UI-2025-000680
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The decision
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IN THE UPPER TRIBUNAL
IMMIGRATION AND ASYLUM CHAMBER
Case No: UI-2025-000680
First-tier Tribunal No: HU/52673/2023
THE IMMIGRATION ACTS
Decision & Reasons Issued:
24th April 2025
Before
UPPER TRIBUNAL JUDGE REEDS
DEPUTY UPPER TRIBUNAL JUDGE SAFFER
Between
YA AWA M CHAM
(No ANONYMITY ORDER made)
Appellant
and
THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent
Representation:
For the Appellant: Mr Simo, Solicitor advocate instructed on behalf of the appellant
For the Respondent: Mr Diwnycz, Senior Presenting Officer on behalf of the respondent
Heard at IAC Bradford on 7 April 2025
DECISION AND REASONS
1. The appellant appeals with permission against the decision of the First-tier Tribunal Judge Mensah (hereinafter referred to as the “FtTJ”) who dismissed the appeal against the decision made to refuse the appellant entry clearance to the United Kingdom in a decision promulgated on 26 November 2024.
2. The FtTJ did not make an anonymity order, and no grounds were submitted during the hearing for such an order to be made.
The background:
3. The background to the appeal is set out in the evidence and in the decision of the FtTJ. The appellant is a national of Gambia born on 5 July 2001. In an application made on 28 August 2023 the appellant applied for entry clearance to the United Kingdom to join her sponsor, who is her mother and who is a national of Senegal. It was stated that the appellant had been a member of the sponsor’s pre-fight family and that she would like to join her mother in the UK upon whom she was dependent although it was noted that she was over 18 years of age. According to the information provided in the sponsor’s interview, the sponsor entered the United Kingdom on 24 March 2011 and had left the appellant in Gambia with her father with whom she lived. The sponsor has not seen the appellant since 2011. In 2020 the appellant’s father died.
4. The Entry Clearance Officer ( “ECO”) refused the application in a decision made on the 21st of February 2024. The reasons given can be summarised as follows:
5. The ECO stated that the application had been considered under the Immigration Rules and all the information provided by the appellant and sponsor to decide whether the appellant met the requirements of the Immigration Rules.
6. The ECO took into account the following documentary evidence as part of the application which as listed included the sponsor’s documents consisting of bank statement, general documents, money transfer receipts, photographs, and chat record. In respect of the applicant’s documents the ECO referred to the income and expenditure sheets, birth certificate, school documents and TB certificate.
7. The ECO also set out the applications made which had been previously refused and they were exhibited to the decision. The first was UKHC/174446 Refused 28/11/2019 and the second application was UKSH/208183 Refused 06/09/2015. Both were for visit visas.
8. The ECO set out the basis of the application which was that the appellant was the child of the sponsor named in the application who has protection status in the UK. However, the appellant did not qualify for permission to stay as the child of the sponsor named in the application for the following reasons:
9. As regards the Family life requirements for a child aged over 18 applying for Family Reunion, the ECO was not satisfied she met the family life requirements for a child aged over 18 because the ECO was not satisfied that there were exceptional circumstances that would make refusing her application undesirable. It was stated that she was reliant on her UK Sponsor for financial and emotional support, and she had provided financial transfer documents, showing her mother has sent funds from the UK to her current country of residence.
10. Whilst she had provided photographs of herself and her mother, the ECO noted that they had all been all taken before her mother relocated to the UK. The ECO noted that the sponsor could visit the applicant in her home country using her travel document that had been issued ( the appellant was not in Senegal but in Gambia and thus the sponsor’s protection status would not preclude any travel made by her to Gambia).
11. The ECO also took into account that the applicant was over the age of 18 and was 22 years old when she lodged the application and that this would suggest that if she were to remain in her current situation without her mother, the appellant would not be destitute as she is already an adult.
12. The ECO therefore refused the application as the appellant had not met the requirements of paragraph FRP 6.2 (a) and (c) of Appendix Family Reunion of the Immigration Rules.
13. As regards the Eligibility requirements for Family Reunion based on Article 8 ECHR, the ECO concluded that he was also not satisfied it would be a breach of Article 8 of ECHR to refuse the application because the appellant and her sponsor were aware of the need for entry clearance and that the ability for her to enter the UK was predicated on her ability to meet the requirements of the Immigration Rules. The maintenance of effective immigration control is important especially in cases such as this where the appellant has been unable to satisfy the requirements of a legitimate and proper immigration rule. The appellant had demonstrated that she and her sponsor were able to meet in the form of the UK sponsor’s UK Travel Document and this would suggest that there would be no interruption to their current family life by refusing her application. The ECO concluded that the decision was made in the legitimate pursuit of maintaining an effective, firm immigration control and was also proportionate. The ECO stated that he took into account that persons do not have an inherent right to decide where to establish a family life. In all of the circumstances the ECO found that the decision was proportionate.
14. The ECO also considered the best interests of any child affected by this decision but whilst the appellant applied as a child the ECO stated she was 22 years of age, and the information and documents provided did not indicate any exceptional circumstances regarding her circumstances.
15. Taking those factors into account and considering them alongside the public interest in maintaining immigration control the ECO considered that the refusal of her application was reasonable because she was not considered a child as she was over 18 years of age at the time of her application.
16. The ECO refused the application for Family Reunion (Protection) because he was not satisfied that the appellant met the requirements of the Immigration Rules.
17. The ECO also considered whether there were compassionate factors which may justify a grant of leave outside the rules but noted that the appellant had not raised any compassionate factors, nor have any been identified in her case, and thus the ECO decided that the application does not fall for a grant of leave outside the rules. The ECO concluded that, “Given the above, I am not satisfied that your circumstances are such that I should grant leave outside the Immigration Rules.”
18. The appellant appealed the decision which came before the FtTJ and in her decision the appeal was dismissed under Immigration Rules and also on the basis that the appellant had not established that there were “ exceptional circumstances “ outside the Rules or that the decision would be disproportionate under Article 8 of the ECHR.
19. The FtTJ set out the basis of the application that was made and that the appellant sought to join her mother in the United Kingdom. The appellant’s father had passed away on 25 September 2020. She had applied to join her mother as she had protection status in the United Kingdom. The FtTJ took into account that the appellant was aged 22 when she applied and therefore could not meet the requirements under paragraph 6.1 of the rules as it required an applicant to be under 18 years. The FtTJ that the appellant was required to demonstrate she met FRP 6.2 which covered exceptional circumstances for adult children applicants.
20. In respect of the relevant rules in play they were set out by the FtTJ at paragraph 1 and paragraph 2 identified the issues between the parties. Her analysis of the evidence and findings of fact are set out between paragraphs 2 – 11. Whilst this was a human rights appeal, the starting point was to consider whether the evidence demonstrated that the appellant met the relevant Immigration Rules. The FtTJ set out the competing issues and by reference to the financial support provided by the sponsor to the appellant. The FtTJ undertook an analysis of the appellant’s circumstances in Gambia and in particular the context of her education. Having set out the material presented on behalf of the appellant the FtTJ found that the appellant was not a student at school at the date that she had made her application which was inconsistent with the skeleton argument in which it had said she remained in education. The FtTJ considered the evidence from the sponsor and the documents contained in the bundle, which the FtTJ analysed but reached the conclusion that the documents presented did not cover the 5 year period between the completion of the appellant’s education and the application date. The importance of that evidence was that the judge had been asked to accept the appellant was not working and had no other source of income but there was a significant gap in that evidence based on the circumstances as presented.
21. As to the issue of financial dependency that was analysed by the FtTJ between paragraphs 6 – 8. The money transfers were analysed, but they showed no dates, the amounts being transferred were not converted and there was no evidence to check the money transfers against the sponsor’s bank statements because only statements covering August 2023 had been provided. The application was made on 28 August 2023. The FtTJ could not correlate the expenditure with those money transfers.
22. As to the sponsor’s circumstances, whilst it was stated by the appellant that her mother worked, there was no evidence of employment. The only evidence provided in the form of a bank statement showed child benefit claim and universal credit claim. The FtTJ concluded that it was not possible to cross-reference the sponsor’s income with payment she sends to the appellant (by reference to paragraph 7). The FtTJ also set out an inconsistency in the evidence presented that the appellant’s account was that she lived in the family home but produced rent receipts for a rental. There are other aspects of the appellant’s life in Gambia which were inconsistent as identified at paragraph 8.
23. As to the issue of emotional dependency, the FtTJ assessed the text messages at paragraph 9, noting that there are lots of them, but the images have been removed, and the content was very limited.
24. The FtTJ concluded that she was not satisfied on the balance of probabilities that the appellant had shown that she was financially dependent on the sponsor. Whilst she was in no doubt that the sponsor and appellant had regular contact and that the sponsor was keen to be reunited with her daughter, the judge found the evidence before the tribunal was insufficient to demonstrate compliance with the rules.
