Tribunal decisions

The decision

IN THE UPPER TRIBUNAL
IMMIGRATION AND ASYLUM CHAMBER
Case No: UI-2024-004462

First-tier Tribunal No: PA/00852/2024

THE IMMIGRATION ACTS

Decision & Reasons Issued:

On 24th of September 2025

Before

UPPER TRIBUNAL JUDGE LINDSLEY
UPPER TRIBUNAL JUDGE KHAN

Between

RT
(ANONYMITY ORDER MADE)
Appellant
and

SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Mr G Lee, Direct Access Counsel
For the Respondent: Ms S Ahmed, Senior Home Office Presenting Officer

Interpretation: Mr R Gurung in the Nepali language

Heard at Field House on 5 August 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
Introduction
1. The appellant is a citizen of Nepal born in November 2000. He came to the UK with a seasonal workers’ visa on 1st June 2022. He made an asylum claim on 24th September 2022 claiming political persecution as a member of the Nepal Communist Party, which was refused in a decision of the respondent dated 9th January 2024. The appellant’s appeal against the decision was dismissed on all grounds by the First-tier Tribunal Judge in a decision promulgated on 9th August 2024.
2. Permission to appeal was granted by Upper Tribunal Judge Neville on 17th February 2025 on the basis that it was arguable that the First-tier judge had erred in law in requiring Mr Cal Harding to act as a McKenzie friend rather than the appellant’s representative; and that it was right to grant permission to enable the Upper Tribunal to provide guidance on the correct course of action for a First-tier Tribunal Judge to take when suspicion is raised by apparently entirely separate cases in their list having common features or drafting. Permission was granted to argue all grounds.
3. On 12th May 2025 Upper Tribunal Judge Lindsley sent out directions in relation to the issue of Mr Harding, proposing that his role as McKenzie friend or potential representative should not form part of the decision in light of his facing prosecution by the OISC/IAA for eight counts of fraud by false representation and two counts of providing unqualified immigration advice and in light of his having pleaded not guilty to these charges and the trial not being expected to take place until July 2026.
4. The matter came before the Panel on 20th May 2025 but had to be adjourned as the appellant, who was unrepresented at that hearing, claimed that he could not understand the Nepali interpreter, and informed the Upper Tribunal that the only language he really understood was Tamang once questions were posed to him by the Panel. This was despite his having had a conversation in Nepali at the start of the hearing with the Tribunal interpreter and the interpreter informing us that they both understood each other and the language they were speaking was Nepali. The Panel noted that the appellant had used a Nepali interpreter before the First-tier Tribunal without any apparent problem and had also been interviewed in that language by the respondent on 2nd February 2023 at his asylum interview. (On closer inspection in this interview he revealed that he studied English and Nepali at higher secondary school (questions 35 and 36) and confirming that he only spoke a little English in addition to Nepali at question 42 of the interview.) Nevertheless, we decided out of an abundance of caution that we would adjourn the hearing so that the appellant could have a Tamang interpreter to ensure fairness as he was a litigant in person at that point.
5. Directions were issued dated 20th May 2025 which addressed the relisting of the appeal with a Tamang interpreter and also the appellant being able to serve his bundle, which should be paginated and indexed, on the respondent by post and noting that this adjournment would give the appellant an additional opportunity to obtain legal representation which he also applied for an adjournment to be able to do. The appellant was also advised that his application for a transcript of the hearing before the First-tier Tribunal was refused as it was not seen how it would assist the Upper Tribunal determine the grounds of appeal before it, although he was told that if he disagreed with this conclusion then he, with the help of Mr Harding, could make a written application for a transcript in which he identified how this was needed in relation to his grounds of appeal.
6. The appellant applied in writing for a transcript of the hearing before the First-tier Tribunal on 29th May 2025 saying that it would show that he was unable to participate effectively in the hearing and had not therefore agreed the issues to be determined in the appeal, and also that the First-tier Tribunal Judge had referred to the test for adjourning as being proportionality not fairness. We initially agreed the request for a transcript to ensure fairness, but when this proved operationally impossible the parties were informed that instead of a written transcript they would have an opportunity to listen to the recording of the First-tier Tribunal hearing immediately prior to the error of law hearing.
7. We were also informed by the Upper Tribunal Administration that it was impossible to source a Tamang interpreter in the UK, and so we agreed that the Nepali interpreter who was used, without complaint by the appellant, before the First-tier Tribunal should be booked. It transpired that this interpreter was also the interpreter we had used at the first Upper Tribunal hearing on 20th May 2025.
