Tribunal decisions

The decision

IN THE UPPER TRIBUNAL
IMMIGRATION AND ASYLUM CHAMBER
Case No: UI-2024-004814

First-tier Tribunal No: PA/56735/2023
LP/02595/2024
THE IMMIGRATION ACTS
Decision & Reasons Issued:
On 30th of April 2025
Before
UPPER TRIBUNAL JUDGE HOFFMAN
DEPUTY UPPER TRIBUNAL JUDGE OBI

Between
MR MUNIR AHMAD GONDAL
(ANONYMITY ORDER NOT MADE)
Appellant
and
SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent
Representation:
For the appellant: Mr C Timpson, Counsel, instructed by Juris Solicitors Ltd
For the respondent: Mr J Thompson, Senior Presenting Officer

Heard at Field House on 23 January 2025

DECISION AND REASONS

Introduction
1. The appellant, a citizen of Pakistan, appeals with permission against the decision of First-tier Tribunal Judge C R Cole (‘the Judge’), promulgated on 5 September 2024 following a hearing on 27 August 2024. By that decision, the Judge dismissed the appellant’s appeal against the respondent’s refusal of his protection and human rights claims.

Appeal to the Upper Tribunal
2. The appellant was granted permission to appeal to the Upper Tribunal by First-tier Tribunal Judge Bibi on 17 October 2024. The sole ground of appeal is that the Judge erred in law by refusing to adjourn the appeal hearing and is expressed as follows:
“The Judge refused to adjourn the appeal due to the ill health of the appellant. It is submitted that when refusing to adjourn the appeal the Judge has failed to properly and adequately set out his reasons for doing so. This is particularly the case in view of findings made by the Judge with regard to the appellant’s health later in the determination. Having refused to adjourn the appeal the appellant has not had a fair opportunity to give answer to any questions with regard to issues the Judge held against him, with regard to his credibility and with regard to the factual basis of his claim.”

Background
3. For present purposes, the background circumstances can be summarised as follows.
4. The appellant is a citizen of Pakistan. He arrived in the UK on 9 November 2005 with his wife and children. His visit exemption visa was valid until 28 September 2010. On 25 September 2011, the appellant and his wife were detained and served with an IS151A. They were released on 26 September 2011.
5. On 14 December 2011, the appellant applied for leave to remain on human rights grounds. The application was refused and the appeal against the refusal was dismissed by the First-tier Tribunal on 31 July 2013. This decision was upheld by the Upper Tribunal on 12 February 2014. On 20 July 2015, the appellant made an application for leave to remain on the basis of private and family life. This application was refused on 20 August 2015. The appellant then made further representations on human rights grounds on 3 December 2015 which were rejected on 7 December 2015. Another set of further representations were made on 1 September 2016. These were rejected on 6 September 2016.
6. On 20 September 2016, the Appellant and his wife were detained. Removal directions were set on 1 November 2016 for 29 November 2016. On 19 November 2016, the appellant claimed asylum. The respondent refused the appellant’s protection and human rights claim in a decision dated 8 September 2023. The appeal of that decision came before the Judge on 27 August 2024.
7. The appellant had applied for the appeal hearing to be adjourned. The hearing of the appeal had been adjourned on two previous occasions, namely 15 May 2024 and 26 June 2024. The appellant stated that he could not attend the hearing for health reasons. The application was supported by a doctor’s Statement of Fitness for Work. The adjournment application was refused on 22 August 2024 by a Legal Officer. The application was renewed on the same date and that application was refused by a judge. On 23 August 2024, there was an application for the appeal to be considered on the papers without the attendance of the appellant. This application was refused by a judge who commented that “It is ultimately a matter for the appellant's legal team as to whether he attends the hearing, but the Tribunal is likely to benefit from submissions as to how the issues should be determined.” On 26 August 2024 (Bank Holiday Monday), a further application was made to convert the appeal hearing into a Case Management Review Hearing.