25. The FtTJ also concluded that on the same basis the appellant had not shown that there were exceptional circumstances outside the rules or that it would be disproportionate under Article 8 as she had failed to show a real effective committed family life reaching the Razgar threshold as she had not shown that she and her mother had anything other than the normal emotional ties one would expect between an adult child and parent. The FtTJ dismissed the appeal.
The appeal before the Upper Tribunal:
26. The appellant sought permission to appeal that decision on the following grounds.
“1. The Immigration Judge assessment of the evidences submitted is flawed and inadequate. There was no issue raised about credibility of neither the appellant nor the sponsor. The IJ accepted that there is family relationship between the two. The IJ also noted that the appellant’s father had passed away and this was not disputed.
2. The assessment of dependency of the appellant was clearly wrong. In respect to the financial dependency, the IJ judge stated acknowledged the numerous receipts provided in addition to the Income and expenditure. What is wrong in his findings is that the transfers clearly show the sponsor as senders and appellant as recipient. Although few of these did not have that information. Also the receipt shows money for “family maintenance”. Had the judge gave anxious scrutiny to this evidence, it will not have come to that conclusion that there is no financial dependency.
3. Also, the appellant is not working, but in short training. The Judge erred in subjecting that because she is not in “full time education” she cannot be dependent. This assessment is very wrong, if we want to make a similar comparison with same age children living in the UK and attending College for training.
4. The IJ alleged that there is a long gap between when the appellant finished her school and the current training. The issue here is that the appellant had been depending on her mother while looking for the right path for her future. It is unreasonable to suggest that if the appellant is not in full time education, then she cannot be dependent on the sponsor.
5. The appellant’s income and expenditure was not adequately assessed by the IJ. This documents show how the appellant uses the money received from the sponsor. Nothing was mentioned about the fact that the appellant use the money sent by her mother to pay for her rent. School fees, food, health and travel costs.
6. A reasoned assessment of this evidence would have confirmed that the appellant needs that money and therefore is dependent on the sponsor.
7. The sponsor is a refugee in the UK and therefore will not be allowed to claim any extra benefit to support the appellant. The evidence shows that the sponsor is solely responsible for the appellant.
8. In respect to the exceptionality. The IJ refused to consider the fact before him. The facts are clear that the appellant was under the care of the father who has now passed away. This was not disputed by the respondent.
9. In respect to article 8, there is no proper assessment of the consequence on the appellant’s family life when the decision was made to refuse.”
27. The application for permission came before FtTJ Handler who granted permission to appeal the decision of the FtTJ on a ground that had not been set out in the grounds advanced on behalf of the appellant. We therefore set out the reasons given by FtTJ Handler in full.
(1) The application is out of time by 4 days. On the online portal, opposite ‘Reasons why the application is late’ it is stated ‘This is an out of country appeal and therefore it is submitted within 28 days of the receipt of the determination by the appellant’. The decision was uploaded on 26 November 2024 and therefore the application for permission to appeal should have been uploaded by 24 December 2024. The application was uploaded on 28 December 2024 No explanation is provided for why the application is out of time which seems to stem from the person filing the application considering it to be in time. A delay of 4 days is significant, and I take into account the importance of compliance with rules on time limits in the efficient conduct of proceedings.
(2) The grounds of appeal as drafted by the appellant’s representatives are not arguable. They are difficult to follow. They amount to a disagreement with the findings of the Judge.
(3) I exercise discretion to allow the appeal out of time because I consider it just to do so, taking into account what I set out below.
(4) I grant permission on a ground that does not feature in the grounds. This is exceptional taking into account that the appellant is represented. I have considered AZ (error of law: jurisdiction; PTA practice) Iran [2018] UKUT 245 (IAC). I consider that there is a strong prospect of success for the appellant and the ground relates to the UK’s international treaty obligations (ECHR). It is arguable that the Judge has erred in failing address in the decision whether it was appropriate to decide the appeal without a hearing. The decision makes no reference to the Judge having considered the Tribunal’s procedure rules or SSGA (Disposal without considering merits; R25) Iraq [2023] UKUT 00012. Whilst the grounds of appeal include the words ‘There was no issue raised about credibility’, the meaning of this is unclear and there are disputed matters on this appeal. The Judge includes in their decision, ‘As the Sponsor and Appellant have asked for this case to be dealt with on the papers, I am unable to ask the Sponsor to explain such matters.’ This emphasizes that it is arguable that the Judge erred in law in not explaining why they considered it was appropriate to decide the appeal without a hearing.”
28. The appeal was therefore listed before the Upper Tribunal. At the hearing Mr Simo appeared on behalf of the appellant and Mr Diwnycz, Senior Presenting Officer appeared on behalf of the Secretary of State. There was no Rule 24 response filed on behalf of the respondent, but it was indicated that the respondent opposed the appeal.
29. In his submissions, Mr Simo stated that he relied upon the grant of permission as set out above. He submitted that the FtTJ granted permission on a ground that had not been set out in the application for permission to appeal but that the FtTJ had exercised its discretion to put forward that ground. He submitted that FtTJ Handler found that the FtTJ never addressed in her decision if it was appropriate to consider the matter as an oral hearing. This made the decision unsafe as there was no full assessment of the evidence before the FtTJ.
30. Mr Simo submitted as there was no full assessment of the evidence by way of an oral hearing it left a lot of question marks raised by the FtTJ. He referred to paragraph 6, where the FtTJ had set out that she was unclear about the amounts being transferred and also paragraph 7 where the FtTJ set out that she had very little in terms of the sponsor’s position in the United Kingdom. At paragraph 8, the FtTJ stated that she “struggled to understand” and at paragraph 9 stated, “as the sponsor and appellant have asked this paper to be dealt with in the papers, I am unable to ask the sponsor to explain such matters.”
31. Mr Simo submitted that when looking at all the question marks raised by the FtTJ she should have requested an oral hearing to clarify these matters. As stated by the FtTJ who granted permission, this case related to the U.K.’s international treaty obligations under the ECHR and therefore the FtTJ should have exercised her discretion to call the sponsor to give oral evidence.
32. In summary he submitted that the grant of permission where the FtTJ stated that he considered there was a strong prospect of success and therefore it was right to bring this ground of appeal.
33. Mr Diwnycz on behalf of the respondent opposed the appeal. He submitted that the appellant was represented from the time of making the application and at the time of lodging the appeal. The request was made for a paper hearing, and documents had been submitted. Any deficiencies in the material could not be due to the FtTJ hearing the appeal and the appellant was responsible for the material presented. The appellant was responsible for the material that was to be presented on her behalf.
34. He submitted that the FtTJ did not need to refer the appeal for an oral hearing, as the opportunity for such a hearing had been passed at an earlier occasion. He referred to the chronology of the case management and that the FtTJ had properly proceeded on the basis that a paper appeal had been selected and dealt with the evidence that had been put before the Tribunal in respect of the appeal.
35. By way of reply Mr Simo submitted that the FtTJ granting permission stated that the appeal ground had a strong prospect of success and therefore it was justified. He invited the tribunal to set aside the decision.
Discussion:
36. We are grateful to the advocates for the helpful submissions made by each of them and how they have advanced their respective cases. Before assessing those submissions, and as a general starting point we bear in mind the following propositions, which are not controversial, that judicial caution and restraint is required when considering whether to set aside a decision of the First-tier Tribunal, and that their decisions should be respected unless it is clear that they have misdirected themselves in law. The task of the Upper Tribunal is to determine whether the First-tier Tribunal made a material error of law. We are not determining the appeal against the decision of the respondent.
37. We begin our assessment by setting out the relevant Rules and case law.
38. The decision referred to in the grant of permission is SSGA (Disposal without considering merits; R25) Iraq [2023] UKUT 12 (IAC). The headnote reads as follows:
1. Judges in the FtT (IAC) do not have power to dispose of an appeal without considering its merits. This is because of the statutory duty under s.86 of the 2002 Act to determine each matter raised as a ground of appeal.
2. Every judge seized of an appeal must reach his or her own decision on the case and must exercise for himself or herself any available discretion. Judges who give directions must be careful to ensure that the wording of their directions does not and cannot be perceived to direct how another judge should dispose of the appeal or exercise any available discretion. If a judge tasked with deciding an appeal is faced with any direction that may be so perceived, the judge must make it clear in the decision that he/she has considered the matter for himself/herself.
3. A positive act is required by a party demonstrating clearly that the party no longer pursues his or her case before a judge can be satisfied that that is the case. Nothing less will do. Judges in the FtT (IAC) do not have power to treat an appeal as unopposed on the ground that the party in question has not complied with any requirement of the FtT Rules or a practice direction or any direction(s) of the Tribunal even if the failure to comply is persistent.
4. The following guidance applies when consideration is being given to whether or not an appeal should be disposed of without a hearing:
(i) Rule 25(1) of the FtT Rules provides that the FtT (IAC) must hold a hearing which disposes of proceedings except where rule 25(1)(a) to (g) apply. Seven exceptions to the general rule are provided for in rule 25(1)(a) to (g).
