent on the judge to consider the ‘appeal reasons’ and supporting documents, any FTT or legal officer review thereof, and the respondent’s review. This should have led to the judge confirming the PCIs to be decided. The issues-based approach applies equally to appeals determined on the papers as it does to oral hearings. The judge was then obliged to consider whether the PCI in this case, as identified in the respondent’s review, could be fairly and justly determined without a hearing in accordance with rule 25, the overriding objective and the guidance in SSGA. Of course, a judge would not fall into error merely by failing to refer expressly to SSGA provided that it was clear from the decision that the guidance was followed. However, in this case, it is clear that the guidance was not.

[50]Whilst both parties had in this case consented to the appeal being decided without a hearing, it appeared as noted above, that the respondent was challenging the veracity of the appellant’s account (i.e. the respondent did not accept that which seems implicit from the ‘appeal reasons’ – the appellant was resident and working in the United Kingdom before the specified date). In these circumstances, and particularly bearing in mind the difficulties faced by AIPs, the judge was obliged either to explain why it was appropriate nevertheless to proceed to decide the case without a hearing or to direct that a hearing be listed. As set out above, this required a consideration of whether the PCI could fairly and justly be determined without a hearing.

[51]In any event, the judge should have been aware that the appellant’s statement of case (the ‘appeal reasons’) and accompanying evidence, even on the legal officer’s brief analysis, only ‘slightly dealt’ with the PCI and that the AIP reform journey permitted clarifying questions in such circumstances, but that none had been asked. The judge should have identified the sole issue in dispute or PCI, as set out in the respondent’s review. The judge should, in the circumstances, have considered whether the appeal could be fairly determined without the appellant being given at least the opportunity to outline fully his evidence regarding the sole PCI, in the light of the respondent disputing the credibility of the appellant’s claim that he was present in the United Kingdom at the relevant time.

[52]We do not consider that the direction on 24 April 2024 (that the appellant could respond to the respondent’s review by uploading additional documents) gave him an effective opportunity to do so. First, he had made clear in his ‘appeal reasons’ that he had no further supporting documents to provide. Second, neither the review nor that direction made sufficiently plain to the appellant that he needed to clarify further his case.

[53]The judge should have recognised, certainly in an appeal by an AIP to be decided without a hearing, that the appellant’s ‘appeal reasons’ were in themselves evidence upon which the appellant relied and taken them into account. The judge lists at paragraph 5 the documents submitted by the appellant, and at paragraph 9 concludes (our underlining added):

‘I find that the documents above fail to show, on the balance of probabilities, that the Appellant was in the UK for the required five-year period to meet the requirements of EU11 and/or EU14 of Appendix EU to the Immigration Rules.’

[54]It is clear therefore that the judge did not take the appellant’s ‘appeal reasons’ into account when reaching the decision to proceed on the papers or when determining the appeal.

[55]To summarise, when making the decision whether to proceed without a hearing, where the parties have consented or not objected to the matter being decided without a hearing pursuant to rule 25(1)(a), in order to ensure procedural fairness and compliance with the overriding objective, the FTT should do the following:(1) Consider the material contents of the case record, including in particular the parties’ statements of case and documentary evidence (including the appellant’s appeal skeleton argument or ‘appeal reasons’ as the case may be), any directions given and the responses thereto including any legal officer’s and judge’s case notes.

(2) Identify from the evidence and the respondent’s review, the PCIs to be resolved in order to decide the appeal.

(3) Address whether it is appropriate in the circumstances to decide the appeal without a hearing by determining whether the case can be dealt with fairly and justly in that manner, in the light of the available evidence and the PCIs. This is likely to be a straightforward assessment, capable of concise (and often highly concise) reasoning.

(4) In cases involving AIPs, the judge should, in particular:

a. consider whether the AIP’s ‘appeal reasons’ and uploaded documents address each of the PCIs;

b. if not, consider whether the AIP has been given an opportunity to clarify their case and evidence in relation to the PCIs, through ‘clarifying questions’ or otherwise;

c. consider whether it is necessary in accordance with the overriding objective to give directions or order an oral hearing be listed, which would afford the AIP that opportunity.

(5) In any event, follow the guidance in SSGA which states that a hearing should be held whenever credibility is disputed on any material issue or fact, unless satisfied that it is one of those rare cases in which it would be appropriate and fair to do so (in which case reasons for that conclusion should be given in the decision). It is difficult to envisage AIP cases where this approach would be appropriate.

[56]As is clear from our reasoning above, we find that in failing to take those steps, the judge acted in a procedurally unfair manner, and the decision must be set aside.

EUSS requirements

[57]In any event, we are satisfied that the FTT decision involved the making of an additional material error of law.

