Tribunal decisions

The decision

IN THE UPPER TRIBUNAL
IMMIGRATION AND ASYLUM CHAMBER
Case No: UI-2025-001023

First-tier Tribunal No: HU/58582/2023
LH/04258/2024

THE IMMIGRATION ACTS

Decision & Reasons Issued:
On 3rd of July 2025

Before

DEPUTY UPPER TRIBUNAL JUDGE ANZANI

Between

AA
(ANONYMITY ORDER MADE)
Appellant
and

SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:

For the appellant: Ms E. Atas, Counsel, instructed by MBM Solicitors Ltd
For the respondent: Mr E. Terrell, Senior Home Office Presenting Officer

Heard at Field House on 24 June 2025

Order Regarding Anonymity

Pursuant to rule 14 of the Tribunal Procedure (Upper Tribunal) Rules 2008, the appellant is granted anonymity. No-one shall publish or reveal any information, including the name or address of the appellant, likely to lead members of the public to identify the appellant. Failure to comply with this order could amount to a contempt of court.

DECISION AND REASONS

Introduction
1. The appellant appeals with permission against the decision of First-tier Tribunal Judge G Richardson (‘the Judge’), which was promulgated on 1 December 2024 following a hearing held on 27 September 2024. In that decision, the Judge dismissed the appellant’s appeal against the respondent’s refusal of his protection and human rights claim.
Background
2. The appellant arrived in the United Kingdom (‘UK’) on 6 August 2012 and claimed asylum on 7 September 2012. That claim was refused on 5 January 2015, and the appellant appealed the decision. The appeal was determined by the First-tier Tribunal in a decision dated 11 June 2015, in which the appellant was found to lack credibility and to have failed to establish a well-founded fear of persecution in Iran.
3. The appellant remained in the UK and, on 27 July 2021, made further submissions to the respondent. In those submissions, he claimed that he feared persecution upon return to Iran on account of his Baluch ethnicity, his Sunni Muslim faith, and the fact that he had left Iran illegally. He further asserted that his brother’s involvement in smuggling activities would place him at risk if returned. Additionally, he claimed to suffer from serious underlying mental health conditions, which, he argued, would present very significant obstacles to his reintegration in Iran and would give rise to a breach of Articles 2, 3, and 8 of the European Convention on Human Rights (ECHR) if he were removed.
4. In a witness statement submitted in advance of his appeal hearing before the Judge, the appellant advanced an alternative basis for international protection. He now claims to be a national of Afghanistan, where he lived until the age of 17. He stated that he left Afghanistan due to problems his family faced with the Taliban. He further indicated that his father, brother, and sister remain resident in Afghanistan.
5. The appellant explained that he departed Afghanistan in 2011, travelling first to Iran, then to Turkey, and ultimately to the UK. He stated that, upon claiming asylum in the UK, he falsely asserted Iranian nationality out of fear of being returned to Afghanistan. He now claims that, if returned to Afghanistan, he would face ill-treatment at the hands of the Taliban. He also maintains that his mental health issues would constitute very significant obstacles to his reintegration in Afghanistan and that his removal would therefore amount to a breach of Article 8 of the ECHR.
Position of the respondent before the First-tier Tribunal
6. In a respondent’s review dated 22 February 2024, the respondent granted the First-tier Tribunal consent to consider the new matter of the appellant’s claimed Afghan nationality. However, the respondent maintained that, given the appellant had previously advanced a claim based on Iranian nationality, his credibility was now significantly undermined. The respondent further noted that there was no substantive evidence to establish the appellant’s Afghan nationality, save for the submission of a biometric identity card allegedly belonging to the appellant’s cousin, for which no supporting evidence of a familial relationship was provided. With regard to the appellant’s medical conditions, the respondent took the position that the appellant could access comprehensive medical treatment in Iran and relied on the Country Policy and Information Note (CPIN), Iran: Medical and Healthcare Issues (November 2019), which outlines the availability of medical and mental health care treatment in Iran.
First-tier Tribunal appeal
7. The appellant did not attend the hearing before the Judge. The Judge’s determination records that the Tribunal clerk attempted to contact the appellant by both telephone and email to ascertain the reason for his absence but received no ‘immediate response’. The Judge stated that he was satisfied the appellant had been properly notified of the hearing, having been served with a notice of hearing letter. As neither the appellant nor his legal representatives had provided any explanation for his non-attendance at that time, the Judge proceeded to seek submissions from the respondent’s representative regarding how the matter should be dealt with. The respondent submitted that, in the absence of any explanation for the appellant’s non-attendance, the appeal should be determined on the basis of the decision letter and the respondent’s review.
8. At paragraph [4] of the determination, the Judge states:
…I was mindful that the appellant had previously had an appeal before the Tribunal. Given there had been no explanation from the appellant for his attendance nor any adjournment sought by his representatives I considered it appropriate and in the interests of justice that this matter should proceed in the appellant’s absence. There were no further inquiries the court staff could make on the day and it seems in adjournment was unlikely to result in any further response from the appellant [sic].
9. The Judge then proceeded to hear brief oral submissions from the respondent’s representative, following which he reserved his decision.
10. The determination records further at [6] that, after the hearing, the Judge was provided with an email from the appellant’s solicitor, which stated:
