Tribunal decisions

The decision

IN THE UPPER TRIBUNAL
IMMIGRATION AND ASYLUM CHAMBER
Case No: UI-2025-000024
UI-2025-000023

First-tier Tribunal No: PA/64152/2023
LP/05060/2024
PA/01991/2023

THE IMMIGRATION ACTS

Decision & Reasons Issued:
On 24 June 2025

Before

DEPUTY UPPER TRIBUNAL JUDGE DAYKIN

Between

MA (IRAQ)
AA (IRAQ)
Appellant
and

SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Mr R Spurling (instructed by Shawstone Associates Solicitors)
For the Respondent: Ms A Ahmed (Senior Home Office Presenting Officer)

Heard at Field House on 21 March 2025

Order Regarding Anonymity

Pursuant to rule 14 of the Tribunal Procedure (Upper Tribunal) Rules 2008, the appellants and their family members are 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 and his family members. Failure to comply with this order could amount to a contempt of court.

DECISION AND REASONS
1. This is an appeal brought with permission granted by the First-tier Tribunal by the appellants against the decision of the First-tier Tribunal dated 20 November 2024 in which the appellants’ protection and human rights appeal was dismissed.
2. This appeal raises some unusual features because although these two brothers’ appeals are formally linked, for reasons which I explore further below, at the Upper Tribunal stage the respondent has practically dealt with them separately and by different members of Home Office staff acting on behalf of the Secretary of State for the Home Department, taking a different approach. This has led to a preliminary issue, which I will address first.
3. I am grateful to all the advocates involved in preparing the written and oral arguments in this technically difficult case.
4. I indicated to the parties my intention to hear submissions on the preliminary issue and the substantive grounds of appeal de bene esse but that I would reserve my decision in respect of both. Ms Ahmed for the respondent objected to that proposal on the basis that if I were to hear the substantive arguments in respect of the first ground, it could influence my decision on the preliminary issue. This she said, amounted to a procedural irregularity. I noted Ms Ahmed’s objection but informed the parties that I was capable of separating out the issues in my mind and that I would proceed as initially indicated. Ms Ahmed renewed her objections to which I stated that if having considered my written reasons on the preliminary issue the respondent maintained that my decision was prejudiced by hearing the substantive argument, then she could take that point in an onward appeal.
Preliminary issue – respondent withdrawal of a concession
5. The appellants are brothers from Iraq. They travelled together to the United Kingdom and claimed asylum. The second appellant was a minor when he claimed asylum but subsequently became an adult during the course of his claim/appeal. The appellants received individual letters refusing their asylum claims but for similar reasons. After lodging their appeals, the First-tier Tribunal made a case management decision that in light of the shared factual accounts and reasons for refusal, it was in the interests of justice that the appeals be joined and heard together. The appeals were then heard together before First-tier Tribunal Judge Monson sitting at Taylor House on 12 November 2024.
6. At the commencement of the substantive hearing, the appellants counsel (both being represented by the same solicitors and barrister) indicated that she wished the second appellant to remain in the hearing room whilst the first appellant gave evidence because they were both appellants and as a co-appellant the second appellant was entitled to hear all the evidence given in the joint appeal. As reflected [32] in the First-tier Tribunal determination, Judge Monson “considered that the course of action proposed by Ms Revill would be procedurally irregular and unfair, as it was liable to blunt the central thrust of the respondent’s adverse credibility challenge which was to a substantial degree based upon asserted inconsistencies between accounts of the two brothers. If the younger brother was present while his older brother gave evidence, there would inevitably be a risk of his own oral evidence being contaminated as a result of him hearing what his older brother said on matters in controversy.”
7. The first appellant then gave evidence in the absence of the second appellant who was required to wait outside the hearing room.
8. In response to the determination dismissing all grounds of appeal, the appellants lodged applications for permission to appeal both relying on the same grounds prepared as a joint document by counsel who appeared in the First-tier Tribunal hearing. The first ground of appeal, there were six grounds in total that are dealt with further below, challenged the exclusion of the second appellant during his brother’s evidence as procedurally unfair, in that it breached his common law entitlement to be present at the hearing of his own appeal. I need say no more about the substance or merits of that ground of appeal for the purposes of resolving the preliminary issue, but I will return to these in more detail later in my decision.
