Tribunal decisions

The decision

IN THE UPPER TRIBUNAL
IMMIGRATION AND ASYLUM CHAMBER
Case Nos: UI-2025-000351
UI-2025-000352

First-tier Tribunal Nos: HU/63023/2023
LH/03010/2024
HU/63047/2023
LH/03011/2024

THE IMMIGRATION ACTS

Decision & Reasons Issued:

22nd August 2025

Before

UPPER TRIBUNAL JUDGE MAHMOOD

Between

JOHN MENDY
MATHEW MENDY
(ANONYMITY ORDER NOT MADE)
Appellants
and

ENTRY CLEARANCE OFFICER
Respondent

Representation:
For the Appellant: Ms Angelic Gomez, the Sponsor for the Appellants.
Also, in attendance:
Mr Simon Kimathi (AKA Mr Simon Kimathi-Sappleton),
GSM Legals Limited, 6 Westhill Road, Coventry, CV6 2AA.

For the Respondent: Mr A Tan, Senior Home Office Presenting Officer.

Heard at Manchester Civil Justice Centre on 4 July 2025

DECISION AND REASONS
1. This is my oral decision which I delivered at the hearing today. I do not make an anonymity order because the principle of open justice applies. In any event, there are no protection grounds relating to this case and no other matters which mean that I should grant the Appellants anonymity.
Introduction
2. The Appellants, nationals of Gambia, appeal against the decision of First-tier Tribunal Judge Galloway (“the Judge”) who by way of a decision dated 17 October 2024 dismissed their appeal against the Respondent’s decision to refuse them entry clearance.
3. Permission to appeal against the Judge’s decision had been refused by the First-tier Tribunal but was granted by Upper Tribunal Judge Smith on limited grounds.
4. I have to decide whether or not there is a material error of law in the Judge’s decision. If I find that there is a material error of law, then I shall set aside the decision and either remake it here at the Upper Tribunal or remit the matter to the First-tier Tribunal for the decision to be remade there.
5. There is a 1117 paged bundle for this matter which was prepared by the Upper Tribunal.
Background
6. It is necessary to refer to the procedural history of this matter to enable the grounds of appeal to be followed more clearly.
7. First-tier Tribunal Judge Galloway dismissed the Appellants’ appeal by way of a decision dated 17 October 2024, following a hearing on 14 October 2024.
8. Permission to appeal was refused by First-tier Tribunal Judge Mulready by way decision dated 23 December 2024.
9. Permission to appeal was granted by Upper Tribunal Judge Smith by way of a decision dated 21 March 2025.
10. The Appellants grounds of appeal to the Upper Tribunal dated 9 January 2025 state:
“The decision was wrong - Initially as there is a breach of article 6 of the ECHR right to a fair trial. The appellants (or the sponsor) was not aware of the exact time, date and location of the hearing. Therefore, they failed to represent themselves which had great implications on their case. In the absence of the appellants and the sponsor, the court were only privy to a one - sided representation and that gifted the Tribunal Judge with an easy decision. A case of such importance should have been adjourned and rescheduled if the overriding objectives were applied fairly. The Tribunal Judge became aware after the hearing that an application had been made by the Legal Officer on 14 October 2024 (this was from the sponsor requesting more information about the hearing time, date and location) - but no response was provided by the Tribunal / Legal Officer in this regard -hence why the appellants or the sponsor were not present. The sponsor was waiting for an update but none were received (as per the supporting evidence). If the sponsor, or the appellants have a genuine belief that they did not receive notification about the tribunal hearing -then the Judge is wrong by stating that there are no overriding objectives or interests that need to be considered. Judgment. There is sufficient evidence that establishes a family union and article 8 of the ECHR is duly engaged. The question regarding are there exceptional circumstances (with reference to paragraphs GEN 3.1 and GEN 3.2 of Appendix FM) which would result in unjustifiably harsh circumstances for the Appellants or their family? (iii) With reference to S117B of the 2002 Act, should the appeal be allowed on Article 8 grounds outside of the rules? We believe that the appellants satisfy this requirement as the main appellant is the father of the sponsor's child who is settled and present in the UK. The sponsor is supporting her family in the UK and in the Gambia which is evidently taking its toll on the sponsor and the main appellant who wishes to be reunited with his spouse. The sponsor is running a business in the UK and is currently in employment too. Therefore, it would be unduly harsh for her to continue working in the employments that she is doing if she were to relocate to the Gambia. There are no causes of concern or public interest regarding article 8 (1) and (2) as this is a united family. The appellant has no criminal conviction”