(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. If, having considered rule 25, the judge is not satisfied that at least one of the exceptions in rule 25(1)(a) to (g) is satisfied, the judge must decline to decide the appeal without a hearing and direct the administration to list the appeal for a hearing.
(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. Furthermore:
(a) For the exception in rule 25(1)(e) to apply, mere non-compliance with a provision of the FtT Rules, a practice direction or a direction is not in itself sufficient to permit a judge to decide an appeal without a hearing. The Tribunal must, in addition, be "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". The judge's written decision must therefore identify the procedural failure or failures in question, explain the judge's view of their causes on such evidence as is before the judge as well as explain the persistence and gravity of the procedural failure or failures. The written decision must explain the extent to which such failures have obstructed the overriding objective and why the judge 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". If credibility is in issue on any material aspect of the claimant's case, the judge's written decision must explain why it is nevertheless appropriate in all of the circumstances to decide the appeal without a hearing and the relevance of the procedural failure(s) to it being deemed appropriate by the judge to decide the appeal without a hearing.
(b) For the exception in rule 25(1)(g) to apply, rule 25(2) has to be satisfied. If a judge proceeds to decide an appeal without a hearing under rule 25(1)(g), the judge's written decision must demonstrate why rule 25(2) is satisfied and go on to explain why the judge has concluded that the appeal can justly be determined without a hearing notwithstanding any dispute there may be as to the credibility of any material fact.
(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.
39. The Tribunal Procedure (First-tier Tribunal) (Immigration and Asylum Chamber) Rules 2014 are as follows:
Overriding objective and parties' obligation to co-operate with the Tribunal
2. (1) The overriding objective of these Rules is to enable the Tribunal to deal with cases fairly and justly.
(2) Dealing with a case fairly and justly includes-”
(a) dealing with the case in ways which are proportionate to the importance of the case, the complexity of the issues, the anticipated costs and the resources of the parties and of the Tribunal;
(b) avoiding unnecessary formality and seeking flexibility in the proceedings;
(c) ensuring, so far as practicable, that the parties are able to participate fully in the proceedings;
(d) using any special expertise of the Tribunal effectively; and
(e) avoiding delay, so far as compatible with proper consideration of the issues.
(3) The Tribunal must seek to give effect to the overriding objective when it-”
(a) exercises any power under these Rules; or
(b) interprets any rule or practice direction.
(4) Parties must-”
(a) help the Tribunal to further the overriding objective; and
(b) co-operate with the Tribunal generally.
40. Consideration of decision with or without a hearing
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) ...; 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.
(3) This rule does not apply to decisions under Part 4 or Part 5.
41. The recent Practice Direction issued by the Senior President of Tribunals on 1 November 2024 and thus in force at the time of the hearing of the appeal sets out the guiding principles of the Immigration and Asylum Chamber of the First-tier Tribunal at section 1 as follows:
The issues based approach and procedural rigour
1.1. The Overriding Objective of the Tribunal is that cases are dealt with fairly and justly. A thread that runs through the entirety of the appeals process in the Immigration and Asylum Chamber of the First-tier Tribunal (the “Tribunal”) is the requirement that the parties identify, articulate, agree and then focus upon the principal controversial issues, or the disputed issues, thereby adopting an issues-based approach to the appeal1. This furthers all aspects of the Overriding Objective by:
(a) allowing appropriate resources, both of the Tribunal and the parties, to be allocated in proportion to the nature and extent of the issues in dispute;
(b) ensuring that the right people are enabled to participate in the case;
(c) avoiding unnecessary delay; and
(d) ensuring that both parties can fairly and proportionately present evidence and submissions relevant to the disputed issues.
1.2. The parties must ensure they conduct proceedings with procedural rigour. 2 The Tribunal will not overlook breaches of the requirements of the Procedure Rules3, Practice Directions, Practice Statements and failures to comply with directions issued by the Tribunal.
1.3. The disputed issues represent the parameters, or scope, of the appeal and will operate as the foundation and structure for all judicial decisions. Subject to ‘Robinson4 obvious’ matters and the need for extra care when litigants in person are involved in proceedings, judges should not be expected to infer issues which have not been clearly identified and articulated by the parties. The Tribunal will not tolerate a rolling consideration of issues and will not permit the issues to evolve at will for procedural advantage.
1.4. This Practice Direction states important principles on the whole range of substantive and procedural decision-making, including the giving of written reasons. It must always be read and applied having regard to the particular nature of the decision in question and the particular circumstances in which that decision is made.
1.5. This Practice Direction applies to appellants without representatives in the same way as it does to parties represented by lawyers. However, the Tribunal recognises the difficulties faced by appellants who are preparing and presenting their own appeal. The Tribunal will ensure that they are treated fairly and enabled to explain their case. Judges should take account of the Equal Treatment Bench Book. The Bench Book provides guidance on a Tribunal’s duty to litigants in person, who are referred to in this Practice Direction as appellants in person. Account will be taken of the particular needs of appellants in person when dealing with the management of the appeal and at the hearing.
1.6. …
1.7. …
42. Part 2 is entitled “The Appeal Process” and paragraph 2 provides for an overview of the appeals process, which mirrors the procedure set out for the filing and hearing of appeals via the electronic system My HMCTS. It provides for the appellant to provide a notice of appeal in accordance with the procedure rules, the tribunal reviewing the validity of the appeal and territorial jurisdiction, the respondent providing a bundle in accordance with the procedure rules, and the appellant being directed to provide a bundle and an explanation of their case where represented a skeleton argument. Following this the respondent should provide a meaningful review of the decision under appeal and that a hearing before a judge will take place.
43. The practice direction at Paragraph 3 provides for the starting of an appeal and Paragraph 4 of the Practice Direction deals with linked appeals and decisions without a hearing . For our purposes paragraph 4.2 is of relevance. It states as follows:
An appellant may indicate in writing, either when filing the appeal or during the appeal, that they wish for it to be decided without a hearing. If an appellant does so, the procedure in this Practice Direction and rule 25 of the Procedure Rules will apply and the result may be that there will be no hearing. Where a preliminary view is taken that there will not be a hearing, the Tribunal will list a date on which the papers will be considered for making a substantive decision. The Tribunal will proceed to decide the appeal on or after that date unless the respondent objects to this in writing prior to that date. The President may issue Practice Statements setting out directions which shall ordinarily apply for appeals brought by the different processes set out above.
44. Part 3 is entitled “Appeal Progression, Evidence and Written Submissions”. The practice direction deals with case management powers, interim hearings, bundles, appeal skeleton arguments and respondent’s reviews, witness statements, expert evidence, and country information evidence.
45. Part 4, “The Substantive Hearing and the Issues-based Approach” makes it clear to the parties what their responsibilities are to the tribunal at a substantive hearing. Other parts of the practice direction relate to child vulnerable or sensitive witnesses (paragraph 13) and paragraph 14 deals with records of proceedings.
46. Part 5 entitled “Decisions and Reasons” provides for the principles that apply to substantive and procedural decision-making. They set out as follows:
15.2 In the giving of reasons, as always in the conduct of Tribunals business, judicial time should only be spent on tasks that are essential to achieving the efficient and effective administration of justice. Written reasons should only be provided where they are expressly required by the Procedure Rules or where the interests of justice otherwise compel written reasons being given, and, in every case where they are required, only to the extent and in the terms necessary to dispose justly of the matter in hand. Any practice of routinely providing written reasons that do not need to be provided fails to make full and effective use of judicial time, which is a precious resource in the justice system.
15.3. In some non-deportation Article 8 human rights and EUSS cases, the Tribunal may be able to give its decision shortly after the conclusion of a hearing by providing a short Notice of Decision or by stating its reasons orally. Reasons will only be provided orally where the judge is satisfied that audio recording facilities are available and an audio recording will be made of the oral reasons, so that the audio recording and any available transcription can serve as the starting point in drafting any written reasons, if requested.
15.4. Where written reasons are given, they must be concise and focused upon the disputed issues on which the outcome of the case has turned.
15.5. The reasons provided for any decision should be proportionate to the significance and complexity of the disputed issues that have to be decided. Reasons need refer only to the issues and evidence in dispute and explain how those issues essential to the Tribunal’s conclusion have been resolved. It follows that the Tribunal need not identify all of the evidence relied upon in reaching its findings of fact or elaborate at length its conclusions on any issue of law.
15.6. Stating reasons at greater length than is necessary is not in the interests of justice. To do so is an inefficient use of judicial time, does not assist either the parties or an appellate Court or Tribunal, and is therefore inconsistent with the Overriding Objective. In some cases, succinct paragraphs containing the necessary self-directions and addressing the disputed issues will suffice. For a procedural decision, the reasons required will usually be shorter still.
