Tribunal decisions

The decision

IN THE UPPER TRIBUNAL
IMMIGRATION AND ASYLUM CHAMBER
Case No: UI-2025-001272

First-tier Tribunal No: EU/54075/2023

THE IMMIGRATION ACTS

Decision & Reasons Issued:

20th May 2025

Before

DEPUTY UPPER TRIBUNAL JUDGE CLARKE

Between

DAMITHA NEEL BANDARA TENNAKOON MUDIYANSELAGE
Appellant
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:

For the Appellant: Mr Fazli of Counsel, instructed by Zyba Law.
For the Respondent: Mr M Parvar, Senior Home Office Presenting Officer.

Heard at Field House on 14 May 2025

DECISION AND REASONS
INTRODUCTION
1. The Appellant, a Sri Lankan national, appeals against the decision of First-Tier Tribunal Judge Tozzi, promulgated on 11 March 2024 (“the Decision”), dismissing the Appellant’s appeal against the Respondent’s decision dated 22 June 2023 (“RFRL”), refusing his application under Appendix EU of the Immigration Rules to grant pre-settled or settled status in the UK, dated 6 June 2022.
THE APPELLANT’S APPLICATION DATED 6 JUNE 2022
1. In summary, on 6 June 2022, the Appellant contends that his former solicitors submitted an online application under the EU settlement scheme as a dependent relative of a relevant EEA citizen; albeit, as will be seen in grounds of appeal, the Appellant suggests that he did not instruct his solicitors to do so.
2. The application form confirms that the Appellant does not have pre-settled status; that there is another reason connected with the Appellant’s immigration status why he did not apply by the required deadline; that the Appellant does not have a Residence card; that his relationship to his Sponsor is “other relative”; and that his Sponsor’s name is Rehantha Ramesh Mudiyanselage Herath.
3. In refusing the Appellant’s application, the Respondent considered the application under both the “settled” (EU11) and “pre-settled” (EU14) routes of Appendix EU of the immigration rules. In this regard it is evident that the principal reason for refusing the Appellant’s application under both routes is because the Appellant does not hold a “relevant document” as required under the Annex 1 definition of “dependent relative” in Appendix EU.
4. In a Respondent’s Review dated 29 January 2024, the Respondent noted that the Appellant had failed to serve an Appellant’s bundle or ASA and maintained the position set out in the RFRL.
DECISION OF FIRST-TIER TRIBUNAL JUDGE TOZZI
2. At paragraphs [7] – [8], Judge Tozzi sets out the Appellant’s history of non-compliance with the appeal process as follows:
• In response to directions set on 27 September 2023, the Appellant failed to serve a skeleton argument by 25 October 2023.
• Time for compliance was then extended to 27 November 2023, by which time the Appellant was required to have provided all the documents he wished to rely on.
• By 28 December 2023 no documents had been served, and the matter progressed to listing.
• On 26 February 2024 the appeal was listed for 11 March 2024.
• On 8 March 2024 the Appellant’s representatives uploaded some documents but without statements or skeleton argument.
3. At paragraph [8] Judge Tozzi satisfies himself that the Appellant had a reasonable opportunity to serve all documents upon which he wished to rely and a skeleton argument. Judge Tozzi then refers to a “note that the Appellant was said to be severely ill, but no further details were provided”. In the light of these considerations Judge Tozzi finds that,
“no reasonable explanation has been advanced for non-compliance and noting the likelihood that the Appellant cannot establish that he is a dependent family member of a relevant, I decided to proceed with the appeal on the basis of the documents provided in the interests of proportionality and finality”.
4. Judge Tozzi, under the heading “Relevant Law” then notes that the definition of “dependent relative” under Annex 1 requires that “a valid document is held and that dependency continued at the date of application.”
5. Under “Findings of Fact”, Judge Tozzi then makes the following relevant findings:
“[13] The Appellant provided a family tree, but it related to a different named applicant, Shanika Hansani. Copy birth certificates have been provided for the Sponsor, Appellant and Appellant’s parents along with a translated marriage certificate. However, there is no certification for the translations and witness statements to explain the relationships. On balance, I find that the Appellant has failed to prove it is more likely than not that he is the cousin of the Sponsor.
[14] Even if the Appellant had proved that the Sponsor is his cousin, I note that the residency documents relied upon by the Sponsor expired in January 2024. No further information has been provided and there is no evidence that the Appellant has been issued with a relevant document within the meaning of the rules.