8. The matter came back before us to determine whether the First-tier Tribunal had erred in law, and, if so, whether any such error was material and whether the decision of the First-tier Tribunal should be set aside.
9. At the start of the hearing we asked the interpreter to introduce himself to the appellant. Initially the appellant said he could not understand the interpreter but when the Panel pointed out that he had had exactly the same interpreter before the First-tier Tribunal and also highlighted his use of a Nepali interpreter at his Home Office asylum interview he raised no further objection.
10. We then proceeded to listened to the first part of the recording of the hearing before the First-tier Tribunal until both parties informed us that they had heard enough for the purposes of the error of law hearing. Ms Ahmed raised a preliminary point about the presences of Mr Harding, but he confirmed he was present simply as a friend of the appellant and the Panel confirmed that he was welcome as it was public hearing.
11. The Panel asked Mr Lee if he was aware of the direction of 12th May 2025 with respect to the aspect of the grant of permission concerning Mr Harding/ McKenzie friends and our proposal that we should not deal with this in the particular circumstances. Mr Lee confirmed that he was now aware of the direction, as Ms Ahmed had shown it to him, and would not be pursuing this matter in the hearing but would focus simply on the grounds of appeal.
Submissions – Error of Law
12. In the grounds of appeal and in oral submissions and a skeleton argument from Mr Lee it is argued, in short summary, that the First-tier Tribunal erred in law as follows.
13. Firstly, it is argued, that the First-tier Tribunal erred by failing to adjourn the hearing which was, as a result, procedurally unfair. This was because the First-tier Tribunal Judge raised issues on the day of hearing relating to another appeal in her list, which in her view was remarkably similar, which the appellant had not seen prior to this and so was unable to comment on with only a short adjournment and without legal advice. The list of matters raised by the First-tier Tribunal were quite extensive, and it was not fair to expect an unrepresented asylum appellant to deal with them blind and on the hoof. This approach was unfair, and an adjournment ought to have been granted to enable the appellant to consider the documentation regarding the other case (redacted if necessary to preserve confidentiality of the other appellant); to seek legal advice on the matter; and potentially to provide a witness statement and other evidence to defend this new credibility challenge. The test that was applied by the First-tier Tribunal erred in law as what was considered was proportionality or reasonableness and not fairness. Any deprivation of a fair hearing amounts, it is argued, to an error of law which should lead to the decision, and all of the findings, being set aside.
14. Secondly, it is argued, that there was an error of law by virtue of the fact that the First-tier Tribunal relied upon evidence which the appellant had not been provided with, whilst the respondent’s representative clearly had the full file on this other asylum seeker who was an appellant in her list, which again made the hearing unfair. It is trite law that a party has a right to know the case against him, but if this line of argument was to be pursued it would be likely to be necessary to provide redacted documents relating to the other similar case(s) to preserve the anonymity and the confidentiality of the other appellant, and this would be potentially a significant amount of work.
15. The respondent filed no Rule 24 notice but Ms Ahmed defended the decision of the First-tier Tribunal arguing that it contained no material errors of law.
16. Ms Ahmed argued with respect to the first ground that the First-tier Tribunal had listened to the appellant’s adjournment requests but also noted that he had said that he did not have money to pay for legal advice, although she accepted that the First-tier Tribunal Judge had permitted Mr Harding to provide free legal assistance to the appellant as a McKenzie friend in the first part of the hearing and by the second part of the hearing, when the Judge insisted on proceeding with the hearing, he was declining to act as such. She also argued that the appellant did not specifically apply for an adjournment on the basis that the case had now become more complex and because he was taken by surprise by the “similar case” allegation. Ms Ahmed argued that the First-tier Tribunal Judge had taken steps to assure the appellant he would be treated fairly in the consideration of his oral evidence. Ms Ahmed also argued that many of the questions raised regarding the similar case were simple ones the appellant could have been expected to answer without adjourning the case to another day such as whether he knew the person in the UK and/or Nepal, although she accepted that some of the questions arising from the similar case were more complex such as why this appellant and the appellant in the other case claimed that they had their homes were raided in Nepal on the same day in September 2022 and within a few days of each other in November 2022.
