Tribunal decisions

The decision

IN THE UPPER TRIBUNAL
IMMIGRATION AND ASYLUM CHAMBER
Case No: UI-2025-005726
First-tier Tribunal No: PA/65909/2024

THE IMMIGRATION ACTS

Decision & Reasons Issued:

On 26th of March 2026

Before

Deputy upper tribunal JUDGE Kelly

Between

[I K]
(ANONYMITY ORDERED)
Appellant
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Mr K Forrest, Counsel instructed by Norman Lawson and Co.
For the Respondent: Ms R Arif, Senior Home Office Presenting Officer.

Heard at Field House on the 11th March 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 member of the public to identify the appellant. Failure to comply with this order could amount to a contempt of court.

DECISION AND REASONS
Introduction
1. The Appellant is a male citizen of Pakistan. The Respondent refused his protection claim on the 13th May 2023 and his appeal against that refusal was dismissed by First-tier Tribunal Fox on the 23rd October 2025. Judge Singer granted permission to appeal against Judge Fox’s decision on the 15th December 2025. Hence the matter came before me.
The appellant’s case
2. The essence of the appellant’s claim before the First-tier Tribunal was that he was born into a socially and religiously conservative family in Pakistan. He first realized that he was gay at the age of 14 years but chose not live openly as such in Pakistan for fear of the likely societal hostile reaction. He came to the UK on the 28th August 2022 in order to study for a Masters in International Business at Stirling University, and he has since lived an openly gay life. His brother called in March 2023 to inform him that their parents had arranged a marriage for him in Pakistan. The appellant told his brother that he was gay and did not therefore wish to enter the marriage that had been arranged for him. This resulted in the appellant’s father threatening to kill him on return to Pakistan for bringing dishonour on the family.
Decision of the First-tier Tribunal
3. The judge noted that the appellant’s then representative (Mr Kenyon) had applied to adjourn the hearing in the First-tier Tribunal to facilitate the presentation of evidence supportive of the appellant’s claim to have been in a gay relationship for some three years. The judge treated this application as an application that raised ‘a new matter’ to which the respondent had not consented (section 85(5) of the Nationality, Immigration and Asylum Act 2002) [7]. Having noted that, “the appeal has been listed for some time”, and that, “the Appellant would have had several opportunities to discuss the issue … with his representatives and made a conscious decision not to do so”, the judge concluded that the application was, “calculated to disadvantage the Respondent’s enquiry into his appeal”, and thus refused the application.
4. The judge’s findings can be conveniently summarised as follows. Little weight attached to photographs apparently linking the appellant, “in some fashion to the LGBT community”, having regard (amongst other things) to the circumstances in which they were admittedly taken [22 – 26]. Whilst a supporting letter from an organisation called ‘LGBT Health & Wellness’ referred to conditions in Pakistan, it contained little information about the appellant himself. Furthermore, “no one [had] come forward to support the Appellant’s claim in any capacity”, something that was, “significant as well” [28]. There was an inconsistency between, on the one hand, the appellant saying in his asylum interview that at that time he was still seeking a partner and, on the other hand, his subsequent claim to have been in a gay relationship for three years [29]. Moreover, the appellant’s claimed partner did not appear in any of the photographs [30].
The grounds of appeal.
5. Judge Singer refused permission to appeal on the fifth ground, which complained that Judge Fox had incorrectly applied the burden and standard of proof under section 32 of the Nationality and Borders Act 2022, and Mr Forrest confirmed that he was not making a renewed application for permission to appeal on that ground. He also confirmed that he was not seeking to advance the seventh ground of appeal (an alleged inadequate consideration of the appellant’s private life claim under Article 8 of the Human Rights Convention). The remaining grounds can conveniently be summarised as follows.
(i) The decision to refuse the appellant’s application to adjourn the hearing was procedurally unfair (see paragraph 3, above);
(ii) The credibility findings are, “flawed … based on irrational conclusions, misdirections in law, and an incorrect standard of proof”;
(iii) The assessment of the appellant’s supporting evidence (photographs, letter from ‘LGBT Health & Wellness’, and ‘Zoom’ screenshots) was, “speculative and unreasonable”, and the judge moreover, “failed to make any reference to the Appellant’s membership of the organisation ‘Imaan LGBTQUI+’ and his participation in Rainbow Chai support sessions” [original emphasis];
(iv) In drawing an adverse conclusion from the timing of the appellant’s protection claim [section 8 of the Asylum and Immigration (Treatment of Claimants, etc) Act 2004] the judge mistook the chronology of events and thereby erroneously failed to treat it as a sur place claim.
(v) The judge failed to assess the risk of the appellant being perceived as homosexual on return to Pakistan (originally the sixth ground).
Analysis
6. I begin by setting out in full the judge’s reasons for refusing to grant the appellant’s application to adjourn the final hearing of the appeal.
6. Mr Kenyon sought a brief recess at the top of the hearing in order to discuss a new issue with his client. It was granted. When he returned to the nearing room, he advised that he has just become aware that his client is in in a relationship with his male partner. He now feels that the appeal should be adjourned so that additional evidence and statements may be gathered. It is accepted that this is a new matter. Ms Baleikasavu objected. The Appellant was asked a number of questions by me. He confirmed that he has been in this relationship for three (3) years at least. He claims that his partner is a successful asylum seeker who secured Leave in September 2024. This information was only notified to his representative on the morning of the hearing. The reason for the delay in communicating this to Mr. Kenyon, was that they were fearful of being returned to their home country.