[15] In the light of these findings there is no need for me to consider dependency […..]”
6. Given these findings of fact, Judge Tozzi dismissed the Appellant’s appeal.
PERMISSION TO APPEAL
7. On 18 March 2025, First- tier Tribunal Judge Dixon granted the Appellant permission to appeal the Decision of Judge Tozzi. In so doing Judge Dixon found:
“There is a potential basis for the exercise of any set aside powers under rules 32 or 35 on the basis of arguable procedural unfairness, exercising the exceptional jurisdiction referred to in Harrison, R (on the application of v Birmingham Magistrates Court & Anor [2011] EWCA Civ 332, but that is a matter for the Upper Tribunal.
In essence the application asserts that the proceedings were unfair on the basis of the (if true) extraordinary improper conduct of the Appellant’s previous representatives: lodging and pursuing appeal proceedings without the Appellant’s knowledge which includes the Appellant’s ignorance of the hearing before Judge Tozzi. No criticism is made of Judge Tozzi [….]”
GROUNDS OF APPEAL
8. The application for permission to appeal the Decision Judge Tozzi, settled by the Appellant’s current solicitors, at paragraphs [1] – [12] sets out a lengthy history of purported interactions between the Appellant and his previous solicitors; leading up to the dismissal of his appeal before Judge Tozzi on 11 March 2024. In the interests of accuracy, I set out this purported history in full:
[1] The Appellant is a Sri Lankan national who had instructed his previous legal representatives to submit applications on behalf of himself and his spouse as extended family members of an EEA national under the EEA Regulations 2016 in December 2020. The Appellant is aware that an application was submitted on or around 21 December 2020. The Appellant had provided evidence to support the applications to the previous legal representatives including evidence of relationship and dependency.
[2] The Appellant recalls providing biometric information in or around April 2021 but whilst chasing the application at some point in 2022, the Appellant was told that there had been an issue with the application, and it had to be re-submitted.
[3] During this time, the Appellant was advised by his previous legal representatives that he had a work right that he could exercise and the Appellant therefore sought to get a share code to try and gain employment but was unable to do so. Having tried on different occasions, when trying to get an explanation from the Respondent, the Appellant was told that his legal representatives would get an update.
[4] At the end of 2023, upon his relentless chasing, the Appellant was told that his application had been refused but that things could be resolved easily but they had to wait for an outcome of a Court of Appeal decision. The previous legal representatives gave the impression that an appeal was not required, and they simply needed to wait for the outcome of a specific case to be heard by the Court of Appeal.
[5] Between January to March 2024, the Appellant chased his previous legal representatives on several occasions but got no clear indication of what the position was besides being told that they needed to wait for an outcome of a case at the Court of Appeal.
[6] In April 2024, the Appellant again sought an update and was advised by his previous legal representatives that the Court of Appeal case had gone against the point that they had hoped would be confirmed and this meant that they could not assure any positive outcome. They stated that there had been a refusal and stated that they had appealed but also curiously stated to him that the matter would go no further but that they would maintain the appeal to provide him with protection. The Appellant was unsure as to what they meant and based on this and their refusal to provide him with any documents showing any refusal or appeal or evidence of correspondence with the tribunal, the Appellant believed that there was no decision to appeal and was unsure as to what application had been submitted and what happened following any application.
[7] Given the lack of information and any evidence that the previous solicitors had in fact followed his instructions, the Appellant instructed current solicitors on 4 April 2024 and subsequently informed his previous legal representatives and requested a full copy of his file. Although an indication was given that this would be provided, no disclosure was forthcoming, so the current representatives wrote to the previous representatives requesting copies of all correspondence with the Respondent and also any submissions made to a tribunal including any correspondence received from a tribunal in relation to this matter on 22 April 2024. This was chased on 7 May 2024 due to a lack of response and lack of progress despite phone calls in the intervening period highlighting the urgency.
