Introduction

The case of Hussain & Anor v Secretary of State for the Home Department ([2022] EWCA Civ 145) addressed critical procedural issues arising from the use of paper determinations by the Upper Tribunal (Immigration and Asylum Chamber) (UTIAC) during the COVID-19 pandemic. The appellants, Mr. Hussain and GA, contested the fairness of their appeals being decided without oral hearings, following a series of guidance notes and directions issued in response to the pandemic. This commentary delves into the background of the case, the key legal issues, the court's reasoning, and the broader implications for immigration and asylum law.

Summary of the Judgment

The Court of Appeal examined two appeals concerning whether UTIAC's paper determinations of appeals from the First-tier Tribunal (FTT) should be set aside. Following the onset of the COVID-19 pandemic, UTIAC utilized Rule 34 of the Upper Tribunal Rules to make decisions without hearings, guided by a note issued on 23 March 2020. The High Court had previously deemed parts of this guidance unlawful for potentially encouraging unfair decisions. In both appeals, Mr. Hussain and GA argued that their submissions were overlooked during the paper determinations, rendering the processes unfair. The Court of Appeal agreed, finding that the Upper Tribunal failed to consider crucial submissions from both appellants, thereby breaching the principles of fairness. Consequently, the appeals were allowed, and the cases were remitted back to the Upper Tribunal for redetermination.

Analysis

Precedents Cited

The judgment extensively referenced prior cases and legal standards to anchor its reasoning. Notably:

• Joint Council for the Welfare of Immigrants v President of UTIAC (JCWI v President of UTIAC) [2020] EWHC 3103 (Admin); [2021] PTSR 800: This case held that the guidance note issued by UTIAC was unlawful as it encouraged paper determinations without adequately ensuring fairness.
• R(A) v Secretary of State for the Home Department [2021] UKSC 37; [2021] 1 WLR 3931: This Supreme Court decision clarified the test for determining the unlawfulness of guidance notes, impacting how guidance should align with legal standards.
• R(Letts) v Lord Chancellor [2015] EWHC 402 (Admin); [2015] 1 WLR 4497: Provided foundational principles on the assessment of unlawful guidance.
• R v Secretary of State for the Home Department, ex parte Doody [1994] 1 AC 531: Established that standards of fairness are context-dependent and evolve over time.
• R(Osborn) v Parole Board [2013] UKSC 61; [2014] AC 1115: Reinforced the notion that fairness requirements vary with circumstances.

These precedents collectively underscored the necessity for procedural fairness and the imperative that any guidance followed during the pandemic must uphold common law principles.

Legal Reasoning

The Court of Appeal focused primarily on whether the Upper Tribunal's paper determinations adhered to the common law requirements of fairness. Central to this was the failure of the Upper Tribunal to consider critical submissions from the appellants:

• Mr. Hussain: His submissions dated 2 April 2020 were not considered, leading to an inaccurate portrayal of procedural unfairness.
• GA: His submissions dated 23 July 2020, which requested an oral hearing and challenged the applicability of existing Country Guidance, were overlooked.

The Court emphasized that fairness is not a static standard but depends on the specific context of each case. The Upper Tribunal's oversight in both cases resulted in a breach of fairness, necessitating the remittance of these appeals for proper consideration.

Impact

This judgment reaffirms the judiciary's commitment to procedural fairness, especially in contexts where decisions are made without oral hearings. It underscores the importance of:

• Ensuring that all relevant submissions are duly considered, regardless of procedural adaptations necessitated by emergencies like the COVID-19 pandemic.
• Maintaining transparency and accuracy in tribunal directions and decisions to prevent inadvertent injustices.
• Reaffirming the judiciary's role in scrutinizing administrative decisions to uphold the rule of law.

For future cases, especially those involving UTIAC procedures post-pandemic, this decision serves as a critical reminder of the non-negotiable nature of fairness in legal proceedings.

Complex Concepts Simplified

Several legal terminologies and concepts within the judgment may require clarification for better understanding:

• Paper Determinations: Decisions made by a tribunal without an oral hearing, based solely on the written submissions and evidence provided.
• Rule 34 of the Upper Tribunal Rules: Allows the Upper Tribunal to make decisions without a hearing, subject to certain conditions.
• Rule 43 of the Upper Tribunal Rules: Permits the setting aside of a tribunal's decision if it's in the interests of justice, particularly in cases of procedural irregularities.
• Guidance Note: A document issued to provide directions or policies to tribunal members on how to handle cases under specific circumstances, such as the COVID-19 pandemic.
• Common Law Fairness: A foundational legal principle ensuring that legal proceedings are conducted justly and without bias, tailored to the specifics of each case.
• Remitting: Sending a case back to a lower court or tribunal for reconsideration.

Understanding these terms is crucial as they form the backbone of the procedural and substantive arguments within the case.

Conclusion

The Court of Appeal's decision in Hussain & Anor v Secretary of State for the Home Department serves as a pivotal affirmation of the judiciary's role in safeguarding procedural fairness, even amidst unprecedented challenges like a global pandemic. By scrutinizing the Upper Tribunal's adherence to fair process, the court reinforced the necessity that all parties' submissions must be thoroughly considered to uphold justice. This judgment not only rectifies the specific oversights in Mr. Hussain's and GA's cases but also sets a broader precedent ensuring that tribunals maintain rigorous standards of fairness, irrespective of external pressures or emergencies. Legal practitioners and appellants alike must heed this ruling as it delineates the boundaries within which tribunals must operate, ensuring that the rights of individuals are protected and that administrative decisions withstand judicial scrutiny.