17. With respect to the second ground Ms Ahmed argued that the First-tier Tribunal Judge has clearly set out the similarity issues that she wished to raise at paragraph 16 of the decision, and from the recording of the hearing this was done orally to the appellant at the start of the hearing before the First-tier Tribunal and so she had done her best to be fair in an unusual situation.
18. Ms Ahmed added that if there were an error of approach, which she did not accept there was, it was not material as the decision is also made in the alternative in paragraphs 51 to 58. In this part of the decision it is found that other issues including a failure to provide easily obtainable corroborative evidence, a lack of a sufficiently detailed account, issues of implausibility, a lack of consistency with country of origin materials and delay lead to a finding, independent of the issues of similarity with the other case, that the appellant has not put forward a credible claim to be at real risk of serious harm if returned to Nepal.
Conclusions – Error of Law
19. Mr Cal Harding did not request to be the appellant’s representative, and filled in the s.84 notice requesting to assist as a friend of the appellant’s employer, a request which was granted by the First-tier Tribunal Judge. In light of the circumstances outlined at paragraph 3 above, and with the agreement of the representatives for the parties, we do not consider the matter of whether he could have in fact acted as a representative further despite what is said in the grant of permission.
20. We find that the First-tier Tribunal erred in law by refusing to adjourn the hearing in the context of a new matter affecting the credibility of the appellant’s claim being raised orally on the day of the hearing by the First-tier Tribunal Judge, namely the issue the Judge identified at the start of the hearing (as we were able to hear from the recording) and sets out at paragraph 16 of her decision of similarities with another, unconnected, appeal in her list. We find that this failure to adjourn was an error of law for the following reasons.
21. We find that whilst it was open to the First-tier Tribunal to cite The Tribunal Procedure (First-tier Tribunal) Rules (IAC) 2014 overriding object at paragraph 24 of the decision, which rightly gives weight to the need to avoid unnecessary delay and conduct the proceedings at proportionate cost, that the First-tier Tribunal needed also to direct itself to the principles for the granting of an adjournment as set out in Nwaigwe (adjournment: fairness) [2014] UKUT 418, and SH (Afghanistan) v SSHD [2011] EWCA Civ 1284, and specifically that it is not reasonableness but fairness that is the overriding issue when considering such an application. As noted by Mr Lee there is no mention of fairness in the decision on the adjournment and instead at paragraph 25 of the decision proportionality appears the guiding principle. This was not lawful or correct.
22. We find the failure to adjourn was unfair because the issue of similarity raised was an entirely new and complex one which the appellant had to deal with alone, without even the help of his McKenzie friend who ceased to act as such prior to the substantive hearing of the appeal. The appellant was given no documentary evidence of the similarities, or even a written list, and the issues were wide ranging from same addresses, applications for asylum made on the same day, similar wording in the appeal notices, to the two appellants’ homes being raided by Nepali police on the same or similar days in their country of origin. We find an adjournment is very likely to be required when substantive new evidence is introduced by the Tribunal shortly before a hearing, in keeping with the judgment of the Court of Appeal in Macharia v IAT [2000] Imm AR 190.
23. Whilst the appellant did say he could not pay for a lawyer he was being assisted, with the consent of the First-tier Tribunal, by a McKenzie friend (who confirmed he was acting for free) who appears to have felt he could not provide support without an adjournment, as he withdrew at this point, but might have been assumed to be willing to assist the appellant if one was granted. It is also to be noted that the appellant was very ably legally represented before us and so the evidence is that the failure to adjourn to get such legal advice was a material error as by one means or another the appellant now has legal representation relating to this issue. Whilst the appellant had not provided a written witness statement at the date of hearing before the First-tier Tribunal the similarities with another appellant were a new issue that he had not addressed in his asylum interview, and as he stated he wished to provide a statement it was in our opinion only fair that he be provided the opportunity to do so. We do not find the lack of a witness statement before the Upper Tribunal as relevant as he still has not been provided with any written documentation of the contended similarities, which we address below in relation to the second ground.
