Tribunal decisions

The decision

IN THE UPPER TRIBUNAL
IMMIGRATION AND ASYLUM CHAMBER Case No: UI-2025-002659
First-tier Tribunal No: HU/53230/2023
LH/01575/2023

THE IMMIGRATION ACTS

Decision & Reasons Issued:

On 5th of May 2026

Before

UPPER TRIBUNAL JUDGE MAHMOOD

Between

VANEL BRIGHT NGUEGO KENFACK
(No ANONYMITY ORDER MADE)
Appellant
and

ENTRY CLEARANCE OFFICER
Respondent

Representation:
For the Appellant: Ms Sanders, counsel instructed by SIMO Law Firm
For the Respondent: Ms Blackburn, a Senior Home Office Presenting Officer

Heard at Phoenix House (Bradford) on 27 February 2026

DECISION AND REASONS
Introduction
1. The Appellant, with a claimed date of birth of 8 September 2024, is a national of Cameroon. His appeal against the respondent’s decision to refuse him entry clearance as the dependant child of Christian Martial Nguego (being the British Sponsor) was dismissed at hearing before First-tier Tribunal Judge Saffer (“the Judge”).
2. The Appellant had been granted permission to appeal against the Judge’s decision by Upper Tribunal Judge Landes. In the learned Upper Tribunal Judge’s decision sealed on 3 September 2025, it was observed that it was arguably unfair to proceed in the absence of the Appellant or his legal representatives without making further enquiries.
3. The task before me is to decide whether or not there is a material error of law in the Judge’s decision.
Background
4. Regrettably it is necessary to refer to the very poor handling of this appeal by the Appellant’s solicitors: SIMO Law Firm. There were inexcusable difficulties at a previous hearing because Mr Christian Simo of Leeds had filed documents so late. The bundles have not been provided in a proper format for the hearings at the Upper Tribunal. I have set those matters out in previous decisions and I shall not repeat them again, save to say that Mr Simo must comply fully with the directions of the Immigration and Asylum Chamber otherwise matters will be reported to his regulatory body.
5. I make clear that Sanders, as counsel, is in no way connected to her instructing solicitor’s failures. Ms Sanders’ attendance in this matter has enhanced the Appellant’s case.
The Judge’s decision
6. The Judge noted that despite solicitors being on record, there had been no compliance with earlier directions of the Tribunal and there had been no appearance at the hearing by the Sponsor or by the solicitors then on record. The Judge considered the evidence filed and dismissed the appeal after making adverse findings.
The Correct Approach to Appeals from the First-tier Tribunal
7. I remind myself that the expertise of the First-tier Tribunal has been impressed upon the Upper Tribunal for very many years, including more recently in the decision of the Court of Appeal in MH (Bangladesh) v Secretary of State for the Home Department [2025] EWCA Civ 688 9 June 2025. In particular the judgment of Arnold LJ, with whom Singh and King LJJ agreed. Paragraph 29 makes clear:
“There have been many recent authorities in both the Supreme Court and this Court on the need for appellate courts and tribunals to be cautious before interfering with findings of fact and evaluative assessments by lower courts and tribunals, and in particular specialist tribunals such as the FTT. For present purposes it is sufficient to cite Lord Hamblen’s summary in HA (Iraq) v Secretary of State for the Home Department [2022] UKSC 22, [2022] 1 WLR 3784 at [72]:
‘It is well established that judicial caution and restraint is required when considering whether to set aside a decision of a specialist fact finding tribunal. In particular:
(i) They alone are the judges of the facts. Their decisions should be respected unless it is quite clear that they have misdirected themselves in law. It is probable that in understanding and applying the law in their specialised field the tribunal will have got it right. Appellate courts should not rush to find misdirections simply because they might have reached a different conclusion on the facts or expressed themselves differently: see AH (Sudan) v Secretary of State for the Home Department [2007] UKHL 49; [2008] AC 678 per Baroness Hale of Richmond at para 30.
(ii) Where a relevant point is not expressly mentioned by the tribunal, the court should be slow to infer that it has not been taken into account: see MA (Somalia) v Secretary of State for the Home Department [2010] UKSC 49; [2011] 2 All ER 65 at para 45 per Sir John Dyson.
(iii) When it comes to the reasons given by the tribunal, the court should exercise judicial restraint and should not assume that the tribunal misdirected itself just because not every step in its reasoning is fully set out: see R (Jones) v First-tier Tribunal (Social Entitlement Chamber) [2013] UKSC 19; [2013] 2 AC 48 at para 25 per Lord Hope of Craighead.”
8. The legal test to be met by the Appellant to show a material error of law is to be found in the Court of Appeal’s decision in R (Iran) and others v Secretary of State for the Home Department [2005] EWCA Civ 982; [2005] Imm. A.R. 535.
Analysis and Consideration
9. Ms Sanders relied on her helpful written note dated 26 February 2026. She stated in summary in that note and before me that:
“The legal representative did not inform the appellant or sponsor of the time, date or venue of the hearing and did not attend themselves. The hearing was therefore not attended by the sponsor or their legal representative. It appears that they entirely failed to check the online system in advance of the hearing or for several months after the hearing…
Rule 28 sets out circumstances in which the Tribunal may proceed with a hearing in the absence of a party:
a. 28. If a party fails to attend a hearing the Tribunal may proceed with the hearing if the Tribunal –
(a) is satisfied that the party has been notified of the hearing or that reasonable steps have been taken to notify the party of the hearing; and
(b) considers that it is in the interests of justice to proceed with the hearing.
Prior to 2014, the Procedure Rules obliged the Tribunal to proceed with a hearing if there was no satisfactory explanation for the absence of a party or his representative. Following the decision of the Court of Appeal in FP (Iran) v SSHD [2007] EWCA Civ 13 that this rule was unlawful, the provision was amended so that the Tribunal was empowered to determine the appeal without a hearing in the absence of a good explanation for non-attendance but did not have to do so.