7. After giving the matter some consideration, I was satisfied that both the Appellant and his claimed partner were no neophytes to the immigration system, particularly as it applies to the UK. They have been through it. This information is material and central to the Appellant’s claim and he would have been aware of it. So should his claimed partner. He is well educated, intelligent and erudite. That he did not think this information to be relevant to his circumstances or would jeopardise his chances of success are irreconcilable with this back drop. It raises the heady spectre of `trial by ambush` when first mentioned at hearing. No blame or recriminations are to be attached to Mr. Kenyon. It is a new matter and the Respondent does not consent to its admission. I am satisfied that the Appellant is well aware of his responsibilities to the court and to his legal representatives. The appeal has been listed for some time. The Appellant would have had several opportunities to discuss the issue of a current partner with his representatives and made a conscious decision not to do so. He must carry the consequences of his decision. He is aware of what he is doing and that the introduction of this information, at this late stage, in the absence of information to the contrary, was calculated to disadvantage the Respondent’s enquiry into the appeal. The adjournment is refused. The new evidence was not asked to be admitted by Mr. Kenyon.
7. The criticisms in the written grounds of appeal are entirely based upon the reasons that the judge gave at paragraph 7 of the Decision and are four in number:
(1) The refusal was based upon “a premature and speculative adverse credibility finding” concerning the evidence that the appellant was proposing to adduce at an adjourned hearing;
(2) The reasons the judge gave for discounting the appellant’s explanation for not having provided the evidence of his claimed relationship in readiness for the hearing, “was pure speculation and irrelevant to the issue of fairness”;
(3) The refusal to grant the appellant time to adduce supporting evidence of his claimed relationship created a “catch-22” situation whereby the contradiction between the claimed relationship and a reply given by the appellant is an earlier asylum interview was used, “as a primary reason for finding his account ‘incompatible’ and ‘fictitious’;
(4) The unfairness inherent in refusing the adjournment application was something that ‘infected’ the judge’s subsequent adverse credibility findings as is evidenced at paragraph 41 of their decision (“That negative view of his credibility is further compounded by the very late attempt to introduce a partner of 3 years standing”).
8. Mr Forrest nevertheless put the ‘procedural unfairness ground’ (the first ground) somewhat differently. He submitted that given the materiality of the proposed evidence to the core issue in the appeal (whether the appellant was ‘gay’) fairness required that the adjournment application should be granted, and the Tribunal’s displeasure at the tardiness of the application should simply have been marked by making an ‘unreasonable conduct’ costs order against the appellant. The difficulty I have with this submission is its implication that the sole determinant of ‘fairness’ is the materiality of the proposed evidence. However, as ‘the overriding objective’ in Rule 2 of the First-tier Tribunal (Immigration and Asylum Chamber) Rules 2014 makes clear, these are not the only considerations. Other considerations include (non-exhaustively) the proportionality of the proposed adjournment by reference to the importance and complexity of the issues in the appeal, the resources of both the parties and the Tribunal, and the necessity of avoiding delay insofar as consistent with a proper consideration of the issues. In the present context, the application to adjourn the final hearing of the appeal inevitably raised questions not only as to the materiality of the evidence, but also as to the nature and extent of any opportunity that the appellant may have had to ensure that it was available in time for the date on which his appeal was listed for final hearing, together with the adequacy (or otherwise) of any explanation that the appellant may have had for failing to avail himself of such opportunity. It may thus be an entirely fair (and accordingly lawful) exercise of discretion to refuse an adjournment application where an appellant has inadequately explained their failure to avail themselves of a reasonable opportunity fully to present their appeal on the listed hearing date, notwithstanding the materiality of the absent evidence to the issues in the appeal. Indeed, the more obvious the materiality of the absent evidence to those issues the greater will be the likely difficulty in explaining why it was not available in time for the listed hearing date. To the extent that this was the basis for their decision, the judge cannot be criticised for refusing to grant the application to adjourn the hearing.
9. However, the judge went well beyond simply finding (at paragraph 6) that the appellant had inadequately explained his unpreparedness to present his appeal on the day listed for final hearing, and instead went on to find (at paragraph 7) that the claimed existence of a partner amounted to, “a new matter”, that raised, “the heady spectre of ‘trial by ambush’ when first mentioned at the hearing”. The judge moreover found that the appellant was, “aware of what he was doing”, and that the late introduction of this claim, “in the absence of information to the contrary, was calculated to disadvantage the Respondent’s enquiry into this appeal”. This reasoning is troublesome at several levels.
