Tribunal decisions

The decision

IN THE UPPER TRIBUNAL
IMMIGRATION AND ASYLUM CHAMBER
Case No: UI-2024-001994

First-tier Tribunal No: PA/51913/2023
LP/03190/2023

THE IMMIGRATION ACTS

Decision & Reasons Issued:

3rd July 2025

Before

UPPER TRIBUNAL JUDGE NEVILLE

Between

M D
(ANONYMITY ORDER MADE)
Appellant
and

SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Mr H Masood, counsel instructed by Turpin Miller LLP
For the Respondent: Ms J Isherwood, Senior Home Office Presenting Officer

Heard at Field House on 2 December 2024

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. MD is a national of the Republic of Guinea. An anonymity order is made, the integrity of the UK asylum system and the risk that could occur on his identification justifying derogation from the principle of open justice.
2. In 2020, at the age of 15 and unaccompanied, MD arrived in the United Kingdom and claimed protection. MD’s protection claim was refused by the Secretary of State on 7 March 2023, and MD appealed to the First-tier Tribunal (FtT).
3. A hearing took place on 20 March 2024 and MD, by then aged 20, attended alone and unrepresented. He had asked for an interpreter in the Fula (also known as Fulani) language, but the FtT could not find one. As recorded by the Judge in the FtT’s decision: “as he had indicated that he could also speak French the Tribunal organised a French interpreter”.
4. A letter had been written on MD’s behalf by the South London Refugee Association (SLRA) asking for the hearing to be adjourned so that he could find legal representation. As summarised by the Judge:
8. […] They said that they had emailed all the solicitors on their referral list (comprising of over 80 individual solicitors) on 4 separate occasions. They said that everyone had responded saying they were unable to assist due to capacity issues. They said that they had been told by most of the firms they had emailed that they were currently unable to take on appeal work due to financial issues relating to legal aid fees.
5. Having set out some other matters put forward in the letter, the Judge recorded that:
10. I raised this letter with the Appellant who confirmed that he still wished to apply for an adjournment. He said although he had previously been represented by Duncan Lewis Solicitors they were no longer able to assist him as they had given him negative advice about the prospects of his claim succeeding. He said he needed an adjournment in order to keep looking for a lawyer. He said he had been to the offices of a lawyer in Central London approximately 2 weeks ago where he had spoken to someone called Maya about his case. She said that she would get in touch with the Tribunal in order to find out if their firm could represent him. He was unable to recall the name of the firm or their address although he said he had found them through the Internet and that the South London Refugee Association were aware of this. He said that Maya had told him she could not attend the hearing as she was on holiday. He had not filled out any legal aid forms with them. I confirmed that the Tribunal had not heard anything from any lawyers who might be acting on his behalf. Despite that I indicated that I would consider his application for an adjournment.
6. In deciding the application, the Judge carefully directed himself according to the correct legal principles:
11. An appellant has the right to a fair hearing. If an adjournment application is based on spurious or frivolous grounds or is vexatious that is not necessarily determinative of the question of whether refusing an adjournment request would compromise the right to a fair hearing of the party concerned - see paragraph 6 of Nwaigwe (adjournment: fairness) [2014] UKUT 418. Claims for asylum demand the highest standards of fairness and it is fundamental that the parties should be allowed to answer adverse material by evidence as well as argument – see paragraph 8 of SH (Afghanistan) [2011] EWCA Civ 1284. Where an appellant seeks to be allowed to establish by contrary evidence that the case against him is wrong, the question will always be, whatever stage the proceedings have reached, what does fairness demand – paragraph 14 of SH (Afghanistan).
7. The Judge next considered the circumstances he considered to be relevant, which I can summarise as follows:
a. MD had been represented by Duncan Lewis at the time he made his protection claim, and they had submitted a completed Statement of Evidence Form, attended his Home Office interview, submitted a witness statement and made detailed further representations on his behalf.
b. When submitting his appeal, MD had provided written arguments in support of his appeal.
c. A previous application for an adjournment had been made in January 2024, in which MD stated that he had contacted over 20 firms but all had either declined to represented him or failed to reply. He had suffered anxiety and insomnia as his hearing approach. The application had been granted, the hearing being adjourned for two months. MD was provided with the Tribunal’s guidance notes for unrepresented appellants.
