‘Standoff’ in enforcement: Once given, an oral decision stands

PAA (First-tier Tribunal: Oral decision – written reasons) [2019] UKUT 13 (IAC) (10 January 2019)

Arguably, nothing is more exhilarating in tribunal proceedings than a judge allowing your client’s appeal in an oral decision by uttering “I will allow this appeal”. But should the judge be allowed to change her/his mind afterwards? That is what happened to this Iraqi appellant. And after giving a negative answer to this question the vice-president of the Upper Tribunal Mr CMG Ockelton also had some words of wisdom for both representatives because of their lack of preparation regarding exactly what their position was in relation to the tribunal procedure rules. He found it “extremely regrettable” that both representatives “had not looked at the rules and did not know”. The appellant PAA last had leave as an unaccompanied asylum-seeking child. The matter entered the Upper Tribunal because PAA appealed the First-tier Tribunal’s written decision dismissing his appeal against the refusal of his refugee claim and entitlement to humanitarian protection. This was so despite the fact that the judge had said at the end of the hearing that he would allow the appeal and the Home Office would be able to appeal in 14 days. Despite his overall generosity, Mr Ockelton did not accept PAA’s ambitious argument that he had a substantive legitimate expectation of a decision in his favour as the judge had said there would be an expectation of this nature. As he said he was unable to “see the slightest basis in law why that should be so.”

His reason was that if events in the First-tier Tribunal constitute a ground of appeal then it must be on the clear basis of the Tribunal Procedure (First-tier Tribunal) (Immigration and Asylum Chamber) Rules 2014. Mr Ockelton was unhappy that neither the appellant’s representative nor the presentation officer made any attempt to make any submissions on the procedure rules regarding whether the First-tier Tribunal judge was entitled to give a decision at the hearing and had done so, or was able to give a decision only in writing. Instead both parties simply said that they did “not know”. Understandably, Mr Ockelton found this to be unacceptable and explained that “it ought to go without saying that anybody proposing to make submissions in an appeal about the procedure adopted below should have done proper research on what the procedural strictures below actually were.” As Singh LJ held in Talpada [2018] EWCA Civ 841 procedural rigour applies in public as in private law and this important concept turns on parties knowing and following the relevant procedure rules. Hence, those who conduct litigation or attend court hearings without adequate knowledge of the rules of procedure run the clear risk of having a decision made against their client on procedural grounds.

Equally, such persons may well open themselves to a claim for failing to provide a proper service, or be referred to the appropriate regulator, or both. Mr Ockelton explained that if the representative’s practice is confined to the tribunal structure “there is no excuse at all for lack of knowledge of the rules.” Prior to the commencement of the 2014 Rules on 20 October 2014, all previous procedure rules governing first-instance appeals in immigration matters contained a provision requiring a decision to be in writing. However, rule 29 of the 2014 Rules deals with decisions and notice of decisions and rule 29(1) states “the Tribunal may give a decision orally at a hearing.” The text of rule 29 is in material respects the same as rule 40 of the Upper Tribunal Procedure Rules 2008. In Patel [2015] EWCA Civ 1175, the Court of Appeal held that after it has been uttered a decision given to the parties in open court under a procedural rule in these terms cannot be revised or reversed. The requirement of written notice does not mean that such notice is required in order to perfect it. However, if the judge also gives a written notice in terms which are contrary to the oral decision, the written decision stands unless and until set aside by a court of competent jurisdiction.

Neither PAA’s representative nor the judge’s written note recorded that he said that he would allow the appeal but his foster parent, the social worker and the HOPO all contemporaneous recorded in writing virtually identical terms that the judge had made his decision orally in court. Essentially, he said that the appeal would be allowed and that Home Office would have 14 days to appeal against the decision. While he had some reservations, nothing indicated that those words were not intended to be his decision on the appeal and therefore Mr Ockelton held that:

8. … it is clear as a matter of law that he gave his decision orally allowing the appeal. He could not subsequently dismiss the appeal.

9. His written decision purporting to dismiss the appeal therefore presumably ought to be set aside as having been made without jurisdiction, the judge having become functus by giving his oral decision allowing the appeal.

The written decision appeared to be the subject of PAA’s appeal. It seemed to be the decision under appeal to the Upper Tribunal because as the decision was that given orally it was possible to regard it as not absolutely clear that the written decision was a “decision” in line with section 11(1) of the Tribunals Courts and Enforcement Act 2007 carrying an onward right of appeal.

Mr Ockelton deciphered that the written decision declared on its face that it was a decision of the First-tier Tribunal. Moreover, Patel left no doubt that a second decision was a decision by the tribunal in the prevailing circumstances. Hence, the correct route of challenge remained an appeal under section 11. Yet where there is an apparent conflict between decisions, as in the instant case, then:

9. … this produces a sort of standoff: neither party is entitled to enforce the decision it would rely on, until the matter has been sorted out on appeal.

Potential difficulties are thrown up if one party was absent from the hearing but on the other hand such problems can be resolved from the Tribunal clerk’s note of the outcome of the hearing if the notes taken by others present at the hearing prove inconclusive on the point.

