Tribunal decisions

The decision

IN THE UPPER TRIBUNAL
IMMIGRATION AND ASYLUM CHAMBER
Case No: UI-2024-004017

First-tier Tribunal No: EA/03673/2023

THE IMMIGRATION ACTS

Decision & Reasons Issued:

On 19th of March 2025

Before

UPPER TRIBUNAL JUDGE OWENS
DEPUTY UPPER TRIBUNAL JUDGE KUDHAIL

Between

SAM MOHAMMED
(NO ANONYMITY ORDER MADE)
Appellant
and

SECRETARY OF STATE FOR THE HOME DEPRTMENT
Respondent

Representation:
For the Appellant: Mr Slatter, Counsel instructed by Equity Law Solicitors
For the Respondent: Mr Terrell, Senior Home Office Presenting Officer

Heard at Field House on 5 March 2025

DECISION AND REASONS
1. The appellant appeals with permission against the decision of First-tier Tribunal Judge M B Hussain [‘the Judge’] promulgated on 08 July 2024 in which the appellant’s appeal against the decision to refuse him pre-settled status under the EUSS scheme dated 01 October 2021 was dismissed.
2. The appellant is a national of Malta, who applied for pre-settled status on the basis of having been resident in the UK from February 2019. The appellant accepted that in October 2019 he had returned to Malta but stated that he could not return to the UK until June 2021, due to the covid pandemic.
3. The respondent refused the application on the basis that the appellant had not established he had met the requirements of appendix EU, specifically EU3 and EU14. The respondent did not accept the appellant had established by way of evidence that he met the “continuous qualifying period” requirement as the appellant failed to provide evidence of residence in the UK between July 2020 and December 2020.
4. The Judge dismissed the appeal in a decision promulgated on 08 July 2024. In doing so, he found that the appellant accepted in his grounds that he was not in the UK at least 6 months prior to the specified date, 31 December 2020. In coming to this decision, the Judge noted at [7] that the appellant had requested an oral hearing and that a notice of hearing was sent to his last postal address. The appellant was absent on the day of the hearing and no explanation was given for this. The Judge decided that he could resolve the appeal on the papers.
The appeal
5. The appellant appeals on the single ground that it was procedurally unfair to determine the appeal without being given notice and/or his participation. It was submitted that the Judge did not apply the “overriding objective” of The Tribunal Procedure (First-tier Tribunal) (Immigration and Asylum Chamber) Rules 2014, when proceeding with the hearing, particularly as the appellant was a litigant in person and had engaged with the Tribunal prior to the hearing being listed, via emails. Mr Slatter submitted, that there was no evidence the appellant had been served with the notice of hearing. He accepted that the notice of hearing indicated that it was served to the appellant at the correct last known postal address but argued that the appellant had been emailing the Tribunal and there was no evidence it had been emailed to the appellant. The appellant maintains he did not receive the notice of hearing.
6. Mr Slatter submitted that in view of the appellant’s prior engagement and request for oral hearing, that it was unfair to proceed in his absence and that the Judge erred in failing to consider whether it would be fair to adjourn the hearing. He submitted there was no consideration of the principles in Nwaigwe(adjournment: fairness)[2014] UKUT 418 (IAC) and that the appellant’s evidence on the issues in dispute could have had a material impact on the outcome of the appeal, thus to not afford him the opportunity to attend the hearing was procedurally unfair. He argued that the appellant was able to meet the definition of “continuous qualifying period” despite his absence from the UK for over 12 months given his explanation that this was because of the pandemic. This, he argued was permitted pursuant to the definitions at Annex 1 of Appendix EU.
7. Mr Terrell submitted that the issue of procedural fairness related simply to whether there was a mistake of fact made by the Judge in finding that the appellant had been served with the notice of hearing. This was only something that only the First Tier Tribunal could resolve as neither party had evidence that the notice of hearing was sent by post or email. He accepted that it was not clear from the decision whether the Judge had considered other factors before deciding that the appeal could be resolved on the papers. He submitted that it had not been established that the appellant had not been sent the non-compliance directions and notice of hearing. Given this background, it was fair for the judge to proceed.
8. He relied upon the decision of SH (Afghanistan) v Secretary of State for the Home Department [2011] ECWA Civ 1284, where the court states at [15]:
‘Tribunals like courts, must set aside a determination reached by the adoption of an unfair procedure unless they are satisfied that it would be pointless to do so because the result would inevitably be the same.’
9. He submitted that the outcome of the appeal would in any case be the same as the appellant could not satisfy the rules given his evidence of departure and return to the UK as the definition in Annex 1 of Appendix EU could not be met.
Findings and reasons
10. We have carefully considered the circumstances facing the Judge and the decision specifically at [7]. We are satisfied that the Judge did not give careful consideration as to whether it was fair to proceed without the appellant, particularly as the appellant was a litigant in person, the issue was one of some importance to the appellant, he had previously indicated that he wished to attend the appeal and the Tribunal would have benefited from hearing oral evidence from the appellant in order to determine the appeal. It is also unclear if the Judge was aware of the claimed non-compliance notice as there is no reference to this in the decision. Thus, we are unable to conclude that this was a factor he considered when he stated he could resolve the issues without allowing the appellant an opportunity to attend the hearing. The only factor which the Judge considered relevant was that the appellant was on notice of the hearing.
11. The appellant states he was not served with the notice of hearing.
12. We take into account the respondent’s evidence that the notice of hearing was sent to her and on this notice the appellant’s postal address is correct. However, as a matter of fact we have insufficient evidence before us that the appellant was served either by post or email. The notice does not state how it was sent. Even, if the appellant had been served with the notice, we are satisfied that the central issue is one of fairness and it was incumbent upon the Judge to consider whether it was fair and just to proceed, which the judge did not do. Accordingly, the Judge erred in failing to consider whether it was fair and just to proceed in the absence of the appellant.
13. We do not agree with Mr Terrell that the error was immaterial pursuant to SH(Afghanistan) because the outcome of the appeal would inevitably have been the same because on his own evidence the appellant was not able to return to the UK because of the covid pandemic until after 12 months of absence had elapsed. This was far from clear from the evidence. Pertinently, the Judge said that he “got the impression” that the appellant was conceding the point and we are satisfied he did not consider the covid explanation. It is well known pandemic restrictions started, at least in the UK, in March 2020 and so consideration of whether the appellant’s circumstances fell within the definition of continuous residence, would be very much a fact sensitive issue to be determined by the evidence before the Tribunal. Further, the definition at Annex 1 of appendix EU is complex and its construction is not entirely clear.
Disposal
14. We are satisfied that the material errors of law identified infect the entire decision, and that the decision should be set aside in its entirety. We have decided that this appeal should be remitted to the First tier Tribunal, having applied the guidance in paragraph 7 of the Senior President’s Practice Statement and AEB v Secretary of State for the Home Department [2022] EWCA Civ 1512 and Begum (Remaking or remittal) Bangladesh [2023] UKUT 00046 (IAC) because the appellant did not have a fair opportunity to attend his appeal hearing and because we are satisfied that the nature and extent of the judicial fact finding which is necessary for this appeal to be re-made means that it is appropriate to remit the case to the First-tier Tribunal.
Notice of Decision
1. The decision of the First-tier Tribunal involved the making of an error of law.
2. The decision of the First-tier Tribunal is set aside in its entirety with no findings preserved.
3. The decision is remitted to the First-tier Tribunal for a de novo hearing before a judge other than First-tier Tribunal Judge M B Hussain.

S K KUDHAIL

Judge of the Upper Tribunal
Immigration and Asylum Chamber

11 March 2025