Tribunal decisions

The decision

IN THE UPPER TRIBUNAL
IMMIGRATION AND ASYLUM CHAMBER
Case No: UI-2024-005188

First-tier Tribunal No: EA/00463/2024

THE IMMIGRATION ACTS

Decision and Reasons Issued:
On the 07 April 2025

Before

UPPER TRIBUNAL JUDGE LODATO

Between

Afzaal Ahmed
(NO ANONYMITY ORDER MADE)
Appellant
and

The Secretary of State for the Home Department
Respondent

Representation:
For the Appellant: Unrepresented and not in attendance
For the Respondent: Mr Diwnwyz, Senior Presenting Officer

Heard at Phoenix House (Bradford) on 26 March 2025

DECISION AND REASONS
Introduction
1. The appellant appeals with permission against the decision, dated 30 July 2024, of the First-tier Tribunal Judge (‘the judge’) to dismiss the appeal on under the Immigration (European Economic Area) Regulations 2016.
Background
2. The broad procedural and factual background to the appeal is not in dispute between the parties. In summary, the appellant’s case is that he is and remains a dependent family member of his sponsoring nephew and thereby qualifies for entry clearance under the pre-EUSS scheme. The original and underlying appeal was lodged as long ago as 2019. It is unclear why it was not until 2024 that it came before a judge.
Appeal to the First-tier Tribunal
3. The appellant appealed against the refusal of the claim. The appeal was decided by the judge on the papers without a hearing. The appeal was dismissed on the strength of adverse findings of fact in which the judge rejected the proposition that the appellant was dependent on his sponsor as he had claimed.
Appeal to the Upper Tribunal
4. The appellant applied for permission to appeal in reliance on grounds which challenged the lawfulness of the judge’s assessment of the evidence and whether it was procedurally appropriate to proceed to decide the appeal on the papers without a hearing.
5. In a decision dated 25 November 2024 Upper Tribunal Judge Loughran granted permission for all grounds to be argued. The following observations were made in granting permission:
I am satisfied that the Judge arguably failed to consider whether the matter should be listed for an oral hearing to afford the Appellant and/or the Sponsor with the opportunity to respond to the Judge’s concerns about the documents in the circumstances where this had not been raised previously.
6. The appellant was not in attendance at the error of law hearing. He remains in Pakistan and had intended to join the hearing using the CVP online video platform to make submissions only. However, his sponsoring nephew, Mr Shawaiz attended in person. He had been in contact with the appellant by phone and had been told that his uncle had been unable to connect to the platform due to poor internet connectivity in his small village in Pakistan. Both the respondent and Mr Shawaiz, on the appellant’s behalf, invited me to proceed in the appellant’s absence. I found it to be in the interests of fairness and justice to proceed with the hearing because the appellant’s position could be advanced by his sponsor, the proceedings had been ongoing for over 5 years and further delay would not be in the interests of justice in circumstances where there was little to indicate that the appellant would be in a better position to attend remotely in the future. I heard oral submissions from both parties. I address any submissions of significance in the discussion section below.
Discussion
7. During the respondent’s submissions, Mr Diwnwyz conceded that the decision involved a material error of law because the judge had not addressed her mind to any of the exceptions found under rule 25 of the First-tier Tribunal Procedural Rules to justify proceeding to decide the appeal without a hearing.
8. A concession by the respondent does not bind the tribunal to accept it. However, I am satisfied that the concession was properly made, and I am equally satisfied that the decision did indeed involve a material error of law. I need look no further than rule 25 and the guidance provided by SSGA (Disposal without considering merits; R25) Iraq [2023] UKUT 00012 (IAC). Rule 25 provides as follows:
Consideration of decision with or without a hearing
25.—(1) The Tribunal must hold a hearing before making a decision which disposes of proceedings except where—
(a) each party has consented to, or has not objected to, the matter being decided without a hearing;
(b) the appellant has not consented to the appeal being determined without a hearing but the Lord
Chancellor has refused to issue a certificate of fee satisfaction for the fee payable for a hearing;
(c) the appellant is outside the United Kingdom and does not have a representative who has an
address for service in the United Kingdom;
(d) it is impracticable to give the appellant notice of the hearing;
(e) a party has failed to comply with a provision of these Rules, a practice direction or a direction
and the Tribunal is satisfied that in all the circumstances, including the extent of the failure and any reasons for it, it is appropriate to determine the appeal without a hearing;
(f) the appeal is one to which rule 16(2) or 18(2) applies; or
(g) subject to paragraph (2), the Tribunal considers that it can justly determine the matter without a
hearing.
(2) Where paragraph (1)(g) applies, the Tribunal must not make the decision without a hearing without first giving the parties notice of its intention to do so, and an opportunity to make written representations as to whether there should be a hearing.
(3) This rule does not apply to decisions under Part 4 or Part 5.
9. In SSGA, guidance was provided as to how these procedural rules should be approached at headnotes 4(ii) and (iii):
(ii) Any decision whether to decide an appeal without a hearing is a judicial one to be made by the judge who decides the appeal without a hearing. The mere fact that a case has been placed in a paper list does not and cannot detract from the duty placed on the judge before whom the case is listed as a paper case to consider for himself or herself whether one or more of the exceptions to the general rule apply. If, having considered rule 25, the judge is not satisfied that at least one of the exceptions in rule 25(1)(a) to (g) is satisfied, the judge must decline to decide the appeal without a hearing and direct the administration to list the appeal for a hearing.