[8] On 8 May 2024 a response was received suggesting that there was an outstanding fee of £2,500 that was required to be paid before the papers would be released. On the same day a response was provided highlighting the fact that in 2 previous phone calls it had been confirmed that the papers would be forwarded without any reference to outstanding fees and that a phone call on 7 May 2024 after the chasing e-mail had led to the previous representatives surprisingly claiming that the Appellant was not their client. It was stated that the Appellant had no knowledge of any outstanding fees but made the points that a full record of when instructions were taken and on what basis and what fees were agreed was required and confirmation of what payments were received. Further, it was confirmed that the Appellant now believed that during the course of instructions, there was potentially more than one application submitted on their behalf and therefore there was a request for a list of all works carried out on the behalf and further instructions could be taken. There was also a reminder of duties under Data Protection and GDPR.
[9] On 7 June 2024, following no response, a further e-mail was sent confirming the Appellant’s unhappiness and there possibly arising a need for escalation with the SRA or the legal ombudsman but indicating a preference to not have to follow this route and again encouraging a response. Following chasing phone calls which ultimately led to the previous representatives categorically stating that they would not provide any papers and that they had no issue in any complaint being filed, a further e-mail was sent on 20 June 2024 providing a brief history and also commenting that there were no details of any complaints procedure on the firm’s website and asking that the matter be treated as a formal complaint. Since that date, there have been no responses and attempts at engaging on the telephone have been unsuccessful as the person answering cuts the call when there is realisation of the subject matter.
[10] Following further attempts, the matter was raised formally with the SRA on 29 August 2024, and the issue remains ongoing.
[12] The Appellant subsequently received a letter dated 16 October 2024, although received much later, from HMCTS providing confirmation that there in fact was an appeal and providing an appeal number but also confirming that the previous representatives had written to the tribunal to advise that they were no longer representing the appeal. The letter enquired about any replacement representatives and also provided details to access the online portal. These details were subsequently provided to the current representatives who accessed the portal and discovered that not only was there a refusal and appeal but also that there had been a hearing that the Appellant had not been informed of where a negative decision was made. The current representatives were also able to get a copy of the Appellant’s bundle which, as the FtT decision notes, was very light evidentially and did not contain the evidence that the Appellant had provided to his previous representatives.
[13] The FtT decision disclosed that the decision being appealed was an application dated 6 June 2022 that was refused on 22 June 2023 and that there had been non-compliance with directions, a limited Appellant’s bundle was uploaded on 8 March 2024 but with no statements or skeleton argument and also that there had been an application to adjourn the hearing date of 11 March 2024 by incorrectly requesting the adjournment on the alleged basis that the Appellant was severely unwell and unable to attend but done so through the part of the portal where evidence can be uploaded as opposed to the part dealing with Applications. Although there is reference in the FtT decision of there being a note that the Appellant was unwell, it is not clear whether the tribunal had in fact known or engaged with any adjournment application but in any event, the tribunal proceeded on the basis that the hearing should go ahead given the overall circumstances including lack of compliance with previous directions.”
9. The actual grounds of appeal at paragraphs at [15] – [21] of the application for permission to appeal then state:
[15] It is submitted with utmost respect that the FtT, albeit through no fault of its own, made an error of law in its decision to proceed with the hearing in the circumstances and to refuse the appeal.