9. Permission to appeal was granted on all grounds by First-tier Tribunal Judge Athwal in a decision dated 13 December 2024.
10. Ms Ahmed has helpfully explained that the first appellant’s appeal was on the HMCTS CCD platform but the second appellant’s appeal was not. At this stage, it seems as a result of the different platforms, the respondent sent the cases for review of the grounds, grant of permission and consideration of the rule 24 response to two different presenting officers. Ms Simbi was allocated the second appellant’s appeal on 7 January 2025 and Ms Ahmed was allocated the first appellant’s appeal on 8 January 2025.
11. By rule 24 response dated 8 January 2025 (“r.24 (1)”), Ms Simbi on behalf of the Secretary of State conceded the appeal in the case of the second appellant AA (PA/01991/2023) and stated as follows:
“1. The respondent concedes the appeal
2. Upon reviewing the Presenting Officer’s hearing minutes and paragraph 32 of the determination, it is clear that the appellants, through their representative, neither agreed to nor chose for the second appellant to be excluded during cross-examination. Unlike in RS and SS (Exclusion of appellant from hearing) Pakistan [2008] UKAIT 00012, where counsel consented to the exclusion, the judge in this case directed the appellant to leave.
3. The respondent submits that it is standard practice in this tribunal for appellants to decide how evidence is presented. A more appropriate approach would have been to allow both appellants to remain, with a caveat that evidence potentially influenced by prior testimony may carry limited or no weight. It would then have been for the appellants’ representatives to decide whether to proceed under those terms.
4. Given the respondent's concession on ground 1, limited attention has been given to the remaining grounds, as the material error identified in ground 1 likely necessitates a fresh hearing with no preserved findings. However, it is ultimately for the Tribunal to determine the most appropriate way to resolve this appeal.”
12. By application for an extension of time to submit a rule 24 response in respect of both appellants dated 11 February 2025, Ms Ahmed on behalf of the Secretary of State stated:
“1. The SSHD, the respondent to this appeal, makes an application to extend time to file her response pursuant to Rule 24.
2. On 9 January 2025, the Upper Tribunal issued its acknowledgement receipt of the application for permission to appeal to the Upper Tribunal. At the time, the Upper Tribunal issued its standard directions.
3. The standard directions issued on 9 January 2025 directed that any response to the grant of permission to appeal must be provided no later than 28 days from the date on which the directions are sent. Accordingly, the Rule 24 response was due to be filed by 6 February 2025.
4. The SSHD apologises for not making her application prior to the deadline.
5. The SSHD has considered the Appellants’ grounds of appeal. Provisionally, the SSHD is minded to oppose all grounds of appeal. However, given what is pleaded in Ground 1, the SSHD is internally consulting on her position. In summary, the Appellants complain that there was procedural unfairness in the First-tier Tribunal Judge’s decision to not permit the Second Appellant to stay in the court room while the First Appellant gave his evidence.
6. As the point may have a wider significance and requires careful thought, the SSHD respectfully seeks an extension of time until 21 February 2025 to file her Rule 24 response.”
13. A rule 24 response dated 13 February 2025 (“r.24 (2)”) contesting all grounds of appeal in both appeals was filed on the same date. On 27 February 2025 in response to the Upper Tribunal seeking clarity about the two responses filed, Ms Ahmed requested further time to respond. In dealing with that application Upper Tribunal Judge Gleeson noted in her order and directions also of 27 February 2025, paragraph 3:
“Rule 24 issue. Permission to appeal was granted in the First-tier Tribunal and the respondent has file two Rule 24 replies. It is unclear which of these Replies is relied upon. On 27 February 2025 (today), Ms Arifa Ahmed, a Senior Presenting Officer, emailed to say that the respondent was consulting internally on this matter and to ask for time to respond, expiring 6 March 2025. The extension of time is granted.”
14. By application dated 4 March 2025, the respondent, via Ms Ahmed sought to withdraw the concession contained within r.24 (1) in respect of the second appellant and to replace it with r.24 (2). The application notes that the concession was only made in relation to one of the two appellants and therefore, the application to withdraw the concession is only necessary for that appellant. Reference is made to AM (Iran) v Secretary of State for the Home Department [2018] EWCA Civ 2706 for the proposition that where the respondent seeks to withdraw a concession she should explain promptly and frankly why the concession was made, why it was mistaken and why it is now just and fair that she be allowed to withdraw it.