But things did not end there. It was necessary to consider the status and effect of the documents sent out by the First-tier Tribunal in apparent compliance with rule 29(2) and (3)(a) whereby the tribunal must send out of a notice stating its decision, appeal rights, and written reasons for the decision. In the instant case, the tribunal sent the written decision of the judge dismissing the appeal and the reasons for dismissal, along with a covering letter indicating that either party could seek permission to appeal on a point of law within 14 days. Ordinarily this is sufficient to comply with the rules. In the present context, PAA challenged the written decision, but in all cases, even though the reasons for the decision may give the grounds for the challenge, on their own they are not dispositive and thus do not form part of the challenge itself. In the event an appeal is successful, it is specifically the decision that is set aside.

Moreover, under rule 33(2) and (3), time for appealing runs from the date on which the party making the application was provided with the reasons for the decision. In PAA’s case, it was not a procedural problem that the reasons were reasons for dismissing the appeal rather than allowing it. Upon receipt of the documents from the tribunal, it was open to either party to make an application for permission to appeal. Mr Ockelton explained that the appellant could have complained that the decision was different from the one given at the hearing, which he did. On the other hand, the Home Office could have complained that the reasons were entirely inadequate for allowing an appeal and that if those were the judge’s reasons he should have dismissed it. He explained further that:

11. Reasons given for a decision are often, or are often said to be, bad reasons: the onward appeal jurisdiction exists in order to answer such complaints. The mere fact that in the present case the reasons did not really support the decision at all does not mean that time did not run from their being provided.

The time for the Home Office to appeal against the decision had expired long ago and it confirmed that no application had been made to appeal. Equally, the Home Office did not seek to make an application for permission to appeal out of time, or to show why time should be extended. Mr Ockelton construed these facts to exemplify “the possibility of a decision against a party on procedural grounds arising from a representative’s ignorance of the rules.” He pointed out that an agile minded representative would have quickly appreciated First-tier Tribunal’s decision was the decision given orally to allow the appeal. Accordingly, the Home Office might have sought permission to appeal against the oral decision, arguably strengthened by the content of the written reasons. However, that is not what transpired which in the present situation was “not too troubling.”

Mr Ockelton observed that even in purporting to dismiss the appeal the judge found that PAA’s Iraqi nationality was as claimed (something which the Home Office challenged) and he also did not doubt that PAA was a minor. These factors did not automatically tilt the scales of justice in his favour but they helped “to show that winning his appeal was not wildly unlikely.”

The Upper Tribunal therefore set aside the First-tier Tribunal’s written decision to dismiss the appeal, substituting a decision that because the decision of the First-tier Tribunal had already been given orally there was no power to give a further decision dismissing the appeal in writing.

Accordingly, in light of the duty imposed on him under section 12(2) and under section 12(2)(ii) of the 2007 Act, Mr Ockelton remade the written decision by holding that there is no jurisdiction to give a second decision inconsistent with the first. Holding that the oral decision given in the hearing to allow the appeal stood as the decision on the appeal, the Upper Tribunal gave this guidance:

(1) In accordance with rule 29(1) the First-tier Tribunal may give a decision orally at a hearing.

(2) If it does so, that is the decision on the appeal, and the effect of Patel v SSHD [2015] EWCA Civ 1175 is that there is no power to revise or revoke the decision later. The requirement to give written reasons does not mean that reasons are required in order to perfect the decision.

(3) If the written decision, when issued, is inconsistent with the oral decision, both decisions, being decisions of the Tribunal, stand until set aside by a court of competent jurisdiction; but neither party is entitled to enforce either decision until the matter has been sorted out on appeal.

(4) In such a case, as in any other, time for appealing against the decision given at the hearing runs, under rule 33 (2) and (3), from the date of provision of the written reasons, however inappropriate the reasons may appear to be, subject to any successful application for extension of time.

It is apparent from the vice-president’s decision that on this occasion he did not indulge in a Sala moment, when he departed from longstanding legal principles and denied a right of appeal to extended family members. In the present case, he took the necessary action to end the standoff in enforcement just in the hope that things would get sorted out in due course on appeal. A strange aspect of the vice-president’s decision is that he seems to have granted blanket immunity to the First-tier Tribunal judge who weirdly first said orally that the appeal would be allowed but later seemed to have had second thoughts about his oral decision. Hence, he shielded his fellow judge by not naming and shaming them about their bizarre behaviour which wasted precious time and money.

Whereas Mr Ockelton found no reason to discipline the representatives beyond oral criticism, recently in Jetly [2019] EWHC 204 (Admin), Mrs Justice Andrews had grave concerns about the manner in which judicial review proceedings had been conducted. Her Ladyship directed that the acting solicitors should pay wasted costs of £1,000.

The Hamid jurisdiction is designed to ensure that lawyers conducting litigation comply with the rules of court and otherwise conduct themselves according to proper standards of behaviour. In addition to referring the failures to the SRA, owing to the appalling nature of the situation at hand, Andrews J also took the extra step of sending a copy of the judgment to the DPP for her to ascertain whether any further investigation was necessary into the possible conduct of reserved legal activities by a person or persons without the requisite authority.

About Asad Ali Khan, BA, MSc, MA, LL.B (Hons), LL.M

Senior Partner, Khan & Co, Barristers-at-Law
This entry was posted in Appeals, Asylum, Children, Enforcement, Inherent Jurisdiction, Iraq, Judicial Review, Legitimate Expectation, Tribunals and tagged , , , . Bookmark the permalink.

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