15.7. When determining permission to appeal applications the Tribunal must take account that it is important to exercise appropriate restraint when considering a challenge based on the adequacy of reasons. Case law emphasises the importance of a realistic and reasonably benevolent approach – decisions under appeal must be read fairly and not hypercritically. Expert Tribunals should be taken to be aware of the relevant authorities and to be seeking to apply them without needing to refer to them specifically, unless it is clear that they have failed to do so. It should not be assumed that a Tribunal has misdirected itself merely because every step in its reasoning is not fully set out in its decision.
47. Having had the opportunity to consider the submissions of the advocates and in the context of the decision reached and the procedural background we have reached the conclusion that the FtTJ did not err in law in a way that was material to the outcome of this appeal. We give our reasons for that decision as follows.
48. We have considered the factual circumstances of the decision in SSAG which concern the exceptions in rule 25 (1) (e ) and (g) where a decision was made by the FtTJ without consideration of the merits of the case in circumstances where the respondent had failed to comply with directions and was not in attendance at the hearing. The circumstances in relation to this appellant are wholly different as she had expressly requested a paper hearing which is a course adopted through each stage of the appeal process and therefore the exception in rule 25 (1) (a) applied.
49. While the decision to decide on appeal without a hearing is a judicial one (see headnote in SSGA above) on any consideration of the parties engagement with the appeals process, the exception in rule 25 (1) (a) applied as each party had consented to or not objected to the matter proceeding without a hearing.
50. In terms of the procedure adopted by the parties in this present appeal, the steps taken are clearly set out on electronic file system MyHMCTS. It is not disputed that the appellant has been legally represented throughout the appeal and also was the legal representative named by the appellant when making the initial application.
51. The “step-by-step” approach reflected in the recent Practice Direction had been followed for this appeal. The decision was made on 21 February 2024, and on 9 March 2024 the appeal was submitted on the basis of the refusal of a human rights claim. In accordance with the correct procedure, the respondent uploaded their bundle of documents on 11 September 2024. This was followed by the appellant’s bundle of documents which also included the provision of a skeleton argument. This set out the appellant’s case by reference to the decision, the appeal and the documentary evidence. By way of response, there was a respondent’s review uploaded on 1 November 2024. That document was written in answer to the appellant skeleton argument, (“ASA”) and at paragraph 9 the respondent set out that they were content for the appeal to proceed on the papers. The caveat attached to that was that should fresh evidence be uploaded by the appellant’s representatives after the date of the review and prior to the hearing, the respondent reserved the right to consider whether the appeal should be listed for an oral hearing. It was stated that the review was completed on the basis of the evidence available and that the respondent now expected the appeal to be listed and to proceed on the documents submitted.
52. The case management system issued a direction to the appellant’s representatives on 4 November 2024 stating that the Home Office had replied to the ASA and the evidence and that they should review that. It was stated that if they wanted to respond to any matter they should email the tribunal by 9 November 2024 but if there is no response by that date the case will automatically be listed for hearing.
53. Following this the hearing bundle was uploaded on 4 November 2024. There was no reply filed to that direction by 9 November 2024. On 11 November 2024 it was therefore recorded that the appeal was ready for a paper determination on the first available date.
54. By the conduct and subsequent engagement with the appeal process each party had demonstrated that they had provided the evidence each sought to rely upon for the paper hearing to take place. There is no suggestion made on behalf of the appellant that either she or her legal representatives sought to provide any further evidence other than that which had been provided during each stage of the appeal process.
55. We are satisfied in the light of the particular circumstances of this appeal and the need for procedural rigour that there are no circumstances in which the FtTJ would have exercised any discretion to substitute an oral hearing for the paper hearing in the light of the circumstances of this particular appeal. We are satisfied that this is amply demonstrated by the engagement of the parties in the appeal process and that it was not suggested at any time that further evidence was necessary to be considered nor was it raised subsequently and after the hearing during the appeal to the Upper Tribunal that the FtTJ had acted in a procedurally irregular or unfair way. The grounds of challenge simply sought to challenge the findings made by the FtTJ. We consider that it is of relevance that FtTJ Handler did not grant permission on the grounds of challenge which were in fact advanced on behalf of the appellant. FtTJ Handler refused permission on those grounds stating that they were unarguable and that they amounted to no more than a disagreement with the findings made by FtTJ Mensah. We note that there has been no application made for those grounds to be reconsidered, and the grant of permission remains a limited grant on the basis set out.
56. We are satisfied that what fairness requires is informed by the circumstances of the particular case, the basic requirements of common law fairness and the overriding objective which we have cited in the earlier part of our decision. When those principles are applied to the present appeal, we are satisfied that the FtTJ acted fairly in determining the appeal. The factual content of an appeal can be a basis why fairness requires a hearing. However on the particular facts of this appeal, there were no issues of credibility which was a point expressly stated in the appellant’s grounds. We consider that in cases where credibility is an issue and/or where there are issues of dishonesty raised, those are cases in which an oral hearing may well be necessary ( see decision in Shen (Paper appeals; proving dishonesty) [2014] UKUT 236 (IAC)).
57. The issues were set out in the appellant’s skeleton argument and the respondent’s review and thus the issue-based approach applies equally to appeals which are to be determined on the papers. We would accept the fact that any judge determining an appeal on the papers did not mean that the judge was not required to give proper consideration to the issues raised but on any view when reading the decision as a whole this FtTJ did give careful scrutiny to the evidence submitted which she analysed in her decision.
58. Mr Simo submitted that there were a number of “question marks” raised by the FtTJ and therefore she should not have proceeded with the hearing but should have adjourned it for an oral hearing. Having considered the decision of the FtTJ and when it is read in context, we do not accept that there were such “question marks “ or that any of the terminology used by the FtTJ could be construed as any acceptance that the appeal could not be fairly determined on the papers. The FtTJ identified the issues and properly assessed the evidence in light of those issues. The FtTJ set out the appellant’s evidence on the issue of dependency and the respondent’s position (see paragraph 3 of her decision). The FtTJ considered the evidence relevant to the appellant’s circumstances in respect of education (see paragraph 4) and was entitled to find that the certificates did not cover the claimed period by the appellant (see paragraph 5). The FtTJ found that there was a significant gap not explained by the evidence. That was a finding made in light of the lack of evidence provided on behalf of the appellant. As to the issue of financial payments, the evidence was considered by the FtTJ between paragraphs 6 – 8 of her decision. Whilst Mr Simo points to the phrase “I am unclear and unable to correlate the expenditure with the money transfers “(at paragraph 6) and later at paragraph 8, “I am unable to cross-reference her income with the payments she says she sends to the appellant to check they are feasible or credible”, those are not question marks raised but when read in the context of the paragraphs in which they are found they are the FtTJ’s analysis of the evidence or lack of it to support the claim made of dependency. While the FtTJ identified at paragraph 7 that there was very little in terms of the sponsor’s position in the United Kingdom and that the judge had “very little information about the paternal family within the appellant resided with at least until she applied for her visa” (see paragraph 8), those are evidential issues that the appellant should have dealt with prior to the hearing. The burden is upon the appellant to produce the evidence to satisfy the rules. It is not the case because it is a paper appeal the burden of proof shifts or changes in any way. In an appeal where the parties have had the opportunity to provide all the documents they want to rely on, a judge is entitled to decide the question by reference to that material. The issue-based approach applies equally to paper appeals as it does to oral hearings.
59. As to paragraph 9 and the assessment of the text messages, the FtTJ was entitled to consider them on the basis upon which they were submitted. As the FtTJ set out when assessing them, there are lots of text messages, but the images had been removed and in the circumstances their content was limited. Whilst the FtTJ observed that the sponsor had asked for the case to be dealt with on the papers and thus the judge was unable to ask the sponsor to explain such matters, it must have been clear to the appellant that the text messages as they stood as evidence was limited and could have been dealt with in the evidence given at an earlier stage.
60. The conclusion reached by the FtTJ was that she was not satisfied on the balance of probabilities that the appellant had shown that she was dependent on the sponsor. That was an evidential issue raised between the parties and one which was determined by the FtTJ. The fact that there was insufficiency of evidence was not a reason for the FtTJ to have listed the appeal for an oral hearing. It is for an appellant to prove her case on the material that they have sought to present. The issues were clear and the FtTJ gave her reasoning as to why she did not find that the burden had been satisfied to demonstrate compliance with the relevant rules. We are satisfied that there are cases where an oral hearing will be necessary as identified earlier such as cases which plainly involve issues of credibility which are disputed or issues of dishonesty and veracity. However for the reasons we have given above, the particular factual circumstances of this appeal do not fall within those categories, and we are satisfied that in the circumstances the FtTJ did not act in a procedurally unfair manner and did not materially error in law and therefore the decision stands. The remedy available to the appellant is for her to make a fresh application.
Notice of Decision
The decision of the First-tier Tribunal did not involve the making of an error on a point of law; the decision of the FtT shall stand.
