UK: High Court declares certain arrangements for dealing with Upper Tribunal immigration appeals during the coronavirus pandemic, unlawful

Friday, November 20, 2020

On 20 November 2020, the High Court handed down its judgment in Joint Council for the Welfare of Immigrants v President of the Upper Tribunal (UT) (Immigration and Asylum Chamber) [2020] EWHC 3103 (Admin) declaring that certain arrangements for Upper Tribunal immigration appeals during the Covid-19 pandemic are unlawful. 

The case concerns the Presidential Guidance Note (PGN) No.1 2020 issued by Mr Justice Lane that dealt with, inter alia, the making of certain appeal decisions without a hearing, during the Covid-19 pandemic. The key question before the High Court was whether this particular section of the guidance created an ‘overall paper norm’ or, in other words, a presumption that judges should decide appeal cases based on written submissions, without an oral hearing. 

Justice Fordham concluded that, on an objective and straightforward reading and interpretation of the guidance, in light of its function and purpose, and having regard to the fact that it was directed at an audience of judges, the PGN created an overall paper norm. 

Counsel for Mr Justice Lane accepted that if the PGN created a paper norm, then the section would be unlawful. Justice Fordham, in his reasoning, explained that the guidance note took its lead from a pilot practice direction from the Senior President of Tribunals which “does not - at source - communicate an overall paper norm”. He also considered at length the common law principle of procedural fairness, pointing to, inter alia, “the central place accorded to oral argument in our common law adversarial system” and the advantages that an oral hearing can afford in terms of credibility assessments, effective representations and participatory interests. 

The PGN was deemed unlawful because, inter alia, it communicated that appeals should normally be decided on paper rather than at remote hearings during the Covid-19 pandemic, while that position is inconsistent with basic common law requirements informing the overriding objective of just and fair disposal, with which Judges are duty-bound to comply.

Consequentially, the relevant sections of the PGN, namely paragraph 9-17, have been withdrawn. An amended guidance note has been published in light of the High Court’s findings. Secondly, the High Court ordered that, insofar as reasonably possible, the UT will bring the order of unlawfulness to the attention of any person who is party to an appeal determined without a hearing and in favour of the Secretary of State for the Home Department or where a UT judge has decided that an appeal will be determined without a hearing. It was also ordered that persons in these circumstances be strongly advised to seek legal advice.

This item was reproduced with the permission of ECRE from the ELENA Weekly Legal Update. The purpose of these updates is to inform asylum lawyers and legal organizations supporting asylum seekers and refugees of recent developments in the field of asylum law. Please note that the information provided is taken from publicly available information on the internet. Every reasonable effort is made to make the content accurate and up to date at the time each item is published but no responsibility for its accuracy and correctness, or for any consequences of relying on it, is assumed by ECRE.                               

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