[58]The judge recorded at paragraph 1 that the appellant had applied on 2 July 2023 for pre-settled status under the EUSS. Nevertheless, his self-direction on the applicable law at paragraphs 6-8 says:

‘6. To succeed on the facts asserted here the Appellant must show he has been continuously resident for a five-year period and in the UK for at least six months in any twelve- month period prior to the relevant date the UK left the EU, namely, 31st December, 2020. 7. The material date for my assessment is 9th May, 2024. 8. The standard of proof is the balance of probabilities.’

[59]Mr Tan argues that the judge attempted to summarise in one paragraph both the legal test for settled status and the test for pre-settled status. We are unable to read paragraph 6 as such an attempt and certainly not an accurate attempt so to do. We note that the judge recorded at paragraph 4 only a single issue in dispute:

‘Has the Appellant shown, on the balance of probabilities that he has beencontinuously resident in the UK for the minimum period of five years.’

[60]We are entirely satisfied that the judge applied to the appellant’s application for pre-settled status the requirement that he should have by the hearing date have accrued five years’ continuous residence in the United Kingdom. That was an error of law. A continuous qualifying period of five years is a requirement for settled status under condition 3(b) of the table to paragraph EU11. However, it is not a requirement for pre-settled status per condition 1(b) of the table to paragraph EU14.

[61]Mr Tan argued that it was an immaterial error, and that the appeal was doomed to fail given the state of the evidence. However, in light of our findings above on procedural unfairness, we do not agree.

DISPOSAL

[62]If the UT sets aside a decision of the FTT, it must either remit the case to the FTT with directions for its reconsideration or remake the decision – see s. 12(2) of the 2007 Act.

[63]Paragraph 3 of the current Practice Directions of the Immigration and Asylum Chambers of the FTT and the UT, as amended on 18 December 2018, deals with the procedure on appeal to the UT from the FTT. Paragraphs3.1 and

3.2 state:

‘3.1 Where permission to appeal to the Upper Tribunal has been granted, then, unless and to the extent that they are directed otherwise, for the purposes of preparing for a hearing in the Upper Tribunal the parties should assume that: (a) the Upper Tribunal will decide whether the making of the decision of the First-tier Tribunal involved the making of an error on a point of law, such that the decision should be set aside under section 12(2)(a) of the 2007 Act; (b) except as specified in Practice Statement 7.2 (disposal of appeals by Upper Tribunal), the Upper Tribunal will proceed to re-make the decision under section 12(2)(b)(ii), if satisfied that the original decision should be set aside; and (c) in that event, the Upper Tribunal will consider whether to re-make the decision by reference to the First-tier Tribunal’s findings of fact and any new documentary evidence submitted under UT rule 15(2A) which it is reasonably practicable to adduce for consideration at that hearing. 3.2. The parties should be aware that, in the circumstances described in paragraph 3.1(c), the Upper Tribunal will generally expect to proceed, without any further hearing, to re-make the decision, where this can be undertaken without having to hear oral evidence. In certain circumstances, the Upper Tribunal may give directions for the giving of oral evidence at the relevant hearing, where it appears appropriate to do so. Such directions may be given before or at that hearing…’

[64]Section 7 of the Practice Statements of the Immigration and Asylum Chambers of the FTT and the UT, dated 11 June 2018 (‘Practice Statement’), concerns the disposal of appeals in the UT, and states:

‘7.1. Where under section 12(1) of the 2007 Act (proceedings on appeal to the Upper Tribunal) the Upper Tribunal finds that the making of the decision concerned involved the making of an error on a point of law, the Upper Tribunal may set aside the decision and, if it does so, must either remit the case to the First-tier Tribunal under section 12(2)(b)(i) or proceed (in accordance with relevant Practice Directions) to re-make the decision under section 12(2)(b)(ii). 7.2. The Upper Tribunal is likely on each such occasion to proceed to remake the decision, instead of remitting the case to the First-tier Tribunal, unless the Upper Tribunal is satisfied that: (a) the effect of the error has been to deprive a party before the First-tier Tribunal of a fair hearing or other opportunity for that party’s case to be put to and considered by the First-tier Tribunal; or (b) the nature or extent of any judicial fact finding which is necessary in order for the decision in the appeal to be re-made is such that, having regard to the overriding objective in rule 2, it is appropriate to remit the case to the First-tier Tribunal. 7.3. Remaking rather than remitting will nevertheless constitute the normal approach to determining appeals where an error of law is found, even if some further fact finding is necessary.’

[65]The exercise of discretion as to whether to remit a case to the FTT or to retain for remaking in the UT was considered in AEB v SSHD

[2022] EWCA Civ 1512

. The case concerned a decision of the UT to retain and remake a decision where it had found that the FTT’s refusal to adjourn AEB’s hearing in order to obtain an expert’s report had been procedural unfair. The Secretary of State had conceded that the UT had thereby fallen into error by not following the guidance in Practice Statement 7.2, but argued that the error was immaterial.