15. In addressing those principles, Ms Ahmed set out in her written application the chronology of notifications of the Upper Tribunal’s decisions and the internal procedures at the Home Office to demonstrate promptness. As to why the concession was made, it was said that the procedural unfairness alleged by ground 1 raised an unusual point and that there will be different views taken on it.
16. In respect of the differing views, it was said that at the point the issue was considered by Ms Simbi, “a view was taken, after careful thought and internal consultation that Ground 1 was made out.” At the point the issue was considered by Ms Ahmed, “it was considered that the SSHD would oppose Ground 1, but further thought would be needed.” The SSHD reviewed both r.24 responses and considered that the concession in r.24 (1) was wrong for the reasons she opposes ground 1 in r.24 (2).
17. It was submitted to be fair and just to allow the respondent to withdraw the concession for the following reasons:
(i) The application to withdraw the concession is made promptly, the appellants are on notice and will not be prejudiced by the withdrawal.
(ii) The issue raised in ground 1 is disputed and raises important legal principles. In fairness to the respondent, she ought to be allowed to argue her position.
(iii) The respondent’s representative at the First-tier Tribunal objected to the second appellant being allowed to remain during the first appellant’s evidence
(iv) The conflict in r.24 responses occurred due to separate notification of the grant of appeal decisions and was an innocent oversight in allocation.
(v) The respondent reviewed her position and internally consulted with her policy team and confirms that she seeks to maintain her position set out in r.24 (2).
18. The respondent would further seek to address the case of RS and SS (Exclusion of appellant from hearing) Pakistan [2008] UKAIT 00012 and argue that it turns on its own facts, is an incorrect statement of the law, there is no general position that an appellant cannot be excluded from their own appeal and the decision is not binding on the Upper Tribunal.
19. The appellants opposed the application by detailed written response dated 9 March 2025. A number of authorities were cited as to the relevant test to be applied when the respondent seeks to withdraw a concession, these are summarised as follows:
(i) The Tribunal has discretion to permit the respondent to withdraw a concession ‘if in its view there is good reason in all the circumstances for that course to be taken’. Relevant factors include the nature of the concession, the timing, and whether there is prejudice to the appellant (NR (Jamacia v Secretary of State for the Home Department [2009] EWCA Civ 856 [10]-[12])
(ii) The points made in AM (Iran) already set out above.
(iii) If a considered and lawful decision reached the respondent should not be allowed to resile from that decision, there must be finality, at least unless there is a powerful interest to the contrary (Koori and others v Secretary of State for the Home Department [2016] EWCA Civ 552 [31])
(iv) It would be quite unjust where the respondent has conceded points that would determine the entire appeal, to be entitled to resurrect her case and withdraw the concessions she made (AK (Sierra Leone) v Secretary of State for the Home Department [2016] EWCA Civ 999 [48]-[49])
20. In addressing those principles, Ms Revill set out in her written response that there was no good reason to allow the concession to be withdrawn when the sole reason is that the authors of the two r.24 responses have taken a different view on the merits. The r.24 (1) concession was made after ‘careful thought and internal consultation’. It referred to the presenting officer’s notes of the hearing in the First-tier Tribunal and relevant caselaw, which was cited in the grant of permission decision. This was a considered and lawful decision from which the respondent should not be permitted to resile. There was no public interest considerations otherwise.
21. The concession is not indisputably wrong in law, as the respondent’s application recognises that “there will be different views on this point.”. The concession was determinative of the appeal, it is unjust for the respondent to be entitled to resurrect her case.
22. R.24 (2) makes no reference to RS and SS, therefore there is no explanation for the respondent’s view that the concession was mistaken. There is no explanation why the principles raised are said to be ‘important legal principles’ and the fact that RS and SS has stood unchallenged for 17 years suggests that the significance is limited.