Upper Tribunal Judge Reeds
Upper Tribunal Judge Reeds
Dated: 9 April 2025
IN THE UPPER TRIBUNAL
IMMIGRATION AND ASYLUM CHAMBER
Case No: UI-2025-000680
First-tier Tribunal No: HU/52673/2023
THE IMMIGRATION ACTS
Decision & Reasons Issued:
24th April 2025
Before
UPPER TRIBUNAL JUDGE REEDS
DEPUTY UPPER TRIBUNAL JUDGE SAFFER
Between
YA AWA M CHAM
(No ANONYMITY ORDER made)
Appellant
and
THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent
Representation:
For the Appellant: Mr Simo, Solicitor advocate instructed on behalf of the appellant
For the Respondent: Mr Diwnycz, Senior Presenting Officer on behalf of the respondent
Heard at IAC Bradford on 7 April 2025
DECISION AND REASONS
1. The appellant appeals with permission against the decision of the First-tier Tribunal Judge Mensah (hereinafter referred to as the “FtTJ”) who dismissed the appeal against the decision made to refuse the appellant entry clearance to the United Kingdom in a decision promulgated on 26 November 2024.
2. The FtTJ did not make an anonymity order, and no grounds were submitted during the hearing for such an order to be made.
The background:
3. The background to the appeal is set out in the evidence and in the decision of the FtTJ. The appellant is a national of Gambia born on 5 July 2001. In an application made on 28 August 2023 the appellant applied for entry clearance to the United Kingdom to join her sponsor, who is her mother and who is a national of Senegal. It was stated that the appellant had been a member of the sponsor’s pre-fight family and that she would like to join her mother in the UK upon whom she was dependent although it was noted that she was over 18 years of age. According to the information provided in the sponsor’s interview, the sponsor entered the United Kingdom on 24 March 2011 and had left the appellant in Gambia with her father with whom she lived. The sponsor has not seen the appellant since 2011. In 2020 the appellant’s father died.
4. The Entry Clearance Officer ( “ECO”) refused the application in a decision made on the 21st of February 2024. The reasons given can be summarised as follows:
5. The ECO stated that the application had been considered under the Immigration Rules and all the information provided by the appellant and sponsor to decide whether the appellant met the requirements of the Immigration Rules.
6. The ECO took into account the following documentary evidence as part of the application which as listed included the sponsor’s documents consisting of bank statement, general documents, money transfer receipts, photographs, and chat record. In respect of the applicant’s documents the ECO referred to the income and expenditure sheets, birth certificate, school documents and TB certificate.
7. The ECO also set out the applications made which had been previously refused and they were exhibited to the decision. The first was UKHC/174446 Refused 28/11/2019 and the second application was UKSH/208183 Refused 06/09/2015. Both were for visit visas.
8. The ECO set out the basis of the application which was that the appellant was the child of the sponsor named in the application who has protection status in the UK. However, the appellant did not qualify for permission to stay as the child of the sponsor named in the application for the following reasons:
9. As regards the Family life requirements for a child aged over 18 applying for Family Reunion, the ECO was not satisfied she met the family life requirements for a child aged over 18 because the ECO was not satisfied that there were exceptional circumstances that would make refusing her application undesirable. It was stated that she was reliant on her UK Sponsor for financial and emotional support, and she had provided financial transfer documents, showing her mother has sent funds from the UK to her current country of residence.
10. Whilst she had provided photographs of herself and her mother, the ECO noted that they had all been all taken before her mother relocated to the UK. The ECO noted that the sponsor could visit the applicant in her home country using her travel document that had been issued ( the appellant was not in Senegal but in Gambia and thus the sponsor’s protection status would not preclude any travel made by her to Gambia).
11. The ECO also took into account that the applicant was over the age of 18 and was 22 years old when she lodged the application and that this would suggest that if she were to remain in her current situation without her mother, the appellant would not be destitute as she is already an adult.
12. The ECO therefore refused the application as the appellant had not met the requirements of paragraph FRP 6.2 (a) and (c) of Appendix Family Reunion of the Immigration Rules.
13. As regards the Eligibility requirements for Family Reunion based on Article 8 ECHR, the ECO concluded that he was also not satisfied it would be a breach of Article 8 of ECHR to refuse the application because the appellant and her sponsor were aware of the need for entry clearance and that the ability for her to enter the UK was predicated on her ability to meet the requirements of the Immigration Rules. The maintenance of effective immigration control is important especially in cases such as this where the appellant has been unable to satisfy the requirements of a legitimate and proper immigration rule. The appellant had demonstrated that she and her sponsor were able to meet in the form of the UK sponsor’s UK Travel Document and this would suggest that there would be no interruption to their current family life by refusing her application. The ECO concluded that the decision was made in the legitimate pursuit of maintaining an effective, firm immigration control and was also proportionate. The ECO stated that he took into account that persons do not have an inherent right to decide where to establish a family life. In all of the circumstances the ECO found that the decision was proportionate.
14. The ECO also considered the best interests of any child affected by this decision but whilst the appellant applied as a child the ECO stated she was 22 years of age, and the information and documents provided did not indicate any exceptional circumstances regarding her circumstances.
15. Taking those factors into account and considering them alongside the public interest in maintaining immigration control the ECO considered that the refusal of her application was reasonable because she was not considered a child as she was over 18 years of age at the time of her application.
16. The ECO refused the application for Family Reunion (Protection) because he was not satisfied that the appellant met the requirements of the Immigration Rules.
17. The ECO also considered whether there were compassionate factors which may justify a grant of leave outside the rules but noted that the appellant had not raised any compassionate factors, nor have any been identified in her case, and thus the ECO decided that the application does not fall for a grant of leave outside the rules. The ECO concluded that, “Given the above, I am not satisfied that your circumstances are such that I should grant leave outside the Immigration Rules.”
18. The appellant appealed the decision which came before the FtTJ and in her decision the appeal was dismissed under Immigration Rules and also on the basis that the appellant had not established that there were “ exceptional circumstances “ outside the Rules or that the decision would be disproportionate under Article 8 of the ECHR.
19. The FtTJ set out the basis of the application that was made and that the appellant sought to join her mother in the United Kingdom. The appellant’s father had passed away on 25 September 2020. She had applied to join her mother as she had protection status in the United Kingdom. The FtTJ took into account that the appellant was aged 22 when she applied and therefore could not meet the requirements under paragraph 6.1 of the rules as it required an applicant to be under 18 years. The FtTJ that the appellant was required to demonstrate she met FRP 6.2 which covered exceptional circumstances for adult children applicants.
20. In respect of the relevant rules in play they were set out by the FtTJ at paragraph 1 and paragraph 2 identified the issues between the parties. Her analysis of the evidence and findings of fact are set out between paragraphs 2 – 11. Whilst this was a human rights appeal, the starting point was to consider whether the evidence demonstrated that the appellant met the relevant Immigration Rules. The FtTJ set out the competing issues and by reference to the financial support provided by the sponsor to the appellant. The FtTJ undertook an analysis of the appellant’s circumstances in Gambia and in particular the context of her education. Having set out the material presented on behalf of the appellant the FtTJ found that the appellant was not a student at school at the date that she had made her application which was inconsistent with the skeleton argument in which it had said she remained in education. The FtTJ considered the evidence from the sponsor and the documents contained in the bundle, which the FtTJ analysed but reached the conclusion that the documents presented did not cover the 5 year period between the completion of the appellant’s education and the application date. The importance of that evidence was that the judge had been asked to accept the appellant was not working and had no other source of income but there was a significant gap in that evidence based on the circumstances as presented.
21. As to the issue of financial dependency that was analysed by the FtTJ between paragraphs 6 – 8. The money transfers were analysed, but they showed no dates, the amounts being transferred were not converted and there was no evidence to check the money transfers against the sponsor’s bank statements because only statements covering August 2023 had been provided. The application was made on 28 August 2023. The FtTJ could not correlate the expenditure with those money transfers.
22. As to the sponsor’s circumstances, whilst it was stated by the appellant that her mother worked, there was no evidence of employment. The only evidence provided in the form of a bank statement showed child benefit claim and universal credit claim. The FtTJ concluded that it was not possible to cross-reference the sponsor’s income with payment she sends to the appellant (by reference to paragraph 7). The FtTJ also set out an inconsistency in the evidence presented that the appellant’s account was that she lived in the family home but produced rent receipts for a rental. There are other aspects of the appellant’s life in Gambia which were inconsistent as identified at paragraph 8.
23. As to the issue of emotional dependency, the FtTJ assessed the text messages at paragraph 9, noting that there are lots of them, but the images have been removed, and the content was very limited.
24. The FtTJ concluded that she was not satisfied on the balance of probabilities that the appellant had shown that she was financially dependent on the sponsor. Whilst she was in no doubt that the sponsor and appellant had regular contact and that the sponsor was keen to be reunited with her daughter, the judge found the evidence before the tribunal was insufficient to demonstrate compliance with the rules.