10. Firstly, it is unclear why this was being treated (apparently by agreement) as a ‘new matter’ for the purposes of section 85(5) of the Nationality, Immigration and Asylum Act 2002, thereby requiring the Secretary of State to consent to it being considered by the Tribunal within the context of the current appeal proceedings. Section 85(6) states that a matter will be ‘a new matter’ if it constitutes a ground of appeal under section 84, and the Secretary of State has not previously considered it in the decision under appeal. If, therefore, the appellant had been seeking to argue that he had a relationship with a ‘qualifying partner’ that gave rise to a ‘family life’ (human rights) claim under article 8 of the Human Rights Convention, then, depending upon the terms of the appealed decision, this may have required the consent of the Secretary of State for the Tribunal to consider it within the context an appeal against the refusal of his protection claim under the Refugee Convention. Had that been the case, however, and given that the Secretary of State was apparently withholding consent to the Tribunal’s consideration of the ‘new matter’, the exercise of judicial discretion in granting or refusing an adjournment application would have been entirely otiose. The appellant in those circumstances would simply have been required to make a discrete human rights claim to the Secretary of State, which, if refused, would then have attracted an entirely separate right of appeal. If, on the other hand, the appellant had been merely seeking to adduce evidence from his claimed partner to support his factual claim that he was ‘gay’ within the context of his appeal against the refusal of his protection claim, then this would clearly not have amounted to ‘a new matter’, but would rather have been further evidence in support of his appeal on the existing ground (under section 84(1)(a)) that his removal would breach the United Kingdom’s obligations under the Refugee Convention. As it is, the judge appears to have conflated these issues by treating the Secretary of State’s withholding of consent to raising ‘a new matter’ as one of several reasons for refusing the appellant’s application to adjourn the hearing, without first identifying the precise nature of the supposedly ‘new matter’ that was said to require such consent, thereby determining whether it was necessary to consider the adjournment application at all.
11. Secondly, the very making of the application to adjourn the hearing appears to have prompted the judge to make evidentially unsupported adverse findings against the appellant prior to undertaking a substantive consideration of the merits of his claim. This includes a finding that the appellant had deliberately delayed introducing the new matter (“he is aware of what he doing”) with a view to ‘ambushing’ the respondent at the hearing in a way that was, “calculated to disadvantage the respondent”. That the judge did not find it necessary to base this finding upon any evidence beyond the mere making of the application to adjourn the hearing is apparent from the phrase, “in the absence of information to the contrary”, thereby placing an evidential burden upon the appellant to show that he did not have an ulterior motive for making his late application. These irregularities lie at the very heart of the complaint of unfairness pleaded in the written grounds of appeal, which characterise the judge’s approach to the adjournment application as an “improper pre-judgement” of one of the central factual issues in the appeal, and of creating “a catch 22” for the appellant by refusing to grant the appellant an opportunity to provide evidence of his otherwise unsubstantiated claim of a three-year relationship (above) whilst at the same time treating the perceived inconsistency between that claim and an earlier account in an asylum interview as a primary reason for finding that both accounts were “fictitious” [paragraph 29 of the decision]. Both these complaints are in my judgement well-founded. Furthermore, it is clear from paragraph 41 of the Decision that the judge’s adverse pre-judgment of the appellant’s credibility when considering his application to adjourn the hearing of the appeal, coloured (or, “infected”, to use the language of the pleaded grounds) the subsequent analysis of the substantive appeal (“That negative view of his credibility is further compounded by the very late attempt to introduce a partner of 3 years standing”).
12. Thirdly, it is not entirely clear to me why the judge considered that the perceived risk of the Secretary of State being ‘ambushed’ by the appellant’s late introduction of his claimed three-year relationship would be best avoided by refusing rather than granting the application to adjourn the hearing of the appeal. By adopting the latter course the Tribunal would have been able to direct that any evidence upon which the appellant relied in support of the existence of his claimed relationship should be served upon the Secretary of State well in advance of the adjourned hearing, thereby avoiding the very risk upon which the decision to refuse the application was largely founded. I am conscious that this is not something about which either the written grounds or Mr Forrest’s oral submissions made complaint. It does however reinforce my view that the procedural irregularities pleaded in the written grounds, which I have upheld, adversely affected the overall fairness of the proceedings.
13. I therefore uphold the first ground of appeal.
14. The representatives agreed that in this circumstance the only proper course would be for the decision of the First-tier Tribunal to be set aside and for the appeal to be remitted for a complete rehearing. So far as the remaining grounds of appeal are concerned, I am not persuaded that they would have merited allowing this appeal had they stood alone. In particular, I find that the second ground of appeal is nothing more than a quarrel with findings that were reasonably open to the judge on the evidence, and that the sixth ground (failure to consider the risk on return of the appellant being perceived as homosexual) fails to establish that there was relevant background country information before the Tribunal that was capable of supporting such an alternative claim. However, grounds (iii) and (iv) (as numbered and summarised under paragraph 7, above) have contributed to my overall sense of unease about the safety of the First-tier Tribunal’s decision in upholding the first ground.
Notice of Decision
The appeal is allowed.
The decision of the First-tier Tribunal is set aside.
The appeal is remitted for complete rehearing by a First-tier Tribunal judge other than Judge Fox.

David Kelly Date: 13th March 2026
Deputy Judge of the Upper Tribunal
Immigration and Asylum Chamber of