8. The Judge refused the application. His reasons first relied on there being no reasonable prospect, if an adjournment were granted, that MD could find a representative. He made reference to the negative advice on prospects received from Duncan Lewis mentioned by MD, but did then qualify this by saying that it would be inappropriate to take that matter into account. The claim itself was straightforward, the mental health difficulties mentioned by SLRA were unsubstantiated, and the rest of their letter “vague and lacking in any substance”. Reminding himself of the overriding objective to the Procedure Rules, the Judge considered that a fair opportunity had been given to find legal representation and that any unfairness could be avoided by the issue of adjournment being revisited at the conclusion of MD’s evidence. While not expressly confirmed, it appears that the Judge was given no cause to change his decision and the hearing concluded.
9. In his decision, the judge rejected part of MD’s account based on inconsistencies with what had been said in his asylum interview and further found that MD’s credibility was damaged by his failure to claim asylum in France – especially as he could speak French. The appeal was dismissed, the Judge finding that MD could avoid persecution or serious harm on return by relocating to the capital Conakry. Undertaking a careful and detailed analysis of Article 8 ECHR, the Judge found that while MD would face difficulties in re-establishing himself in Guinea, they would not amount to very significant obstacles to integration; nor, more generally, would removing MD be a disproportionate interference with the right to respect for his private life afforded by Article 8.
10. MD was able to secure representation from Turpin Miller solicitors soon afterwards, who applied for the decision to be set aside on the grounds of procedural unfairness, or in the alternative that permission to appeal be granted. Those applications were refused by the FtT. Permission to appeal was subsequently granted by Upper Tribunal Judge Bulpitt, who considered the first ground of appeal, arguing that it was procedurally unfair for the FtT to proceed with the hearing, was the strongest. I agree, and turn to that ground first.
11. Four principal criticisms are made of the Judge’s decision not to adjourn: first, that he was wrong to think that MD spoke French at a level where he could reliably give evidence using a French interpreter; second, that the Judge did in fact place significance on Duncan Lewis having provided negative advice, despite what is stated in the decision, and that this was a misunderstanding; third, that he was wrong to conclude that MD could fairly present his own appeal without legal representation; and fourth, that he was wrong to conclude that MD had been given a fair opportunity to provide further evidence.
12. In support of those arguments, MD made rule 15(2A) applications to rely on evidence that was not before the FtT. A witness statement is provided from Brian Dickoff of Migrants Organise, exhibiting evidence given to the Parliamentary Committee on Human Rights concerning the shortage of legal aid lawyers available to assist individuals such as MD. He gives evidence that Duncan Lewis, previously one of the largest providers, had decided by the time of MD’s hearing that they would no longer act in statutory protection appeals save in exceptional circumstances, due to issues of capacity. A statement is next provided by Dr Jo Wilding, a well-known academic commentator on the same subject, giving carefully sourced evidence that demand for representation is double the available supply. Finally, MD himself gives a witness statement that I shall summarise later. Given that each of those pieces of evidence relates to the fairness of what transpired before the FtT, and that MD could not with reasonable diligence have obtained them by the time of the hearing, I granted the applications. While this was resisted by Ms Isherwood due to the applications’ serious and unjustified lateness, the interests of justice, importance of the evidence and the lack of discrete prejudice to the Secretary of State’s preparation for the appeal meant that in all the circumstances the failure to make the application in time should be waived under rule 7(2)(a).
13. As well as the above documents, a transcript of the FtT hearing was also provided, but I do not consider that a rule 15(2A) application is necessary before a party can rely on a transcript from an approved transcriber of the FtT’s official recording of the hearing. To deal with the four points raised on MD’s behalf, I set out the start of the hearing up to the point that the Judge refused the adjournment application:
THE JUDGE: Now you do not have a solicitor here.
APPELLANT: No. I do not have one.
THE JUDGE: I think you were originally represented by Duncan Lewis.
APPELLANT: Yes, that is correct.
THE JUDGE: Yes, why are they not with you anymore?
APPELLANT: Sorry, they gave me some negatives. That is why they told me that they are no longer representing me.
THE JUDGE: OK. So I think from memory they were with you for about two years or so. I think they were certainly with you for some time.
APPELLANT: Yes, that is correct.
THE JUDGE: Now, the tribunal received a letter from South London Refugee Association dated March 8 suggesting that you might want to apply for an adjournment today to see if you could find a lawyer.
APPELLANT: I tried to look for a solicitor to represent me in vain, and I managed to find someone who said that they would be getting in touch with the court to see if they could represent me.
THE JUDGE: When did you find them?