(iii) If a judge decides that one or more of the exceptions in rule 25(1) is satisfied and therefore decides an appeal without a hearing, the judge’s written decision must explain which exception is satisfied and why by engaging with the pre-requisites specified in the relevant provision and giving reasons for how any discretion conferred by the relevant exception has been exercised and/or how any judgment required to be made is made.
10. The judge’s decision in the present matter begins by recording that it was “decided on the papers at Birmingham”. This was the one and only reference to the appeal being decided without a hearing. There is nothing in the decision to indicate which one of the rule 25 exceptions was adopted as the reason for departing from the general rule that appeals are decided after a hearing. It may be that the judge was given a list of ‘paper cases’ but SSGA is clear that this is not sufficient to warrant proceeding in this way. The judge must exercise their judgement as to whether one of the exceptions is made out and explain their reasons for so finding. That has manifestly not happened here. The respondent recognised that the error was material because it necessarily functioned to deprive the appellant of an opportunity for his sponsor to be heard. I agree that the appeal might have been decided differently if a hearing had been held, and it must follow that the error in proceeding without one is material.
11. As I indicated at the conclusion of the error of law hearing, I find that the decision of the First-tier Tribunal involved a material error of law and falls to be set aside.
Disposal
12. I heard submissions from the respondent and the sponsor about whether the underlying appeal should be remitted to the First-tier Tribunal to be heard afresh, or whether it should be retained in the Upper Tribunal to be remade. The respondent urged me to remake the appeal in the Upper Tribunal given the extensive period the proceedings have been ongoing. However, it was fairly observed for the sponsor’s benefit that this would involve the loss of a right of appeal from the First-tier Tribunal to the Upper Tribunal. Mr Shawaiz adopted this point and asked for the matter to be remitted. I indicated at the hearing that my provisional view was that the matter should be retained in the Upper Tribunal for a swift resolution of the long-running underlying appeal. However, upon reflecting further, I have decided that this would not be the correct procedural approach.
13. The starting point is paragraph 7.2 of the Practice Statements of the Immigration and Asylum Chambers of the First-tier Tribunal and the Upper Tribunal which provides:
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.
14. When I ask myself what fairness demands and bear in mind the guidance in Begum (Remaking or remittal) Bangladesh [2023] UKUT 00046 (IAC), I am satisfied that the basis on which I have found the decision of the First-tier Tribunal made an error of law demonstrably deprived the appellant of a fair hearing and a full opportunity to put his case. It follows that the only appropriate course is to remit the matter to the First-tier Tribunal to decide the appeal afresh notwithstanding the length of time that the appeal has now been ongoing.
Notice of Decision
The decision of the First-tier Tribunal involved a material error of law and is set aside. The matter is remitted to the First-tier Tribunal to be decided de novo. I do not preserve any findings of fact.

Paul Lodato

Judge of the Upper Tribunal
Immigration and Asylum Chamber

2 April 2025