[16] The facts show that it would appear that the previous representatives had not only given the Appellant poor advice but had clearly failed to follow the Appellant’s specific instructions regarding the intention to apply for an application as an extended family member under the EEA Regulations 2016 as opposed to any application under the EUSS which it appears is what the previous representatives had done on two occasions without clarifying what they were doing to the Appellant nor providing the Appellant with any explanation, update or copies of any documents.
[17] It would also appear that the Court of Appeal decision that the previous representatives were waiting for was the matter of Siddiqa -v- ECO [2024] EWCA Civ 248 which concerned whether an application submitted under EUSS should nevertheless be treated and a refusal be appealable as if the application was one made under the EEA Regulations 2016. The facts of that case appear to be relevant to the current matter.
[18] In relation to the failure to follow instructions and other failings, the Appellant relies upon Mansur (immigration adviser’s failings: Article 8) Bangladesh [2018] UKUT 00274 (IAC).
[19] The facts above also disclose that, through no fault of his own and based on what seem to be malicious actions by his previous representatives on the basis that they requested an adjournment of the hearing on the day of the hearing based on alleged ill health despite the Appellant not being made aware of the hearing nor suffering from ill health and the subsequent update to him after the decision would have been known to the previous representatives given that they had advised the Appellant that the matter would go no further but that they would maintain the appeal to provide him with protection. The result was a denial of the common law doctrine of fairness FP (Iran) & Another v Secretary of State for the Home Department [2007] EWCA Civ 13.
[20] Given that the Appellant would have had no way of being aware of the appeal hearing and his need to attend, the Appellant was deprived of his right to a justice and a fair hearing. The inability to appear and to argue an appeal is a denial of an effective right to be heard by the tribunal especially where credibility was of fundamental importance and also where clearly there were other issues that needed to be addressed.”
10. In a rule 24 reply dated 25 March 2025, the Respondent argued that Judge Tozzi gave adequate and sustainable reasons for dismissing the appeal and that there was no procedural unfairness. The Respondent argued that the allegations against the former representatives were not supported by any objective evidence because there is no witness statement from the Appellant. BT Nepal [2004] UKAIT 00311 is invoked on the basis that that the correspondence to the former solicitors, does not identify the complaint against the former solicitors relied upon in the grounds of appeal, and instead refers to missing files held by the former representative, and unpaid fees allegedly owed by the Appellant. As such, argues the Respondent, the former representatives have not been given the opportunity to respond to the allegations.
11. The Rule 24 goes on to point out that the grounds of appeal do not suggest that the Appellant can meet the requirements of Appendix EU and that the Appellant has in any event, an extensive immigration history including an asylum claim made on 31 May 2017; an EUSS application made on 21 December 2020; an asylum claim made on 13 July 2022; an EUSS application made on 1 March 2023; and an EUSS application made on 22 August 2023. All of these applications, argues the Respondent, have been refused.
Upper Tribunal Directions dated 3 April 2025
12. In Directions issued on 3 April 2025, Clerk to the Upper Tribunal, Alexander Zihni, Directed that:
1. No later than 14 days before the error of law hearing, and to the extent that it does not breach his right to legal professional privilege, the appellant is to file and serve evidence of:
(a) the correspondence from his former representatives and communications between his current and former representatives as referred to at paragraphs 6 to 9 of the grounds of appeal; and
(b) the complaint made to the SRA regarding the appellant’s former representatives as referred to at paragraph 10 of the grounds of appeal.
13. On 2 May 2025 the Appellant uploaded the consolidated Upper Tribunal bundle onto the Ce-File portal, which contains at PDF [17] – [38] the required correspondence identified in Direction [1a], but on 6 May 2025 the Appellant’s representatives, Zyba Law, applied for an extension to serve a skeleton argument. On 7 May 2025 an extension was granted until 4pm on 9 May 2025, however Zyba Law failed to serve a skeleton as required.
14. The matter now comes before me to determine whether there is an error of law in the Decision of the Judge pursuant to s.12(1) of the Tribunal Courts and Enforcement Act 2007. If I find an error, I must then determine whether the error is material, such that the Decision should be set aside. If the Decision is set aside, I must decide whether to remake the Decision in the Upper Tribunal or remit the appeal to the First-Tier Tribunal, pursuant to s.12(2) of the 2007 Act.