Dear Sirs, we are extremely sorry that due to an oversight on the matter today was not diarised as a notice of hearing was not received via email, therefore no counsel has been instructed. this was not a fault of the appellant but the administration oversight that lies with us. under this circumstances we kindly request today's hearing to be adjourned. please also note this case does raise exceptional circumstances and require a counsel's representation. We request a short adjournment because we were sadly informed of the hearing after 10:00am this morning and we are unable to instruct a counsel on such short notice and get the appellant to attend. Once again we apology for this and request the matter to be relisted [sic].
11. The Judge noted that the adjournment request was not supported by any evidence, such as a witness statement. He further noted that the hearing notice had been issued on 3 September 2024 and concluded that there was no adequate explanation as to why the appellant and his representatives were unaware of the hearing date or failed to attend. The Judge found that the adjournment request did not comply with the Senior President of Tribunals’ Practice Direction of May 2022, particularly as the appellant’s representative failed to attend the hearing either in person or remotely and did not provide full and satisfactory reasons. He concluded that his initial decision not to adjourn the hearing remained appropriate and that the appeal should be determined on the evidence available before him.
Upper Tribunal appeal
12. The appellant sought permission to appeal to the Upper Tribunal. The sole ground of appeal is that the Judge erred in law by proceeding to determine the appeal in the appellant’s absence and by refusing the appellant’s representative’s application for an adjournment. The appellant contends that he was thereby denied a fair hearing.
13. Permission to appeal was granted by Upper Tribunal Judge Ruddick on 23 April 2025. In granting permission, Judge Ruddick concluded that it was arguable the Judge had erred in proceeding to determine the appeal in the appellant’s absence. The appeal turned on issues of credibility, rendering the appellant’s oral evidence centrally important. Furthermore, the appellant’s representatives stated that they responded promptly upon being informed of the hearing after 10:00 a.m. on the day it was listed, and submitted an application for an adjournment before the hearing commenced. It was considered arguable that, in light of the appellant’s documented mental health issues and the nature of the protection claim, the First-tier Tribunal erred in deciding to proceed with the hearing solely on the basis that there had been no "immediate" response to its inquiries. Judge Ruddick also concluded that the Tribunal arguably failed to consider whether it would be fair to proceed without an adjournment, as required by the principles set out in Nwaigwe (adjournment: fairness) [2014] UKUT 418 (IAC).
14. I heard submissions from both parties. A detailed summary of those submissions is not necessary, as they are a matter of record. However, I will refer to any relevant arguments in the course of my decision.
Decision and Reasons
15. Where a party applies for an adjournment, the Tribunal is under a duty to consider whether the appeal can be determined fairly in the absence of the appellant. The headnote to Nwaigwe states:
If a Tribunal refuses to accede to an adjournment request, such decision could, in principle, be erroneous in law in several respects: …. In practice, in most cases the question will be whether the refusal deprived the affected party of his right to a fair hearing. Where an adjournment refusal is challenged on fairness grounds, it is important to recognise that the question for the Upper Tribunal is not whether the FtT acted reasonably. Rather, the test to be applied is that of fairness: was there any deprivation of the affected party’s right to a fair hearing? See SH (Afghanistan) v Secretary of State for the Home Department [2011] EWCA Civ 1284.
16. The Judge made no reference to Nwaigwe at any stage in his decision, or to the guidance set out therein. The Judge was required to consider the potential impact of refusing the appellant’s adjournment request on the fairness of the proceedings. I take into account the witness statement of Ms Karishma Madyon of MBM Solicitors Ltd, dated 9 December 2024, which confirms that the appellant’s representatives responded promptly upon being informed of the hearing on the day it was listed, and submitted an application for an adjournment before the hearing commenced.
17. This was a protection appeal in which the appellant’s credibility was central to the determination of the claim, thereby rendering his oral evidence of critical importance. Furthermore, there was evidence before the Tribunal of the appellant’s documented mental health difficulties, which required careful consideration in the context of procedural fairness. The Judge’s reasoning fails to reflect adequate engagement with these issues, or with the question of whether the appeal could be fairly and justly determined in the appellant’s absence.
18. For these reasons, I find that the Judge did not address all relevant material considerations and failed to properly assess whether refusing the appellant’s readjournment request would compromise his right to a fair hearing. I am satisfied that a material error of law has occurred, and accordingly, the decision to dismiss the appellant’s appeal is set aside.
Disposal
19. Having identified an error of law, I must now determine whether to retain the appeal in the Upper Tribunal or remit it to the First-tier Tribunal. In either case, I must also consider whether any of the judge's findings should be preserved.
20. The decision involved an error of law which rendered the overall proceedings unfair such that the appellant was deprived of a fair hearing. In those circumstances the only appropriate disposal would be to remit the matter to the First-tier Tribunal to decide the appeal de novo.

Notice of Decision
The decision of the First-tier Tribunal involved the making of an error of law.
The decision of the First-tier Tribunal is set aside in its entirety with no findings preserved.
The appeal is remitted to the First-tier Tribunal to be heard de novo before a judge other than Judge G Richardson.

S. Anzani

Deputy Judge of the Upper Tribunal
Immigration and Asylum Chamber

02 July 2025