Tribunal decisions

The decision

IN THE UPPER TRIBUNAL
IMMIGRATION AND ASYLUM CHAMBER Case No: UI-2025-004164
First-tier Tribunal No: LH/06758/2024
HU/63772/2023

THE IMMIGRATION ACTS

Decision & Reasons Issued:
On 13th April 2026

Before

PRINCIPAL RESIDENT JUDGE
UPPER TRIBUNAL JUDGE MANDALIA

and

UPPER TRIBUNAL JUDGE LANDES

Between

A F (Nigeria)
(ANONYMITY ORDER MADE)
Appellant
and

ENTRY CLEARANCE OFFICER
Respondent

Representation:
For the Appellant: Mr West and Mr Mavrantonis, Counsel instructed by EcoM Solicitors; after their withdrawal, Mr Popoola, Solicitor, EcoM Solicitors
For the Respondent: Mr Tufan, Senior Home Office Presenting Officer

Heard at Field House on 13 January 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
Anonymity
1. An anonymity order was made in the First-Tier Tribunal. We continue that order. The appellant is a minor and the issues in the appeal have the potential to raise safeguarding questions. We therefore consider that it is in the appellant’s best interests that his anonymity be protected at this stage and that his best interests outweigh the public interest in open justice.
The Issue
2. This appeal raises an important question as to the jurisdiction of the Tribunal to consider an appeal lodged by representatives said to be on instructions, not received from an appellant or their guardian, but from a third party.
Background
3. The appellant was 13 years old when, on 2 June 2023, an application was said to have been made by the appellant for entry clearance under Appendix FM of the immigration rules to join a British citizen relative (“the sponsor”) in the UK. The application was made by EcoM Solicitors and their address was given as the appellant’s ‘correspondence address’. It is said in that application that the appellant’s mother is deceased and his father suffers from ill-health and is unable to care for him. The appellant is said to be living with his maternal grandmother in Nigeria. The appellant’s sponsor is said to be his maternal cousin, who we will refer to as [AA]. She and her mother (described as the appellant’s maternal great -aunt) who we refer to as [MA], both live in the UK.
4. Although there is an issue regarding ‘standing’ and whether EcoM Solicitors can properly bring an appeal and represent the appellant, for ease of reference in this decision we refer to EcoM Solicitors as “the appellant’s solicitors”.
5. The application was refused by the respondent on 31 October 2023. In summary, the respondent concluded ; (i) the appellant had failed to present a valid medical certificate confirming he has undergone a screening for active pulmonary tuberculosis and that he is free from that disease, and (ii) the appellant does not meet all of the eligibility requirements of Section E-ECC of Appendix FM. In particular, the respondent concluded the appellant does not meet the eligibility relationship requirement of paragraphs E-ECC.1.2. to 1.6 and the eligibility financial requirement of paragraphs E-ECC.2.1. to 2.4 of Appendix FM of the immigration rules. The appellant had also failed to provide evidence of the accommodation in the UK. The respondent noted that despite writing to the appellant on 20 Sept 2023 and 18 Oct 2023 for documents to demonstrate the requirements are met, the emails sent went unanswered.
6. An appeal was lodged with the First-tier Tribunal (FtT”) by EcoM Solicitors. The solicitors filed a skeleton argument identifying the issues in the appeal claiming the respondent erroneously considered the application under EC-C 1.1 of Appendix FM rather than under paragraph 297 of the immigration rules. The appellant’s solicitors also challenged the claim that emails sent requesting documents had gone unanswered.
7. The respondent reviewed the matter and claimed the appellant had erroneously submitted an application under Appendix FM. Nevertheless the respondent considered the requirements set out in paragraph 297 of the immigration rules. The respondent did not accept the appellant and his sponsor are related as claimed. Furthermore the respondent did not accept the documents relied upon by the appellant establish that there is an absence of adequate care available to the appellant from his father or grandmother in Nigeria. The respondent also rejected the claim that the sponsor has been providing financial support for the appellant.
8. The appeal was listed for hearing on 29 May 2025 before Upper Tribunal Judge Keith sitting as a judge of the FtT (“the judge”). The appeal was dismissed for want of jurisdiction. The judge gave oral reasons at the hearing on 29 May 2025, and his decision was promulgated on 8 June 2025. At the outset of the hearing the judge canvassed with counsel for the appellant, the basis upon which Ecom Solicitors had been instructed to represent the appellant. At paragraph [4], the judge said:
“It was unclear to me whether the father, who one would presume had parental responsibility for the Appellant, had been involved in giving instructions to EcoM Solicitors. This was important to safeguard the Appellant’s best interests, as he may or not have been able to give instructions of his own. I should add that the Respondent did not accept the nature of the relationship between the Appellant and the UK sponsoring family, although to reassure them I have made no finding in relation to that. At the very least, I must be satisfied as to the basis on which representatives who appear before me are properly instructed and that they have the right to appear before me.”
9. The judge paused to allow to allow counsel to take instructions. Counsel relayed her instructions to the judge and he recorded them as follows:
“5. …EcoM Solicitors had only received instructions from the sponsor’s mother in the UK, as distinct from the maternal grandmother in Nigeria. The solicitors had not received instructions either from the Appellant’s father, with whom they have not been in contact, the Appellant’s maternal grandmother, or the Appellant. The solicitors said that the father was not in a fit state to provide instructions (as to which I make no finding) but that they had not been in contact with him, and that the maternal grandmother in Nigeria was the ‘de facto’ guardian of the Appellant.”
10. Counsel confirmed to the judge that it followed that EcoM Solicitors were not instructed by the appellant, the appellant’s father, or the person said to be the appellant’s guardian (the maternal grandmother). The application for entry clearance and the appeal had been funded, and the instructions had been provided by the sponsor’s mother, said to be a relative. Counsel accepted that she could not properly make any further representations before the Tribunal.
11. The respondent’s representative submitted that the appeal should be dismissed on the basis that it has been brought by someone other than the appellant. At paragraph [7], the judge said:
“Having reflected, this is not a case where what is missing is a minor procedural mishap, such as a missing piece of information on a form. This goes to the heart of an appeal before this Tribunal, which is a body whose jurisdiction is created and limited by statute. A right of appeal is contained in Section 82 of the Nationality, Immigration and Asylum Act 2002. That provides in, sub-Section (1) that a person, ‘P’ may appeal where, under sub-section (b), the Secretary of State has decided to refuse a human rights appeal made by ‘P’. As may perhaps be obvious, but is worth restating, an (sic) third party who is not instructed by or, legally on behalf of, P cannot bring a right of appeal, in relation to a decision concerning P. The appeal must be brought by or on behalf of P. Practically, where an appellant is a minor, their guardian or parent may bring an appeal on their behalf or if they are, for example, “Gillick” competent they give instructions directly (Gillick v West Norfolk and Wisbech AHA [1985] UKHL 7). Alternatively if an adult does not have legal capacity, a litigation friend may be appointed and give instructions in their behalf. However, here, neither is the case. Ms Malhotra has confirmed that EcoM Solicitors have been instructed solely by the UK sponsor’s mother, and not from the person whom they say is the de facto sole guardian, namely the maternal grandmother in Nigeria. The right of appeal has not been exercised on or permissibly on behalf of the Appellant, however well-intentioned. It has been brought by the UK sponsor’s mother, as a third party. She does not have legal standing to do so. She is not ‘P’, nor is she acting as guardian or with any legal authority for ‘P’. As a consequence, pursuant to Section 82 of the 2002 Act, this Tribunal does not have jurisdiction to hear such a claim, where the appeal is brought by a third party, without legal standing. The appeal therefore must be dismissed.”
12. The judge also made directions, separately, for a statement to be provided by the Compliance Officer for Legal Practice (‘COLP’) of EcoM Solicitors explaining how it was that the firm brought the appeal before the Tribunal, without instructions from the appellant or anyone exercising legal authority on behalf of the appellant. The purpose of that statement was to enable the judge to consider, of his own motion, whether it was appropriate that wasted costs should be ordered against EcoM Solicitors and ‘next steps’, including a referral of the statement to the Solicitors Regulation Authority.
The Appeal to the Upper Tribunal
13. The appellant claims:
a. The appeal should not have been dismissed without giving the appellant the opportunity to make representations (Ground 1);
b. The judge made a mistake of fact in concluding those acting on the appellant’s behalf had no, or insufficient standing. There is evidence now available which should be admitted under rule 15 (2A) of the Upper Tribunal Procedure Rules to establish that the judge had been acting under a misapprehension and there was no issue about standing (Ground 2);
c. In any event, the judge should have issued a notice that there was no valid appeal before the tribunal, rather than dismissing the appeal (Ground 3).
14. Permission to appeal was granted by Upper Tribunal Judge Blum on 24 September 2025.
Preliminary Issues at the Hearing Before the Upper Tribunal
15. The appellant made an application under rule 15(2A) of The Tribunal Procedure (Upper Tribunal) Rule 2008 (“the procedure rules”). The appellant sought to rely upon the following evidence that post-dated the decision of the FtT;
(i) A statement dated 28 August 2025, with translation, made by the appellant’s grandmother.
(ii) An affidavit sworn by the appellant’s grandmother on 21 November 2025.
(iii) An affidavit sworn by Mr Soladoye Ekundayo on 1 September 2025.
(iv) An undated photograph presumably of the appellant’s grandmother;
(v) An undated photograph presumably of the appellant with his grandmother;
16. The evidence the appellant sought to rely upon was relevant to the second ground of appeal.
17. On 12 January 2026, Mr Popoola made an application for the appointment of a litigation friend to act on behalf of the appellant, a child, pursuant to rule 5 (2) of the procedure rules and in accordance with the Joint Presidential Guidance No. 1 of 2024: Appointment of litigation friends in the Upper Tribunal (Immigration and Asylum Chamber) and First-tier Tribunal (Immigration and Asylum Chamber). The application was described as having been made for “belt and braces purposes” and without prejudice to the legal arguments advanced and as a precautionary measure in the event the Upper Tribunal deemed it necessary. The sponsor was proposed as the appellant’s litigation friend.
18. At the outset of the hearing, we indicated to the parties that we had considered the Joint Presidential Guidance on litigation friends and the decision of the Upper Tribunal in R (on the application of JS and Others) v Secretary of State for the Home Department (litigation friend – child) [2019] UKUT 64 (IAC) that had not been referred to in the appellant’s skeleton argument, but appeared to us to be relevant.
19. We indicated to Mr West that we had seen the reference to the Solicitors Regulation Authority Code of Conduct in the skeleton argument filed on behalf of the appellant. Paragraph 3.1 of the Code of Conduct referred to states:
“You only act for clients on instructions from the client, or from someone properly authorised to provide instructions on their behalf. If you have reason to suspect that the instructions do not represent your client's wishes, you do not act unless you have satisfied yourself that they do. However, in circumstances where you have legal authority to act notwithstanding that it is not possible to obtain or ascertain the instructions of your client, then you are subject to the overriding obligation to protect your client's best interests”
Clicking on the hyperlink, “client” is defined as meaning “the person for whom you act and, where the context permits, includes prospective and former clients”. Mr West agreed that the “client” in this context must therefore be the appellant. We indicated to Mr West that we would be inviting him to draw our attention to the evidence before us to establish what, if any, steps had been taken to try and determine any instructions from the appellant, his father and his grandmother.
20. We referred counsel to the conclusion reached in JS and Others that a litigation friend will only be necessary where the child is not capable of conducting or giving instructions in relation to the proceedings. The Tribunal set out some of the factors relevant to the appointment of litigation friends for applicants between the ages of 12 and 15 and highlighted that if an applicant in that age group is represented, the Tribunal will expect the representative specifically to address in writing the issue of whether, in the representative’s view, a litigation friend is necessary, having regard to capacity and the position of any parent. We were concerned that on the evidence before the Tribunal, in the absence of any communication with the appellant or his father at all, it was difficult to see how the representatives had considered whether the appellant has capacity, and the position of his father. We were concerned that all the instructions provided, were instructions from [AA] and [MA], both of whom live in the UK and neither of whom have any form of parental responsibility or legal guardianship in respect of the appellant. We indicated that having regard to the Joint Presidential Guidance on litigation friends and JS and Others we were still at a loss to understand the basis on which counsel was instructed in the appeal on behalf of the appellant.
21. We gave counsel time to read JS and Others and the presidential guidance and to consult their instructing solicitors.
Application for an Adjournment
