Tribunal decisions

The decision

IN THE UPPER TRIBUNAL
IMMIGRATION AND ASYLUM CHAMBER Case No: UI-2025-003008
First-tier Tribunal No: PA/66571/2023
LP/00486/2025

THE IMMIGRATION ACTS

Decision & Reasons Issued:

23rd July 2026

Before

UPPER TRIBUNAL JUDGE KHAN

Between

MTN
(ANONYMITY ORDER MADE)
Appellant
and

SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Mr K Gayle, instructed by Elder Rahimi Solicitors
For the Respondent: Ms A Everett , Senior Home Office Presenting Officer

Heard at Field House on 7 July 2026

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. This is a decision of the Upper Tribunal (Immigration and Asylum Chamber) (‘the Upper Tribunal’). The Upper Tribunal is an independent decision-making body with powers given to it by an Act of Parliament. This decision is made in the context of the Upper Tribunal’s role in considering statutory appeals from decisions made by the First-tier Tribunal (Immigration and Asylum Chamber) (‘the First-tier Tribunal’).
2. The losing party in an appeal before the First-tier Tribunal can apply for permission to appeal to the Upper Tribunal. If permission is granted, the Upper Tribunal will consider the legal arguments put forward by both sides in the appeal. The Upper Tribunal only has power to set aside a decision of the First-tier Tribunal if it concludes that the arguments put forward by the party that applied to appeal show that the decision involved the making of an error of law: see section 12 of the Tribunals, Courts and Enforcement Act 2007 (‘TCEA 2007’).
3. If the Upper Tribunal finds that a decision of the First-tier Tribunal did not involve the making of an error of law, the First-tier Tribunal decision will stand. If a decision of the First-tier Tribunal is found to involve the making of an error of law the Upper Tribunal has power to set aside the decision. The Upper Tribunal will then decide whether it will remake the decision or whether the appeal might need to be reheard in the First-tier Tribunal.
4. The appellant is a national of The Democratic Republic of the Congo (‘DRC’). By these proceedings she appeals with permission against the decision of the First-tier Tribunal which dismissed her appeal on protection and human rights grounds.
5. On 17 June 2022, the appellant claimed asylum in the United Kingdom. The respondent refused that claim in a decision dated 06 December 2023 (‘refusal decision’) and the appellant brought an appeal. In a determination dated 29 April 2025, the appellant’s appeal was dismissed, following an oral hearing, by First-tier Tribunal Judge Row (‘FTTJ’).
6. Permission to appeal was granted by Upper Tribunal Judge Kamara on 04 August 2025.
7. The matter now comes before me to determine whether the First-tier Tribunal 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.
8. The appellant and respondent were ably represented by Mr Gayle and Ms Everett, respectively. I am grateful to them for their very helpful submissions.
9. The FTTJ made an anonymity direction and that direction is maintained.
Grounds
10. In summary, the appellant submits one overarching ground of appeal, namely, procedural unfairness. This asserts that the FTTJ:
(i) failed to properly assess the factual basis of the appellant’s claim, which was not on the basis of her involvement with the political organisation, the UDPS, but being a sibling of a well-known political dissident in the DRC, (‘BKM’), who was granted refugee status in the UK in 2019;
(ii) the FTTJ failed to consider the fairness of the adjournment application proceedings
11. Granting permission, UTJ Kamara considered that it was at “least arguable that there were procedural errors in relation to how the appellant’s adjournment was dealt with by the judge’. She stated ‘It would arguably have been beneficial for the DNA evidence relating to the appellant’s close relationship to a recognised refugee to be before the Tribunal. Furthermore, linking the appellant’s appeal to that of a further relative, whose case was effectively identical, could arguably have assisted with issues of consistency in decision making. It is a concern that if what is said in the grounds is made out, the parties’ respective cases were not clearly ventilated before the Tribunal’.
Submissions
12. Mr Gayle for the appellant submitted that the FTTJ erred in failing to grant the adjournment sought by the appellant to obtain medical evidence to prove that she was related biologically to ‘BKM’, and to also allow the appellant to link her asylum case to the pending asylum case of another brother (‘RM’) which was brought on a similar factual matrix.
13. By refusing the adjournment, Mr Gayle argued that the FTTJ failed to consider the fairness of the proceedings and critically deprived the appellant of the opportunity to obtain crucial evidence of being a family member of a well-known DRC dissident, and to establish a risk arising from that relationship.
14. Mr Gayle noted that approximately one month after the conclusion of the First-tier Tribunal hearing on 28 April 2025, the appellant obtained a DNA Test Report on 14 May 2025 which confirmed her full biological siblingship to ‘BKM’. I have seen the DNA test Report which confirms that fact. It is also pertinent that the appellant’s other brother ‘RM’ was granted refugee status by the respondent on 25 September 2025.