APPELLANT: It has been two weeks now.
THE JUDGE: Do you remember the – do you know the name of that firm?
APPELLANT: I know the name of the lady who gave me the papers, not the name of the solicitors.
THE JUDGE: Do you know where their office is?
APPELLANT: It is in Central London. I just followed the location and just attended their offices.
THE JUDGE: The lady you mentioned, who is she?
APPELLANT: Her name is Maya.
THE JUDGE: And where did you see of speak to her?
APPELLANT: I met her, I attended their offices.
THE JUDGE: And how did you find out where their offices were? Who put you in touch with her?
APPELLANT: I checked on the internet and I asked someone who gave me directions, and I attended.
THE JUDGE: Have you filled out any legal aid forms with them?
APPELLANT: Sorry, what is that?
THE JUDGE: Have you filled out any forms with them at all?
APPELLANT: Like, paperwork?
THE JUDGE: Yes.
INTERPRETER: Sorry, sir, he keeps on referring to negatives, and I do not know what he means by that.
THE JUDGE: Did they know about today’s hearing?
APPELLANT: Yes.
THE JUDGE: OK. Because the tribunal has not heard anything from them which would suggest they are not in a position to help.
APPELLANT: Maya is on holiday that is why she could not attend today.
THE JUDGE: Do the South London Refugee Association know about Maya?
APPELLANT: Yes.
THE JUDGE: OK. Mr Talacchi, do you have anything to say about adjournments?
MR TALACCHI: Judge ---
THE JUDGE: I am minded to grant the application to be honest.
MR TALACCHI: It is a humanitarian protection claim. Maya or the firm has not contacted the tribunal in any way, and I am not sure whether the appellant has any understanding whether he should communicate with them or what is expected of him.
THE JUDGE: Well the position is that this case has been underway for four years. There is no guarantee. Asylum seekers are not guaranteed representation before this tribunal under legal aid, particularly if there are doubts about the merits of the case. South London Refugee Association wrote to the tribunal on 8 March and in that letter they made no reference to Maya or indeed any attempts to find a lawyer who was likely to help. In fact, they said they had contacted – they had made 320 individual referrals (inaudible), so I cannot see that adjourning the case today is going to assist. As there is no evidence that the firm you mentioned are indeed in any position to help you, because to do that they would presumably need legal aid. As I previously remarked, legal aid is not necessarily available to those whose claims have been assessed as not eligible. That said, I will give you every assistance to present your case today, and if there is anything you do not understand just make that clear to me.
14. I take the four points made on behalf of MD in turn. First in relation to language, the transcript unfortunately omits any preliminary conversation between the interpreter and MD before the Judge to ensure understanding. Conducting such a check is common in the FtT and I consider it likely that it was done here. Nonetheless, that typically brief exchange of words will sometimes be insufficient that an appellant speaks a language well enough for a judge to place forensic significance on their oral evidence. MD says in his recent witness statement that his French is worse than his English, and that he struggled to make himself understood.
15. The Judge appears to have taken MD’s ability to speak French from the refusal decision:
Your explanation that you didn’t claim asylum in Spain & France, safe European countries because you didn’t speak the languages (AIR Q114-115), alternatively you claimed it was because you didn’t know how to claim asylum (SEF C 11) aren’t considered reasonable as by your own admission you speak French (SEF A2 13, AIR Q24) and that you travelled to the UK to claim asylum (SEF C14).
16. MD’s admission that he could speak French is said to be supported by the referenced documents. Asked which language he would prefer for interview in the screening interview (SEF), MD replies Fula. He does mention French when then asked what other languages he can speak, but the record as a whole is in bulleted note form rather than taken down verbatim. Asked the same question in his full asylum interview he replied “little bit French” and described his reason for leaving Spain for France as that he spoke “some French”. There are some misunderstandings apparent from the transcript, for example during the evidence the interpreter was unable to communicate the “scars”, and that Maya, who MD mentioned to the Judge, worked for SLRA rather than a firm of solicitors. More fundamentally, the comment about Duncan Lewis’s reasons for declining to act is that “they gave me some negatives” yet later the interpreter says that MD “keeps on referring to negatives, and I do not know what he means by that”.
17. Finally, one curious matter is that the FtT’s file does not reveal who decided that a French interpreter should be provided, or why. MD had consistently requested a Fula interpreter, and I would have expected provision of a French interpreter instead to be a judicial rather than administrative decision. Adding this all together, I cannot see why it was ever reliably concluded before the hearing that MD spoke sufficient French for his hearing to be conducted in that language, nor why the Judge considered this to be so.