22. On return, Mr West initially asked us to determine the application for the appointment of a litigation friend and submitted that the evidence before us implicitly addressed the question of the appellant’s capacity because an application had been made for the appointment of a litigation friend on the basis that the appointment was necessary and appropriate to ensure, (i) the appellant’s best interests were safeguarded; b) effective participation in the proceedings; and c) compliance with the Tribunal’s duty to deal with cases fairly and justly, including having regard to the best interests of the child as a primary consideration.
23. Having reflected, Mr West then asked us to adjourn the hearing to another date so that the application for the appointment of a Litigation Friend could be amended, and so that counsel could speak to the Bar Standards Board for guidance as to counsel’s duties when there was an issue as to the basis upon which counsel was instructed. Mr West submitted the issues raised in the appeal were complex and there were no clearly defined circumstances in which instructions could be taken on behalf of a client. He said it was in both the professional and the lay client’s interests, and important to them to ensure that counsel appearing had standing.
24. We refused the application for an adjournment and said that we would set out our full reasons for doing so in our decision in writing. The issues raised with counsel as to the appellant’s capacity and whether those representing him were properly instructed to pursue the appeal on his behalf are all issues that are central to the appeal. We would have expected those acting for the appellant to have considered them before the hearing before us.
25. For the avoidance of doubt, we declined to appoint a litigation friend. The appellant may have capacity to give instructions himself. We simply do not know. The application for a litigation friend was clearly defective and could not succeed in its current form. It does not specifically address the issue of capacity nor the position of the appellant’s father who it is said, is the only surviving parent. We are not prepared to draw an inference that the appellant lacks capacity simply because he is a minor, or because of the general and vague assertion made in the application that the appointment of a litigation friend is necessary and appropriate. The appellant’s representatives were required to consider whether in their view, a litigation friend is necessary, having regard to the appellant’s capacity and the position of his father. They have not done so. However, for the purposes of the ‘error of law’ decision that we must make, we are prepared to accept that the commencement of the appeal without a litigation friend is not fatal and does not mean that the appeal is invalid. If we determine that the decision of the FtT is vitiated by a material error of law, the appellant will have the opportunity to cure any defect in the application for the appointment of a litigation friend. For the purposes of the ‘error of law’ hearing our focus will relentlessly be upon the decision of the judge and the grounds of appeal.
26. The judge concluded at paragraph [7] of his decision that the FtT did not have jurisdiction to hear the appeal where the appeal was brought by a third party, without legal standing. The judge referred at paragraph [5] of his decision to the concerns that EcoM solicitors were not instructed by appellant, the appellant’s father, or his grandmother. The judge recorded the fact that counsel that appeared on behalf of the appellant before the FtT found herself in the position that she could not properly make any further representations on behalf of the appellant. The parties are under a duty to help the Upper Tribunal to further the overriding objective and to cooperate with the Upper Tribunal generally. The overriding objective is to enable the Upper Tribunal to deal with cases fairly and justly. It is not in the interests of justice for there to be ongoing delay, particularly where the interests and welfare of a child are concerned.
27. We recognise that refusing the application for an adjournment might put counsel in difficulty. However the difficulties associated with appearing before the Tribunal in circumstances when there was clearly an issue as to whether the legal representatives were instructed by the appellant should have been foreseen.
28. We have been provided with a composite bundle that includes a Rule 15(2A) application, a comprehensive bundle of authorities and a skeleton argument dated 9 January 2026 that has been settled by Mr West and Mr Mavrantonis in readiness for the hearing before us. That skeleton argument directs us to the key submissions supporting each of the three grounds of appeal, the relevant law and extracts from material such as the Solicitors Regulation Authority (“SRA”) Code of Conduct. It is not unusual for parties to represent themselves before a specialist Tribunal, but here, the appellant’s solicitor, Mr Popoola had also attended the hearing and was quite capable of representing the appellant given his extensive involvement previously.
29. Considering the overriding objective, adjourning the case would cause delay in the resolution of a child’s appeal and would cause delay to other litigants. When considering fairness, there would be no deprivation of the appellant’s right to a fair hearing by refusing the adjournment as Mr Popoola was quite capable of representing the appellant at the ‘error of law’ hearing with the benefit of counsels’ skeleton argument. The interests of justice demand that a decision is reached upon this appeal, and we were entirely satisfied that the appeal could fairly and justly be determined without an adjournment.
30. After we refused the application for an adjournment, Mr West explained that in those circumstances, he and Mr Mavrantonis would withdraw from the case. The appellant would rely on the skeleton argument settled by them. Their instructing solicitor, Mr Popoola, confirmed he was happy to continue to represent the appellant at the hearing before us.
31. We turn then to the submissions made on behalf of the parties and he grounds of appeal.
Submissions
32. Mr Popoola adopted the skeleton argument settled by counsel. He submitted that EcoM Solicitors were satisfied that they had proper instructions to act because they had received instructions from the appellant’s maternal grandmother’s sister [MA] and the appellant’s cousin [AA], both of whom live in the UK. He was confident that they were authorised by the appellant’s grandmother because they provided information to support the application made, and more importantly, they had documents that were not public documents and could only have come from someone with authority to act on behalf of the appellant. For example, they furnished him with medical documents relating to the appellant’s grandmother, school documents and a copy of the appellant’s passport. Furthermore, in order for the application to proceed the appellant’s biometrics had to be provided. As [MA] and [AA] do not live in Nigeria arrangements had to be made to enable the appellant to travel to Lagos, and it would have been inconceivable that the journey would have been made without his grandmother’s authority. Having had regard to the Solicitors Code of Conduct, Mr Popoola was satisfied that the representatives were entitled to act for the appellant. Mr Popoola relied upon the statement of Mr Ikeh, the Principal and COLP of EcoM Solicitors who confirms in his statement dated 12 June 2025 that detailed instructions were taken from [MA], who provided a copy of the appellant’s birth certificate, and a copy of the death certificate for the appellant’s mother. A ‘hospital letter’ had also been provided for the appellant’s father. The documents are not ‘public documents’ and would only have been available to someone “with authority or who has been delegated legal authority”. Based on their professional judgment, they were satisfied [MA] had authority to provide instructions to make the application on behalf of the appellant and to provide instructions on behalf of the appellant.