23. Presenting officers are subject to the Carltona principle1, namely the Secretary of State and Presenting Officers are a single entity, the presenting officer is the alter ego of the Secretary of State, one and the same person. Therefore, one Presenting Officer taking a different view to another equates to the respondent changing her mind. The same is demonstrated by the statement that the respondent reviewed her position on 25 February 2025 and internally consulted with her policy team. That does not come close to establishing good reason for withdrawal of a concession.
24. The respondent’s inadequate internal processes to recognise that these were linked appeals cannot make it fair and just to permit withdrawal of the concession.
25. The promptness of the application was disputed, there being almost two months between the concession being made and the application to withdraw it. It was only made upon notification by the Tribunal of the inconsistent r.24 responses. Although the individuals involved were unaware of the duplicated allocation, the Carltona principle means that the respondent had knowledge throughout. Her inadequate systems operate against the respondent not in her favour.
26. The differential in notification of the grant of permission is of no relevance since the grant of permission expressly related to both appellants and the respondent should have realised this. R.21 (1) refers to appellants plural and it would be absurd that only one appellant required a rehearing of his appeal, while the other who relied on the same facts and whose appeal was determined in the same decision did not.
27. Ms Ahmed relied on her skeleton argument and sought to amplify some of those points in her oral submissions. There were numerous references to the typographical detail of r.24 (1) which demonstrated it was only in relation to one of the appeals and therefore the withdrawal application is only relevant to one appeal. It was said that the appellants have failed to explain what prejudice they will suffer, they are not ‘entitled’ to have their appeals reheard because the Upper tribunal is yet to make a decision on the error of law. The authorities do not require that the concession is indisputably wrong in law but it is open to the respondent to make an application to withdraw the concession that was based on RS and SS after considering the policy and after the inconsistency was recognised. The issue has wider importance and the Tribunal is invited to provide clarity on RS and SS. The appellants can and have responded through a rule 25 response. Judge Gleeson’s order of 27 February 2025 gave the respondent a choice of confirming which r.24 she relied upon and the respondent has only pursued an application to withdraw the concession in line with procedural rigour. The appellants have not shown that the respondent’s systems are inadequate.
28. Mr Spurling on behalf of the appellants relied on the written responses to the application prepared by Ms Revill. In summary his submission was that the authorities say that resolution of this issue will all depend on the circumstances. The first problem with the respondent’s application is that the concession was legally sound, properly and promptly made. The second problem is that r.24 (2) is none of those things. It is not essential for the appellants to demonstration prejudice (Secretary of State for the Home Department v Akram Davoodipanah [2004] EWCA Civ 106 [22]).
29. The respondent has changed her mind. She submits that she has changed her mind because RS and SS requires clarity, but it does not. Both responses were made following internal consultation. The reason the respondent eventually preferred r.24 (2) was because she loses and that is not a good enough reason. R.21 (1) concluded the appeal and it would be unjust to allow the respondent to resurrect her case.
30. In relation to whether the concession only applies to the second appellant, Mr Spurling submitted that it is impossible to read r.24(1) without seeing how it applies to the first appellant. It might be said that he is in a slightly different position because he heard all the evidence but if there is procedural unfairness in relation to one appellant it applies to both. To say the application only applies to one appellant is aridly technical and ought not be followed. There would be prejudice to the first appellant because it makes the difference between the appeal being reheard for him or not.
31. Mr Spurling noted that the promptness argument is further complicated by his observation that r.24(2) was out of time. The application to extend was dated 11 February 2025 and so two days out of time. Judge Gleeson’s order was in regard to extending time to respond to the conflicting r.24 responses. Furthermore, the order was not providing a choice for the respondent as to which r.24 response to reply on.
32. In reply, Ms Ahmed contended that the headnote to RS and SS is not consistent with the body of the judgment. There is no authority cited in the judgment that as a general rule an appellant cannot be excluded, she contends for that reason the case is an incomplete statement of the law.
33. The Tribunal has not made a decision on the respondent’s extension for further time to submit the r.24. In any event, the appellants have had opportunity to respond and it would be unjust for the Tribunal not to extend time requested.