24. In relation to the second ground we again find this made out. The appellant was provided with no documentary evidence of the contended similarities. In line with principles of equality of arms and the right to know the case against him, as per Lord Hope in Al Rawi v The Security Services [2011] UKSC 34, the appellant was entitled to be provided with as much of this evidence as could be provided with without breaching the confidentiality or any anonymity direction with respect to the other appellant so he could understand the First-tier Tribunal’s concern. Clearly the respondent’s representative would have possessed the entire appeal file relating to the other appellant, and so would have been able to consider this evidence. To have provided this evidence may have been a time-consuming task involving redaction but if the point was to be raised by the First-tier Tribunal we find that fairness required that this was done.
25. We do not find that the errors are rendered immaterial by the fact that the appeal was dismissed in the alternative on the basis of the other credibility issues raised by the respondent. We find that the appellant was entitled to refuse to participate in the hearing given that we have found that it was unfair not to have adjourned it, and that as a result the rest of the hearing was contaminated by unfairness. We conclude that all findings must be set aside and the matter reheard.
26. We pause here to note that as far as we are aware there is no guidance to First-tier Tribunal Judges on how to proceed in these unusual circumstances in an asylum or human rights context. We wish to emphasise that the First-tier Tribunal Judge should be viewed sympathetically as she was not given any assistance from the case law which might have avoided her falling into error as set out above. We find that it is therefore appropriate for us to attempt to do this to avoid future similar mistakes.
Guidance to Tribunal Judges Encountering Strikingly Similar Appeals
27. Mr Lee made written submissions on the guidance we should offer for the appellant. In short summary he argues as follows. He cautions that care should be taken before concluding a case is “strikingly similar” to another as asylum seeking countries may generate similar case, for instance where a number of asylum seekers leave their country of origin after a major demonstration, or in circumstances where asylum seeking applicants without legal representation are assisted by persons in their community. The similarities would have to be particularly striking so as to call for further explanation. As per Baylan (Turkish ECCA – “identical” applications) [2012] UKUT 83 (IAC) it is argued that an identical or near identical application should not be in itself be a reason to find an appellant cannot succeed. Where there are such particularly striking similarities it will, in any case, be very difficult to ascertain whether one copied the other or vice versa, and there is a danger in concluding that both cases are tainted by the similarities in those circumstances. If this path is gone down then any document relied upon by the Tribunal or the respondent to show similarities must be disclosed to the other party, as it is a fundamental principle that: “ a party has a right to know the case against him and the evidence on which it is based”, as per Lord Hope in Al Rawi v The Security Service. Further it is likely that the appellant should be entitled to further disclosure so that he or she can identify elements that are not similar and make submissions as to whether the similarities are a minor or major part of the case. It might be possible to redact personal information but this might not be possible where this is key to the similarities. If this issue arises after the respondent has set out their initial reasons for refusal then the appellant must be permitted sufficient time, and therefore, in all likelihood, the option of an adjournment, to address this new basis of refusal to ensure fairness, as per SH (Afghanistan) v SSHD.
28. Mr M Biggs made submissions for the respondent on this issue. In short summary he submits as follows. He draws attention to the fact that any matter which the Tribunal believes is relevant to the decision may be considered including a matter arising after the date of decision under s.85(4) of the Nationality, Immigration and Asylum Act 2002, and also under Regulation 9(4) of the Immigration (Citizens’ Rights Appeals)(EU Exit) Regulations 2020. What might indicate that the case is not genuine would be a similar or identical account in a witness statement or similar or identical documentary evidence, and this would be what could be termed a “strikingly similar” case. If a Tribunal Judge is not satisfied that a case is genuine in the light of such similarities then the appeal should be dismissed. It is argued that the extent of disclosure and the time to be given to an appellant will be fact sensitive, for instance it might be that only one paragraph of a statement might suffice to be disclosed if this is the similarity. The respondent believes that information that must be disclosed to ensure fairness can be disclosed under the GDPR and Data Protection Act 2018, but that documents might need to be redacted to preserve the interests of other appellants and third parties (particularly asylum-seekers and children) and to respect anonymity orders. In circumstances where information or documentation is disclosed then pursuant to Rule 13 of the First-tier Tribunal Procedure Rules and Rule 14 of the Upper Tribunal Procedure Rules a direction can be made to prohibit disclosure of that information or documentation to anyone other than the appellant or their legal team. Judges should be free to adopt the course they consider appropriate with respect to the overriding object and case sensitive requirements of procedural fairness. It might be that the issue is dealt with by submissions in writing or that this is an issue dealt with via a case management hearing.
