Tribunal decisions

The decision

IN THE UPPER TRIBUNAL
IMMIGRATION AND ASYLUM CHAMBER
Case No: UI-2025-001420

First-tier Tribunal No: PA/02235/2024

THE IMMIGRATION ACTS

Decision & Reasons Issued:

27th June 2025

Before

UPPER TRIBUNAL JUDGE LINDSLEY

Between

CA
(ANONYMITY ORDER MADE)
Appellant
and

SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: None
For the Respondent: Ms S McKenzie, 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 is a citizen of Nigeria born on 20th December 1979. He came to the UK on 4th January 2021 as the spouse of a person who held a health and social care work visa. His leave to enter expired on 9th September 2023. He made an asylum claim, having separated from his wife, on 6th January 2023. The application was refused on 30th April 2024. The appellant’s appeal against the decision was dismissed by a First-tier Tribunal Judge after a hearing on 16th January 2025 in a decision promulgated on 20th January 2025.
2. Permission to appeal was granted by Upper Tribunal Judge Hoffman on 17th April 2025 on the basis that it was arguable that the First-tier judge had erred in law in proceeding with the appeal in the appellant’s absence, and in the context of some medical evidence he had been unwell on the day prior to the hearing, and in failing to consider whether this was fair in accordance with the guidance in Nwaigwe (adjournment fairness) [2014] UKUT 418. It was directed that the appellant should file and serve any medical evidence on which he wishes to rely 14 days prior to the error of law hearing before the Upper Tribunal.
3. The matter now comes before me to determine whether the First-tier Tribunal had erred in law, and if so whether any such error was material and whether the decision of the First-tier Tribunal should be set aside. The appellant was not in attendance by 11am so having checked that the notice of hearing had been served and received, which was clear from emails on the Tribunal file, and after the Tribunal clerk having unsuccessfully tried to call the appellant on his mobile phone I decided that it was fair and just to proceed with the Upper Tribunal appeal hearing in his absence.
4. It later transpired that the appellant had been stuck on transport to the hearing, as he made himself known to the court staff around 11.20am, but it was not possible to reconvene the hearing as Ms McKenzie had left the building by this stage, and further it was not necessary as I had informed Ms McKenzie that I would be allowing the appeal and remitting the appeal to be reheard before the First-tier Tribunal.
Submissions – Error of Law
5. In the grounds of appeal it is argued that the First-tier Tribunal should have adjourned his hearing. The appellant had had a fall in a shop and was taken to hospital on 14th January 2025. He was not given a sick note by the hospital but was told to get one from his GP. He could not get an appointment to get this note in time for the hearing on 16th January 2025. He did however apply for an adjournment on 15th January 2025 as he was unable to walk. He sent in the sick note he later got from his GP with his grounds of appeal which states that he was not fit for work from 14th January 2025 to 24th January 2025. The appellant argues that he was not fit to attend his First-tier Tribunal hearing as he could not walk and was not well so it was wrong for the Judge not to have adjourned that hearing.
6. The respondent did not provide a Rule 24 notice but Ms McKenzie submitted that the First-tier Tribunal Judge had acted fairly and reasonably, he had no information about the appellant’s condition and there was no renewed application for an adjournment on the day of the hearing. The First-tier Tribunal Judge refers, at paragraph 6 of the decision, to the relevant practice direction which permitted him to proceed with the hearing in these circumstances. She submitted that the decision of the First-tier Tribunal should therefore stand.
7. At the end of the hearing I did not give an oral judgment but I informed Ms Mckenzie that I found that the First-tier Tribunal had erred in law as I found that it had been procedurally unfair to proceed with the hearing in the absence of the appellant. I set out my reasons below in writing. She accepted in these circumstances it was appropriate for the decision and all of the findings to be set aside and the appeal remitted to be heard de novo in the First-tier Tribunal.
Conclusions – Error of Law & Remaking
8. At paragraph 6 of the decision the First-tier Tribunal Judge considered the request for an adjournment made on 15th January 2025, the day before the hearing, as a result of a fit of vertigo, which the appellant explained had meant he had fallen and had to attend Surrey Hospital on 14th January 2025, and so was not fit to attend the Tribunal. This application had been refused by the duty judge on 15th January 2025 on the basis that the vertigo episode had only lasted a maximum of 15 minutes and that there was therefore no evidence that the appellant was unfit to attend the hearing on 16th January 2025. The First-tier Tribunal Judge concluded that this application had not been renewed and so it was correct to proceed with the hearing in accordance with the IAC (First-tier Tribunal) Practice Directions of 2024 at paragraph 12.4.
9. The evidence supplied with the application for permission to appeal is a fit note from the appellant’s GP which states that the appellant was not fit to work from 14th January 2025 to 24th January 2025 due to vertigo. The appellant says he could not attend the hearing centre as he could not walk during this time. I find that applying Nwaigwe (adjournment fairness) the First-tier Tribunal erred in law by making a decision which was procedurally unfair. I find that the appellant, who acts in person, has provided sufficient evidence in support of his contention that he was not fit to be reasonably expected to have attended the hearing before the First-tier Tribunal on medical grounds. The fit note confirms at the point in time when the hearing took place he was suffering from vertigo, and could not work. Whilst work is not the same as attending a hearing it does in general involve going to a particular place and carrying out an activity, and so has some similarities. Given the diagnosis of vertigo, which had caused the appellant to fall previously, I find that it would not have been fair to have expected the appellant to have travelled to Hatton Cross from Horsham where he lives, and to have given oral evidence in support of his asylum and human rights appeal during the period he was signed off as unfit to work.
10. As the error of law amounts to procedural unfairness in allowing the appeal to proceed in the appellant’s absence when he was not well enough to attend the First-tier Tribunal it is appropriate that all of the findings are set aside and for the appeal to be remitted to the First-tier Tribunal to be remade de novo by a different Judge of the First-tier Tribunal.

Decision:
1. The making of the decision of the First-tier Tribunal involved the making of an error on a point of law.
2. I set aside the decision and all of the findings of the First-tier Tribunal.
3. I remit the appeal to be remade de novo by a different Judge of the First-tier Tribunal.

Fiona Lindsley

Judge of the Upper Tribunal
Immigration and Asylum Chamber

24th June 2025