33. Mr Popoola accepted that no-one at EcoM Solicitors had had any direct conversation with the appellant, his father or his grandmother. Following the hearing before the FtT, they instructed a Barrister, Mr Soladoye Ekundayo, who has now provided an Affidavit sworn on 1 September 2025 following a visit to the appellant’s grandmother on 27 and 28 August 2025.
34. Making it clear that we are not suggesting that there has been an abuse of the system here, we asked Mr Popoola about the risk of abuse unless the instructions come from the individual concerned, and where that individual is a child, from a legal guardian, together with very clear due diligence checks. By way of example only, it may not be difficult for a person seeking to traffic a child to the UK to claim to be related to the child, provide what appear to be entirely credible identity and other documents to support an application, and for that person to assist the child abroad to attend to provide biometrics. Mr Popoola explained that here, they carried out proper due diligence checks. They knew the identity of [MA] and [AA], who are both of good standing. They had provided documents to support the application and there was no reason to believe they had anything other than the best interests of the appellant in mind.
35. Mr Popoola submitted that the first ground of appeal concerns ‘fairness’ to the appellant and his sponsors. Neither the respondent nor the Tribunal had previously raised any concerns regarding the authority of the sponsors to provide instructions or EcoM Solicitors to act on behalf of the appellant. If there were any concerns the judge should have given the sponsors and the solicitors an opportunity to address the concerns, supported by evidence.
36. As far as the second ground is concerned, Mr Popoola referred to the application to admit evidence under Rule 15(2A). He submitted the evidence now available demonstrated that the appellant’s grandmother had authority, and gave authority to [MA] and [AA] to instruct the appellant’s representatives to make the application for entry clearance and to pursue the appeal on his behalf.
37. In reply, Mr Tufan submitted that the appellant was the “client”, and we simply did not know whether he had capacity to give instructions. In any event, neither the appellant’s father nor his grandmother had been contacted at the time of the hearing before the FtT. He submitted there was some uncertainty as to the precise nature of the relationship between the appellant and his grandmother. She is referred to in at least one document as his “great grandmother”. In any event, parental responsibility rested with the appellant’s father. The only medical evidence regarding the health of the appellant’s father was a letter from the General Hospital, Owo, dated 12 October 2022. The letter confirmed he was diagnosed of cerebrovascular disease (stroke) “two years ago” and reported that “he continues to make slow progress” and that “His prognosis is good if he remains compliant with drugs, follow ups, rehabilitative protocol and constant family support”. The letter from the Varsity Point Group of Schools dated 7 October 2022 states the appellant’s father “is under a serious illness”, but the source of that information is not clear. Mr Tufan submits evidence from [MA] and [AA] would not have assisted the judge because it is not clear what they could have said that could have affected the judge’s decision that the Tribunal has no jurisdiction to hear a claim where the appeal is brought by a third party, without legal standing.
38. Mr Tufan submitted the judge did not proceed on a mistake as to fact. The appellant’s representatives now seek to cure the deficiencies in the evidence, after the event, by introducing evidence that should have been put before the FtT previously.
39. In reply, Mr Popoola submitted the appellant’s father had not been involved in the appellant’s upbringing or in making decisions after his mother passed away. He referred to the witness statement of [AA] dated 31 October 2024 that was before the FtT in which she states the appellant’s father has not been able to look after him”. He also referred to the letters from the Varsity Point Group of Schools dated 7 October 2022 and 22 May 2025. The latter states “.. His father who is deaf and currently bedridden due to deteriorating health is no longer mentally present and does not even recognise [the appellant]”. Mr Popoola acknowledged that the letter is signed off at the bottom with the appellant’s name ,but submitted that must be a clerical error. The letter is endorsed with a stamp and the signature within the stamp is similar to the signature on the letter from the school dated 7 October 2022.
Decision
Ground 1; Procedural Unfairness
40. The appellant submits, as set out in the skeleton argument relied upon that the Tribunal ought to have given him an opportunity to make representations once there was a concern that those acting for the appellant did not have the appellant’s authority and it was wrong for the Tribunal to decide the fate of an appeal (including on jurisdictional issues) without hearing either from or on behalf of the appellant. It is said that [MA] and [AA] were present at the hearing before the FtT. There was no allegation that [MA] or [AA] had acted in bad faith. In order to fairly and justly dispose of the proceedings the judge should have heard evidence from [MA] and/or [AA] to better understand the circumstances or alternatively to consider adjourning the matter with directions pursuant to the overriding objective and the need to dispose of proceedings justly. It is acknowledged that counsel for the appellant before the FtT accepted she could not make any further oral representations, but she did not concede that there should be no oral evidence.
41. The appellant claims the judge’s reliance on section 82 of Nationality, Immigration and Asylum Act 2002 (“the 2002 Act”) was arguably misplaced because that statutory provision only provides for which person (“P”) “may appeal” to the Tribunal against a decision “to refuse a human rights claim made by P”. It does not delineate who is able to institute an appeal on behalf of P. The appellant, with counsel having in effect withdrawn her professional representation, was left unrepresented and therefore the obligation on the FtT to ensure the fair and just disposal of the proceedings was particularly acute and important.