15. Ms Everett for the respondent formally opposed the appellant’s appeal and submitted that the adjournment had been properly refused. In this regard, she fairly observed that although the respondent’s refusal decision made it clear that the respondent only accepted the identity of the appellant, the respondent’s subsequent review was explicit in refusing the existence of any relationship between the appellant and ‘BKM’.
16. Now, I should note that the document uploaded in the appellant’s compressed bundle for this hearing purporting to be the respondent’s review is not the correct document but relates to another case. That said, there is no dispute about the contents of the respondent’s review which was issued approximately four months before the First-tier Tribunal hearing. I therefore accept Ms Everett’s submissions about the explicit refusal of any relationship.
17. Ms Everett further argued that ultimately the FTTJ heard the case and found at [62] that even if the appellant were the sibling of ‘BKM’ that did not mean she would be at risk. This was because ‘BKM’ left the DRC in July 2017 during the administration of President Kabila which ended in 2018 when President Tshisekedi came to power. In this regard, applying the country guidance in PO (DRC) v SSHD [2023] UKUT 00117 (IAC) the FTTJ found that low level opponents of the current regime were not at real risk of serious harm and therefore the appellant was not at risk.
18. It is against this background that I reserved my decision and now provide my findings and reasons below.
Findings and reasons
19. The core issue in this appeal is whether there was procedural unfairness in refusing the applicant’s application for an adjournment to secure DNA evidence to prove her biological relationship to ‘BKM’ and to link her case to her brother’s (‘RM’) asylum case.
20. I have considered the First-tier Tribunal decision, the documentation that was before the First-tier Tribunal, the grounds of appeal, and the submissions made at the hearing, before coming to a decision in this appeal.
21. I bear in mind that judicial caution and restraint is required when considering whether to set aside a decision of a specialist tribunal. In particular, judges of a specialist tribunal are best placed to make factual findings: see HA (Iraq) v SSHD [2022] UKSC 22. 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 SSHD [2007] UKHL 49 and KM v SSHD [2021] EWCA Civ 693. 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 SSHD [2020] UKSC 49. 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 FTT (SEC) [2013] UKSC 19.
22. The law applicable in instance is clear. In the decision of Nwaigwe v SSHD [2014] UKUT 00418 (IAC) the Upper Tribunal held that the test to be applied is that of fairness: was there any deprivation of the affected party’s right to a fair hearing?
23. In considering this question, the President of the Upper Tribunal, The Hon. Mr Justice McCloskey (as he was then) stated at [5] ‘As a general rule, good reason will have to be demonstrated in order to secure an adjournment. There are strong practical and case management reasons for this, particularly in the contemporary litigation culture with its emphasis on efficiency and expedition. However, these considerations, unquestionably important though they are, must be tempered and applied with the recognition that a fundamental common law right , namely the right of every litigant to a fair hearing, is engaged. In any case where a question of possible adjournment arises, this is the dominant consideration.’
24. Further at [7] McCloskey J stated ‘Where an adjournment is challenged on fairness grounds, it is important to recognise that the question for the Upper Tribunal is not whether the FtT acted reasonably. Rather, the test to be applied is that of fairness: was there any deprivation of the affected party’s right to affair hearing? …In a nutshell fairness is the supreme criterion.’
25. In this case, it is clear at [21] that the FTTJ did direct himslf to the correct legal test of ‘unfairness’. However, a proper reading of the decision shows that at [13]-[21] the FTTJ simply rehearses the parties’ respective positions regarding the adjournment application. At [22] the FTTJ states that it was very late to be raising these issues without providing any reasons for that conclusion.
26. At [23] the FTTJ at first simply rehearses the respondent’s arguments about the DNA evidence before concluding in a rather perfunctory manner that any DNA evidence or any other evidence of the relationship should have been obtained by now, and that if the appellant had not done so, then it was because she had failed to prepare her case. Again, no adequate reasoning is provided for reaching these conclusions.
27. At [24] the FTTJ again in a perfunctory manner concludes that any application to join the appellant’s appeal with RM’s asylum appeal should have been made long ago but in any event, there is no prejudice to the appellant because ‘RM’ was present to give evidence.