11. When granting permission to appeal, Upper Tribunal Judge Lesley said,
“2. The Appellants appealed against the Respondent’s decision dated 6 October 2023 refusing them entry to the UK as the partner and stepchild of a sponsor settled in the UK.
The Appellants were unrepresented at the hearing before the First-tier Tribunal as they claim that the sponsor who would have attended the hearing in their place was unaware of it. 2. The Appellants’ appeals were dismissed by First-tier Tribunal Judge Galloway sitting in Manchester by a decision dated 17 October 2024 (“the Decision”). Permission to appeal was refused by First-tier Tribunal Judge Mulready by a decision dated 23 December 2024. The application for permission to this Tribunal was in time as the Appellants are outside the UK.
…
4. Although there is evidence on the First-tier Tribunal database that the mix-up in relation to hearing dates may be the fault of the Appellants who appear to have instructed a legal representative who had not come onto the record, this may arguably have meant that the Appellants themselves and, more importantly the sponsor did not have access to the database in order to check the date, time and venue of the hearing.
5. Although Judge Galloway is right to note that the Appellants had previously asked for the appeals to be determined on the papers, it is also worthy of note that the appeals had been converted to an oral hearing by a previous Judge. Accordingly, the Appellants and sponsor arguably expected to be notified of the hearing and to be able to attend it. It may transpire on further investigation that there is nothing to any of those points but I am just persuaded that if the facts put forward by the Appellant and sponsor are as stated, the hearing was arguably procedurally unfair.
6. There is no arguable merit to the remainder of the grounds which merely disagree with the Judge’s findings on Article 8 ECHR. However, if the hearing is found to be arguably unfair, that will impact on the Judge’s findings. The way in which those findings were reached is also arguably material to the issue of whether the hearing was procedurally unfair. 7. For those reasons, I grant permission to appeal.”
12. There is a Rule 24 response from the Respondent in a bundle prepared by the Upper Tribunal of 1,117, which appears at page 10. It is worth reading some of that out to enable the issues to be seen more clearly from the Respondent’s perspective.
“3. It is respectfully noted that the grounds are limited to one ground only and whether it was procedurally unfair that the sponsor did not attend.
4. The Appellant states at part 1 of the grounds there were no updates from the Tribunal, this is clearly untrue as the appellant himself has provided updates at part 6 and 7 of his grounds where he has provided screen shots of the portal outlining the updates on his case.
5. The appellant goes on to state at part 2 of his grounds that the information was not ‘transparent’ it is respectfully submitted the information on MYHMCTS could not have been any clearer. It shows as seen at part 6 the appellant asking for an update on the hearing date on 11.09.24 and the response from the Legal Officer on that same day advising them the hearing date was on the document tab. Which incidentally had been uploaded on 10.09.24 the day before the appellants correspondence. The appellant has been directed with plenty of time as the hearing date was [noted].
6. The respondent further submits that it cannot be said the appellant or indeed the sponsor was not aware of the documents tab, the appellant states there is NO documents tab on MYHMCTS. It is duly noted that the appellant and sponsor have uploaded 161 separate documents on the documentation tab so it is respectfully submitted he was aware of it and indeed has used it. The respondent respectfully submitted that the appellant has been notified of all issues pertaining to his case. Initially he asked for it to be dealt with on papers but the Tribunal decided it would be better for a face to face hearing to give the appellant and sponsor the opportunity of a fair hearing. They chose not to attend that hearing despite the fact they were given ample notice, more than 1 month in fact. It is respectfully submitted that this hearing was not procedurally unfair.
The Hearing Before Me
13. At the hearing before me today, Ms Gomez said various matters to me and invited me to allow the appeal. After she had finished her submissions and when I was hearing from Mr Tan on behalf of the Respondent, Mr Simon Kimathi of GSM Legal then also came into court and sat next to the Sponsor. He variously made submissions to me but also quietly assisted the Sponsor as to what she should be saying and giving her advice. I shall return to Mr Simon Kimathi shortly.