25. The FtTJ also concluded that on the same basis the appellant had not shown that there were exceptional circumstances outside the rules or that it would be disproportionate under Article 8 as she had failed to show a real effective committed family life reaching the Razgar threshold as she had not shown that she and her mother had anything other than the normal emotional ties one would expect between an adult child and parent. The FtTJ dismissed the appeal.
The appeal before the Upper Tribunal:
26. The appellant sought permission to appeal that decision on the following grounds.
“1. The Immigration Judge assessment of the evidences submitted is flawed and inadequate. There was no issue raised about credibility of neither the appellant nor the sponsor. The IJ accepted that there is family relationship between the two. The IJ also noted that the appellant’s father had passed away and this was not disputed.
2. The assessment of dependency of the appellant was clearly wrong. In respect to the financial dependency, the IJ judge stated acknowledged the numerous receipts provided in addition to the Income and expenditure. What is wrong in his findings is that the transfers clearly show the sponsor as senders and appellant as recipient. Although few of these did not have that information. Also the receipt shows money for “family maintenance”. Had the judge gave anxious scrutiny to this evidence, it will not have come to that conclusion that there is no financial dependency.
3. Also, the appellant is not working, but in short training. The Judge erred in subjecting that because she is not in “full time education” she cannot be dependent. This assessment is very wrong, if we want to make a similar comparison with same age children living in the UK and attending College for training.
4. The IJ alleged that there is a long gap between when the appellant finished her school and the current training. The issue here is that the appellant had been depending on her mother while looking for the right path for her future. It is unreasonable to suggest that if the appellant is not in full time education, then she cannot be dependent on the sponsor.
5. The appellant’s income and expenditure was not adequately assessed by the IJ. This documents show how the appellant uses the money received from the sponsor. Nothing was mentioned about the fact that the appellant use the money sent by her mother to pay for her rent. School fees, food, health and travel costs.
6. A reasoned assessment of this evidence would have confirmed that the appellant needs that money and therefore is dependent on the sponsor.
7. The sponsor is a refugee in the UK and therefore will not be allowed to claim any extra benefit to support the appellant. The evidence shows that the sponsor is solely responsible for the appellant.
8. In respect to the exceptionality. The IJ refused to consider the fact before him. The facts are clear that the appellant was under the care of the father who has now passed away. This was not disputed by the respondent.
9. In respect to article 8, there is no proper assessment of the consequence on the appellant’s family life when the decision was made to refuse.”
27. The application for permission came before FtTJ Handler who granted permission to appeal the decision of the FtTJ on a ground that had not been set out in the grounds advanced on behalf of the appellant. We therefore set out the reasons given by FtTJ Handler in full.
(1) The application is out of time by 4 days. On the online portal, opposite ‘Reasons why the application is late’ it is stated ‘This is an out of country appeal and therefore it is submitted within 28 days of the receipt of the determination by the appellant’. The decision was uploaded on 26 November 2024 and therefore the application for permission to appeal should have been uploaded by 24 December 2024. The application was uploaded on 28 December 2024 No explanation is provided for why the application is out of time which seems to stem from the person filing the application considering it to be in time. A delay of 4 days is significant, and I take into account the importance of compliance with rules on time limits in the efficient conduct of proceedings.
(2) The grounds of appeal as drafted by the appellant’s representatives are not arguable. They are difficult to follow. They amount to a disagreement with the findings of the Judge.
(3) I exercise discretion to allow the appeal out of time because I consider it just to do so, taking into account what I set out below.
(4) I grant permission on a ground that does not feature in the grounds. This is exceptional taking into account that the appellant is represented. I have considered AZ (error of law: jurisdiction; PTA practice) Iran [2018] UKUT 245 (IAC). I consider that there is a strong prospect of success for the appellant and the ground relates to the UK’s international treaty obligations (ECHR). It is arguable that the Judge has erred in failing address in the decision whether it was appropriate to decide the appeal without a hearing. The decision makes no reference to the Judge having considered the Tribunal’s procedure rules or SSGA (Disposal without considering merits; R25) Iraq [2023] UKUT 00012. Whilst the grounds of appeal include the words ‘There was no issue raised about credibility’, the meaning of this is unclear and there are disputed matters on this appeal. The Judge includes in their decision, ‘As the Sponsor and Appellant have asked for this case to be dealt with on the papers, I am unable to ask the Sponsor to explain such matters.’ This emphasizes that it is arguable that the Judge erred in law in not explaining why they considered it was appropriate to decide the appeal without a hearing.”
28. The appeal was therefore listed before the Upper Tribunal. At the hearing Mr Simo appeared on behalf of the appellant and Mr Diwnycz, Senior Presenting Officer appeared on behalf of the Secretary of State. There was no Rule 24 response filed on behalf of the respondent, but it was indicated that the respondent opposed the appeal.
29. In his submissions, Mr Simo stated that he relied upon the grant of permission as set out above. He submitted that the FtTJ granted permission on a ground that had not been set out in the application for permission to appeal but that the FtTJ had exercised its discretion to put forward that ground. He submitted that FtTJ Handler found that the FtTJ never addressed in her decision if it was appropriate to consider the matter as an oral hearing. This made the decision unsafe as there was no full assessment of the evidence before the FtTJ.
30. Mr Simo submitted as there was no full assessment of the evidence by way of an oral hearing it left a lot of question marks raised by the FtTJ. He referred to paragraph 6, where the FtTJ had set out that she was unclear about the amounts being transferred and also paragraph 7 where the FtTJ set out that she had very little in terms of the sponsor’s position in the United Kingdom. At paragraph 8, the FtTJ stated that she “struggled to understand” and at paragraph 9 stated, “as the sponsor and appellant have asked this paper to be dealt with in the papers, I am unable to ask the sponsor to explain such matters.”
31. Mr Simo submitted that when looking at all the question marks raised by the FtTJ she should have requested an oral hearing to clarify these matters. As stated by the FtTJ who granted permission, this case related to the U.K.’s international treaty obligations under the ECHR and therefore the FtTJ should have exercised her discretion to call the sponsor to give oral evidence.
32. In summary he submitted that the grant of permission where the FtTJ stated that he considered there was a strong prospect of success and therefore it was right to bring this ground of appeal.
33. Mr Diwnycz on behalf of the respondent opposed the appeal. He submitted that the appellant was represented from the time of making the application and at the time of lodging the appeal. The request was made for a paper hearing, and documents had been submitted. Any deficiencies in the material could not be due to the FtTJ hearing the appeal and the appellant was responsible for the material presented. The appellant was responsible for the material that was to be presented on her behalf.
34. He submitted that the FtTJ did not need to refer the appeal for an oral hearing, as the opportunity for such a hearing had been passed at an earlier occasion. He referred to the chronology of the case management and that the FtTJ had properly proceeded on the basis that a paper appeal had been selected and dealt with the evidence that had been put before the Tribunal in respect of the appeal.
35. By way of reply Mr Simo submitted that the FtTJ granting permission stated that the appeal ground had a strong prospect of success and therefore it was justified. He invited the tribunal to set aside the decision.
Discussion:
36. We are grateful to the advocates for the helpful submissions made by each of them and how they have advanced their respective cases. Before assessing those submissions, and as a general starting point we bear in mind the following propositions, which are not controversial, that judicial caution and restraint is required when considering whether to set aside a decision of the First-tier Tribunal, and that their decisions should be respected unless it is clear that they have misdirected themselves in law. The task of the Upper Tribunal is to determine whether the First-tier Tribunal made a material error of law. We are not determining the appeal against the decision of the respondent.
37. We begin our assessment by setting out the relevant Rules and case law.
38. The decision referred to in the grant of permission is SSGA (Disposal without considering merits; R25) Iraq [2023] UKUT 12 (IAC). The headnote reads as follows:
1. Judges in the FtT (IAC) do not have power to dispose of an appeal without considering its merits. This is because of the statutory duty under s.86 of the 2002 Act to determine each matter raised as a ground of appeal.
2. Every judge seized of an appeal must reach his or her own decision on the case and must exercise for himself or herself any available discretion. Judges who give directions must be careful to ensure that the wording of their directions does not and cannot be perceived to direct how another judge should dispose of the appeal or exercise any available discretion. If a judge tasked with deciding an appeal is faced with any direction that may be so perceived, the judge must make it clear in the decision that he/she has considered the matter for himself/herself.
3. A positive act is required by a party demonstrating clearly that the party no longer pursues his or her case before a judge can be satisfied that that is the case. Nothing less will do. Judges in the FtT (IAC) do not have power to treat an appeal as unopposed on the ground that the party in question has not complied with any requirement of the FtT Rules or a practice direction or any direction(s) of the Tribunal even if the failure to comply is persistent.
4. The following guidance applies when consideration is being given to whether or not an appeal should be disposed of without a hearing:
(i) Rule 25(1) of the FtT Rules provides that the FtT (IAC) must hold a hearing which disposes of proceedings except where rule 25(1)(a) to (g) apply. Seven exceptions to the general rule are provided for in rule 25(1)(a) to (g).