42. The core principles of procedural fairness were referred to in Lord Mustill’s speech in R v SSHD, ex parte Doody & Ors [1994] 1 AC 531. He said that what fairness demands is dependent on the context of the decision, and that fairness will very often require that a person who may be adversely affected by the decision will have an opportunity to make representations on his own behalf either before the decision is taken with a view to producing a favourable result; or after it is taken, with a view to procuring its modification; or both. Lord Bridge said in Lloyd v McMahon [1987] AC 625 that the rules of natural justice are not engraved on tablets of stone. In her partly dissenting judgment in Pathan v SSHD [2020] UKSC 41; [2020] 1 WLR 4506, Lady Arden stated that “[p]rocedural fairness is adaptable to the environment in which it is applied.”
43. Section 82 of the 2002 Act provides as follows:
“Right of appeal to the Tribunal
(1) A person (“P”) may appeal to the Tribunal where—
(a) the Secretary of State has decided to refuse a protection claim made by P,
(b) the Secretary of State has decided to refuse a human rights claim made by P, or
(c) the Secretary of State has decided to revoke P's protection status.”
44. Section 82 of the 2002 Act therefore makes provision for a right of appeal by a person against a decision of the Secretary of State to refuse a claim made by that person or to revoke that person’s protection status. The appellant’s claim that section 82 does not delineate who is able to institute an appeal on behalf of P is correct but it is to miss the point. In this context, the right of appeal lies against the decision of the Secretary of State to refuse the claim “made by P” (i.e. the appellant).
45. The respondent decided to refuse the human rights claim made by the appellant for the reasons set out in the decision dated 31 October 2023. As the judge recorded in paragraph [4] of his decision, upon reviewing the documents he canvassed with counsel the basis of the instructions being received by EcoM solicitors. The judge had noted that the appellant is said to be living with his maternal grandmother in Nigeria, his mother is said to be deceased and his father is said to be gravely ill. The judge said:
“…It was unclear to me whether the father, who one would presume had parental responsibility for the Appellant, had been involved in giving instructions to EcoM Solicitors. This was important to safeguard the Appellant’s best interests, as he may or not have been able to give instructions of his own…”
46. The judge paused to allow counsel to take instructions. The judge records at paragraph [5] that counsel spoke to her instructing solicitors and the judge was told by counsel:
“…that EcoM Solicitors had only received instructions from the sponsor’s mother in the UK, as distinct from the maternal grandmother in Nigeria. The solicitors had not received instructions either from the Appellant’s father, with whom they have not been in contact, the Appellant’s maternal grandmother, or the Appellant. The solicitors said that the father was not in a fit state to provide instructions (as to which I make no finding) but that they had not been in contact with him, and that the maternal grandmother in Nigeria was the ‘de facto’ guardian of the Appellant.”
47. Counsel for the appellant accepted that it followed that EcoM Solicitors were not instructed by the appellant, the appellant’s father or the appellant’s guardian. The judge referred to section 82 of the 2002 Act and said:
“…As may perhaps be obvious, but is worth restating, a third party who is not instructed by or, legally on behalf of, P cannot bring a right of appeal, in relation to a decision concerning P. The appeal must be brought by or on behalf of P. Practically, where an appellant is a minor, their guardian or parent may bring an appeal on their behalf or if they are, for example, “Gillick” competent they give instructions directly (Gillick v West Norfolk and Wisbech AHA [1985] UKHL 7). …”
48. It is correct that paragraph 297 of the immigration rules sets out the requirements to be met for indefinite leave to enter the UK as child of a relative present and settled in the UK, but that is not to say that the relative can make an application and exercise the statutory right of appeal before the Tribunal on behalf of the child without the consent of the child, the child’s parent(s) or guardian. As the judge correctly noted, where an appellant is a minor, their guardian or parent may bring an appeal on their behalf or if they are, for example, “Gillick” competent they give instructions directly.
49. We add that where an appellant, particularly a child, is legally represented as here, it is vital that proper due diligence is completed to ensure that the instructions are being received from the child, one or both their parents or a guardian entrusted with the care of the child. We do not suggest that [MA] or [AA] acted in bad faith, but here it is clear that EcoM solicitors had not contacted or received instructions either from the appellant’s father, the appellant’s maternal grandmother, or the appellant. The reliance upon instructions from other individuals who claimed to be related to the appellant, in circumstances where nature of that relationship itself was in issue, is striking, even when the individuals were able to provide documents to support any application. The potential for abuse and the child being exposed to risk cannot be underestimated.
50. The presence of [MA] and [AA] at the hearing does not assist the appellant. Their claim that they are related to the appellant and wish to care for and support him in the UK adds nothing to the underlying difficulty that the appellant was not exercising a right of appeal under section 82 of the 2002 Act. Neither [AA] nor [MA] could confer upon themselves the authority to exercise the right of appeal when there had been no assessment of the appellant’s capacity to give instructions and no attempt at all to speak to the appellant’s father or maternal grandmother who it is said, is his guardian.
51. Mr Popoola refers to the documents that EcoM solicitors had been provided with to support the application and appeal. The medical report dated 26 January 2022 signed by the Medical Director of ‘General Hospital, Owo’ relating to the appellant’s maternal grandmother refers to “a cerebrovascular accident a year ago” and the need for “good family and social support” without any reference to the appellant, [AA] or [MA]. The appellant’s birth certificate is evidence of the appellant’s birth. The letter from the Varsity Point Group of Schools dated 7 October 2022 refers to the appellant and a meeting with the appellant and his grandmother in which it was said that the appellant “.. lost his mother some years ago and the father is under a serious illness…” The letter refers to the appellant’s grandmother. Again, there is no reference to [AA] or [MA]. The letter dated 12 October 2022 from Dr Ikaka of the ‘General Hospital, Owo’ relating to the appellant’s father confirms he was diagnosed of a cerebrovascular disease two years ago, and that his prognosis is good. None of those documents could provide any assurance that [MA] or [AA] have any authority to instruct solicitors to act on behalf of the appellant in making an application to the respondent or to exercise a right of appeal on behalf of the appellant. Simply being presented with documents relating to a child cannot be regarded as adequate due diligence to ensure the individuals concerned are all acting for and on behalf of the child, or in a way that is in his or her bests interests.