14. It is fair to say that Ms Gomez failed to understand what this hearing can and cannot achieve. This is hearing to decide whether there was an error of law in the Judge’s decision and not a rehearing. I repeat it, whilst she is here at court, and so she can hear it from me in this judgment. I can only interfere with the Judge’s decision if there was procedural impropriety and/or a material error of law in the Judge’s decision.
15. A summary of what Ms Gomez had said to me was that this was a very important hearing to her. She said of course she would have attended the hearing at the First-tier Tribunal had she known about it. She was in Gambia, she returned and provided lots of documents. Why would she not turn up for the hearing if it was so important to her and to the Appellant she asked?
16. As I sought to explain, the difficulty is that Ms Gomez initially indicated to me that she did not see any hearing date on the portal. After she spoke with Mr Kimathi, I was then told in fact she was not the one “doing the looking” on the portal because she did not have access. Mr Kimathi was the one who was looking for the documentation/notices and that he was the one who did not see anything she now told me.
17. I sought to explain that even though an First tier Tribunal Case Worker (legal officer) was exceptionally seeking to assist in this case, the nature of these cases is that it is incumbent upon the parties to familiarise themselves with the portal and to ensure they look at the alerts which are provided and the documents and other tabs, including in terms of the hearing dates.
18. I sought to understand from Ms Gomez on more than one occasion whether it was being said that she made a simple mistake. Or if someone else had the mistake. I asked this particularly because the Home Office in the Rule 24 states that is untrue that there were no updates because when one looks at the screenshots which have been provided in the grounds of appeal by the Appellants, they clearly show that they were aware of the hearing date. I have cross referred the Rule 24 notice to the documents which the Appellants’ side sent, particularly at pages 40 to 42 of the 1117 paged bundle. I deal with this in more detail, but I have to say that those two pages show that what I am being told today by the Appellant’s side is wrong.
Consideration and Analysis
19. I remind myself first that litigants in person find it difficult to present their cases. I am well aware of the Equal Treatment Bench Book and which I have reminded myself of. I have sought to modify today’s hearing to assist Ms Gomez to try to make her comfortable and so I can get the best submissions from her.
20. Despite much hesitation, I have to say I am very troubled by what Mr Simon Kimathi of GSM Legal has been saying to me in this case but I am also troubled by what the Sponsor, Ms Gomez, has been saying to me. Despite the opportunities to provide an explanation, I simply cannot be satisfied that I have been told the truth in respect what has transpired. It may well be that the shock of the mistake of not having attended the hearing at the First-tier Tribunal has led Mr Kimathi and/or for Ms Gomez not being able to face up to reality. Whilst I appreciate the importance of cases to litigants and the importance of this case in particular, that is not a reason for the Appellants’ side not to be open and transparent with the Upper Tribunal.
21. I had taken the time today to ensure that both Mr Kimathi and Ms Gomez appreciate that it had not been necessary for me to have to go down the road of whether or not I am being told the truth by them. That is because, quite simply, a further application by the Appellants for entry clearance appears to have been possible.
22. Ms Gomez’s approach, supported by Mr Kimathi, though was one where they wanted me to set out what my decision on the appeal was as a whole. They did so well aware that I was minded to give a negative view about them, after hearing from them extensively and after asking them to think about matters.
Conclusion
23. I have to consider this appeal to the balance of probabilities test, but I satisfied to the much higher criminal standard and I find, so that I am sure, that I have not been told the truth by Ms Gomez or by Mr Kimathi. I have reminded myself of the Lucas direction. People may lie for all sorts of reasons. Here that can be embarrassment, hiding negligence or even desperation. Even taking those matters into account, I cannot overlook the serious lies in this case.