15. Upon discussions with the representatives, it was confirmed that we had before us, an Upper Tribunal bundle consisting of 138 pages (“SB”) and a rule 24 response dated 25 March 2025.
16. Upon hearing submissions from Mr Fazli for the Appellant and Mr Parver for the Respondent, I indicated that I would reserve my Decision and provide that in writing with my reasons. I now set out my reasoning and Decision as follows.
ORAL SUBMISSIONS
17. In submissions, Mr Fazli argued that the Appellant had not been made aware of the appeal hearing, that the Appellant had been poorly advised by his previous representatives and that the application giving rise to the RFRL under appeal at the FTT, should have been made under the Immigration (European Economic Area) Regulations 2016 (“EEA regs”), as per the Appellant’s instructions.
18. As I pointed out to Mr Fazli at the hearing, this appeared to me to be an impossible instruction if true; the application giving rise to the RFRL under appeal was dated 6 June 2022 and the EEA Regs had been revoked in their entirety on 31 December 2020 by paragraph 2(2) of Schedule 1(1) to the Immigration and Social Security Co-ordination (EU Withdrawal) Act 2020.
19. In reply, Mr Fazli suggested that an EUSS application made on 21 December 2020 (as the Respondent accepts was made in the rule 24), should have been made under the EEA Regs.
20. I asked Mr Fazli whether, in the event that this submissions was correct, how it could have had any effect on the appeal before the First-tier Tribunal, given that the only grounds of appeal available under s.8 of the Immigration (Citizens' Rights Appeals) (EU Exit) Regulations 2020 were whether the RFRL under appeal breached the Withdrawal Agreement or whether the RFRL under appeal was not in accordance with the provision of the Immigration Rules by virtue of which it was made. As I pointed out, I could see no legal mechanism whereby an earlier application and decision, could have been “crow-barred” into the appeal before the FTT. Mr Fazli was unable to explain how any earlier application or decision could have been relevant.
21. I asked Mr Fazli whether there was in any event, any evidence that there was a cover letter or some other correspondence transmitted to the SSHD with the 21 December 2020 application, to indicate that it was intended to be an application under the EEA Regs rather than an EUSS application. Mr Fazli accepted that there was not. Mr Fazli accepted that Siddiqa v Entry Clearance Officer [2024] EWCA Civ 248, did not assist him.
22. I asked Mr Fazli whether he accepted that there was no “relevant document”, as required under Appendix EU, that could have been put before Judge Tozzi. Mr Fazli accepted that no such document existed.
23. I asked Mr Fazli what he expected the Tribunal to do, given the apparent immateriality of any procedural irregularity in failing to notify the Appellant of his FTT appeal hearing. In reply, Mr Fazli suggested that I could find an error and remake the appeal, by addressing other negative findings such as the claimed relationship with the Sponsor. The Appellant had been denied the opportunity of placing this evidence before the FTT, argued Mr Fazli.
24. Mr Fazli further suggested that I could also make findings in relation to the conduct of the previous solicitors.
25. In reply, Mr Parvar argued that the Appellant had not evidenced the alleged conduct of the previous solicitors. There was nothing in the correspondence to the previous solicitors, or the SRA, in relation to the Solicitors acting without instructions or giving poor advice. The Appellant had not established that he received such poor advice, and he had not established any unfairness; it would have made no difference to the outcome if the Appellant had been present at the hearing.
26. In response to a point I raised with Mr Fazli about the dangers of prejudicing any ongoing SRA proceedings, Mr Fazli argued that the Tribunal could not prejudice such proceedings, as the SRA would decide the matter for itself on the evidence before it.
DISCUSSION
27. I begin this discussion by noting that the main thrust of the grounds, is that there was procedural unfairness because the Appellant had been denied the opportunity of attending and participating in his own appeal.
28. In the Presidential decision of MM (unfairness; E & R) Sudan [2014] UKUT 105, under the heading “Every Litigant’s Right to a Fair Hearing: The Governing Principles” at [15], President McCloskey distils the principles of procedural fairness from the case of R – v – Chief Constable of Thames Valley Police, ex parte Cotton [1990] IRLR 344, as follows,
