Tribunal decisions

The decision

IN THE UPPER TRIBUNAL
IMMIGRATION AND ASYLUM CHAMBER
Case No: UI-2025-001222

First-tier Tribunal No: EA/01293/2024

THE IMMIGRATION ACTS

Decision & Reasons Issued:
On 25 June 2025

Before

DEPUTY UPPER TRIBUNAL JUDGE WEBB

Between

AZIZ UDDIN MOHAMMED
(NO ANONYMINTY ORDER MADE)
Appellant
and

Secretary of State for the HOme Department
Respondent

Representation:
For the Appellant: No appearance
For the Respondent: Mrs A Nolan (Senior Presenting Officer)

Heard at Field House on 20 June 2025

DECISION AND REASONS
1. This is an appeal by Mr Mohammed against the decision of Judge Chong made on 16 January 2025, dismissing his appeal. That decision was made without an oral hearing. Permission to appeal was refused by First-tier Tribunal Judge Parkes on 25 February 2025, but granted by Deputy Upper Tribunal Judge Jarvis on 07 April 2025.
The hearing
Preliminary matters
2. The appellant did not attend. I was satisfied that the appellant had properly been served a notice of hearing: there had been documents sent by email to the Upper Tribunal in relation to this hearing by him.
3. There was no request for an adjournment, nor any explanation for his non-attendance. My clerk attempted to contact the appellant using email and telephone contact details found in the Tribunal records, but received no response by the time the hearing was called.
4. Considering procedure rules 2 and 38, I was satisfied that it was in the interests of justice to hear the appeal in the absence of the appellant.
5. After the hearing, but before the drafting of this decision, my clerk received an email response from the appellant confirming that he was not attending the hearing, but providing no explanation.
6. Mrs Nolan had made a written application to withdraw a previous Rule 24 response drafted by the respondent on 01 May 2025, that review conceded that the email address to which the appellant sent the bundle appeared to be genuine. A review of the consolidated bundle and the Upper Tribunal filing system revealed that the document in question had not been filed. I therefore did not need to deal with that application directly.
7. Mrs Nolan made an application to adduce correspondence she had received from the Taylor House administration on 19 June 2025. That email confirmed that they had no record of the email that the appellant says he sent to the Tribunal. Mrs Nolan confirmed that she had provided that document to the appellant by email at the same time as it was filed with the Upper Tribunal.
8. The evidence was not before the First-tier Tribunal. Standard directions were issued to the parties on 16 April 2025, requiring the respondent to provide any application to adduce new evidence no later than 28 days after the issue of the directions.
9. Mrs Nolan diligently approached the First-tier Tribunal during her preparation of this hearing. However, she was not able to provide an explanation for why the person who drafted the Rule 24 response or any other employee of the Secretary of State did not do the same at an earlier date. I find there has been an unreasonable delay by the respondent in providing this evidence an that is a significant point that is against it being adduced.
10. Another factor in my decision on the application to adduce the evidence is in the importance of the evidence to the issues I need to decide.
11. Although the evidence may seem to be critical and show that the ground of appeal can not be made out, if the emails and bundle sent to the First-tier Tribunal were lost, misplaced or accidentally deleted, there would not now be a record. If there was now a record it is likely that the Judge would have had the appellant’s bundle when making the decision. I find that the evidence is not as clear cut as it might first appear and that reduces significantly the importance of the evidence to the issues I need to decide.
12. Having considered all the circumstances in the case and applying appropriate procedural rigor I concluded that permission to adduce the evidence should be refused.
Documents and submissions
13. I had before me a 108 page consolidated bundle that consisted of the decision being appealed, grounds, decisions on permission, and the evidence that was before the First-tier Tribunal. Page references will be to this bundle unless otherwise stated.
14. I also had written submissions from the appellant arguing that it would be appropriate to remit the appeal for a full rehearing if I were to find the Judge’s decision should be set aside.
15. I heard submissions from Mrs Nolan in relation to the ground of appeal.
16. At the conclusion of submissions I indicated that my decision was reserved, I now give my decision in writing.
Error of Law
17. There is a single ground of appeal that is essentially one of procedural unfairness.
18. The appellant argues that the determination of his appeal was fundamentally unfair as the Judge did not have before them the bundle that was sent to the Tribunal by email on 29 October 2024. A copy of that email and the automatic response from the Tribunal received by the appellant were submitted with the grounds of appeal (page 22-23).
19. In [14] of the decision the Judge identifies the procedural history of the case and that the appellant was directed twice to provide evidence in support of his appeal, once on 04 July 2024 and again on 21 October 2024. I note that this second date is consistent with the appellant providing a bundle by email on 29 October 2024.
20. Mrs Nolan argued that while there maybe a procedural irregularity that created unfairness, it could not be said to be material to the decision. This was because the appellant had not provided the bundle of evidence that had been sent to the First-tier Tribunal so it could not be said with certainty that the Judge’s decision would have been any different.
21. While there was some force in the submission made by Mrs Nolan, I find that the procedural irregularity in this case is such that it made the determination of the appeal unfair, and that it was material.
22. I find this ground does disclose a material error of law.
23. Because the error goes to the heart of the decision no findings of Judge Chong are preserved.
Remaking or Remittal
24. Mrs Nolan agreed with me in her submissions that, if there was a material error of law, the case appeared to be one that was suitable for remittal to the First-tier Tribunal rather than a remaking in the Upper Tribunal.
25. I have considered what was said by this Tribunal in Begum (Remaking or remittal) Bangladesh [2023] UKUT 46 (IAC) and the terms of the Practice Direction and Practice Statement. I have concluded that as the appellant was deprived of a fair hearing before the First-tier Tribunal and given that a full fact finding exercise will need to be carried out, it is appropriate for the case to be remitted to the First-tier Tribunal.
26. In his initial grounds of appeal before the First-tier Tribunal, the appellant requested the appeal be determined on the papers (page 82).
27. It is a matter for the First-tier Tribunal whether the remitted hearing is considered only on the papers, or if an oral hearing should be directed. However, I note that this is a case where the credibility of what the appellant says about his reasons for not attending the interview with the Home Office is in issue and it may be in those circumstances appropriate to hold an oral hearing to dispose of the appeal.
Notice of Decision
28. The decision of Judge Chong, dated 16 January 2025, was determined with procedural unfairness that amounts to an error of law and is set aside with no preserved findings.
29. The appeal is remitted to the First-tier Tribunal.
Directions
30. I direct that the remitted case is to be listed in the First-tier Tribunal, Taylor House hearing centre, before a Judge other than Judge Chong.
31. Further directions will be issued by the First-tier Tribunal.

N Webb

Deputy Judge of the Upper Tribunal
Immigration and Asylum Chamber
20 June 2025