The asylum claimant, a Pakistani national, entered the United Kingdom lawfully and was later arrested and detained by the Home Office. While in detention he claimed asylum. His claim was refused by the Home Secretary and his appeal under section 82 of the Nationality, Immigration and Asylum Act 2002 was dismissed by the First-tier Tribunal. His appeal to the Upper Tribunal was adjourned following the first national lockdown due to the Covid-19 pandemic. Around that time the President of the Upper Tribunal (Immigration and Asylum Chamber) (“UTIAC”) issued a guidance note concerning the determination of UTIAC appeals on paper. In accordance with the guidance note the Upper Tribunal dismissed the claimant’s error of law appeal. In an unrelated claim for judicial review, the High Court later held that parts of the President’s guidance note were unlawful because the guidance did not make it sufficiently clear that any decision to determine an error of law appeal on paper had to be consistent with common law principles of fairness. The claimant made an application under rule 43 of the Tribunal Procedure (Upper Tribunal) Rules 2008 to set aside the Upper Tribunal’s decision, and for an oral hearing to be convened to consider the error of law appeal. That application, along with 17 others, was refused by the Upper Tribunal. In a further unrelated appeal, the Court of Appeal later held that, following the publication of the President’s guidance note, the critical issue was whether a paper determination by the UTIAC of the appeal from the First-tier Tribunal satisfied the common law requirements of fairness. In the present case, following the grant of permission for the claimant to appeal against both decisions of the Upper Tribunal (the error of law appeal and the rule 32 application) to the Court of Appeal, the Home Secretary conceded that the determination of the First-tier Tribunal, and therefore the decision of the Upper Tribunal on the error of law appeal, should be quashed, and that the claimant’s case should be remitted to the First-tier Tribunal to be determined afresh. The Home Secretary however did not consent to the quashing or setting aside of any aspect of the Upper Tribunal’s determination on the rule 43 application. Accordingly the issue on the appeal was whether the Court of Appeal had jurisdiction to hear an appeal from a decision of the Upper Tribunal made pursuant to rule 43 of the 2008 Rules in which it refused to set aside judgment.
Held, appeal dismissed. A decision made under rule 43 of the Tribunal Procedure (Upper Tribunal) Rules 2008 was an intermediate decision, ie a decision whether it was in the interests of justice to set aside a final dispositive decision, or part of it, and remake the same because of a procedural irregularity. That intermediate determination would merge with the final decision, ie either the Upper Tribunal's remade decision or the original First-tier Tribunal decision. It was the remaining or remade substantive decision that potentially carried the appeal. Therefore, a decision made under rule 43 was a “procedural, ancillary or preliminary” decision within article 3(m) of the Appeals (Excluded Decisions) Order 2009. It followed that such a decision was an excluded decision within section 13(8) of the Tribunals, Courts and Enforcement Act 2007. There was no good policy reason why it should not be so. Accordingly, the Court of Appeal did not have jurisdiction to hear an appeal from a decision of the Upper Tribunal made pursuant to rule 43 of the 2008 Rules (paras 38, 43, 52, 54, 55, 56).
Charlotte Kilroy QC and Alasdair Henderson (instructed by Fadiga & Co Ltd) for the claimant.
Rob Harland (instructed by Treasury Solicitor) for the Home Secretary.