24. The documentation submitted with the grounds clearly shows when the attended hearing date was to take place. Indeed, as the Respondent’s Rule 24 response shows and to which I again refer, it is impossible to see why the date of the hearing was missed. I cannot exclude that the reason the hearing was missed was because Ms Gomez was out of the country, but I can definitively make such a finding about her location at the time of the hearing.
25. By merely looking at the Appellants’ own grounds of appeal to the First-tier Tribunal which provided screenshots of the Portal and the communication between the Appellants/Sponsor and the First-tier Tribunal, it is abundantly clear to see:
(1) On 11 September 2024 the Appellants entry states, “Thank you for your recent update regarding the up and coming hearing…” and whether the Sponsor can attend. This can be seen at page 40 of 1117 of the bundle.
(2) On 11 September 2024 the Tribunal Case Worker (Legal Officer) responded to say that the Sponsor can attend the hearing and importantly the Legal Officer stated that, “The Hearing will be held in person at the Manchester Hearing Centre. The address, date and time are on the hearing notice under the ‘Document tab’.” This can be seen at page 40 of 1117 of the bundle.
(3) On 8 October 2024 the Respondent wrote on the Portal asking the Tribunal Case Worker about a bundle, but said at the start of the message (my emphasis), “This linked appeal is listed for a substantive hearing on 14 October 2024…” This can be seen at page 40 of the 1117 bundle.
(4) On page 41 of the bundle, the Appellants grounds and the document attached to screenshots with the annotation and commentary confirms that the Appellants were aware of the hearing, even at the latest, on 8 October 2024 (the hearing was listed to take place on 14 October 2024). The Appellants note states (my emphasis), “It only became apparent that the hearing was to be conducted orally on 8 October 2024…”.
26. Therefore, at the very latest, the Appellants (and Sponsor and Mr Kimathi) knew on 8 October 2024 that there would be an attended hearing on 14 October 2024.
27. Therefore, the Appellants’ grounds of appeal which contend that they were not aware (or that the Sponsor was not aware or that Mr Kimathi was not aware) is entirely wrong. The Appellants’ own grounds and documents admit that there was awareness of the hearing at the latest on 8 October 2024.
28. The Appellants (the Sponsor and Mr Kimathi) alleging that there was no ‘documents tab’ to inform them of the hearing on the portal is obviously not correct. There clearly was such a tab. Not least because they lodged some 160 documents on it.
29. Even if there was no such tab, the narrative entries from the Respondent and from the Appellants’ side’s own responses on the portal, show they were all aware of the attended hearing on 14 October 2024.
30. I note that on 9 October 2024 the Appellants’ side sought to ask again about the hearing date, but that is odd to say the least, because it was acknowledged that the hearing was indeed listed for 14 October 2024.
31. As I have observed above, it possible too that the ‘real reason’ that the Sponsor did not attend the hearing was because she was in Gambia at the time.
32. All concerned, including the Appellants, Ms Gomez and Mr Kimathi were well aware of the hearing date of 14 October 2024. If there were difficulties in being able to attend, then that required an application to adjourn to be made. It was obviously not acceptable to fail to turn up at the hearing and then to expect latitude thereafter for no good reason and to pretend that they were not aware of the hearing date.
33. Even if I am wrong and Ms Gomez and/or Mr Kimathi are not lying to me, it is clear that the approach of Mr Kimathi and/or the Sponsor was reckless and that is what had led to the failure to attend the attended hearing at the FTT. Pages 40 to 42 of the 1117 paged bundle show references to an attended hearing and to the date of 14 October 2024 for that hearing.
34. I am very clear that what I have been seeing is an amateur attempt at covering up the failure to attend the hearing, with the extensive documentation now having been filed, which simply does not reflect what occurred.
35. I regret having to say all of these things but I have been left with no alternative in view of what I have been asked to do by Ms Gomez. It is important I set this out, especially since it appears there seems to be a continuation of an attempt to shift the blame by Ms Gomez and Ms Kimathi from themselves to others. Such as them blaming the First-tier Tribunal or the portal system itself or the Home Office or the Upper Tribunal or indeed other unidentified organisations and persons. This is all despite the assistance provided to Ms Gomez via the Tribunal Case Worker (legal officer) in respect of the portal.
36. The very documents which Ms Gomez and Ms Kimathi rely on, unravel their own mistake in not attending the hearing before the First-tier Tribunal Judge. They were well aware of the hearing but failed to attend.
