Tribunal decisions

The decision

IN THE UPPER TRIBUNAL
IMMIGRATION AND ASYLUM CHAMBER
Case No: UI-2025-001144

First-tier Tribunal No: HU/58388/2023
LH/03805/2024

THE IMMIGRATION ACTS

Decision & Reasons Issued:

On 20th of May 2025

Before

UPPER TRIBUNAL JUDGE BLUNDELL

Between

MO
(ANONYMITY ORDER MADE)
Appellant
and

SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: In person
For the Respondent: Mr Nappey, Home Office Presenting Officer

Heard at Field House on 7 May 2025

Order Regarding Anonymity

Pursuant to rule 14 of the Tribunal Procedure (Upper Tribunal) Rules 2008, the appellant is granted anonymity because his claim is for international protection. 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

1. It is agreed between the parties that the First-tier Tribunal erred in law in dismissing the appellant’s appeal. This decision is in correspondingly short form.

Background

2. The appellant is a Nigerian national who was born on 18 September 2005. He arrived in the UK with his mother when he was fifteen years old. They held entry clearance as visitors, and were due to return to Nigeria the following month.

3. The appellant overstayed. He was notified that he was an overstayer in September 2021. In response, he claimed asylum. He stated that he was at risk from a powerful “confraternity” (a secret gang or cult) called the Eiye, and that he feared returning to Nigeria as a result. He said that the Eiye had sought to recruit him but that he had fled, causing him to fear violent recriminations. It was said that the Eiye were to be found across Nigeria and that they had connections with the Nigerian authorities.

4. Nearly two years later, on 13 June 2023, the respondent refused the appellant’s application for asylum. She accepted that he had been targeted by the Eiye in Nigeria but she did not accept that he would be at risk on return. She reached that conclusion because he could avoid the Eiye by moving to a different part of Nigeria and because the Nigerian authorities would be able and willing to protect him. The respondent also concluded that the appellant’s claim did not engage the Refugee Convention. She considered that his removal would not be in breach of her obligations under the European Convention on Human Rights.

The Appeal to the First-tier Tribunal

5. The appellant appealed to the First-tier Tribunal on 7 July. He was at that stage represented by a firm of solicitors. They requested that his appeal be determined without an oral hearing. In due course, they filed a short skeleton argument and a single news article about the Eiye. Some months before the appeal was determined, however, the appellant’s solicitors notified the First-tier Tribunal that they were no longer acting for him.

6. The papers were placed before the judge of the First-tier Tribunal on 6 November 2024. He dismissed the appeal in a decision which was sent to the parties on 15 December 2024. He set out the background to the case at [1]-[17]. At [18], underneath the sub-heading “Proceedings at the hearing”, he stated as follows:

The appellant was not represented at the hearing, either in person or through a representative. He did not ask for an oral hearing. In the circumstances, I resolved to determine this appeal on the papers before me.

7. The judge directed himself on the law at [19]-[21]. Above [22] appears the sub-heading ‘My Findings’ but the next five paragraphs rehearse what was said by the appellant’s former representatives in their skeleton argument, and by the respondent in her review of the case. The basis upon which the judge dismissed the appeal appears at [28] of his decision, which is in the following terms:

The appellant has not taken part in the proceedings or submitted any other evidence responding to the Secretary of State’s case. As will be apparent from above, she accepts that the appellant was the subject of interest by a cult, however, she reasonably argues that the appellant would have recourse to internal protection from his country’s authorities and otherwise be able to relocate to another part of the country. He is now an adult and should be able to turn to his family to help him settle in. In addition, he would have access to £3000 from the respondent’s office to help his resettlement.

The Appeal to the Upper Tribunal

8. The appellant sought and obtained permission to appeal to the Upper Tribunal. I need not rehearse what he said in his grounds of appeal. The First-tier Tribunal judge who considered the grounds to be arguable identified two key points. The first was whether it had been in accordance with the law for the judge to determine the appeal on the papers. The second was whether he had given adequate reasons for finding that the appellant would not be at risk on return to Nigeria.

9. The appellant appeared before me without representation. He spoke good English and he wished to proceed with the hearing. He had with him a copy of the composite bundle which had been prepared for the appeal hearing. Mr Nappey and I had the same bundle. The appellant was accompanied by his sister. He made a short submission in which he contended that the judge had failed to come to grips with his case. He had said that the Eiye were to be found across Nigeria and that they had connections with the police, and he did not understand the basis upon which his appeal had been dismissed.

10. Mr Nappey for the respondent indicated that he wished to rely on the Secretary of State’s written response to the grounds of appeal. I asked him to address me on the Upper Tribunal’s decision in SSGA (Disposal without considering merits; R25) Iraq [2023] UKUT 12 (IAC); [2023] Imm AR 380 in connection with the first ground of appeal. I also asked him to identify the reasons given by the judge for finding that the appellant would be able to turn to the Nigerian authorities for sufficient protection against the Eiye.

