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Ex-Tempore Judgements – Observations by the Upper Tribunal

by Kenworthy's Chambers 05/03/2018

Contributions from Craig Holmes, John Nicholson & George Brown.

Kenworthys Success at TrialAs part of a decision offering some guidance on when the best interests of the child can be outweighed by an adverse immigration history (see John Nicholson's previous post here, along with the unreported determination here), the Upper Tribunal, in a decision authored by the Chamber President, has offered some observations on the deployment of "ex-tempore" decisions in immigration and asylum appeals. The issue is an interesting one, given recent indications by the First Tier Tribunal (as discussed in George Brown's previous post, here) that more such decisions are to be expected.

The Upper Tribunal's discussion on the point touches upon the issue of complexity and the difficult question of assessing which cases are truly suitable to receive fully reasoned decisions orally, on the day of the hearing.

Whilst the Upper Tribunal recognises the "laudable" aim of dealing quickly and efficiently with appeals, a number of notes of caution are sounded. It is emphasised that "Any formal attempt to identify and manage in advance those cases which may lend themselves to the giving of such reasons will... need careful handling". The Upper Tribunal goes on to recognise the distinction that exists between cases that turn merely on a factual dispute, the resolution of which will determine the appeal, and those cases where a "value judgment" is required, potentially adding an additional layer of complexity that may make a case unsuitable for an ex-tempore decision.

The Tribunal, ultimately, opines that those cases that are suitable will be those where either the factual issue, or the value judgment, are the sole issues to be determined in the appeal:

"On the face of it, where nether the facts nor the result of applying the value judgement to the facts is agreed, it is unlikely that the case would be suitable for [an ex-tempore decision]".

Simplicity, therefore, is key. Such an approach represents a shift from the position set out in Paragraph 21 of the Presidential Guidance Note No 1 of 2014 which appears to suggest that across the board, oral decisions are to be discouraged. Perhaps however, with a particular focus on those cases where there is but one central issue to be resolved, any such shift is a minor one. It still seems reasonably clear that where, for example, there are multiple issues that need to be decided, and multiple layers of decisions that need to be reached, such cases would seem to fall outside the likely remit of any future programme to deal with cases on an ex tempore basis.

In the practical sense of course, it is still far from clear what types of appeal the Tribunal will ultimately treat as suitable to receive decisions on day. Experience tells that for a plethora of reasons, those cases which on one view appear straightforward, in fact turn out to be anything but, and as this short excerpt from a judgment of the High Court back in 1970 tells us, experience has told us this for a very, very long time:

"As everybody who has anything to do with the law well knows, the path of the law is strewn with examples of open and shut cases which, somehow, were not".