Tribunal decisions

The decision

IN THE UPPER TRIBUNAL
IMMIGRATION AND ASYLUM CHAMBER
Case No: UI-2024-001163

First-tier Tribunal No: PA/00901/2022

THE IMMIGRATION ACTS

Decision & Reasons Issued:

12th August 2025

Before

UPPER TRIBUNAL JUDGE PINDER
DEPUTY UPPER TRIBUNAL JUDGE NICHOLAS WEBB

Between

M A S
(ANONYMITY ORDER MADE)
Appellant
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Mr D Sellwood, Counsel instructed by Citizens Advice in North & West Kent.
For the Respondent: Ms H Gillmore, Senior Presenting Officer.

Heard at Field House on 4 July 2025

Order Regarding Anonymity

Pursuant to rule 14 of the Tribunal Procedure (Upper Tribunal) Rules 2008, the Appellant is granted anonymity.

No-one shall publish or reveal any information, including the name or address of the Appellant, likely to lead members of the public to identify the Appellant. Failure to comply with this order could amount to a contempt of court.

DECISION AND REASONS

1. This matter was listed before us as a panel for a case-management hearing, following the Appellant’s application for permission to appeal to the Court of Appeal and the Memorandum and Directions issued by Upper Tribunal Judge Rintoul on 6th March 2025.
2. We have maintained the anonymity order in respect of the Appellant. We consider that on the specific facts of this appeal, the maintenance of the integrity of the United Kingdom’s immigration system and the Appellant, who also has vulnerabilities, having raised a claim to international protection, are such that an anonymity order is a justified derogation from the principle of open justice.
Factual background and procedural history
3. In so far as is relevant to this decision, we summarise here the relevant factual and procedural history in these proceedings.
4. The Appellant is a national of Egypt, whose protection and human rights claim was refused by the Respondent on 16th September 2022. His subsequent appeal to the First-tier Tribunal (‘the FtT’) was allowed on humanitarian protection grounds as the FtT found that the Appellant would be at risk of serious harm on return to Egypt but not for a reason that fell to be considered under the Refugee Convention. Following the Respondent’s appeal to this Tribunal, material error(s) of law were identified by Upper Tribunal Judge Smith and Deputy Upper Tribunal Judge Hanbury sitting as a panel (‘the panel) at a hearing on 24th May 2024 with a decision sent to the parties on 6th June 2025. The Appellant represented himself at that hearing, as he had also done at the hearing at first instance. As a result of this decision, the FtT’s decision was set aside with the findings of fact reached by the FtT and summarised at [18] of that decision preserved (in turn referring to [16]-[24] of the FtT’s decision).
5. The panel also determined that it was appropriate for the appeal to be retained in the Upper Tribunal for re-making and for there to be another hearing at which updating evidence could be given. At [19] of the panel’s decision, the Appellant was informed that he would be at liberty to adduce additional evidence not adduced before the FtT, which will be limited to any evidence to update the Upper Tribunal. Further, that the focus of the next hearing in the Upper Tribunal will be whether the Appellant can relocate to another part of Egypt and whether he can expect sufficient protection from the police elsewhere in the country. The list of issues due to be considered was further addressed at [19].
6. At the re-making hearing before Upper Tribunal Judge Smith (‘the Judge’) on 28th November 2024, the Appellant was legally represented. In advance of that hearing and at the hearing itself, the Appellant raised that his further evidence, submitted in response to the Tribunal’s directions and the subject of an application under Rule 15(2A) of the Procedure Rules, raised new matters. These relate to military conscription in Egypt and the Appellant’s health under Articles 3 and 8 ECHR but also relevant to the issue of internal relocation.
7. Prior to the hearing, the parties had corresponded on the new matters raised by the Appellant. The Appellant’s skeleton argument dated 27th November 2024 (and foreshadowed by the Appellant’s legal representatives’ letter to the Tribunal on 25th November 2024) relayed the Respondent’s position as to the Appellant’s further evidence in the following terms:
“5. R has indicated she does not give consent for the UT to deal with these matters and wishes to be the decision maker at first instance and has sought a review by 27 November 2024. A has advised that if the review is completed on this date he will not be in a position to proceed. In particular (a) he will need to take instructions on R’s review and any challenge to or submissions on the evidence, and (b) he will need to consider whether there is a need to JR R’s decision to refuse consent and accordingly send a pre-action letter. This would require the hearing to being adjourned.