Decision on preliminary issue
34. The respondent made an application for an extension of time in order to provide her r.24 response on 11 February 2025. That application related to both appellants and at the time was acknowledged to already be outside of the time limit for filing, which fell on 6 February 2025. The order of Judge Gleeson dated 27 February 2025 did not resolve this application but instead responded to an application of the same date requesting time to respond to the conflicting r.24 responses issue and granted an extension of time to 6 March 2025. Therefore, the application of 11 February 2025 remains outstanding.
35. Pursuant to Rule 5(3)(a) of The Tribunal Procedure (Upper Tribunal) Rules 2008 I am able to extend or shorten the time for complying with any rule, practice direction or direction. I must give effect to the overriding objective when exercising any power under the Rules and the parties must also help the Tribunal to further the overriding objective (Rule 2(3) and (4)).
36. The time and resources expended by both parties and the Tribunal and the stage of these proceedings is a factor that I have taken into consideration when resolving this application. Although the respondent acknowledges that the application for an extension of time was made out of time and apologises for the lateness, there is no explanation at all for why the application is late. Had I have been resolving this application at an earlier stage in the proceedings, I would have refused the respondent’s application for an extension of time to file her r.24 response in relation to the first appellant. I recognise that the application was made in relation both appellants but by this time r.24(1) had already been filed in compliance with directions. The application explains why more time is needed, namely internal consultation regarding ground 1 but the application offers no explanation why it is made out of time. There is still no explanation. It is particularly unimpressive when viewed in the wider context of this case which clearly involves, in my view, internal handling errors of these linked cases.
37. However, the relevance of this outstanding application has arisen during the course of the hearing when a great deal of time and resources has been expended by all concerned, in response, in part to what is contained within r.24(2). Therefore, I do extend time on this occasion for the respondent to file r.24(2) to 13 February 2025 when it was indeed filed.
38. As for the application to withdraw the concession made in r.24(1), I refuse that application. I agree with the appellants that the respondent has changed her mind about her position on ground 1 and that is not a good reason to allow her to resurrect her case. I was told that r.24(1) was submitted after careful thought and internal consultation. The grant of permission decision and r.24(1) specifically referred to RS and SS and so it must be the case that the SSHD had applied her mind to the authority and decided that it resolved the issue raised by ground 1 and that it should be conceded. It is my view that the concession was properly made (for reasons explained further below). In light of what the respondent has explained, it is not the case that the concession in r.24 (1) was mistaken, far from it, it was made after fully informed careful thought and consultation.
39. Ms Ahmed placed great emphasis in her submissions on the proposition that RS and SS requires clarity. Yet, the respondent did not address RS and SS in r.24 (2), it is simply not mentioned at all. The respondent sought to defend Judge Monson’s approach to excluding the second appellant from the hearing but there was no suggestion at the time of r.24 (2) that there was any issue with the statement of principle in RS and SS. Indeed, the application to withdraw the concession states [20]:
“In the event the Tribunal grants the SSHD’s application to withdraw the concession, she will address the Tribunal on RS and SS at the error of law hearing”
40. The respondent appears to have been unaware of her conflicting positions until the Tribunal brought it to her attention. Her internal systems for handling linked cases appears to be defective and although the respondent has responded promptly when the issue was drawn to her attention. As above, this is a case where time limits were allowed to expire before relevant applications were made, no explanation for that has been offered and the reason for the concession being made is a difference of opinion between representatives of the Secretary of State. The application to withdraw the concession was not prompt, the concession was properly made and there is no good reason to permit the respondent to resile from it.
41. The respondent accepted in r.24(1) that in light of ground 1 being conceded, a fresh hearing was required with no findings preserved. It was also accepted in r.24 (2) that if ground 1 is made out the decision must be set aside in its entirety. I agree. Ground 1 is based on procedural unfairness and in those circumstances the decision cannot stand, certainly in relation to the second appellant.