18. Second, as to the reasons why Duncan Lewis declined to represent MD, I am satisfied from the written evidence admitted under rule 15(2A) that this was due to capacity issues rather than a failed merits assessment. MD says in his most recent statement that he never told the Judge, or had believed himself, that he had been given negative advice; in light of the interpreter’s comment on “negatives” this can be readily accepted. Ms Isherwood did not contest this, instead arguing that the Judge should be taken at his word that the matter did not bear on his decision to proceed. In most cases that would be right, but here the Judge had previously said the opposite at the hearing; in the oral reasons, the conclusion that MD would not find representation was clearly founded on the negative merits assessment the Judge thought had been conducted by Duncan Lewis. A judge can change their mind between oral and written reasons, but if departing from previously pronounced reasons then it is advisable to say so. Here, there is a risk that the Judge’s true reasons were pronounced at the hearing and were misremembered when he came to commit them to writing.
19. The third and fourth matters can be taken together. In response to the grounds of appeal to the FtT, the Respondent’s Review had put MD’s credibility in issue in relation to his father’s reach in Guinea, credibility not having been an issue between the parties before. The Respondent’s Review also raised the issue of sufficiency of state protection for the first time, and in vague terms by saying that “there exists a Horvath UKHL37 2000 standard of protection available”. The issue was never raised in the refusal decision. These were matters that might well have not been appreciated by an appellant in person and might require further evidence, but in refusing the adjournment the Judge considered that no further witness statement was necessary to add to the one that had been given four years previously with the SEF. He also held the following, when describing the SLRA letter:
9. They said that the appeal was of vital importance to the Appellant who was afraid of returning to Guinea. They also said it would be extremely difficult for him to gather and submit any relevant evidence as he was only 19 and spoke English as a second language and had limited education. For some reason, they said that he would need to provide a witness statement from himself and those supporting him even though he had previously provided a detailed witness statement as long ago as October 2020 and had explained his case both in his SEF and asylum interview at a time when he was represented. They also said that the Appellant had said that he might be able to obtain some evidence from Guinea although they did not say what that evidence was. They also said that he had disclosed “mental health issues” “she” is suffering from but for some reason they did not give any further particulars.
20. If the SLRA letter was thought to be unduly vague, as the phrase “for some reason” suggests, MD ought to have been asked what further evidence he had hoped to provide. I cannot see from the transcript that either the Judge or, in cross-examination, the presenting officer did so. The lack of opportunity suffered by MD to present his case or explain evidential shortcomings is illustrated by the Judge’s analysis of sufficiency of state protection:
35. I do not accept the Appellant’s claim that the government would tell his father if he was returned to Guinea. Although he now claims his father is connected to the government, he never said that either in his initial statement or in his asylum interview. In his interview he specifically said that none of his family were involved in “politics, political groups or with the government at all in Guinea” (AS.Q.25). The Appellant has not said how he knows that his father is connected with the government or what dealings he has had with them, and I have no hesitation in rejecting that part of his claim. […]
21. While MD was asked in cross-examination to explain his earlier inconsistent comment, and did so, at no point during the hearing was he asked, or given the opportunity to explain, what the nature of his father’s connection to the government actually was. That could have been done in re-examination if MD had been represented or, in this case, by an invitation from the Judge to expand upon any answers that he had given.
22. In this case, the provision of the ‘notes for appellants in person’ document by the FtT was insufficient to remedy the lack of a representative. As was common ground, MD had left school by the age of 13 and spent the next few years destitute in various countries. His understanding of that document and the steps he had to undertake was never checked.
Conclusion
23. My concern is whether MD was deprived of a fair hearing. As held in Nwaigwe (adjournment: fairness) [2014] UKUT 418 (IAC):
