Oral Decisions by First-tier Tribunal Immigration Judges

Under rule 29 of the Tribunal Procedure (First-tier Tribunal) (Immigration and Asylum Chamber) Rules 2014, a Tribunal may give a decision orally at a hearing. These are the next steps if a Tribunal does so:

• As soon as reasonably practicable, the Tribunal must provide notice of the decision and of any right and timeframe for appealing the decision;
• But, only in decisions relating to an asylum or humanitarian protection claim must judges provide written reasons with the notice of the decision;
• In all other cases, a Tribunal may simply notify the parties of the right to apply for a written statement of reasons;
• An application for written reasons would need to be received by the Tribunal within 28 days of the date on which the Tribunal sent notice of the decision; and
• The 14-day period for appealing begins to run once written reasons for the decision are received by the party seeking to appeal (under rule 33(2)).

This is similar to rule 40 in the Upper Tribunal Procedure Rules. In Patel & Ors v Secretary of State for the Home Department [2015] EWCA Civ 1175 it was said that an oral decision in the Upper Tribunal, once uttered, could not be revised or reversed [53]. If a further contradictory determination is promulgated, without the tribunal having jurisdiction, this also constitutes a ‘decision’ and remains effective until challenged and set aside by a court with the power to do so [54].

The Effect of a Written Decision Inconsistent with an Oral Decision

These principles were of course well-remembered by the Vice President Mr Ockleton in the recent case of PAA (FtT: Oral decision – written reasons) Iraq [2019] UKUT 13 (IAC), for it was his oral decision and attempted reversal that was impugned in Patel.   

In PAA, a First-tier Tribunal Judge heard an appeal of an Iraqi unaccompanied asylum-seeking child. At the end of the appeal, contemporaneous notes record that the Judge orally decided the appeal would be allowed and that the Secretary of State would have 14 days to appeal against the decision. In his written decision, the First-tier Tribunal Judge, purported to dismiss the appeal and gave reasons for dismissing. On appeal to the Upper Tribunal, applying Patel, Mr Ockleton found that, “it is clear as a matter of law that he gave his decision orally allowing the appeal” [8].

Mr Ockleton then went onto say the First-tier Tribunal Judge “could not subsequently dismiss the appeal” [8]. “Could” here, must refer to the First-tier Tribunal Judge’s lack of jurisdiction to dismiss the appeal, rather than his decision-making powers. From Patel, it is clear that the written decision to dismiss the appeal is still a ‘decision’ for the purposes of section 11(1) of the Tribunal, Courts and Enforcement Act 2007 (in that there is a right to appeal to the Upper Tribunal). Therefore, the First-tier Tribunal Judge did decide to dismiss the appeal (a decision which stands until set aside), but had no jurisdiction to do so. This left the child asylum-seeker in limbo: “If the decisions are inconsistent with one another, 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” [9].

Once written reasons were received, either party could appeal. The judge’s written reasons in PAA complied with the procedural rule to provide written reasons for the oral decision to allow the appeal. As the reasons were reasons for dismissing, they may be thought to be bad reasons, but the “onward appeal jurisdiction exists in order to answer such complaints” [11]. The 14-day timeframe for appealing the oral decision still ran from the reasons being provided.

The appellant in PAA rightly appealed stating the written decision was not that given orally at the hearing. The respondent, however, erred as he should have also appealed on the basis that the reasons were inadequate for the decision given orally, and if those were the Judge’s reasons he ought to have dismissed the appeal instead of allowing it. As the respondent did not appeal, Mr Ockleton set aside the written decision to dismiss the appeal and remade the written decision by deciding there was no jurisdiction to give a second decision inconsistent with the first. The oral decision stands.

The official headnote in PAA is as follows:

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

Best Practice Guidance

What is best practice at/following an appeal hearing in which an oral decision is given?

• Ensure a good contemporaneous note of the oral decision is taken.  
• Once written notice of the decision is received, compare it against the note of the oral decision.
• If written reasons are not provided, ensure they are applied for within the 28-day window.
• Once written reasons are received, regardless of whether the written reasons are favourable or unfavourable if they or the written decision are inconsistent with the oral decision, an appeal should be lodged within 14 days.

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