42. In my view it is artificial, particularly when the unfairness of a hearing concerning linked appellants has been conceded, to try and separate out the impact between the two appellants. Therefore, my primary view is that the concession applies to the conduct of the hearing and therefore both appellants, notwithstanding the filing of the concession in relation to only named and referenced appellant.
43. However, if I am wrong on that, I have considered the merits of the grounds below, including ground 1.
44. I refused Ms Ahmed’s application to adjourn the case at this stage because of the time taken to deal with the preliminary issue and to reconvene with a Panel because in her submission these appeals raise issues of wider importance. There was no reason to convene a Panel. The withdrawal of concession issue took time because it is an issue that is less frequently encountered and I was referred to a lot of authority. The substantive grounds are more conventional and could be dealt with in the time remaining.
The grounds of appeal
45. I summarise the grounds of appeal and response as amplified in oral submissions as follows:
Ground 1
46. The exclusion of the second appellant against his wishes on the basis that it would be procedurally irregular and unfair to the respondent was wrong in law and itself procedurally unfair in that it breached his common law right to be present at the hearing of his own appeal. There is no rule of law (Moore v Registrar of Lambeth County Court [1969] 1 All ER 782), no procedure rule or practice direction requiring the exclusion of an appellant in these circumstances, any such exercise of discretion to exclude an appellant must be exercised rationally. The alleged inconsistencies between the two appellants had already been brought to their attention in the reasons for refusal letters so it was incorrect to say that the second appellant’s presence would ‘blunt the central thrust of the respondent’s adverse credibility challenge’.
47. I was directed to a number of authorities, but the principles seem to me to be encapsulated by two decisions. Firstly, RS and SS, a reported decision of this Tribunal by Deputy President Mr Ockelton and Senior Immigration Judge Clements, as they then were. The headnote provides:
“The general rule than an appellant who is in the United Kingdom cannot be excluded from the hearing of his own appeal does not mean that he cannot, by himself or by his representative, consent to a requirement that he be absent from part of it. Evidence may gain credibility from the removal of a possibility that a later witness has heard the evidence that an earlier witness gave. If two appeals are combined it is proper for an Immigration Judge to ask, and proper for a representative to agree, that one appellant remain outside while the other gives evidence. An alternative course of action is to hear the appeals successively.”
48. Secondly, Da Costa and Another v Sargaco and Another [2016] EWCA Civ 764, ‘the starting point must always be that a party is entitled to be present throughout the hearing of a civil trial.’ [59]. There are circumstances where it is necessary to proceed without a party being present, one example being a litigant who disrupts a hearing with unruly behaviour [60]. In that case the Judge had not treated the claimants as entitled to be present throughout the trial as the starting point, it was difficult to see how she could have justified excluding them against their will. The reasoning was sparse, but if it had been made to improve the prospects of effective cross-examination, it is ‘extremely difficult to contemplate there being any sufficient reason for taking this course’ [61].
49. Judge Monson did not treat an appellant’s presence as the starting point, his starting point was that the second appellant’s presence during the evidence of his brother was procedurally irregular. The Judge approached the issue as if his exclusion was mandatory not discretionary. That creates an appearance of unfairness sufficient to vitiate the proceedings. Additionally, when Judge Monson explained why he thought there was unfairness, the only consideration he gave was to the respondent, there was no consideration of any other countervailing considerations at all.
50. Against that, the respondent submits that what fairness demands is context specific. It is a matter of discretion for the Judge whether to exclude someone from a hearing. The Judge was entitled to conclude that the appeal could not proceed fairly with the second appellant present throughout the evidence of the first appellant. RS and SS turns on its own facts and the Tribunal did not look at all the authorities in order to decide on the proper approach of whether an appellant can be excluded. All the authorities that the appellants rely on turn on their own facts and most of the authorities either did not involve linked appellants or credibility issues.