15. …………….. In Cotton, the issue, in a nutshell, was whether the decision of the Chief Constable to dismiss a police officer was vitiated by procedural unfairness on account of inadequate disclosure to the officer of the case against him. We distill the following principles from Cotton:
(i) The defect, or impropriety, must be procedural in nature. Cases of this kind are not concerned with the merits of the decision under review or appeal. Rather, the superior court’s enquiry focuses on the process, or procedure, whereby the impugned decision was reached.
(ii) It is doctrinally incorrect to adopt the two-stage process of asking whether there was a procedural irregularity or impropriety giving rise to unfairness and, if so, whether this had any material bearing on the outcome. These are, rather, two elements of a single question, namely whether there was procedural unfairness.
(iii) Thus, if the reviewing or appellate Court identifies a procedural irregularity or impropriety which, in its view, made no difference to the outcome, the appropriate conclusion is that there was no unfairness to the party concerned.
(iv) The reviewing or appellate Court should exercise caution in concluding that the outcome would have been the same if the diagnosed procedural irregularity or impropriety had not occurred.
16. These last two propositions are expressed with admirable clarity in the judgment of Simon Brown J, which was under appeal (at page 13B/D):
“It is sufficient if an Applicant can establish that there is a real, as opposed to a purely minimal, possibility that the outcome would have been different.”
The complaint in Cotton was that certain information, damaging to the police officer’s case, had not been disclosed to him. Simon Brown J concluded that even if this disclosure had taken place –
“… there would have been no real, no sensible, no substantial chance of any further observation on the Applicant’s part in any way altering the final decision in his case.”
The Court of Appeal upheld both his conclusion and the governing principle which he formulated: see the uncritical rehearsal of the Applicant’s argument in the judgment of Slade LJ (at pages 10 – 11) and the endorsement of the conclusion of Simon Brown J by all three members of the Court of Appeal. Slade LJ espoused the following formulation of the governing principle:
Natural justice is not concerned with the observance of technicalities, but with matters of substance.” [At page 14.]
In the second of the three judgments delivered, Stocker LJ considered the threshold for intervention by the Superior Court to be “a real risk of injustice or unfairness [page 15]”.
29. It is therefore clear that where a procedural irregularity has taken place, if the outcome would inevitably have been the same, there is no unfairness.
30. In submissions before me, Mr Fazli conceded that the Appellant did not have a “relevant document”, as required under the Appendix EU, Annex 1 definition of “dependent relative” at [b], and therefore could not succeed in his appeal under the immigration rules. Equally, Mr Fazli did not suggest that the Appellant could succeed under the Withdrawal agreement. In this regard, Mr Fazli was right not to make such a suggestion, as there is no evidence that the Appellant comes within the scope of Article 10, as his residence has not been facilitated for the purposes of Article 10(2) or (3) (see Celik v SSHD [2023] EWCA Civ 921 at [61]).
31. I find the ground’s reliance upon Mansur (immigration adviser’s failings: Article 8) Bangladesh [2018] UKUT 00274 (IAC), in the absence of any explanation, misconceived. Mansur was an Article 8 case, and Article 8 had no part in this appeal when before the FTT. If it is to be inferred that proportionality under Article 18(1)(r) should have played some part, as confirmed by the CA in Celik at [56], “the principle of proportionality is not intended to lead to the conferment of residence status on people who would not otherwise have any rights to reside”. As the Appellant was not in scope of Article 10, Article 18 was therefore of no assistance to the Appellant.
32. I therefore find that there has been no procedural unfairness. I agree with Mr Parvar’s submission, that regardless of whether the Appellant had attended his own appeal hearing, the outcome would inevitably have been the same. At their highest, the grounds of appeal allude to an immaterial procedural irregularity.
33. In terms of Mr Fazli’s suggestion that this Tribunal in any event has jurisdiction to set aside and remake the Decision of FTIJ Tozzi with different findings, albeit findings irrelevant to the ultimate outcome, I disagree.
34. Section 12(1) and (2) of the Tribunal Courts and Enforcement Act 2007 states,