(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. If, having considered rule 25, the judge is not satisfied that at least one of the exceptions in rule 25(1)(a) to (g) is satisfied, the judge must decline to decide the appeal without a hearing and direct the administration to list the appeal for a hearing.
(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. Furthermore:
(a) For the exception in rule 25(1)(e) to apply, mere non-compliance with a provision of the FtT Rules, a practice direction or a direction is not in itself sufficient to permit a judge to decide an appeal without a hearing. The Tribunal must, in addition, be "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". The judge's written decision must therefore identify the procedural failure or failures in question, explain the judge's view of their causes on such evidence as is before the judge as well as explain the persistence and gravity of the procedural failure or failures. The written decision must explain the extent to which such failures have obstructed the overriding objective and why the judge 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". If credibility is in issue on any material aspect of the claimant's case, the judge's written decision must explain why it is nevertheless appropriate in all of the circumstances to decide the appeal without a hearing and the relevance of the procedural failure(s) to it being deemed appropriate by the judge to decide the appeal without a hearing.
(b) For the exception in rule 25(1)(g) to apply, rule 25(2) has to be satisfied. If a judge proceeds to decide an appeal without a hearing under rule 25(1)(g), the judge's written decision must demonstrate why rule 25(2) is satisfied and go on to explain why the judge has concluded that the appeal can justly be determined without a hearing notwithstanding any dispute there may be as to the credibility of any material fact.
(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.
39. The Tribunal Procedure (First-tier Tribunal) (Immigration and Asylum Chamber) Rules 2014 are as follows:
Overriding objective and parties' obligation to co-operate with the Tribunal
2. (1) The overriding objective of these Rules is to enable the Tribunal to deal with cases fairly and justly.
(2) Dealing with a case fairly and justly includes-”
(a) dealing with the case in ways which are proportionate to the importance of the case, the complexity of the issues, the anticipated costs and the resources of the parties and of the Tribunal;
(b) avoiding unnecessary formality and seeking flexibility in the proceedings;
(c) ensuring, so far as practicable, that the parties are able to participate fully in the proceedings;
(d) using any special expertise of the Tribunal effectively; and
(e) avoiding delay, so far as compatible with proper consideration of the issues.
(3) The Tribunal must seek to give effect to the overriding objective when it-”
(a) exercises any power under these Rules; or
(b) interprets any rule or practice direction.
(4) Parties must-”
(a) help the Tribunal to further the overriding objective; and
(b) co-operate with the Tribunal generally.
40. Consideration of decision with or without a hearing
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) ...; 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.
(3) This rule does not apply to decisions under Part 4 or Part 5.
41. The recent Practice Direction issued by the Senior President of Tribunals on 1 November 2024 and thus in force at the time of the hearing of the appeal sets out the guiding principles of the Immigration and Asylum Chamber of the First-tier Tribunal at section 1 as follows:
The issues based approach and procedural rigour
1.1. The Overriding Objective of the Tribunal is that cases are dealt with fairly and justly. A thread that runs through the entirety of the appeals process in the Immigration and Asylum Chamber of the First-tier Tribunal (the “Tribunal”) is the requirement that the parties identify, articulate, agree and then focus upon the principal controversial issues, or the disputed issues, thereby adopting an issues-based approach to the appeal1. This furthers all aspects of the Overriding Objective by:
(a) allowing appropriate resources, both of the Tribunal and the parties, to be allocated in proportion to the nature and extent of the issues in dispute;
(b) ensuring that the right people are enabled to participate in the case;
(c) avoiding unnecessary delay; and
(d) ensuring that both parties can fairly and proportionately present evidence and submissions relevant to the disputed issues.
1.2. The parties must ensure they conduct proceedings with procedural rigour. 2 The Tribunal will not overlook breaches of the requirements of the Procedure Rules3, Practice Directions, Practice Statements and failures to comply with directions issued by the Tribunal.
1.3. The disputed issues represent the parameters, or scope, of the appeal and will operate as the foundation and structure for all judicial decisions. Subject to ‘Robinson4 obvious’ matters and the need for extra care when litigants in person are involved in proceedings, judges should not be expected to infer issues which have not been clearly identified and articulated by the parties. The Tribunal will not tolerate a rolling consideration of issues and will not permit the issues to evolve at will for procedural advantage.
1.4. This Practice Direction states important principles on the whole range of substantive and procedural decision-making, including the giving of written reasons. It must always be read and applied having regard to the particular nature of the decision in question and the particular circumstances in which that decision is made.
1.5. This Practice Direction applies to appellants without representatives in the same way as it does to parties represented by lawyers. However, the Tribunal recognises the difficulties faced by appellants who are preparing and presenting their own appeal. The Tribunal will ensure that they are treated fairly and enabled to explain their case. Judges should take account of the Equal Treatment Bench Book. The Bench Book provides guidance on a Tribunal’s duty to litigants in person, who are referred to in this Practice Direction as appellants in person. Account will be taken of the particular needs of appellants in person when dealing with the management of the appeal and at the hearing.
1.6. …
1.7. …
42. Part 2 is entitled “The Appeal Process” and paragraph 2 provides for an overview of the appeals process, which mirrors the procedure set out for the filing and hearing of appeals via the electronic system My HMCTS. It provides for the appellant to provide a notice of appeal in accordance with the procedure rules, the tribunal reviewing the validity of the appeal and territorial jurisdiction, the respondent providing a bundle in accordance with the procedure rules, and the appellant being directed to provide a bundle and an explanation of their case where represented a skeleton argument. Following this the respondent should provide a meaningful review of the decision under appeal and that a hearing before a judge will take place.
43. The practice direction at Paragraph 3 provides for the starting of an appeal and Paragraph 4 of the Practice Direction deals with linked appeals and decisions without a hearing . For our purposes paragraph 4.2 is of relevance. It states as follows:
An appellant may indicate in writing, either when filing the appeal or during the appeal, that they wish for it to be decided without a hearing. If an appellant does so, the procedure in this Practice Direction and rule 25 of the Procedure Rules will apply and the result may be that there will be no hearing. Where a preliminary view is taken that there will not be a hearing, the Tribunal will list a date on which the papers will be considered for making a substantive decision. The Tribunal will proceed to decide the appeal on or after that date unless the respondent objects to this in writing prior to that date. The President may issue Practice Statements setting out directions which shall ordinarily apply for appeals brought by the different processes set out above.
44. Part 3 is entitled “Appeal Progression, Evidence and Written Submissions”. The practice direction deals with case management powers, interim hearings, bundles, appeal skeleton arguments and respondent’s reviews, witness statements, expert evidence, and country information evidence.
45. Part 4, “The Substantive Hearing and the Issues-based Approach” makes it clear to the parties what their responsibilities are to the tribunal at a substantive hearing. Other parts of the practice direction relate to child vulnerable or sensitive witnesses (paragraph 13) and paragraph 14 deals with records of proceedings.
46. Part 5 entitled “Decisions and Reasons” provides for the principles that apply to substantive and procedural decision-making. They set out as follows:
15.2 In the giving of reasons, as always in the conduct of Tribunals business, judicial time should only be spent on tasks that are essential to achieving the efficient and effective administration of justice. Written reasons should only be provided where they are expressly required by the Procedure Rules or where the interests of justice otherwise compel written reasons being given, and, in every case where they are required, only to the extent and in the terms necessary to dispose justly of the matter in hand. Any practice of routinely providing written reasons that do not need to be provided fails to make full and effective use of judicial time, which is a precious resource in the justice system.
15.3. In some non-deportation Article 8 human rights and EUSS cases, the Tribunal may be able to give its decision shortly after the conclusion of a hearing by providing a short Notice of Decision or by stating its reasons orally. Reasons will only be provided orally where the judge is satisfied that audio recording facilities are available and an audio recording will be made of the oral reasons, so that the audio recording and any available transcription can serve as the starting point in drafting any written reasons, if requested.
15.4. Where written reasons are given, they must be concise and focused upon the disputed issues on which the outcome of the case has turned.
15.5. The reasons provided for any decision should be proportionate to the significance and complexity of the disputed issues that have to be decided. Reasons need refer only to the issues and evidence in dispute and explain how those issues essential to the Tribunal’s conclusion have been resolved. It follows that the Tribunal need not identify all of the evidence relied upon in reaching its findings of fact or elaborate at length its conclusions on any issue of law.
15.6. Stating reasons at greater length than is necessary is not in the interests of justice. To do so is an inefficient use of judicial time, does not assist either the parties or an appellate Court or Tribunal, and is therefore inconsistent with the Overriding Objective. In some cases, succinct paragraphs containing the necessary self-directions and addressing the disputed issues will suffice. For a procedural decision, the reasons required will usually be shorter still.