52. The fact that the appellant had to engage with providing biometrics and the availability of his passport does not of itself mean that the application was made and an appeal was pursued by the appellant or someone properly authorised to provide instructions on his behalf. Again we do not suggest that [MA] and [AA] were acting in bad faith but it is not difficult to see that documents could be made available by persons acting in bad faith and who do not have the welfare of a child or the child’s best interests at the forefront of their mind. Children are vulnerable to exploitation and manipulation across international borders and the risk cannot be underestimated. The need for particular care when acting for a child in this jurisdiction is clear. Relying upon the availability of documents concerning a child, even documents that appear to emanate from credible sources is likely to be insufficient in the absence of direct instructions from the child, or where appropriate, their parent(s) or legal guardian.
53. On the evidence and information before the FtT, whatever the intentions of [AA] and [MN], they had no authority to instruct solicitors to exercise a right of appeal on behalf of the appellant. The right of appeal rests with the appellant. Where the appellant is a child, although a litigation friend is not required in all cases, representatives and the Tribunal must consider whether the child is capable of giving instructions. That is, whether the child is capable of understanding, with the assistance of such proper explanation from legal advisers and experts in other disciplines as the case may require, the issues on which his consent or decision is likely to be necessary in the course of those proceedings. Masterman-Lister v Brutton & Co (nos 1 and 2) (CA) [2003] 1 WLR. Applying the test for capacity in Gillick v West Norfolk and Wisbech AHA [1986] AC 112, if the young person has sufficient understanding and intelligence to enable them to understand fully what is proposed, a litigation friend may not be necessary. As the Upper Tribunal said in JS and others:
“85. The appointment of litigation friends for applicants between the ages of 12 years and 15 years inclusive (i.e. 12 and over but younger than 16) will need to be considered on a case-by-case basis and the circumstances which should be considered, but which are not exhaustive, are (a) whether the applicant is legally represented; (see below); (b) whether there is an assisting parent; (c) whether there is a local authority involved (see above); and (d) whether the applicant has any type of vulnerability.
86. If an applicant in this age group is legally represented, the Tribunal will expect the representative specifically to address in writing the issue of whether, in the representative's view, a litigation friend is necessary, having regard to capacity and the position of any parent.”
54. None of these critical steps were taken by the appellant’s solicitors and therefore hearing from [MA] and [AA] would have added nothing. Similarly, the fact that the appeal involves the best interests of a child, does not mean that an appeal can proceed if it is not properly brought. The question whether the appellant was exercising a right of appeal to the Tribunal under section 82(1) was for the judge to determine. There is no inherent jurisdiction in the FtT and it cannot stray beyond what it is statutorily empowered to do; Da Silva Pinho (FtT - jurisdiction) [2025] UKUT 00317 (IAC). The right to appeal to the Tribunal had not been properly exercised. As the judge properly said the Tribunal did not have jurisdiction to hear the appeal in all the circumstances.
55. Contrary to what is submitted in the appellant’s skeleton argument, the decision was not procedurally unfair and in contravention of Rule 25 of the Procedure Rules. The appeal was listed for hearing before the judge and the judge held a hearing. The appellant was represented by counsel at the hearing. Counsel conceded, it seems quite properly on the evidence before the judge, that EcoM Solicitors were not instructed by the appellant, his father or his guardian. The judge reached his decision having provided the appellant’s counsel an opportunity to seek instructions from those instructing her, and based upon the information provided. The judge was not required to adjourn the hearing and no procedural unfairness arises.
56. It follows that in our judgment there is no merit in this ground. The decision of the judge is not vitiated by a material error of law on grounds of procedural unfairness.
Ground 2; Standing
57. There are two strands to this second ground of appeal as set out in the appellant’s skeleton argument. First, the appellant claims the judge erred in his misapprehension as to standing and has erred in fact in finding that [AA] and [MA] lacked standing, and EcoM Solicitors had not been properly instructed on behalf of the appellant. Second, and in any event, [MA] and [AA] had and continue to have authority to act on the appellant’s behalf. Given the overlap, we address both strands to this ground together. The common thread to the two strands is the claim that the judge proceeded upon a mistake as to fact. We must therefore consider the application made under Rule 15(2A) of the procedure rules for us to consider evidence that was not before the FtT.
58. In E and R v SSHD [2004] EWCA Civ 49, Carnwath LJ undertook a comprehensive review of the authorities concerning the circumstances in which a decision of a Tribunal may be disturbed on the basis of a mistake of fact, even though that mistake may not be due to any judicial fault. He said, at [66]:
"66. In our view, the time has now come to accept that a mistake of fact giving rise to unfairness is a separate head of challenge in an appeal on a point of law, at least in those statutory contexts where the parties share an interest in co-operating to achieve the correct result. Asylum law is undoubtedly such an area. Without seeking to lay down a precise code, the ordinary requirements for a finding of unfairness are apparent from the above analysis of CICB. First, there must have been a mistake as to an existing fact, including a mistake as to the availability of evidence on a particular matter. Secondly, the fact or evidence must have been "established", in the sense that it was uncontentious and objectively verifiable. Thirdly, the appellant (or his advisers) must not have been responsible for the mistake. Fourthly, the mistake must have played a material (not necessarily decisive) part in the Tribunal's reasoning."
59. Having considered the authorities on the related issue of whether, and in what circumstances, evidence may be adduced to prove a mistake of fact, Carnwath LJ summarised his conclusions, insofar as relevant to the Tribunal, as follows:-
"92. In relation to the role of the IAT, we have concluded
(i) The Tribunal remained seized of the appeal, and therefore able to take account of new evidence, up until the time when the decision was formally notified to the parties;
(ii) Following the decision, when it was considering the applications for leave to appeal to this Court, it had a discretion to direct a re-hearing; this power was not dependent on its finding an arguable error of law in its original decision.