7. If a Tribunal refuses to accede to an adjournment request, such decision could, in principle, be erroneous in law in several respects: these include a failure to take into account all material considerations; permitting immaterial considerations to intrude; denying the party concerned a fair hearing; failing to apply the correct test; and acting irrationally. In practice, in most cases the question will be whether the refusal deprived the affected party of his right to a fair hearing. Where an adjournment refusal is challenged on fairness grounds, it is important to recognise that the question for the Upper Tribunal is not whether the FtT acted reasonably. Rather, the test to be applied is that of fairness: was there any deprivation of the affected party’s right to a fair hearing? Any temptation to review the conduct and decision of the FtT through the lens of reasonableness must be firmly resisted, in order to avoid a misdirection in law. In a nutshell, fairness is the supreme criterion.
24. As held in TS (interpreters) Eritrea [2019] UKUT 352 (IAC), an appellate tribunal will usually be slow to overturn a judge's decision on the basis of alleged errors in, or other problems with, interpretation at the hearing, and weight will be given to the judge's own assessment of whether the interpreter and the appellant or witness understood each other. Yet, for the reasons given above, there is little explanation why a French interpreter was deemed suitable before the hearing, or why the Judge felt able to place weight on MD’s evidence when it was not given in his first language. The failure in interpretation directly led to the Judge’s mistake as to why MD was unrepresented, which in turn informed his decision to refuse the application for an adjournment.
25. The prejudice arising from the lack of proper interpretation aggravated the difficulties already faced by MD as a litigant in person. The issue of sufficiency of protection was worded in the Respondent’s Review in a way that would have alerted a representative to its significance but not MD, and he was never asked such questions by the Judge as could have given him a fair opportunity to present his case. Adverse credibility points were taken that relied on a lack of evidence that MD could not reasonably have provided, and that he was given no opportunity to remedy or explain. MD was deprived of a fair hearing, and this was an error of law.
26. Contrary to Ms Isherwood’s submissions, I am unable to find that the procedural unfairness caused by the lack of proper representation and interpretation was immaterial to the outcome. Dealing with a similar argument in AK (Iran) v Secretary of State for the Home Department [2008] EWCA Civ 941, the Court of Appeal cited the well-known judgment of Megarry J in John v Rees [1970] 1 Ch 345 at 347:
"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; of unanswerable charges which, in the event, were completely answered; of inexplicable conduct which was fully explained; of fixed and unalterable determinations that, by discussion, suffered a change."
27. It cannot be said that MD’s claim was clearly unfounded, or that appropriate country evidence and different findings might not lead to a positive outcome. The decision of the FtT must be set aside. Applying Begum (Remaking or remittal) Bangladesh [2023] UKUT 46 and the Practice Direction and Statements, I am satisfied that the case should be remitted to the First-tier Tribunal for re-hearing. No findings of fact can be preserved and MD is yet to have a fair hearing of his appeal such that it would be unfair to deprive him of the two-tier appellate structure.
28. Finally, I do have some sympathy for the Judge. It is easy, with the assistance of well-argued submissions from representatives, to see how unfairness arose in this case. The Judge was afforded no such luxury. As observed by McCloskey P over a decade ago in Nwaigwe:
Regrettably, in the real and imperfect world of contemporary litigation, the question of adjourning a case not infrequently arises on the date of hearing, at the doors of the court. I am conscious, of course, that in the typical case the Judge will have invested much time and effort in preparation, is understandably anxious to complete the day’s list of cases for hearing and may well feel frustrated by the (usually) unexpected advent of an adjournment request. Both the FtT and the Upper Tribunal have demanding workloads. Parties and stakeholders have expectations, typically elevated and sometimes unrealistic, relating to the throughput and output of cases in the system. In the present era, the spotlight on the judiciary is more acute than ever before. Moreover, Tribunals must consistently give effect to the overriding objective. Notwithstanding, sensations of frustration and inconvenience, no matter how legitimate, must always yield to the parties’ right to a fair hearing. In determining applications for adjournments, Judges will also be guided by focussing on the overarching criterion enshrined in the overriding objective, which is that of fairness.
29. The workloads, expectations and pressures to which the President referred have only grown since, and the Judge plainly took time and care when drafting the decision. Nonetheless, as held in SH (Afghanistan) v SSHD [2011] EWCA Civ 1284 at [8]:
“It is fundamental that the parties should be allowed to answer adverse material by evidence as well as argument … and all the more so where the subject matter, such as a claim for asylum, demands the highest standards of fairness …”
Notice of Decision
(i) The decision of the First-tier Tribunal involved the making of an error of law and is set aside.
(ii) The case is remitted to the First-tier Tribunal for re-hearing with no facts preserved, to be heard by a different Judge.

J Neville
Judge of the Upper Tribunal
Immigration and Asylum Chamber

30 June 2025