51. The Claimants in Da Costa were unable to say how they had been prejudiced [39], the exclusion of the Claimant was not necessarily fatal to the whole trial [62], the Claimants were on the same side telling the same story [63] unfairness did not arise [64].
52. The appearance of unfairness is not the test, the test is an objective one, the appearance test relates to bias.
53. I was referred to rule 27 (4)(d) and (5) of The Tribunal Procedure (First-tier Tribunal) (Immigration and Asylum Chambers) Rules 2014, which provides for the Tribunal to give a direction excluding from the hearing, or part of it, any person ‘where the purpose of the hearing would be defeated by the attendance of that person’ and to exclude a witness until that witness has given evidence.
54. The decision was a matter for the Judge’s discretion, the Judge gave reasons for rejecting the appellants’ request and the appellants have not demonstrated why that decision was irrational, nor have they demonstrated what prejudice the appellants suffered.
55. In reply, Mr Spurling underlined the fact that an appellant has a right to be present throughout their appeal subject to certain circumstances, which do not arise here. Mr Ockelton’s judgment in RS and SS makes the point that an appellant has a right to be present throughout the hearing but that it might not necessarily be the best idea when credibility is in issue but that does not matter when it is a right that is at stake. Allowing the parties to remain does not make the hearing unfair for the respondent, the appellant is not seeking an unfair advantage they are just insisting on their rights. The appellants’ case is that Judge Monson not only unlawfully infringed on their right but also demonstrated an unfair approach.
56. It is not clear that the rules purport to give power to exclude a party in these circumstances and even if they do, they are inconsistent with court of appeal authority. This case does not have a wider impact, it is not laying down guidance. The issue is unlikely to happen often because appellants will often take Mr Ockelton’s guidance in RS and SS and voluntarily leave the hearing when evidence of a co-appellant is given in order to maximise the weight attributed to their evidence.
Ground 2, 3 and 5
57. The Judge accepted that the appellants were previously forced by their father to serve as unpaid workers at a place of worship in Sulaymaniyah and that they were beaten when they disobeyed. The Judge rejected the contention that the appellants would be at risk in their home area because there was no evidence they would be at persecuted ‘at the hands of the minority Kasnazani order for breaking away’ [56]. However, this was not the appellants’ case, but rather, they were at risk from their father as an individual and the Judge had failed to address the risk from him.
58. Having concluded that the appellants are not at risk in their home area, the Judge concluded that the appellants are able to retrieve their identity documents from the family home or obtain replacements locally, which is impacted by the error identified in the paragraph above.
59. The Judge posed the wrong question when it came to sufficiency of protection. Instead of asking whether the KRI authorities would be enlisted to persecute the appellants the correct question was whether the KRI authorities would protect the appellants from and punish the actors of persecution.
60. Against that, the respondent submitted that the Judge accepting some of the appellants’ evidence does not mean that the Judge accepted that they were previously persecuted by their father. The Judge did not accept that they were forced to take part in rituals. Forced assistance and beatings are not persecution. The father is a non-state actor and the Judge considered whether he had influence outside of the house. The Judge gave sound reasons for rejecting the risk of persecution from their father. Grounds 3 and 5 stand or fall with ground 2.
Ground 4
61. The Judge made a finding of fact on internal relocation that was not put to the appellants thereby denying them an opportunity to comment and is procedurally unfair.
62. In response the respondent submitted that the Judge plainly found that the appellants could internally relocate but for completeness found they could take up residence with Danyar. It was reasonable on the evidence for the Judge to have made these findings and there was no procedural unfairness. I was referred to Abdi & Ors v Entry Clearance Officer [2023] EWCA Civ 1455 [30] and [41], for the proposition that it depends on the circumstances whether a Judge is required to put a point to an appellant, usually a Judge can remain silent, especially if the party is represented.
Ground 6
63. This ground was not pursued.
Discussion
Ground 1
64. In my view the authorities establish that as a starting point, it is an appellant’s right to be present throughout the entirety of his appeal proceedings. There are circumstances, where the discretion of the Judge to exclude an appellant from his hearing would be justified, one example being where an appellant’s behaviour is disruptive.