6. R has not yet carried out a review. A review may obviate the need for any hearing.
7. R has indicated that if the decision is to be maintained she will seek remittal given the fact finding now required. A agrees to this and seeks remittal too with reference to the Practice Statement of the Immigration and Asylum Chambers of the First-tier Tribunal and the Upper Tribunal at 7.2(b):
7.2. The Upper Tribunal is likely on each such occasion to proceed to remake the decision, instead of remitting the case to the First-tier Tribunal, unless the Upper Tribunal is satisfied that:
(a) the effect of the error has been to deprive a party before the First-tier Tribunal of a fair hearing or other opportunity for that party’s case to be put to and considered by the First-tier Tribunal; or
(b) the nature or extent of any judicial fact finding which is necessary in order for the decision in the appeal to be re-made is such that, having regard to the overriding objective in rule 2, it is appropriate to remit the case to the First-tier Tribunal.”
8. In a letter to this Tribunal dated 22nd November 2024, the Respondent confirmed that the Respondent does not give her consent for the new matters to be considered by the Upper Tribunal “as she intends to remain the primary decision-maker in this appeal.” Timescales were also provided for the Respondent to review the decision under challenge and it was indicated that if the Respondent was to maintain a refusal of the Appellant’s claim, to include the new matters raised, the Respondent was of the view that it was appropriate to have the appeal remade in the FtT “for the initial fact finding to be carried out on the appeal as a whole but retaining the preserved findings at [18] of the error decision, which regard events that occurred before the Appellant left Egypt.” The author continued that “the SSHD would in those circumstances invite the UT to exercise its powers to remit the appeal to the First-tier for hearing”.
The appeal hearing for re-making and the Judge’s decision of 2nd January 2025
9. The issue of the new matters was considered by the Judge at the hearing on 28th November 2024 and the parties’ (it appears, joint) application for an adjournment was refused. In summary, the Judge considered that the adjournment was not necessary for the Appellant to enjoy a fair hearing. The Judge also considered that the Respondent’s position offering to grant her consent for the new matter to be considered was only on condition that the proceedings would be remitted to the FtT. In the Judge’s judgment, it was not appropriate for the parties to purport to agree that consent should be granted by the Respondent only on the footing that the panel’s earlier decision to retain the appeal for determination in this Tribunal pursuant to s.12(2)(b)(ii) of the 2007 Act should be revisited. The Judge stated that it was not appropriate for the Respondent to seek to make the provision of her consent conditional in that way and this could potentially have been an abuse of the Tribunal’s process – see [12], [14] and [16].
10. The Judge also considered at [18] that there was nothing about the circumstances of this case that met the threshold for reconsidering decisions taken at the error of law stage, referring by analogy - it is said - to AZ (error of law: jurisdiction; PTA practice) Iran [2018] UKUT 245 (IAC) (concerning a review by the Upper Tribunal of whether to depart from, or vary, its decision that the First-tier Tribunal made an error of law). The Judge reiterated at [19] that the Overriding Objective required delay to be avoided and further delay was not necessary in order for the Upper Tribunal to fairly consider all issues that were before it. Lastly, the Judge gave consideration to the procedures available to the parties pursuant to paragraph 353 of the Immigration Rules.
11. Following the Judge’s refusal of the adjournment application, the Appellant’s appeal proceeded and was dismissed by the Judge in a decision promulgated on 2nd January 2025.
The Appellant’s application for permission to appeal to the Court of Appeal
12. The Appellant applied for permission to appeal to the Court of Appeal against the Judge’s decision of 2nd January 2025. He raised two grounds of appeal in the following terms:
(i) The Judge has failed to have regard to relevant evidence in assessing the question of internal relocation. This amounts to a compelling reason to rehear this appeal;
(ii) The Judge erred in refusing to remit the appeal or adjourn the appeal to allow the Respondent to give consent to a new matter and/or to allow the Appellant to challenge the Respondent’s refusal of consent. This is a procedural failing which has led to unfairness in this appeal. This ground also raises important points of principle and practice.