Rule 28 gives the tribunal a much broader discretion to decide whether it is in the interests of justice to proceed with the hearing in the absence of a party, provided always that it is satisfied that the party has been notified of the hearing, or that reasonable steps have been taken to notify him of the hearing. In deciding to proceed with a hearing in the absence of a party under rule 28, the Tribunal must have regard to the overriding objective set out in rule 2.
Judge Saffer simply states at paragraph 1 of the determination “I was satisfied his solicitors on record had been served with the date time and venue of the hearing.” He does not state on what basis he is satisfied that the solicitors had been served. The judge then goes on to refer to non-compliance by the solicitor, but this does not appear to raise any concerns that given the solicitors have previously failed to comply with directions, they may also have failed to comply with their duties to the sponsor.
Given that the solicitors had failed to comply with earlier directions, this should have alerted the judge that the tribunal must ensure that they were satisfied that the appellant had been notified of the hearing or that reasonable steps had been taken.
The judge does not set out what those reasonable steps were, or on what basis he was satisfied that the solicitors had been served with the date time and venue of the hearing. It is not made clear and this lack of reasons, which does deprive the appellant of a fair hearing, is a material error of law.
The judge does not consider whether the appellant or sponsor have themselves been notified of the hearing, he does not set out his reasoning as to why it is fair to proceed, he makes no suggestion that any further enquiries be carried out, and it is not clear on what basis he is satisfied it is fair to proceed in the circumstances he has outlined.
Further, in light of what is now known about the solicitor’s failures, it is submitted that the hearing was unfair and this is a material error. In FP Iran, the Court of Appeal is clear that “that there is no general principle of law which fixes a party with the procedural errors of his or her representative.” (Sedley LJ, paragraph 46).
It is clear that the legal representative accepts that they failed in their duty to the sponsor to a degree, as set out in their letter upholding his complaint (p.110). However they do not appear to have acknowledged the harm caused by failing to inform the appellant and sponsor of the hearing date and failing to attend themselves, or inform the tribunal of any reason why they or the sponsor could not attend. The sponsor sets out in his witness statement that his solicitor did not notify him of the hearing date, and did not communicate with him from March 2023 until he sought to contact them himself in August 2023 after the hearing had taken place. This is evidenced in the sponsor’s recent witness statement at paragraph 3 (p.36), his witness statement of 28 November 2023 (p.261), the chronology of appointments set out in the email from the previous representatives (p. 119) and in the record of text messages between the sponsor and the solicitor (p.251).
The appellant’s representative failed totally in his duty to the appellant. Paragraph 5.5 of the Practice Direction of the Immigration and Asylum Chamber First tier Tribunal confirms that any appeal using the online procedure is managed through the online portal. It is clear that the previous representative had access to that portal and appears not to have checked it to see what the case status was and to check any notifications. This is an error of the solicitors not the appellant.
The effect of Judge Saffer’s decision to proceed deprived the appellant of the right to a fair hearing.
The tribunal is invited to find there is an error of law and to retain the case to be determined de novo…”
10. On behalf of the Respondent, Ms Blackburn also referred to whether there was a mistake of fact in respect of a parental consent form. She did not place any real resistance to the appeal being allowed in the circumstances. She submitted that if there was a material error of law, then the matter be remitted for rehearing.
11. Having heard the parties’ submissions and the appropriately reasonable approach of Ms Blackburn, I conclude that the Judge’s decision does indeed show a material error of law. Against the background of the Sponsor not having been aware of the hearing and only discovering it took place some time later and in view Rule 28 of the Procedure Rules, it was not in the interests of justice to proceed with the hearing in this particular instance. Further enquiries were necessary. The Judge’s decision therefore is set aside.
12. I have considered whether or not this is a matter which ought to remain for further consideration here at the Upper Tribunal or whether it should be remitted to the First-tier Tribunal. I apply AEB [2022] EWCA Civ 1512 and Begum (Remaking or remittal) Bangladesh [2023] UKUT 00046 (IAC). I consider whether to retain the matter for remaking here at the Upper Tribunal, in line with the general principle set out in statement 7 of the Senior President’s Practice Statement. I take into account the history of this case, the nature and extent of findings to be made as well as the nature of the errors in this case. I further consider it would be unfair for either party to be unable to avail themselves of the two-tier decision-making process. I conclude that the appropriate decision in this case is that we remit the matter to the First-tier Tribunal with no retained findings.
13. I once again remind Mr Simo that he must ensure that properly prepared bundles are provided for the rehearing at the First-tier Tribunal and he must comply with the further directions which will be made by the First-tier Tribunal.
Notice of Decision
The decision of the First-tier Tribunal contains a material error of law and is set aside with no retained findings.
The matter will be reheard at the First-tier Tribunal on all issues.

Abid Mahmood
Judge of the Upper Tribunal
Immigration and Asylum Chamber
31 March 2026