65. The reason Judge Monson gave for requiring the second appellant to be absent during the evidence of his brother and co-appellant was because he [32]:
“considered that the course of action proposed by Ms Revill would be procedurally irregular and unfair, as it was liable to blunt the central thrust of the respondent’s adverse credibility challenge which was to a substantial degree based upon asserted inconsistencies between accounts of the two brothers. If the younger brother was present while his older brother gave evidence, there would inevitably be a risk of his own oral evidence being contaminated as a result of him hearing what his older brother said on matters in controversy.”
66. The reasons the Judge gave are either wrong in law or inadequate to justify his decision. The Judge did not acknowledge nor treat as a starting point an appellant’s right to be present throughout the proceedings. Rather than the appellant’s request being an irregularity, he was simply requesting the regularity of an appellant being entitled to remain throughout his case. Had the Judge recognised this, he is more likely to have followed the course suggested by Mr Ockelton in RS and SS [5]-[6], which I accept is a correct reflection of the law on this issue. Namely that an appellant cannot be required to leave for part of his appeal proceedings but having been alerted to potential adverse effect on the weight attributed to his evidence if he were to remain through another appellant’s evidence, an appellant can be given the choice whether to leave.
67. The Judge placed the impact of the appellant’s intention to remain on the respondent too high. The central thrust of the respondent’s adverse credibility challenge, namely the inconsistencies between the appellants’ accounts had already been identified in the refusal decisions. In reality, the respondent only stood to gain from the second appellant remaining in the hearing room because if the appellants aligned throughout their oral evidence, the respondent could point to the fact that it was not free from contamination and as such less weight should be afforded to that evidence. If further inconsistencies appeared the respondent could point to those notwithstanding having just heard what the other had said. Rather than damage the respondent’s case, arguably the effect would be to strengthen it.
68. I do not consider that the procedural rules provide for the exclusion of a party in these circumstances. I do not see how it could properly be said that the purpose of the hearing would be defeated by an appellant being present, quite the opposite in fact seems to be true. There is a distinction in rule 27 between the exclusion of “any person” and “a witness” and it seems to me that the reference to “any person” includes a party to the proceedings but reference to “a witness” does not.
69. There was no basis in law for the Judge to have required the second appellant to be absent through part of the proceedings. That amounts to a procedural irregularity and unfairness. I hear what Ms Ahmed says about the importance of the facts of each case, and I do not consider it helpful to treat the outcomes of the different cases in the authorities, in their different contexts like principles of law.
Grounds 2, 3 and 5
70. I was surprised by the respondent’s submission that forced labour and beatings did not amount to persecution. I indicated at the hearing that I did not accept that submission. The Judge accepted that part of the appellants’ case and I accept the appellants submission that the Judge does not sufficiently engage with and fully answer the question of whether there is a risk to the appellants in their home area. The reason is because the Judge turns his attention to whether the appellants would be at risk from the Kasnazani order. The safety of return to the home or home area flows from this erroneous conclusion.
71. I also accept that the Judge asked himself the wrong question when it came to sufficiency of protection. The issue is whether he would be protected by the KRI authorities not just an absence of persecution by them.

Ground 4
72. I accept Ms Ahmed’s submission that in the context of the credibility challenges, the evidence as a whole and the fact that all the parties were represented, the Judge was entitled to remain silent and make findings that were a natural conclusion on the evidence. It was not procedurally unfair for the Judge not to have put the question of whether the appellants could return to Danyar’s home upon return.
Notice of Decision
73. The appeal is allowed. The decision of the First-tier Tribunal involved the making of material errors of law and is set aside with no findings preserved.
74. The appeal will be remitted back to the First-tier Tribunal for remaking to be heard by a different judge.

E Daykin

Judge of the Upper Tribunal
Immigration and Asylum Chamber

19 June 2025