11. Mr Nappey asked for time to consider SSGA and to take instructions. I gave him ten minutes in which to do so. On my return, Mr Nappey indicated that the Secretary of State accepted that the First-tier Tribunal had fallen into error at [18] of its decision. He invited me to remit the appeal to the First-tier Tribunal for consideration afresh. I indicated to the parties that I considered that concession to be properly made and that I would remit the appeal in accordance with Mr Nappey’s submission. My reason for reaching that conclusion were as follows.

Analysis

12. There are parts of the First-tier Tribunal’s decision which suggest that it was reached after a hearing. It states at the top of the first page that the appeal was heard at Taylor House on 6 November 2024. As I have recorded, the subheading above [18] suggests that there were ‘proceedings at the hearing’. The first sentence of that paragraph also makes reference to a hearing. As Mr Nappey accepted, however, it appears that these indications were simply wrong. No notice of hearing was sent to the appellant or the respondent and the reality appears to be that the case was determined on the papers, as the judge stated in the second half of [18]. The first question which troubled the judge who granted permission is whether it was procedurally proper for the judge to determine the appeal without a hearing.

13. As the short title to the decision in SSGA suggests, some of the guidance given in that case concerned the ability of the FtT to dispose of an appeal without considering the merits. That guidance is not relevant to this case. What is relevant, however, is the guidance which the Upper Tribunal (Ockelton V-P and UTJ Gill) gave on deciding appeals without a hearing. At [4] of the judicial headnote to that decision, the Upper Tribunal said that the First-tier Tribunal should apply the following guidance on the approach which was to be followed

(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. […]

(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.

14. This was a case to which rule 25(1)(a) applied, because the appellant had consented to the appeal being decided without a hearing and the respondent had not objected to that course. As Mr Nappey accepted, that did not mean that the judge was required to determine the appeal without a hearing; it meant that he had a discretion to determine the appeal without a hearing. He was to consider that discretion for himself, and he was to give reasons for deciding to proceed in that way.

15. It is apparent from [18] of his decision that the judge was not aware that he had a discretion. It seems that he ‘resolved’ to determine the appeal without a hearing because the appellant had not asked for one. With respect to the judge, that is not what the law required him to do. He should have considered whether to exercise his discretion to proceed without a hearing. He should have considered a range of matters in exercising that discretion. The appellant had claimed asylum as a child. He was no longer represented by solicitors. The skeleton argument which had been sent to the Tribunal was extremely brief. There was not even a witness statement from the appellant. The respondent had accepted that the appellant had given a truthful account of his past but had submitted that he could seek protection from the Nigerian authorities or that he could relocate internally. At least the second of those questions probably required evidence from the appellant: Daoud v SSHD [2005] EWCA Civ 755, at [12].

16. Mr Nappey accepted that the judge had erred in law. That concession was made on instructions, and was properly made. The judge failed to exercise his discretion or, in the alternative, failed to take relevant matters into account in deciding to determine the appeal without a hearing. As Mr Nappey recognised, that error must have been material to the outcome, as it was an error which went to the procedural fairness of the appeal. He was correct, therefore, to submit that remittal to the FtT de novo should follow, and it will.

17. Mr Nappey made no concession in relation to the second point which concerned the judge who granted permission. He opted not to address the point in his submissions and there was no need for me to press him on it. I make clear, however, my view that the judge also erred in [28], in that he failed to give any reasons for finding that the appellant would receive a sufficiency of protection in Nigeria. The question was not whether the respondent had reasonably concluded that there would be a sufficiency of protection. This was not an application for judicial review, and it was no part of the judge’s function to subject the respondent’s decision to a rationality review. He was required to consider the competing cases on their individual merits and to reach his own conclusions on the evidence presented. If it was his conclusion that the appellant would be protected by the Nigerian police despite what had been said about the influence of the Eiye, he was to express that as his conclusion and to give reasons for his assessment. That did not take place in [28] of his decision or elsewhere. Whilst Mr Nappey did not address the point in his submissions, therefore, I find that the judge erred in his substantive assessment of the case, in addition to the error of procedure which I have set out above.

18. For all of these reasons, I conclude that the proper course is as suggested by the appellant and Mr Nappey. The appeal will be remitted to be considered afresh by a different judge. It will be for that judge to consider whether to hold an oral hearing, taking into account what I have said above, and anything said or done by the appellant in the meantime.

Notice of Decision

The decision of the FtT is set aside in full. The appeal is remitted to the FtT for consideration afresh by a different judge.

M.J.Blundell

Judge of the Upper Tribunal
Immigration and Asylum Chamber

14 May 2025