(iii) However, in exercising such discretion, the principle of finality would be important. To justify reopening the case, the IAT would normally need to be satisfied that there was a risk of serious injustice, because of something which had gone wrong at the hearing, or some important evidence which had been overlooked; and in considering whether to admit new evidence, it should be guided by Ladd v Marshall principles, subject to any exceptional factors.”
60. The well-known principles set out Ladd v Marshall [1954] 1 WLR 1489 are: first, the fresh evidence could not have been obtained with reasonable diligence for use at the trial; second, that if given, it probably would have had an important influence on the result; and third, that it is apparently credible although not necessarily incontrovertible. As a general rule, the fact that the failure to adduce the evidence was that of the party's legal advisers provides no excuse.
61. The appellant seeks to rely upon the following evidence:
a. A statement dated 28 August 2025, with translation, made by the appellant’s grandmother, although the translated version refers to her as the appellant’s “great grand mother”. She states that she approves and gives her consent to her sister taking the appellant to the UK as she cannot take care of him well enough and her sister and her daughter have made proper plans for him in the UK. She states she cannot read and write. She explains that the statement has been prepared for her by a barrister, Mr Ekundayo, who wrote it in accordance with her explanation and it is true. She cannot sign but she has put her fingerprint on the page;
b. An affidavit sworn by the appellant’s grandmother on 21 November 2025 stating she cannot manage the appellant because of her age and health. She claims his health and education are suffering and that after communications with her sister, [MA] it was decided that the appellant should go to the UK to join [MA] and [AA]. She states she gave “unconditional permission to the materials to the United Kingdom” (sic) and that she provided the necessary documents to her sister to help the process;
c. An affidavit sworn by Mr Soladoye Ekundayo on 1 September 2025 deposing that he is a barrister and visited the grandmother’s address on 27 and 28 August 2025 on the instructions of EcoM solicitors. He observed the grandmother to be in poor health and in squalid living conditions. He took a statement from the grandmother and was taken to a nearby church where he met the appellant. The appellant seemed unwell and told him he was suffering from malaria but could not afford medicine and his grandmother was unable to look after him adequately. He spoke at length with the appellant regarding the plans for travel to the UK and the appellant confirmed he was aware of those plans and expressed excitement about joining relatives in the UK. He enquired about the appellant’s father but was unable to locate him. He was given a phone number which he tried without success. He was further informed that the father had become deaf and dumb, but he did not have independent confirmation of that;
d. An undated photograph presumably of the appellant’s grandmother;
e. An undated photograph presumably of the appellant with his grandmother;
62. In our judgment the onus rested with the appellants solicitors, [AA] and [MA] to ensure that they had standing to make an application and exercise a right of appeal on behalf of the appellant. It is remarkable that that was not addressed from the outset. Had it been addressed, there would have been evidence before the Tribunal. In his witness statement dated 12 June 2025, Mr Ikechukwu Ikeh states that EcoM Solicitors took detailed instructions from [MA]. At the hearing before the FtT, counsel for the appellant took instructions and confirmed that the solicitors had not received instructions from either the appellant, his father or grandmother.
63. The affidavit of the appellant’s grandmother explains that she decided with her sister that the appellant should go to the UK and that she provided the necessary documents and gave unconditional permission “to the materials to the UK”. That is evidence that arrangements were agreed for the care of the appellant, but not uncontentious evidence that the appellant’s solicitors were able to act on behalf of the appellant without any authority or instructions at all from the appellant, his father or his grandmother. If the appellant has capacity and is able to provide instructions, the instructions or authority should have come from him. If not, the starting point would be his father. There is nothing in the evidence to indicate that [MA] or [AA] had any form of responsibility for the appellant in circumstances where there remained an issues as to the relationship. The evidence from the appellant’s grandmother regarding the arrangements being made for the care of the appellant could have been obtained with reasonable diligence for use at the hearing of the appeal.
64. In any event, although Mr Soladoye Ekundayo states in his Affidavit that the appellant was aware of the plans to join his relatives in the UK and was excited about them, that does not assist with the issue of capacity and whether the appellant was able to give instructions himself. We understand the difficulties the appellant’s solicitors may have faced in contacting him or his relatives in Nigeria. However the appellant travelled to Lagos to enter his biometrics, and his school are apparently supportive. It should be entirely possible to have organised to speak to the appellant directly with the assistance of his school if need be, even if some pre-arranging was necessary.
65. We do not consider that there are exceptional circumstances justifying departing from the first Ladd v Marshall principle. We note the best interests of the child and that this appeal involves a human rights claim. In Akter (appellate jurisdiction; E and R challenges) [2021] UKUT 27, a panel consisting of the President and Vice President considered that the ability to make fresh submissions to the respondent was highly material to the question of whether the Ladd v Marshall principles should be diluted. Here, the appellant can make a fresh application to the entry clearance officer.
66. We therefore decline to admit the new evidence that is relied upon and consider the two strands to this second ground.
67. First, the appellant claims the judge erred in his misapprehension as to standing and has erred in fact in finding that [AA] and [MA] lacked standing, and EcoM Solicitors had not been properly instructed by the appellant. Reference is made to Part 3.1 of the SRA Code of Conduct, which under the heading “Service and Competence” states:
“3.1 You only act for clients on instructions from the client, or from someone properly authorised to provide instructions on their behalf. If you have reason to suspect that the instructions do not represent your client's wishes, you do not act unless you have satisfied yourself that they do. However, in circumstances where you have legal authority to act notwithstanding that it is not possible to obtain or ascertain the instructions of your client, then you are subject to the overriding obligation to protect your client's best interests.”
68. The appellant claims EcoM Solicitors were therefore permitted to act on behalf of the appellant and they were not restricted from taking instructions simply from just parents or legal guardians of the party to proceedings, the appellant. It is said that Part 3.1 of code of conduct encompasses a situation where it is not possible to obtain or ascertain instructions for the client, here a child, and emphasises the “obligation” to protect the client’s best interests. The appellant claims counsel who appeared before the FtT was not obliged to withdraw from the case because she was instructed by a professional client.
