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Upper Tribunal guidance on paper hearings in the pandemic declared unlawful


The Joint Council for the Welfare of Immigrants has succeeded in its judicial review of Guidance promulgated by the President of the Upper Tribunal (Immigration and Asylum Chamber) directing that Upper Tribunal judges in that Chamber should normally hold hearings ‘on the papers’ during the Covid-19 pandemic.

Giving judgment on the urgent judicial review, Mr Justice Fordham found that the Guidance was unlawful on a number of grounds.  In particular, he held that it was inconsistent with basic common law principles on the necessity for oral hearings in light of the importance of the issues in UTIAC appeals.

The President has withdrawn the Guidance in light of the High Court’s judgment.  Following submissions on consequentials, he has also undertaken to use all reasonable endeavours to bring the judgment to the attention of those individuals (many of whom may be in detention or liable to be removed) whose appeals were adversely determined without a hearing, and advise that they seek legal guidance on the consequences of the judgment. 

The judgment is here.

Jennifer MacLeod appeared as junior counsel for the Joint Council for the Welfare of Immigrants, instructed by Freshfields Bruckhaus Deringer LLP.