Tribunal decisions

The decision

IN THE UPPER TRIBUNAL
IMMIGRATION AND ASYLUM CHAMBER
Case No: UI-2025-003187
First-tier Tribunal No: PA/57117/2023

THE IMMIGRATION ACTS

Decision & Reasons Issued:
On the 11 August 2025

Before

UPPER TRIBUNAL JUDGE O’CALLAGHAN

Between

AK (IRAN)
(ANONYMITY DIRECTION MADE)
Appellant
and

SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Rule 34 Decision at Field House on 7 August 2025

DECISION AND REASONS

Introduction

1. This is an appeal by the appellant against the decision of First-tier Tribunal Judge Fox (‘the Judge’), sent to the parties on 10 December 2024, dismissing his international protection and human rights appeal.

2. Permission to appeal was granted by First-tier Tribunal Judge Pickering by a decision dated 15 July 2025. Judge Pickering reasoned, inter alia:

“2. ... it is arguable that there was procedural unfairness at the hearing as the Judge, albeit appearing to be aware of the appellant’s age, did not take into account the appellant’s minority age when assessing the evidence given, for instance at the appellant’s interview. In relation to ground 1, having had the opportunity to cross examine the appellant through written questions, and choosing not to, the Judge appears to have misunderstood the subsequent treatment of the appellant’s evidence when reaching his credibility findings.

3. ... it is arguable that the Judge has made a mistake of fact and/or not given sufficient reasons for not attaching weight to the expert report when the expertise of the expert ... was not in dispute and by reference to a lack of objective evidence cited within the report when there appears to have been.

...”

4. The core of the appellant’s appeal is founded upon procedural fairness.

5. By her detailed rule 24 response, dated 25 July 2025, the respondent confirms, inter alia:

“2. The respondent does not oppose the appellant’s application for permission to appeal for the reasons set out below.

3. The Secretary of State accepts ground one amounts to procedural unfairness. The respondent’s review clearly asks for the direction made on 7 August 2024 to be set aside and that the respondent is content for the hearing to proceed by way of submissions only. The FTTJ was required to consider that when considering what weight to attach to the appellant’s evidence which has not been cross-examined by the respondent. The respondent’s review clearly states that credibility is in issue, and it was an agreed issue to be determined by the Tribunal. The fact that the appellant was not cross-examined need to be considered by the FTTJ.

4. In response to ground two, the Secretary of State accepts there is a material error of law as pleaded within the grounds of appeal at paragraphs 11-15. The grounds are correct to say that the witness statement is dated 29 November 2022 which was attached to the statement of evidence form dated 29 November 2022, but the first substantive interview was held on 21 February 2023. The Secretary of State accepts that there is no record that after the appellant’s conversation with their legal representative that the appellant indicated to the interviewing officer that they wish to proceed with the interview. That indication came prior to the further break and conversation with the legal representative. Therefore, the finding at [64] cannot be openly inferred from the asylum interview record. Ground two especially when considering with ground one amounts to procedural unfairness which is a material error of law. The Secretary of State respectfully submits that the decision should be set aside and reheard de novo at the FTT which is the proposed disposal in the grounds of appeal at paragraph 24.

5 In light of the acceptance of procedural unfairness on ground one and two, the Secretary of State does not propose to address ground 3, 4 and 5 as it is not necessary.”

6. I observe [64] of the Judge’s decision:

“64. There is no dispute that the appellant’s representative withdrew the appellant from the first interview against his wishes. The appellant had the benefit of a witness statement to set out the core of his claim at the second interview. He has belatedly complained that the respondent conducted herself unreasonably. It is unclear whether the appellant claims that the respondent failed to follow her own procedures or whether the procedures in themselves created the unfairness.”

7. The appellant, through his legal representatives, confirmed by a letter dated 4 August 2025 that he agreed with the position adopted by the respondent. He requests that the decision of the Judge be set aside, and the matter remitted to the First-tier Tribunal for a de novo hearing.

Rule 34 Decision

8. In considering whether to proceed under rule 34 of the Tribunal Procedure (Upper Tribunal) Rules 2008 I am mindful as to the circumstances when an oral hearing is to be held in order to comply with the common law duty of fairness and as to when a decision may appropriately be made consequent to a paper consideration: Osborn v The Parole Board [2013] UKSC 61; [2014] AC 1115 and JCWI v President of the Upper Tribunal (Immigration and Asylum Chamber) [2020] EWHC 3103 (Admin), at [6.1 - 6.14].

9. In the circumstances and being mindful of the importance of these proceedings to the appellant, the identified position of the respondent, the expense to the parties of attending an oral hearing and the overriding objective that the Upper Tribunal deal with cases fairly and justly, I am satisfied that it is just and appropriate to proceed under rule 34.

Discussion

10. Having carefully considered the papers in this matter, I agree with the respondent that the Judge’s decision is affected by material error of law, namely procedural unfairness.

11. I observe the guidance in Begum (Remaking or remittal) Bangladesh [2023] UKUT 00046 (IAC). I am mindful that to date the appellant has not enjoyed adequate assessment of his appeal, and the decision has been set aside on procedural fairness grounds. In the circumstances, I consider it fair and just to remit this matter to the First-tier Tribunal.

12. Though ultimately a matter for the First-tier Tribunal, and observing both the appellant’s age and the passage of time, it may be appropriate for a CMRH to held in this matter on its return.

Notice of Decision

13. The decision of the First-tier Tribunal sent to the parties on 10 December 2024 is set aside for material error of law, with no preserved findings of fact.

14. The appeal is remitted to the First-tier Tribunal sitting in Taylor House, to be listed before any judge other than First-tier Tribunal Judge Fox.

15. An anonymity order is confirmed.

D O’Callaghan
Judge of the Upper Tribunal
Immigration and Asylum Chamber

7 August 2025