12 Proceedings on appeal to Upper Tribunal
(1) Subsection (2) applies if the Upper Tribunal, in deciding an appeal under section 11, finds that the making of the decision concerned involved the making of an error on a point of law.
(2) The Upper Tribunal—
(a) may (but need not) set aside the decision of the First-tier Tribunal, and
(b) if it does, must either—
(i) remit the case to the First-tier Tribunal with directions for its reconsideration, or
(ii) re-make the decision
35. In the Presidential decision of VOM (Error of law – when appealable) Nigeria [2016] UKUT 00410 (IAC) at [22], President McCloskey considered the construction of s.12 of the 2007 Act when assessing the stage at which a right of appeal to the Court of Appeal is available,
“22. The key to answering the question of whether the Appellant can seek to pursue an appeal to the Court of Appeal at this stage of the proceedings, via an application for permission to appeal, lies, firstly, in the construction of Section 12 of the 2007 Act. Our analysis and dissection of Section 12 are as follows:
(a) The function, and responsibility, of the UT is to determine whether an appealable decision of the FtT is vitiated by error of law: see Section 11.
(b) In performing this function, the first task of the UT is to determine whether the decision of the FtT "involved the making of an error on a point of law": per Section 12(1).
(c) If the UT "finds" (the statutory word) that the decision of the FtT did not involve the making of an error on a point of law, the appeal is dismissed and the decision of the FtT affirmed.
(d) If the UT finds that the decision of the FtT involved the making of an error on a point of law, it must then progress to a second stage which entails deciding whether to set aside the decision of the FtT– see Section 12(2)(a) – an exercise which entails the assessment of whether the error of law diagnosed is material. This is the rationale underpinning the discretionary power conferred on the UT in this respect.
(e) Where the UT, having found that the decision of the FtT involved the making of an error on a point of law, concludes, at the second stage, that the error was not material the appeal is dismissed and the decision of the FtT affirmed.
(f) If, on the other hand, the UT decides that the error of law was material, this completes the second stage and triggers a third stage, at which a further decision must be made, namely whether to remit the case to the FtT with directions for its reconsideration or to remake the decision of the FtT.”
(emphasis added)
36. I therefore find that whilst s.12(a) imparts a discretionary power, in the light of the immateriality of the procedural irregularity, the Decision of FTIJ Tozzi must stand.
37. For completeness, I further reject Mr Fazli’s request to make findings in relation to the former solicitor’s conduct, if for no other reason than there is simply not the evidence before me to do so.
38. As argued by Mr Parvar, there is no witness statement before me from the Appellant or anyone else relating the Appellant’s interactions with his former solicitors. I find that the grounds of appeal are not evidence. I find that that none of the correspondence between the Appellant’s current and former representatives, or the Appellant’s current representatives and the SRA, sets out any complaint about poor advice; erroneous EUSS applications; acting without instruction; lying to the Tribunal about the Appellant being ill; or a failure to notify the Appellant about an appeal hearing. The full extent of the correspondence at SB [17] – [38], relates to unpaid fees and undelivered files to the current solicitors. To the extent that the complaint to the SRA mentions the former solicitors continuing to trade after SRA intervention, at its highest, this does not relate to any professional relationship with the Appellant, and in any event, it is not corroborated in any way.
39. I therefore find that the evidence provided does not meet the requirements of the test in BT (Former solicitors' alleged misconduct) Nepal [2004] UKIAT 00311,
“If an appeal is based in whole or in part on allegations about the conduct of former representatives, there must be evidence that those allegations have been put to the former representative, and the Tribunal must be shown either the response or correspondence indicating that there has been no response.”
CONCLUSION ON THE ERROR OF LAW
40. For reasons above, I find that the Decision of the First-tier Tribunal does not disclose any material errors of law.
NOTICE OF DECISION
1. The Decision of First-tier Tribunal Judge Tozzi does not contain any material errors of law and therefore stands.
2. The Appellant’s appeal is dismissed.

D. Clarke

Judge of the Upper Tribunal
Immigration and Asylum Chamber

15 May 2025