Published:  2nd December 2020

Blog post: Jo Hynes, Research Fellow, Public Law Project

The Administrative Court recently ruled in favour of the Joint Council for the Welfare of Immigrants (JCWI), in a case challenging a Covid-related Guidance Note as ultra vires. PLP provided a witness statement in support of the claimant.

Read: The Law Society Gazette: President’s guidance for immigration appeals during Covid-19 ‘unlawful’

The Guidance Note in question was issued by the President of the Upper Tier Tribunal (Immigration & Asylum Chamber) (UTIAC), Mr Justice Lane, on 23 March 2020 and extended on 16 September 2020, in response to the Covid-19 pandemic.

The Guidance Note outlined how substantive appeals dealt with by the UTIAC were to be decided during the Covid-19 pandemic, and specifically whether cases were to be determined through oral hearings or paper determinations.

Dr Joe Tomlinson, Research Director at PLP, provided a witness statement in support of the claimant, JCWI, detailing evidence of the impact of the Guidance Note.

In a very clear and detailed judgement handed down on 20 November 2020, Mr Justice Fordham, concluded that paragraphs 9-17 of the Guidance Note were unlawful for a number of reasons.

  • First, he concluded that the Senior President of Tribunal’s Practice Direction dated 18 March 2020 communicated a “contingent paper norm”, as it contained a crucial proviso which “secures basic standards of common law procedural fairness” (§3.3 & §3.4). However, the Guidance Note omitted this proviso and thus communicated an “overall paper norm” (§4.1), which consequently “misdescribed” the effect of the Senior President of Tribunal’s Practice Direction (§8.1) and was not consistent with applicable common law principles of procedural fairness.
  • Second, he concluded that paragraph 16 of the Guidance Note “infringes Letts Unlawfulness” (§7.7) when it stated that the “importance to a party (or another person) will not, without more, constitute a reason to convene a hearing to decide the relevant questions”. Rather, Mr Justice Fordham concluded that the importance of an appeal could be sufficient to require an oral hearing (§7.4-§7.7).
  • Third, he concluded that paragraph 14 of the Guidance Note omitted “other relevant factors” to an assessment of whether an oral hearing was required as a matter of fairness (§7.9 – §7.12). Mr Justice Fordham ruled that “a series of really important points were omitted from the discussion” and this ground (2d) succeeded as a “further and freestanding ground for judicial review” (§7.12).

He succinctly outlines these reasons for finding the Guidance Note unlawful at §8.1:

“(1) The President’s Guidance Note, directed to Upper Tribunal (Immigration and Asylum Chamber) Judges, is unlawful because it communicated that appeals should normally be decided on the papers rather than at remote hearings during Covid. That position is inconsistent with basic common law requirements which inform the overriding objective of just and fair disposal, with which Judges are duty-bound to comply. That means the Guidance Note misdescribed the effect of the Senior President of Tribunals’ Covid Pilot Practice Direction. [Ground (1)(b) and (2)(a)]

…

(3) The Guidance Note is also unlawful because it said: “The fact that the outcome of the appeal is of importance to a party (or another person) will not, without more, constitute a reason to convene a hearing to decide the relevant questions”. That isadvice which (a) is erroneous in law and (b) would, if followed, lead to, permit orencourage unlawful acts. [Ground (2)(b)]

…

(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)]”

As a result, the President of the UTIAC has undertaken to:

“(i) In all cases of a UTIAC substantive appeal (as described in paragraph 2.10 of the Judgment) where, between 23 March 2020 and the date of this Order either (a) the appeal has been determined without a hearing and in favour of the Secretary of State for the Home Department (“SSHD”) or (b) a UTIAC Judge has decided that the appeal will be determined without a hearing, the Defendant shall use all reasonable endeavours to bring to the attention of the person who is party to the appeal (and who is not the SSHD), in writing: (i) the Judgment (ii) this Order (iii) the statement: “If you have not taken legal advice on your position, you are strongly advised to do so now”; and that

(ii) The Defendant will by 4pm on Friday 27 November 2020 file and serve a letter stating by what means and in what time-frame he is approaching the discharge of the undertaking at (i) above.”

The immediate impact of the judgement is the withdrawal of the unlawful paragraphs from the guidance note. In the longer term, the judgment provides a clear analysis of the various factors relevant to lawyers and judges involved in assessing when an oral hearing is required as a matter of fairness.

PLP wish to thank JCWI’s legal team and the pro-bono team at Freshfields Bruckhaus Deringer LLP who assisted with the evidence statement preparation.

The full judgement of R (The Joint Council for the Welfare of Immigrants) v The President of the Upper Tribunal (Immigration and Asylum Chamber) [2020] EWHC 3103 (Admin)is accessible on BAILII. Read the Law Gazette’s coverage here and the updated guidance note here.