15.7. When determining permission to appeal applications the Tribunal must take account that it is important to exercise appropriate restraint when considering a challenge based on the adequacy of reasons. Case law emphasises the importance of a realistic and reasonably benevolent approach – decisions under appeal must be read fairly and not hypercritically. Expert Tribunals should be taken to be aware of the relevant authorities and to be seeking to apply them without needing to refer to them specifically, unless it is clear that they have failed to do so. It should not be assumed that a Tribunal has misdirected itself merely because every step in its reasoning is not fully set out in its decision.
47. Having had the opportunity to consider the submissions of the advocates and in the context of the decision reached and the procedural background we have reached the conclusion that the FtTJ did not err in law in a way that was material to the outcome of this appeal. We give our reasons for that decision as follows.
48. We have considered the factual circumstances of the decision in SSAG which concern the exceptions in rule 25 (1) (e ) and (g) where a decision was made by the FtTJ without consideration of the merits of the case in circumstances where the respondent had failed to comply with directions and was not in attendance at the hearing. The circumstances in relation to this appellant are wholly different as she had expressly requested a paper hearing which is a course adopted through each stage of the appeal process and therefore the exception in rule 25 (1) (a) applied.
49. While the decision to decide on appeal without a hearing is a judicial one (see headnote in SSGA above) on any consideration of the parties engagement with the appeals process, the exception in rule 25 (1) (a) applied as each party had consented to or not objected to the matter proceeding without a hearing.
50. In terms of the procedure adopted by the parties in this present appeal, the steps taken are clearly set out on electronic file system MyHMCTS. It is not disputed that the appellant has been legally represented throughout the appeal and also was the legal representative named by the appellant when making the initial application.
51. The “step-by-step” approach reflected in the recent Practice Direction had been followed for this appeal. The decision was made on 21 February 2024, and on 9 March 2024 the appeal was submitted on the basis of the refusal of a human rights claim. In accordance with the correct procedure, the respondent uploaded their bundle of documents on 11 September 2024. This was followed by the appellant’s bundle of documents which also included the provision of a skeleton argument. This set out the appellant’s case by reference to the decision, the appeal and the documentary evidence. By way of response, there was a respondent’s review uploaded on 1 November 2024. That document was written in answer to the appellant skeleton argument, (“ASA”) and at paragraph 9 the respondent set out that they were content for the appeal to proceed on the papers. The caveat attached to that was that should fresh evidence be uploaded by the appellant’s representatives after the date of the review and prior to the hearing, the respondent reserved the right to consider whether the appeal should be listed for an oral hearing. It was stated that the review was completed on the basis of the evidence available and that the respondent now expected the appeal to be listed and to proceed on the documents submitted.
52. The case management system issued a direction to the appellant’s representatives on 4 November 2024 stating that the Home Office had replied to the ASA and the evidence and that they should review that. It was stated that if they wanted to respond to any matter they should email the tribunal by 9 November 2024 but if there is no response by that date the case will automatically be listed for hearing.
53. Following this the hearing bundle was uploaded on 4 November 2024. There was no reply filed to that direction by 9 November 2024. On 11 November 2024 it was therefore recorded that the appeal was ready for a paper determination on the first available date.
54. By the conduct and subsequent engagement with the appeal process each party had demonstrated that they had provided the evidence each sought to rely upon for the paper hearing to take place. There is no suggestion made on behalf of the appellant that either she or her legal representatives sought to provide any further evidence other than that which had been provided during each stage of the appeal process.
55. We are satisfied in the light of the particular circumstances of this appeal and the need for procedural rigour that there are no circumstances in which the FtTJ would have exercised any discretion to substitute an oral hearing for the paper hearing in the light of the circumstances of this particular appeal. We are satisfied that this is amply demonstrated by the engagement of the parties in the appeal process and that it was not suggested at any time that further evidence was necessary to be considered nor was it raised subsequently and after the hearing during the appeal to the Upper Tribunal that the FtTJ had acted in a procedurally irregular or unfair way. The grounds of challenge simply sought to challenge the findings made by the FtTJ. We consider that it is of relevance that FtTJ Handler did not grant permission on the grounds of challenge which were in fact advanced on behalf of the appellant. FtTJ Handler refused permission on those grounds stating that they were unarguable and that they amounted to no more than a disagreement with the findings made by FtTJ Mensah. We note that there has been no application made for those grounds to be reconsidered, and the grant of permission remains a limited grant on the basis set out.
56. We are satisfied that what fairness requires is informed by the circumstances of the particular case, the basic requirements of common law fairness and the overriding objective which we have cited in the earlier part of our decision. When those principles are applied to the present appeal, we are satisfied that the FtTJ acted fairly in determining the appeal. The factual content of an appeal can be a basis why fairness requires a hearing. However on the particular facts of this appeal, there were no issues of credibility which was a point expressly stated in the appellant’s grounds. We consider that in cases where credibility is an issue and/or where there are issues of dishonesty raised, those are cases in which an oral hearing may well be necessary ( see decision in Shen (Paper appeals; proving dishonesty) [2014] UKUT 236 (IAC)).
57. The issues were set out in the appellant’s skeleton argument and the respondent’s review and thus the issue-based approach applies equally to appeals which are to be determined on the papers. We would accept the fact that any judge determining an appeal on the papers did not mean that the judge was not required to give proper consideration to the issues raised but on any view when reading the decision as a whole this FtTJ did give careful scrutiny to the evidence submitted which she analysed in her decision.
58. Mr Simo submitted that there were a number of “question marks” raised by the FtTJ and therefore she should not have proceeded with the hearing but should have adjourned it for an oral hearing. Having considered the decision of the FtTJ and when it is read in context, we do not accept that there were such “question marks “ or that any of the terminology used by the FtTJ could be construed as any acceptance that the appeal could not be fairly determined on the papers. The FtTJ identified the issues and properly assessed the evidence in light of those issues. The FtTJ set out the appellant’s evidence on the issue of dependency and the respondent’s position (see paragraph 3 of her decision). The FtTJ considered the evidence relevant to the appellant’s circumstances in respect of education (see paragraph 4) and was entitled to find that the certificates did not cover the claimed period by the appellant (see paragraph 5). The FtTJ found that there was a significant gap not explained by the evidence. That was a finding made in light of the lack of evidence provided on behalf of the appellant. As to the issue of financial payments, the evidence was considered by the FtTJ between paragraphs 6 – 8 of her decision. Whilst Mr Simo points to the phrase “I am unclear and unable to correlate the expenditure with the money transfers “(at paragraph 6) and later at paragraph 8, “I am unable to cross-reference her income with the payments she says she sends to the appellant to check they are feasible or credible”, those are not question marks raised but when read in the context of the paragraphs in which they are found they are the FtTJ’s analysis of the evidence or lack of it to support the claim made of dependency. While the FtTJ identified at paragraph 7 that there was very little in terms of the sponsor’s position in the United Kingdom and that the judge had “very little information about the paternal family within the appellant resided with at least until she applied for her visa” (see paragraph 8), those are evidential issues that the appellant should have dealt with prior to the hearing. The burden is upon the appellant to produce the evidence to satisfy the rules. It is not the case because it is a paper appeal the burden of proof shifts or changes in any way. In an appeal where the parties have had the opportunity to provide all the documents they want to rely on, a judge is entitled to decide the question by reference to that material. The issue-based approach applies equally to paper appeals as it does to oral hearings.
59. As to paragraph 9 and the assessment of the text messages, the FtTJ was entitled to consider them on the basis upon which they were submitted. As the FtTJ set out when assessing them, there are lots of text messages, but the images had been removed and in the circumstances their content was limited. Whilst the FtTJ observed that the sponsor had asked for the case to be dealt with on the papers and thus the judge was unable to ask the sponsor to explain such matters, it must have been clear to the appellant that the text messages as they stood as evidence was limited and could have been dealt with in the evidence given at an earlier stage.
60. The conclusion reached by the FtTJ was that she was not satisfied on the balance of probabilities that the appellant had shown that she was dependent on the sponsor. That was an evidential issue raised between the parties and one which was determined by the FtTJ. The fact that there was insufficiency of evidence was not a reason for the FtTJ to have listed the appeal for an oral hearing. It is for an appellant to prove her case on the material that they have sought to present. The issues were clear and the FtTJ gave her reasoning as to why she did not find that the burden had been satisfied to demonstrate compliance with the relevant rules. We are satisfied that there are cases where an oral hearing will be necessary as identified earlier such as cases which plainly involve issues of credibility which are disputed or issues of dishonesty and veracity. However for the reasons we have given above, the particular factual circumstances of this appeal do not fall within those categories, and we are satisfied that in the circumstances the FtTJ did not act in a procedurally unfair manner and did not materially error in law and therefore the decision stands. The remedy available to the appellant is for her to make a fresh application.
Notice of Decision
The decision of the First-tier Tribunal did not involve the making of an error on a point of law; the decision of the FtT shall stand.
Upper Tribunal Judge Reeds
Upper Tribunal Judge Reeds
Dated: 9 April 2025