Tribunal decisions

The decision

IN THE UPPER TRIBUNAL
IMMIGRATION AND ASYLUM CHAMBER
Case No: UI-2024-006000

First-tier Tribunal No: EU/51775/2024
LE/04745/2024

THE IMMIGRATION ACTS

Decision & Reasons Issued:

On 26th of July 2025

Before

UPPER TRIBUNAL JUDGE NEVILLE

Between

Joseph Silva De Sousa
(NO ANONYMITY ORDER MADE)
Appellant
and

Secretary of State for the Home Department

Respondent
Decided without a hearing under rule 34

DECISION & REASONS
1. This case concerns an appeal to the First-tier Tribunal against the respondent’s decision of 12 February 2024 to refuse the appellant’s application for leave to remain.
2. When the appeal was first made to the FtT, the appellant indicated that he would prefer for it to be decided without a hearing. On 22 November 2024 the appellant made an application for the appeal to be dealt with following a hearing, which was granted the same day by a legal officer subject to the appellant paying the additional required fee. The appellant attempted to pay the additional fee on 29 November 2024 but it appears that there were technical problems (not the fault of the appellant) with that additional fee being accepted. A member of staff gave the appellant until 16 December 2025 to pay the fee, and he has now provided evidence that he did so on 4 December 2024.
3. Meanwhile, on 2 December 2024 the case was allocated to a Judge who dismissed it in a decision dated 23 December 2024. The appellant applied for permission to appeal that decision as procedurally unfair, and permission was refused by a different FtT Judge on the basis that the fee had never been paid. The evidence provided on the application being renewed to the Upper Tribunal proves the contrary, and on proper consideration so do the notes on the First-tier Tribunal’s case management system.
4. Upper Tribunal Judge Hoffman observed the above history when granting permission on 2 June 2025. Further to his directions, the respondent has now provided a rule 24 response in which she accepts an error of law and consents to the appeal being allowed without a hearing and remitted to the First-tier Tribunal for complete re-hearing.
5. Considering rule 34 of the Tribunal Procedure (Upper Tribunal) Rules 2008, I am entirely satisfied that the overriding objective to those rules is best served by the appeal to the Upper Tribunal being decided without a hearing. The appellant (within form IAUT1) and the respondent have provided their consent.
6. I am likewise satisfied that the appeal must be allowed and the decision of the First-tier Tribunal set aside. Rule 25 of the Tribunal Procedure (First-tier Tribunal) (Immigration and Asylum Chamber) Rules 2014 requires the First-tier Tribunal to hold a hearing before making a decision which disposes of proceedings save where each party has consented to, or not objected to, the matter being decided without a hearing. Having withdrawn his initial consent, properly applied for a direction, which was granted, that the appeal would be decided at a hearing, and paid the required fee, the appellant was entitled to a hearing where he could give evidence and make representations. The decision therefore unfairly deprived the appellant of a fair hearing and was contrary to rule 25. This amounts to an error of law such that it must be set aside.
7. The appellant has yet to have a fair first-instance hearing of his appeal and it would be inappropriate to deprive him of the operation of the two-tier appellate structure. The correct disposal is for the case to be remitted to the First-tier Tribunal for re-hearing.
Notice of Decision
(i) The decision of the First-tier Tribunal involved the making of an error of law and is set aside.
(ii) The case is remitted to the First-tier Tribunal to be decided following a hearing before a different judge, with no facts preserved.

J Neville
Judge of the Upper Tribunal
Immigration and Asylum Chamber
23 June 2025