Tribunal decisions

The decision

IN THE UPPER TRIBUNAL
IMMIGRATION AND ASYLUM CHAMBER
Case No: UI-2024-005453

First-tier Tribunal No: PA/02904/2024

THE IMMIGRATION ACTS

Decision and Reasons Issued:
On the 07 April 2025

Before

UPPER TRIBUNAL JUDGE LOUGHRAN
DEPUTY UPPER TRIBUNAL JUDGE DAVIES

Between

PG
(ANONYMITY ORDER MADE)
Appellant
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Mr A Maqsood, Counsel instructed by Abbott & Harris Solicitors Ltd
For the Respondent: Mr K Ojo, Senior Home Office Presenting Officer

Heard at Field House on 26 March 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

1. The appellant appeals with permission of the Upper Tribunal against the decision of the First-tier Tribunal Judge Reed (‘the judge’) dated 20 September 2024.
Background
2. The appellant is a citizen of Nepal born in 2004. The appellant arrived in the UK on 13 October 2022 with a student visa valid until 31 December 2024. The appellant claimed asylum on 2 August 2023. He underwent an initial contact interview on 8 August 2023 and a substantive asylum interview on 16 May 2024.
3. The appellant claims to fear persecution from the Nepalese authorities due to his political opinion. He claims to be a member of the Rastriya Prajatantra Party (RPP), that he joined the RPP in 2020, and became a youth secretary. He claims to have attended three to four protests and that in June 2020 he was arrested and detained for two days before being released without charge.
4. After he arrived in the UK he claims he was informed by his parents that his home in Nepal had been raided by the authorities and unpublished political articles had been found.
5. It is recorded in the appellant’s substantive asylum interview that the appellant provided four documents which he described to the interviewer as:
(1) letter of condolence because my father’s brother was killed;
(2) letter from municipality;
(3) arrest warrant in my name issued by Nepal police;
(4) letter from my political party saying I cannot return.
The Respondent’s Decision
6. In a letter dated 30 May 2024 the respondent refused the appellant’s protection and human rights claim. The respondent states that she considered a condolence letter and arrest warrant but little weight had been applied to them as they had not been provided in a translated format. The respondent accepted the appellant’s name, nationality and age. None of the material facts were accepted and it was specifically not accepted that the appellant had been the subject of any adverse attention from the Nepalese authorities. The respondent referred to various inconsistencies and areas lacking in detail within the appellant’s account.
The appeal to the First tier Tribunal
7. The appellant, who was unrepresented submitted an appeal against the refusal of his protection and human rights claim. In the appeal form the appellant requested a paper hearing.
8. The appeal came before the judge on 30 August 2024 who decided the matter on the papers. The judge records that he had the following documents:
19. Save for the Appeal Form, the Appellant did not provide any documentation in English. Untranslated documents, said to be a letter of condolence and an arrest warrant, had been provided to the Respondent during the claim.
20. The Respondent provided a bundle dated 22 July 2024. This included the Refusal Letter, the Initial Contact and Asylum Registration Questionnaire, the interview transcript from the interview on 16 May 2024 and the untranslated documents.
9. The judge dismissed the appellant’s appeal for the following reasons.
27. I remind myself that I should consider the evidence as a whole prior to making any findings on either credibility or fact.
28. It is significant that the Appellant has not provided any documentation, save for the Appeal Form. There is no witness statement nor material response to the Refusal Letter.
29. In the absence of a comprehensive and detailed written or oral account from the Appellant, I am not satisfied that the material facts have been proved.
30. I accept the Respondent’s reasoning in the Refusal Letter, that the Appellant’s accounts were inconsistent and lacking in detail.
31. The Appellant has not provided any supporting country information. The country information referred to in the Refusal Letter is inconsistent with the Appellant’s account.
32. I do not place any material weight on the Appellant’s failure to claim asylum on entry to the UK, for the purposes of the 2004 Act.
33. Whether or not the Appellant is a member of the RPP, I am not satisfied that he has suffered any adverse attention from the Nepal authorities.
34. In conclusion, I am not satisfied that the Appellant has a fear of persecution due to his political opinion. Furthermore, I am not satisfied that the Appellant is at a real risk of serious harm if returned to Nepal.
10. Notably, the judge does not record whether he considered the appropriateness of proceeding to decide the appeal without a hearing in the circumstances where the appellant was unrepresented, had made a protection claim, had not provided any documentation in English and his credibility was in issue.
Appeal to the Upper Tribunal
11. The appellant subsequently instructed legal representatives who lodged an appeal against the judge’s decision.
12. The grounds relied on by the appellant submit that the judge acted with procedural unfairness by failing to consider that the appellant was a litigant in person and did not understand what was required of him to prepare for the hearing.
13. The Upper Tribunal granted the appellant permission to appeal on 31 December 2024.
14. The respondent did not provide a Rule 24 response.
15. At the hearing we heard submissions from Mr Maqsood for the appellant, and Mr Ojo for the respondent.
Legal Framework
16. The First-tier Tribunal Procedure Rules provides that the tribunal must hold a hearing which disposes of proceedings unless an exception applies. The exceptions include when each party consents to the matter being decided without a hearing. [Rule 25(1)(a)]
17. Rule 2(3) of the First tier Tribunal Procedure Rules requires the tribunal to give effect to the overriding objective when it exercises any power under the Rules or interprets any Rule. Dealing with cases ‘fairly and justly’ in the overriding objective has to be read consistently with the basic requirements of common law procedural fairness. The tribunal is therefore duty-bound to seek to give effect to the overriding objective and basic common law requirements when exercising a power under the Rules or interpreting a Rule. (R (JCWI) v UTIAC President [2020] EWHC 3103 (Admin), [2021] at [2.6]) This includes the application of rule 25.
18. Where a procedural rule gives a judge discretion to dispense with an oral hearing, there should nevertheless be an oral hearing if fairness requires one (R (JCWI) v UTIAC President [2020] EWHC 3103 (Admin), [2021] at [6.3])
19. In SSGA (Disposal without considering merits; R25) Iraq [2023] UKUT 12 (IAC) the Upper Tribunal provided guidance in respect of the application of Rule 25 that included:
(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…’
(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.
[…]
(iv) A hearing should be held whenever credibility is disputed on any material issue or fact. Cases in which it would be appropriate to determine an appeal without a hearing if credibility is materially in issue would be rare indeed. In almost all cases, the appropriate course of action would be to list the case for a hearing and decide the case on such material as is before the Tribunal.
20. The tribunal is expected to apply the guidance in the Equal Treatment Bench Book. The first chapter addresses Litigants in Person and includes the following:

Difficulties faced by LIPs
[…]
15. The challenges faced by LIPs often stem from their lack of knowledge of the law and court or tribunal procedure. They tend to:
• Be unfamiliar with the language and specialist vocabulary of legal proceedings.
• Have little knowledge of the procedures involved and find it difficult to apply the rules, even when they do read up on them.
• Be ill-informed about ways of presenting evidence.
• Be unskilled in advocacy, and so unable to undertake cross-examination or test the evidence of an opponent.
• Be unable to understand the relevance of law and regulations to their own problem, or to know how to challenge a decision that they believe is wrong.
• Be unable to understand the concept of a cause of action.
• Lack objectivity and emotional distance from their case.
16. All these factors have an adverse effect on the preparation and presentation of their case.

Ways to Help
17. The aim is to ensure that LIPs understand what is going on and what is expected of them at all stages of the proceedings. This means ensuring that:
• The process is (or has been) explained to them in a manner that they can understand.
• They have access to appropriate information (eg the rules, practice directions and guidelines – whether from publications or websites).
• They are informed about what is expected of them in ample time for them to prepare and comply.
• Wherever possible, they are given sufficient time for their needs.
[…]

Case management: understanding directions and court orders
32. Where pre-hearing directions are given in writing, LIPs may lack the skill set to do it correctly or may not understand what is required.
33. Case management hearings provide a greater opportunity to assess what the LIP might realistically be able to do, give a fuller explanation, and check understanding.
Discussion
21. We note that the appellant requested a paper hearing. Accordingly, one of the exceptions in Rule 25 was met.
22. The appellant was a litigant in person and had made a protection claim. In those circumstances we are satisfied that the judge was obliged to explain why it was appropriate to proceed to decide the case on the papers without a hearing or direct that a hearing be listed. This required consideration of whether the appeal could be fairly and justly determined without a hearing.
23. The judge recorded that the appellant had not provided any evidence in support of his appeal or translations of the documents that he had already provided to the respondent. The judge found that it was “significant that the Appellant have not provided any documentation save for the Appeal Form”, noted that there was “no statement nor material response to the Refusal Letter” and concluded that in “the absence of a comprehensive and detailed written or oral account from the Appellant” he was not satisfied that the material facts of his case had been proved.
24. The judge was clearly aware that the appellant had not provided evidence and it formed a significant part of his reasoning for dismissing the appellant’s appeal. In those circumstances, the judge was required to consider whether a hearing would afford the appellant the opportunity to provide evidence including “a comprehensive and detailed…’ oral account.”
25. We are also satisfied that the judge failed to follow the guidance in SSGA that a hearing should be held whenever credibility is disputed on any material issue or fact, unless satisfied that it is one of those rare cases in which it would be appropriate and fair to determine the matter on the papers. If the judge considered that this case was such a rare case he failed to give reasons for that conclusion.
26. The judge’s failure to consider whether it was necessary in accordance with the overriding objective to list the matter for an oral hearing is a procedural irregularity which impacted on the appellant’s ability to participate in the appeal proceedings and is a clear material error of law.
27. 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) [2023] UKUT 00046 (IAC) we are satisfied that because we have found that the judge’s decision should be set aside on the basis of procedural unfairness the appeal should be remitted to the First-tier Tribunal to be re-heard by a different judge.
Notice of Decision
(1) There is an error of law in the decision of the First-tier Tribunal. Accordingly the decision of the First-tier Tribunal is set aside.

(2) The decision will be remitted to the First tier Tribunal to be heard by a different judge.

(3) No findings of fact are preserved.

(4) Anonymity is continued.

G. Loughran
Judge of the Upper Tribunal
Immigration and Asylum Chamber

3 April 2024