28. On any fair reading of the decision, it is clear that the FTTJ did not address his mind to firstly, whether there was a ‘good reason’ advanced for the adjournment, and secondly, whether a refusal would deprive the appellant of a fair hearing by denying her the opportunity to secure crucial evidence to show a biological relationship to ‘BKM’ which could establish that she faced a risk on return arising from that relationship.
29. The question of the appellant’s biological relationship to ‘BKM’ and the risk that relationship posed to her was unarguably a live issue for the Tribunal’s resolution. In this regard, the FTTJ would have been aware from the appellant’s response to question 51 of the Asylum Screening interview (AIR) and her witness statement that her case was not based on any political involvement with the UDPS, but her fear was due to ‘BKM’’s political activities in the DRC. Her response to question 51 of the AIR stated explicitly ‘I am not seeking asylum because of UDPS, I don’t know what it has to do with my case’.
30. In the appellant’s witness statement dated 03 July 2024, that was before the First-tier Tribunal, the appellant explicitly stated that her asylum claim was based on the ongoing fear she had due to her brother’s political activities in the DRC. Therefore, establishing a biological link to ‘BKM’ was a critical piece of evidence in order to establish a potential risk of harm on return and to ensure a fair hearing for the appellant. In my view, the refusal of the adjournment on this ground alone deprived the appellant of a fair hearing by denying her the opportunity to secure DNA evidence to show her biological relationship to ‘BKM and to establish any risk arising from that relationship.
31. It is evident from the chronology that an adjournment would likely to have been short in duration because the DNA Test Report is dated just two weeks after the first-tier Tribunal hearing date. In respect of linking the siblings’ two asylum cases, there is no consideration by the FTTJ of the clear benefit that may have flowed from the opportunity to ensure consistent decision making between the two siblings’ asylum cases based on a similar factual matrix.
32. The brief reasoning provided for refusing the adjournment was because the appellant already had the opportunity to link the cases and obtain the DNA evidence.
33. The decision shows there is no discussion or consideration about the required length of the adjournment to obtain the DNA evidence or any probing into why the appellant had not already obtained the DNA evidence since the respondent’s review, or why no application had previously been made to link the cases.
34. The FTTJ fails to adequately address whether the appellant had advanced a ‘good reason’ for the adjournment and whether refusal would deprive her of a fair hearing.
35. For the foregoing reasons, I find the brief reasoning provided by the FTTJ to be inadequate: see MK (duty to give reasons) Pakistan [2013] UKUT 00641 (IAC); and, the failure to address whether refusal of the adjournment would amount to a deprivation of a fair hearing to be procedurally unfair amounting to a material error of law.
36. I now turn to address the respondent’s submission that even if the appellant were the sibling of ‘BKM’ that did not mean she would be at risk when consideration is given to the country guidance case of PO (DRC).
37. I have considered the respondent’s submission in the context of the appellant’s grounds that the FTTJ failed to properly assess the factual basis of the appellant’s claim, which was not on the basis of her involvement with the UDPS, but being a sibling of a well-known political dissident in the DRC, (‘BKM’), who was granted refugee status in March 2019.
38. At [62] of the decision, the FTTJ concludes after applying the decision in PO (DRC) that the appellant would not be at risk.
39. In my view, the FTTJ was mistaken in his analysis by focusing on whether the appellant was a high or low-level political activist. This was an erroneous path to follow because the appellant’s case was not that she was a activist, but that the risk to her was fact sensitive and had to be analysed through the lens of several factors which included her relationship with her dissident brother ‘BKM’, the fact that the political situation remained the same despite the change in presidency, and that she had formally lodged a complaint against the state authorities in 4 May 2019. This was the appellant’s individual profile which the FTTJ failed to properly consider in the context of the relevant country guidance which was a material error of law.
40. It follows that the decision of First-tier Tribunal Judge Row contained material errors of law and must be set aside.
41. I canvassed the parties in respect of further steps in view of my finding of material errors of law. The parties agreed that in the circumstances of procedural unfairness the matter should be remitted to the First-tier Tribunal for a full rehearing with no preserved findings of fact. That is my view also.

Notice of decision
The decision of First-tier Tribunal Judge Row of 29 April 2025 did involve the making of material errors of law and is set aside. The matter is remitted to the First-tier Tribunal for rehearing before a differently constituted tribunal with no findings of fact preserved.

K. A. Khan
Judge of the Upper Tribunal
Immigration and Asylum Chamber

14 July 2026