Tribunal decisions

The decision

IN THE UPPER TRIBUNAL
IMMIGRATION AND ASYLUM CHAMBER Case No: UI-2024-005238
First-tier Tribunal No: EU/54206/2023
LE/01142/2024

THE IMMIGRATION ACTS

Decision & Reasons Issued:

On 18th of September 2026

Before

DEPUTY UPPER TRIBUNAL JUDGE GRAVES

Between

MR KINGSLEY AMPADU
(no ANONYMITY ORDER MADE)
Appellant
and

SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Mr R Layne, Counsel
For the Respondent: Ms Isherwood, Senior Presenting Officer

Heard at Field House on 16 September 2026

DECISION AND REASONS

1. The appellant appeals against the decision of a judge of the First-tier Tribunal (FtT), promulgated on 15 August 2024, dismissing the appellant’s appeal against the decision of the respondent in relation to an application under the EUSS.

2. In essence, this is an appeal that was listed for hearing on 3 May 2024 before the First-tier Tribunal. On 2 May 2024, the appellant’s solicitors applied for an adjournment on the basis the sponsor had been in Ghana where she had attended hospital, and was too unwell to attend the hearing. The application was refused on the basis the hearing was on the following day at which the application could be made orally and decided by the judge.

3. Both parties were represented on the day of hearing, and Mr Layne, who prepared the grounds and appeared before me, was present in person at Taylor House for the appellant. In the grounds of appeal Mr Layne sets out his note of what happened at the FtT hearing on 3 May 2024, which was as follows:

“Counsel provided medical evidence to the judge to confirm the appellant’s wife’s illness. After hearing Counsel’s submissions that in light of her unfortunate illness that she could not travel back to the UK in time for the appeal hearing and the respondent’s submissions in reply, the judge granted the adjournment.

The judge stated that the appellant’s wife was a critical witness in the appeal.

The judge then issued directions that the appeal was to be relisted for hearing not before July 2024. That direction concluded the short hearing before the judge.”

4. The appellant’s solicitors were then awaiting notice of a date when the substantive hearing would be listed, and Mr Layne explains that some three months later, they were surprised to receive a decision from the judge who granted the adjournment in May 2024, substantively deciding the appeal and dismissing it. The decision did not refer to what happened on the day of that hearing, that an adjournment was granted, or refer to the representatives in attendance for the parties. Nor did it set out any detail of a hearing having taken place, save to refer to the hearing date of 3 May 2024 at the top of the decision.

5. The appellant applied for permission to appeal against the decision, in grounds drafted by Mr Layne, on the basis there had been a procedural error, and the appellant had been denied a fair hearing, as the judge had determined the appeal without an oral hearing, without any reasons given, despite adjourning the appeal and directing it be listed for an oral hearing at a later date.

6. Permission was then refused by a judge of the FtT on 25 October 2024 on the following basis:

“2. The grounds assert that on the day of the hearing, the judge granted an adjournment, but then issued a written decision dismissing the appeal. However the judge makes no reference to an adjournment request and there is no evidential basis to support the assertions in the grounds, such as a statement from the advocate.

3. The Appellant has not demonstrated that the judge arguably acted unfairly and or in breach of natural justice in dismissing the appeal.

4. The judge properly directed themselves and considered all the evidence in a sufficiently reasoned and coherent decision.

5. As drafted, the grounds do not disclose an arguable error of law.”

7. The application for permission was then renewed to the Upper Tribunal and permission to appeal was granted, on the basis the grounds had been prepared by Mr Layne who was present at the adjourned hearing of 3 May 2024 and supported by a statement from the appellant’s solicitor. It was therefore arguable there was a material error of law on the basis of procedural unfairness.

8. The respondent has now submitted a Rule 24 response to the effect that the note of the presenting officer present at the 3 May 2024 agreed with that of Mr Layne. This was that the appeal had been adjourned, to be listed for a substantive hearing at a future date, because it was ‘in the interests of fairness’ to do so, as the sponsor was a ‘critical witness’. In those circumstances, it was said the respondent ‘concedes that it was procedurally unfair for the FTTJ to have considered the A’s appeal substantively’ when it had already been adjourned to be listed for a substantive hearing at a later date.

9. Both Mr Layne and Ms Isherwood were in agreement before me that the decision could not stand, as it was infected with a material error as a result of procedural unfairness by the judge. Further that the appeal should be remitted to the First-tier Tribunal so that the appellant could have his appeal decided afresh before another judge, and both parties should have the opportunity to take part in an oral hearing.

DISCUSSION AND CONCLUSIONS

10. The Tribunal Procedure (First-tier Tribunal) (Immigration and Asylum Chamber) Rules 2014 provides:

“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.”

11. The decision to proceed to determine the appeal without a hearing, and without notice to the parties, who had been notified that the appeal would proceed to an oral hearing, and without giving any reasons, is plainly not in accordance with Rule 25(1) or (2).

12. I also consider it of concern that the decision appears to have been made more than three months after the hearing, without any reference to the adjournment applications made before the hearing, or on the day. There is no mention of the two representatives who were in attendance at the hearing. The judge referred to ‘submissions made to me’ and all of the evidence, which he said were taken into account when deciding the appeal, yet no submissions were apparently made as the hearing did not proceed on 3 May 2024.

13. I find a material error of law on the basis of procedural unfairness, because the appeal was determined without providing either party the opportunity to take part in an oral hearing, without notice and without adequate reasons to support the procedural decision to deny the parties the opportunity to give oral evidence and test that oral evidence.

14. I am also conscious that Mr Layne’s grounds, submitted with the application for permission to appeal submitted to the FtT in August 2024, had accurately set out what happened at that May 2024 hearing. The judge’s decision under appeal did not address whether the hearing was an oral hearing, whether the appellant, sponsor or representatives attended, or what took place. There was no reason at the permission stage to assume that there was any dispute between the parties about what took place at that hearing, and I am mindful that Mr Layne is an advocate and an officer of the court whose professional duty is to the court. There is no requirement in those circumstances for Mr Layne to produce a witness statement, and “In the absence of any reason to question what counsel says, the court can proceed on the basis of what they are told by counsel in fulfilment of their professional duty.” (Abdi & Ors v Entry Clearance Officer [2023] EWCA Civ 1455 at paragraphs 24 and 25). If there was any need for further enquiry to check the accuracy of counsel’s note of the hearing, at the permission to appeal stage, there would have been a recording of that hearing available and the respondent would also have been in a position to provide their note of what took place. It is regrettable that instead this matter proceeded to hearing in the Upper Tribunal, rather than the decision being set aside and the appeal being relisted immediately, as that has necessitated a delay of some two years and resulting costs.

Remaking

15. I have considered whether to retain the matter for remaking in the Upper Tribunal, in line with the general principle set out in statement 7 of the Senior President’s Practice Statement and further considered in AEB v Secretary of State for the Home Department [2022] EWCA Civ 1512 and Begum (Remaking or remittal) Bangladesh [2023] UKUT 00046 (IAC). Since the principle issue in this appeal is the denial of the opportunity to attend an oral hearing for both parties, they were in agreement that the appeal should be remitted to the FtT so that an oral hearing can be listed. I am conscious too of the importance of the availability of the two tier appellate system, particularly where procedural unfairness has been raised.

Notice of Decision

16. The First-tier Tribunal decision involved the making of a material error of law. Accordingly, the decision of the First-tier Tribunal, dated 15 August 2024 is set aside, with no findings of fact preserved and the appeal is to be remitted to be heard afresh by another judge.

H Graves

Deputy Judge of the Upper Tribunal
Immigration and Asylum Chamber

16 September 2026