69. The appellant claims that the last sentence of paragraph 3.1 of the SRA Code of Conduct can be read as encompassing a situation where it is not possible to obtain or ascertain instructions from the client. That is to misread the last sentence. The last sentence does not cover any situation where instructions cannot be obtained directly from the client, it covers circumstances where there is “… legal authority to act notwithstanding that it is not possible to obtain or ascertain the instructions of the client”. That is a very important caveat. We note that JS and Others, at [91], refers to the SRA Practice Note “Meeting the needs of vulnerable clients” as being relevant for solicitors acting in immigration proceedings who are considering whether the child for whom they act has capacity. The most recent iteration of that guidance has a section explaining when a third party can provide instructions in the case of a client who no longer has capacity; (the answer being when the third party has the legal authority to do so for example if they are a litigation friend) The solicitors would still have the obligation to protect their client’s best interests. The last section refers to clients who lack or lose capacity without a third party with legal authority to instruct on their behalf. The section refers to a different approach depending on the nature of the matter on which the solicitor is being instructed and refers to a situation where a legal authority is not currently in place “to otherwise allow you to accept instructions on a client’s behalf from a third party” and suggests that the solicitor might instead take instructions from a proposed litigation friend pending their appointment by the court. It is evident from that guidance that the circumstances in which a solicitor can act on behalf of a client when they are not directly instructed by the client or someone properly authorised, are very limited.
70. As we have set out at paragraph 19 above, when we referred Mr West to the definition of “client” according to the SRA code of conduct, Mr West agreed that the “client” in this context must be the “appellant”. The first sentence of paragraph 3.1 of the Solicitors’ Code of Conduct permits solicitors to act on instructions from someone properly authorised to provide instructions on behalf of a client.
71. If the appellant has capacity, then he should have been the person providing instructions. He was 12 at the time the appeal was lodged and 13 at the date of the hearing. Those representing him were therefore required to carefully consider his individual circumstances and whether a litigation friend was required having regard to matters such as the appellant’s capacity and the position of any parent. That had not occurred at the time EcoM solicitors started to act for him. It did not occur when the application made was made and then refused by the respondent. No steps were taken to carry out any of those necessary steps before any appeal was lodged or indeed heard by the FtT. That has not been done even now. The principles set out in JS and Others are an important and obvious safeguarding tool, particularly in immigration cases where a parent or relative in the UK is asserting that a child who may have family, even a parent, remaining in their country of origin should leave his family in his country of origin behind and come to the UK. It cannot be assumed that it is always in the best interests of a child to join family or relatives in the UK.
72. If the appellant does not have capacity, then the starting point is that a person with parental responsibility, normally a parent, should be providing instructions. Although it is said that the appellant’s father was not involved in his life, or was unable to exercise parental responsibility, that assertion is not established by uncontentious evidence. There is at least some evidence that the appellant’s father was not able to look after the appellant because of ill-health, but the evidence before us regarding the health of the appellant’s father is unclear. A parent may still be able to exercise parental responsibility in the sense of making or being involved in the key decisions regarding the upbringing of a child, their health, education and care , without being able to take responsibility for the day-to-day physical care of a child whether through illness, disability, or living away from the child. That the appellant’s father might lack capacity is suggested in a letter from the school but the letter is silent as to where that information derives from. The letter is curious because it appears to have been signed by the appellant. Even if that is a clerical error, the information concerning the appellants father is at odds with the letter from the General Hospital, Owo, dated 12 October 2022, in which the appellant’s father is reported to be making slow progress with a good prognosis.
73. In our judgment the solicitors were not acting on instructions from someone properly authorised to provide instructions on behalf of a client. The judge did not make a mistake as to fact so as, following the guidelines set out in E and R, the decision should be set aside. It follows that the second ground of appeal fails.
Ground 3; The Decision to Dismiss the Appeal
74. The appellant claims the judge was wrong to “dismiss” an appeal that the Tribunal found was brought without standing. The judge concluded that the Tribunal “does not have jurisdiction to hear such a claim, where the appeal is brought by a third party, without legal standing”. The appellant claims there was no valid appeal before the Tribunal and the proper course would have been to issue a notice to that effect, rather than dismissing the appeal.
75. In the skeleton argument settled by counsel and adopted by Mr Popoola, it is submitted that there does not appear to be any real guidance to the Tribunal in situations where the Tribunal determines that it lacks jurisdiction, as to what must be done procedurally to ensure correct disposal. It is said that this issue constitutes novel territory appropriate for guidance to be given by the UT.
76. However, given the way in which the appeal proceeded before us, we have not had the benefit of hearing submissions elaborating on this ground. The appellant simply refers in the skeleton argument to the judgment of Underhill LJ in The Secretary of State for the Home Department v Devani [2020] EWCA Civ 612 at [27], but the focus there was on the onward right of appeal. Here, it is not obvious to us why the Secretary of State would want to appeal a decision of the FtT that was dismissed due to a finding that the Tribunal had no jurisdiction, if there is no appeal by the appellant.
77. In our judgment it was open to the judge to dismiss the appeal for the reasons he gave. Even if the judge erred in dismissing the appeal, rather than recording that there was no valid appeal before the FtT, that error cannot possibly be a material one in the appeal before us.
Notice of Decision
The judge’s decision contains no error of law and stands.

V. Mandalia

Judge of the Upper Tribunal
Immigration and Asylum Chamber

12 April 2026