Decision of the First Tier Tribunal
8. As stated above, the appeal came before the Judge on 27 August 2024. The appellant’s further application had not been considered by the time of the hearing. The application was renewed, and the appellant’s representative relied on an Additional Submissions document. It was submitted, on behalf of the appellant, that further medical evidence could be obtained.
9. The Judge noted the procedural history (referred to in paragraph 7 above), the psychiatric report produced by the appellant dated 14 August 2016 which diagnosed him with Mixed Anxiety and Depressive Order and the Statement of Fitness for Work. The Judge stated that he had considered the guidance in Nwaigwe (adjournment: fairness) [2014] UKUT 00418 and went on to determine that:
“25. …There is no realistic prospect of his health condition improving in the near future, and so I can see no clear benefit to delaying this appeal any further.
26. Furthermore, there is insufficient medical evidence to support the submission that the Appellant is not well enough to attend a hearing and give evidence. The Statement of Fitness for Work is not sufficient to show that the Appellant is unable to participate in a Tribunal hearing.
27. This appeal has already suffered considerable delay having been adjourned twice on previous occasions. There is insufficient medical evidence produced to justify any further delay. The Appellant has been represented by his current solicitors for many years, yet the only substantive psychiatric evidence is from 2016. There has been more than adequate time for updated and more detailed medical evidence to be produced if the Appellant were considered not fit to give evidence or participate in a hearing.
28. Having considered all relevant matters in the round, in my judgment there is no justification for further delay in this case. It is of note that the Appellant was content for the appeal to proceed on the papers on 23 August 2024 and only changed his position when that (late) application was refused as it was considered the Tribunal would benefit from oral submissions from the parties.”
10. In considering the issues to be determined as part of the appeal the Judge noted that the appellant’s credibility in relation to the protection claim was not accepted. The Judge went on to state:
“In relation to Article 3 it is not accepted that that the appellant is seriously ill or that the Appellant has adduced evidence capable of demonstrating that substantial grounds have been shown for believing that, as a seriously ill person, he would face a real risk, on account of the lack of access to appropriate treatment in Pakistan, of being exposed to a serious, rapid and irreversible decline in his state of health resulting in intense suffering, or to a significant reduction in life expectancy.
In relation to Article 8, it is not accepted that the Appellant has demonstrated that, on balance, there would be very significant obstacles to his integration into Pakistan.
Further in relation to Article 8, it is not accepted that, on balance, there are exceptional circumstances in this case which would result in unjustifiably harsh consequences for the Appellant or his family members.”

Rule 24
11. The respondent did not provide a rule 24 response.

The hearing
12. Mr Timpson submitted that the Judge concluded that the appellant is a “seriously ill person” but proceeded with the hearing in his absence which resulted in the appellant being denied the opportunity to give evidence in his appeal. It was further submitted that the Judge omitted the context when characterising the application made on 23 August 2023 as the appellant being content for the appeal to proceed on the papers.
13. Mr Thompson submitted that it was open to the Judge, having considered the procedural history of this case and the absence of an updated medical report, to conclude that the appeal should proceed in the absence of the appellant.
14. At the end of the hearing, we reserved our decision.

Error of Law Reasons
15. Where a party applies for an adjournment, the tribunal is obliged to consider whether, in the absence of the appellant, the appeal can be determined fairly. The headnote to Nwaigwe states:
“If a Tribunal refuses to accede to an adjournment request, such decision could, in principle, be erroneous in law in several respects: …. 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? See SH (Afghanistan) v Secretary of State for the Home Department [2011] EWCA Civ 1284”.
16. The Judge referred to Nwaigwe and stated that he had taken the guidance in that case into account. He also stated that he had considered “all relevant matters.” The relevant matters cited by the Judge included the unlikelihood of the appellant’s health improving in the near future, the absence of a clear benefit in delaying the appeal any further, insufficient medical evidence and his observation that the appellant had ample time to obtain up to date and more detailed medical evidence. These were relevant considerations. However, the Judge was also required to consider the impact of failing to adjourn on the fairness of proceedings, or on the prospects of success given that the appellant’s health was a central feature of his appeal. The Judge’s decision does not indicate that he turned his mind to whether or not the appeal could be justly determined without the appellant or without up to date medical evidence.
17. We sympathise with the Judge. No doubt in the context of long and protracted proceedings the Judge was anxious to avoid further delay. However, the Judge failed to take into account all material considerations and failed to consider whether the refusal to adjourn would deprive the appellant of his right to a fair hearing.
18. In conclusion, we find a material error of law has been established and therefore the decision dismissing the appellant’s appeal cannot stand. No findings are preserved.

Remaking
19. As the decision of the First-tier Tribunal is tainted by procedural unfairness, applying paragraph 7.2 of the Practice Statements of the Immigration and Asylum Chambers of the First-tier Tribunal and the Upper Tribunal, we are satisfied that remittal for a de novo hearing is the appropriate course of action.

Notice of Decision
The making of the decision of the First-tier Tribunal did involve the making of an error on a point of law.
We exercise our discretion under section 12(2)(a) of the Tribunals, Courts and Enforcement Act 2007 and set aside the decision of the First-tier Tribunal.
The appeal is remitted to the First-tier Tribunal at Manchester to be heard afresh by a judge other than Judge C R Cole.

Margaret Obi
Deputy Judge of the Upper Tribunal
Immigration and Asylum Chamber
Dated: 4 February 2025