13. A different Judge of the Upper Tribunal considered the Appellant’s application for permission to appeal and issued on 6th March 2025 a Memorandum & Directions in the following terms:
“1. Having considered the grounds of appeal and the decision under challenge, I have formed the preliminary view that a procedural irregularity took place in that the Upper Tribunal appears not to have considered that what the parties had agreed was in effect an agreed disposal pursuant to rule 39 of the Tribunals Procedure (Upper Tribunal) Rules 2008 and failed to take that into account when assessing whether the matter should have been agreed in the terms proposed. It is also my view that a procedural irregularity arose in the failure to have regard to the relevant parts of the Practice Direction as is averred in the grounds of appeal.
2. It is my preliminary view that, in the circumstances, the interests of justice to set aside the decision pursuant to rule 43. Given that the parties appear to be agreed as to what should happen, it is my view that this matter could then be disposed of by consent pursuant to rule 39 without the need for a further hearing. That is, however, a matter for the parties and failing such agreement, the matter will be listed for a case management hearing if set aside.”
14. No objection was raised by either party. The Appellant’s legal representatives wrote to the Upper Tribunal on 19th March, 15th and 20th April and 12th May 2025 confirming his agreement with the Upper Tribunal’s directions of 6th March 2025, his efforts to seek confirmation of the Respondent’s position, which had not been answered to, and enquiring as to the progress of these proceedings. On 5th June 2025, the Upper Tribunal sent the Notice of Hearing listing this matter for case-management before this panel on 4th July 2025.
The case-management hearing on 4th July 2025
15. Ms Gillmore confirmed that the Respondent was in agreement with the directions of 6th March 2025 and in light of those directions requesting either party to inform the Tribunal of any objection, the Respondent did not do so in light of her agreement with the same.
16. Ms Gillmore also confirmed that she had communicated to Mr Sellwood, for the Appellant, that she would personally retain case-management of this matter for the Respondent and had proposed a timescale of eight weeks for the Respondent to issue a new decision on the new matters raised by the Appellant, should she maintain a refusal of the same. Both parties were agreed that the Respondent’s consideration of the new matters may obviate the need for the appeal hearing in the FtT.
17. Mr Sellwood indicated that the Appellant may wish to seek payment of his costs from the Respondent, incurred as a result of the need to conduct a case-management hearing but would lodge an application should that remain his position.
18. We confirmed that having considered the procedural history, as summarised above, and in particular the absence of objections from either party to the Upper Tribunal’s directions of 6th March 2025, that it was appropriate to set aside the decision of the Upper Tribunal of 2nd January 2025 and to remit the appeal back to the FtT for re-making for the reasons indicated in the Directions of 6th March 2025.
19. We pause to note that it is unfortunate that matters developed in the way that they did but in light of the Appellant being unrepresented at the FtT appeal hearing and again at the error of law hearing, it is perhaps not surprising that further evidence, including expert (country and medical), was obtained at a late stage and that the Respondent sought to follow her own guidance on new matters set out in the ‘Rights of Appeal’ guidance and pursuant to the statutory scheme concerning new matters in s.85(5)-(6) Nationality, Immigration and Asylum Act 2002 Act.
20. Both parties agreed that the findings of fact from the FtT’s decision of 20th February 2024, which were preserved following the error of law hearing at [18] of the panel’s decision of 6th June 2024 should remain so. In addition, and for completeness, the parties were also agreed that the Upper Tribunal’s summary at [2], [5], and [31]-[32] of the decision of 2nd January 2025 of those findings should also be preserved together with the Upper Tribunal’s own findings at [42] accepting the conclusions of Dr Galappathie’s report on the Appellant of 19th November 2024.
Notice of Decision
21. The decision of the Upper Tribunal issued on 2nd January 2025 is set aside pursuant to this Tribunal’s directions of 6th March 2025 and by consent of the parties, with the findings of fact preserved as detailed at para 20 above.
22. Accordingly, the appeal is to be remitted back to the First-tier Tribunal for remaking, before a different Judge.
23. Matters arising from the Respondent’s consideration of the new matters raised, anticipated to take a period of eight weeks, will be for the FtT to case-manage.

Sarah Pinder

Judge of the Upper Tribunal
Immigration and Asylum Chamber

15.07.2025