29. The only potentially relevant case within an immigration context with respect to “striking similarities” we have been able to identify is Baylan which is also drawn to our attention in Mr Lee’s submissions. The guidance provided by the Upper Tribunal is as follows: “Identicality or near-identicality in Turkish ECAA applications is not in itself a reason to find an applicant cannot succeed. However, it is apparent from the wording of paragraph 21 of the HC51 and the underlying object of the Association Agreement that the business plan must be viable in the context of an applicant’s own personal circumstances.” We find that this case is a warning against the use of identicality or near-identicality being used in place of an individual assessment of the credibility of an appellant’s claim. We find that, just as in the context of Turkish ECCA, there are legitimate reasons why protection and human rights claims might contain elements that are strikingly similar and that caution must be exercised.
30. On consideration of the very helpful submissions from both parties and the decision of the Upper Tribunal in Baylan we offer the following guidance to First-tier Tribunal Judges faced with “strikingly similar” cases:
• Before concluding that a “striking similarity” with another appeal is a matter which requires to be addressed a First-tier Tribunal Judge should consider very carefully whether this is an additional issue which potentially affects credibility beyond those raised by the respondent or not. Consideration should be given to the matters which provide an innocent explanation for striking similarities: for instance asylum seekers/appellants might be housed in multi-occupancy accommodation and thus share a common address yet not know each other; they might share a common scribe who writes their witness statement or grounds of appeal in English, if this is not their first language and they are unrepresented, and so there may be communalities in the way things are expressed and the order the material is laid out; and appellants might be arrested by police in their country of origin on the same day and in the same way because they were participants in the same demonstration or are targets of the same political clamp down but may of course not know each other if many others were involved in their political opposition movement, they are in geographically different areas, or they adhere to different parts of the opposition to the government.
• Consideration should also be given to whether it is necessary or productive in pursuit of the overriding object to decide cases fairly and justly to raise an additional matter of “striking similarity”. To do so will require close attention to procedural fairness and the protection of data belonging to vulnerable people (as we detail below) and will inevitably extend the length of proceedings. Even if it is found that two appeals contain material which is “strikingly similar” consideration will have to be given to the fact that any particular appellant may be innocent of wrong-doing as the account or document may have been their original genuine one that has been taken by others without their consent, and they may genuinely not know how others have taken their material and duplicated it.
• If however an issue of “striking similarity” is not one which on careful consideration does have an innocent explanation and a First-tier Tribunal Judge finds that it is necessary to explore this matter to determine the appeal fairly and justly then the appellant must be provided in writing with the information and/or documentation which it is said shows that their case is suspiciously similar to another and must be given an appropriate period of time to consider that material and prepare a repost to any contention that this draws doubt on their credibility. Consideration will need to be given to the need to redact names to protect the names of asylum appellants and children, and thereby preserve anonymity, and for directions prohibiting the disclosure of information beyond the appellant and his/her legal team. It is very unlikely that it will be procedurally fair to expect an appellant to deal with such a matter on the same day it is raised for the first time, but as submitted by the respondent the extent of disclosure and the time required will be fact specific. A First-tier Tribunal Judge would therefore have to be ready to consider applications from the appellant for an adjournment, and also for further disclosure to show that other aspects of their case were dissimilar to the other case said to be “strikingly similar”, to ensure fairness.

Decision:
1. The making of the decision of the First-tier Tribunal involved the making of an error on a point of law.
2. We set aside the decision and all of the findings of the First-tier Tribunal.
3. We remit the hearing to the First-tier Tribunal to be heard de novo by a different Judge of the First-tier Tribunal.

Fiona Lindsley

Judge of the Upper Tribunal
Immigration and Asylum Chamber

17th September 2025