37. As the Judge said at paragraph 6 of his decision, the Appellants themselves were aware of the hearing date via the e-mail address that had been provided by them. The Tribunal would grind to a halt if Appellants and/or Sponsors do not attend the hearing and later rely on their own poor diarising of the hearing date to obtain a hearing afresh. The Judge at paragraph 6 had also factored in fairness by considering whether or not it was necessary to adjourn the matter of his own volition, being made aware of matters after the hearing had concluded.
38. I have taken into account that procedural rigour is of importance. The overriding objective applies to both sides. Being a litigant in person is not a trump card for ignoring procedure or to seek so much extra assistance that the request is really an attempt to ask that failures to abide by orders to attend hearings ought to be ignored. That is not what I am permitted to do. The authorities make that clear, including Barton v Wright Hassall LLP [2018] UKSC 12 that, unless the Rule or Practice Direction in question is particularly inaccessible or obscure, litigants in person will not be held to a lower standard or be excused the consequences of their procedural failings.
39. I am very familiar too with evidential flexibility and the authorities including of the Supreme Court, but this is not a case which comes close to issues of evidential flexibility.
40. I deal also with the recent supplementary bundle of the Appellants. There has been no Rule 15 (2A) application made to seek its admission, but in any event, having looked at the documents there is nothing which shows I can take them into account at this error of law stage of proceedings. It appears, that in any event, the documents relate almost exclusively to matters in respect of Article 8 ECHR, upon which permission to appeal had not been granted in any event.
41. Accordingly, I dismiss the Appellants’ appeal.
42. I must deal with the involvement in this case by Mr Simon Kimathi (also referred to as Simon Kimathi-Sappleton) of GSM Legals Limited, 6 Westhill Road, Coventry, CV6 2AA.
43. He refers to himself as a lawyer. Legal representatives at the Immigration and Asylum Chamber must comply with section 84 Immigration and Asylum Act 1999 whereby no person is permitted to provide immigration services unless they are a qualified person. It appears that although someone who is not a Barrister, Solicitor or Legal Executive can still be ‘qualified’, for the purposes of section 84, the term ‘lawyer’ of itself can be used in a misleading way by some representatives.
44. I accept that Mr Simon Kimathi has at least in the past had OISC registration. He is not a Solicitor, Barrister or CILEX Legal Executive. OISC registered persons do appear on statutory appeals at the Upper Tribunal and First-tier Tribunal.
45. I consider that the matters in this case require me to refer this case to Mr Kimathi’s regulatory body. I am concerned about three aspects in particular (1) the ‘mix’ up alleged to have occurred when he originally had come on record/not come on record for the case. But whereby he had access to the portal. (2) That he was dealing with the portal, yet the witness statement with the statement of truth provided by Ms Gomez makes clear that she was speaking in the first person and as the one who was using the portal. (3) The cover-up seems as much as from Mr Kimathi as from Ms Gomez in this case. This is not the correct way for any legal representatives to operate. I appreciate that Mr Kimathi is not a CILEX Legal Executive, a Solicitor, or a Barrister, but the regulatory rules of his supervising body apply to him that he must act honestly. At the very least here Mr Kimathi acted recklessly and/or he simply does not understand how to deal with appeals and how appeals at the Upper Tribunal operate.
46. In view of my serious concerns about Mr Simon Kimathi (also referred to as Mr Simon Kimathi-Sappleton) of GSM Legals Limited, 6 Westhill Road, Coventry, CV6 2AA I refer this matter further.
47. The Office of the Immigration Services Commissioner (OISC) is now called the Immigration Advice Authority. Mr Simon Kimathi says that is his regulatory body. A copy of this decision shall therefore be sent by the Upper Tribunal by post to that regulatory body: (Immigration Advice Authority Complaints Team, IAA, PO Box 567. Dartford DA1 9XW) and by e-mail. complaints@immigrationadviceauthority.gov.uk

Notice of Decision
The Decision of the First-tier Tribunal did not contain a material error of law.
The Decision of the First-tier Tribunal which had dismissed the Appellants appeal therefore stands.

Abid Mahmood

Judge of the Upper Tribunal
Immigration and Asylum Chamber

4 July 2025