[66]The Court of Appeal held at paragraph 45 that unfairness ‘is not just important because it is referred to in paragraph 7.2(a): it is of fundamental importance for the reasons set out by the UT in MM (unfairness) Sudan’. In that case (MM (unfairness) Sudan v SSHD

[2014] UKUT 00105 (IAC)

), the UT said at paragraph 26:

‘We consider that, as a fairly strong general rule, where a first instance decision is set aside on the basis of an error of law involving the deprivation of the Appellant’s right to a fair hearing, the appropriate course will be to remit to a newly constituted [FtT] for a fresh hearing. This is so because the common law right to a fair hearing is generally considered to rank as a right of constitutional importance and it is preferable that the litigant’s statutory right of appeal to the [UT] should be triggered only where the former right has been fully enjoyed.’

[67]At paragraph 47 of AEB, the Court of Appeal held:

‘It seems to me to be illogical and wrong to accept the rationale for the exception in paragraph 7.2(a) as expressed in MM (unfairness) Sudan and yet to assert that the loss of an uncontaminated two tier decision-making process (with the possibility of a second appeal thereafter) is not a material consequence of the UT’s failure to remit. If, which I do not accept, there is a tension between what was said in JD (Congo) and in MM (unfairness) Sudan, that tension should be resolved in favour of ensuring that parties in general, and AEB in particular, should have had and should now have a two tier process that is fair throughout. That, in my judgment, is the very purpose that lies behind paragraph 7.2(a). It does not mean that all cases where the hearing before the FtT have been unfair will necessarily fall to be remitted: but reasons for not doing so must be both cogent and expressed. Here there are none.’

[68]We had, as noted above, canvassed with the parties their views on our retaining this appeal for remaking were we to find (as we have) that the FTT decision had involved the making of an error of law. We had considered that an appropriate course of action for the following reasons. The appellant appeared in person and has not indicated at any point in proceedings a desire to secure representation. Remittal would have caused further delay when the case required a straightforward application of the law to the evidence on a narrow point i.e. the appellant’s residence in the United Kingdom prior to the specified date. The parties agreed with the proposed course of action. Consequentially, we were of the view that retaining the case in the UT and proceeding directly to remake the decision furthered the overriding objective. However, that view was informed critically by our understanding that there would be only one PCI to be resolved, in relation to which the appellant had been put on notice and with which he had confirmed his ability to deal.

[69]However, when giving his oral evidence, the appellant indicated that he resided in the United Kingdom from November 2020 to April 2021, when he returned to Romania to renew his passport, and did not return to the United Kingdom until January 2023. In these circumstances, Mr Tan accepted that the appellant was resident in the UK on the specified date, but a new issue arose regarding his continuity of residence after that time.

[70]The respondent was therefore now opposing the appeal on a different basis, and indeed was conceding the previously agreed PCI. The issue had now become whether there had, since the relevant period, been an interruption to the appellant’s continuous qualifying period to which none of the exceptions contained within the term’s definition applied. Whilst the issue arose very late, the evidence provided by the appellant raised an obvious concern that a key requirement of Appendix EU may not have been met, and in these circumstances, Mr Tan was entitled to raise the issue.

[71]Although the appellant gave some evidence on the point, and had a theoretical opportunity to answer Mr Tan’s submissions on this new issue, we have concluded that it is necessary to reconsider our initial decision to retain the case for remaking in the UT. Our conclusion that the FTT decision contains an error of law such that it should be set aside was reached on grounds of procedural fairness. As the matter unfolded before us, the appellant had not been on notice until Mr Tan’s submissions that the new point on continuity of residence was going to be taken against him. In all the circumstances including the unusual way in which the now materially different PCI has emerged, we are not satisfied that we can fairly decide the merits of his case in the UT.

[72]Consequently, we have decided that it is necessary to remit the appeal to the FTT to be reheard by another judge, who we direct should be a salaried FTT judge. We record that the only PCIs currently identified by the respondent relate to the appellant’s continuous qualifying period, and whether this was broken by his return to Romania, or alternatively (if the appellant has grounds so to argue) whether he is excused from the requirement that hiscontinuous qualifying period must continue until the date of application, in accordance with Appendix EU and the relevant guidance.

[73]This means that the appellant needs to provide a written statement outlining the precise period or periods he has been outside the United Kingdom since 31 December 2020 with the reasons for any absence or absences. Therefore, when the matter is remitted to the FTT, it would be helpful, if the appellant’s evidence does not appear to address fully those PCIs, for a legal officer to ask any relevant ‘clarifying questions’ regarding the continuity of residence point.

NOTICE OF DECISION

[1]The FTT decision involved the making of an error of law and is set aside.

[2]The appeal is remitted to the FTT to be redecided at a hearing before a salaried FTT judge to determine the following issues:a. whether the appellant’s continuous qualifying period, which began before and continued at the specified date, has since been broken;

b. or alternatively (if the appellant has grounds so to argue) that he is excused from the requirement that his continuous qualifying period must continue until the date of application. Judge Melanie Plimmer President of the First-tier Tribunal (Immigration and Asylum Chamber) 29 January 2025