Tribunal decisions

The decision

IN THE UPPER TRIBUNAL
IMMIGRATION AND ASYLUM CHAMBER Case No: UI-2025-005751
First-tier Tribunal No: HU/57586/2024

THE IMMIGRATION ACTS

Decision & Reasons Issued:
On 16th April 2026

Before

UPPER TRIBUNAL JUDGE HOFFMAN

Between

PURIBEN BHIKHU MODHVADIYA
(NO ANONYMITY ORDER MADE)
Appellant
and

SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Mr H Broachwalla of Counsel, Clarendon Park Chambers
For the Respondent: Mr M Sheikh, Senior Home Office Presenting Officer

Heard at Field House on 2 April 2026

DECISION AND REASONS

1. The appellant appeals with permission against the decision of First-tier Tribunal Judge Cansick (“the judge”) promulgated on 6 September 2025. In that decision, the judge dismissed the appellant’s appeal against the respondent’s decision dated 18 June 2024 to refuse her human rights claim.

Background

2. The background to the case is set out at [2]-[5] of the First-tier Tribunal’s decision and it is therefore unnecessary to repeat it here.

3. What is material to this decision is that, on 27 June 2024, the appellant lodged an appeal with the First-tier Tribunal against the respondent’s decision dated 18 June 2024. At that time, she was represented by Bhavsar Patel Solicitors. A hearing was listed for 9 May 2025; however, neither the appellant nor her legal representatives attended. As recorded at [6]–[9] of the judge’s decision, the tribunal clerk contacted the appellant’s solicitors and was informed that they had applied for the appeal to be determined on the papers, and that neither they nor the appellant would be attending the hearing. The clerk was further informed that, if it were not possible to convert the hearing to a paper determination, the hearing should proceed in the absence of both the appellant and her representatives. The judge noted that the application to convert the hearing to a paper appeal had been submitted three days earlier, on 6 May 2025. The presenting officer objected to the case being determined on the papers, given the credibility issues that she wished to address. The judge therefore refused permission for the appeal to be decided on the papers and, in the absence of any application for an adjournment on the appellant’s behalf, proceeded to hear the appeal in her absence.

The decision of the First-tier Tribunal

4. In his decision dated 6 September 2025, the judge dismissed the appellant’s human rights appeal. He took as his starting point the findings of First-tier Tribunal Judge Monson, who had dismissed the appellant’s previous appeal on 26 January 2018. Judge Monson had not found the appellant to be a credible witness and, although it was accepted that she suffered from depression, he concluded that she could return to India. In the present appeal, the judge found that the appellant had essentially repeated the same submissions made before Judge Monson. He accepted that the appellant had been away from India for thirteen years and that she is vulnerable and suffers from anxiety and depression, but he did not accept that she was likely to self-harm or take her own life. Having considered all the factors cumulatively, the judge concluded that there were no very significant obstacles to the appellant’s re-establishing her private life in India, and that her removal would not be disproportionate when weighed against the public interest considerations.

The appeal to the Upper Tribunal

5. On 30 January 2026, Upper Tribunal Judge Perkins granted the appellant permission to appeal on two grounds:

a. The judge’s decision is vitiated by procedural unfairness because the appellant was advised by her solicitor that she did not need to attend the hearing and was not informed that a paper hearing had been requested on her behalf.

b. The judge made a material error of law by failing to have regard to the appellant’s medical claim under Article 3 of the European Convention on Human Rights.

6. The appellant has also made an application under rule 15(2A) of the Tribunal Procedure (Upper Tribunal) Rules 2008 to rely on post-decision evidence, namely:

a. A witness statement made by the appellant dated 24 March 2026;

b. A witness statement made by Samju Karavdra dated 24 March 2026;

c. A letter addressed to whom it may concern dated 22 March 2026 written by Mr Malde A. Gorania;

d. Screenshots of text messages between the appellant and her social worker;

e. A support plan dated 9 June 2025 prepared by the appellant’s social worker;

f. An email sent to Bhavsar Patel Solicitors on 11 December 2025 by the appellant’s current representatives complaining about their conduct; and

g. A letter dated 5 January 2026 written by Bhavsar Patel Solicitors responding to the complaint, along with a copy of a form of authority dated 6 May 2025 signed by the appellant confirming the she wished for her appeal to be decided on the papers.

7. The day before the hearing, the appellant produced a second witness statement, dated 1 April 2026, dealing with the form of authority disclosed by her former solicitors.

The hearing

8. At the hearing, Mr Sheikh had no objection to the appellant relying on the new evidence, and I accordingly granted permission.

9. It was, however, agreed that because Mr Sheikh indicated that the respondent did not accept the appellant’s evidence, she would need to be cross-examined. I granted Mr Broachwalla a short adjournment to take instructions, following which he confirmed that the appellant was willing to give oral evidence. This necessitated the hearing being pushed back to 2 pm so that a Gujarati interpreter could be obtained. Owing to the short notice, the interpreter was only able to attend via video link, a course to which neither advocate objected. Prior to evidence-in-chief, both the appellant and the interpreter confirmed that they understood each other. During cross-examination, however, Mr Broachwalla, who speaks Gujarati, intervened on two occasions to say that the interpreter had provided only partial translations. I therefore permitted the relevant questions to be re-asked on both occasions, and Mr Broachwalla raised no further concerns about the communication of the evidence.

10. Following the adoption of her two witness statements, the appellant was cross-examined by Mr Sheikh. I had one question for the appellant, after which I gave each party the opportunity to ask any follow-up questions. Both declined. Mr Broachwalla did not seek to ask any questions in re-examination.

11. I had before me the following documents: the 333-page consolidated appeal bundle (“CB”); Mr Broachwalla’s skeleton argument dated 1 April 2026; and the appellant’s second witness statement.

12. At the end of the hearing I reserved my decision.

The evidence relating to the appellant’s failure to attend her appeal hearing

The appellant’s witness statements and the evidence of her former solicitors

13. The appellant’s case, as set out in her first witness statement, dated 24 March 2026 [CB/18], is that prior to the hearing 9 May 2025 hearing, she received a telephone call from her solicitor advising her that she did not need to attend the hearing and that the matter would be dealt with by a barrister on her behalf (paragraph 10). She claims that she had already made arrangements to travel to the tribunal by booking a taxi, which she subsequently cancelled (paragraph 10). She goes on to say that she was assured that her attendance was not required (paragraph 13) and as a result of this advice she did not attend (paragraph 15) and she believed that a barrister would be representing her (paragraph 16). She contends that had she been told that no one would attend the hearing on her behalf, she would have attended herself without hesitation (paragraph 19).

14. However, the letter dated 5 January 2026 from Bhavsar Patel Solicitors responding to her complaint provides a different version of events [CB/46]. It includes the following passage:

“You attended our office on 6th May 2025 and stated that you were extremely nervous about attending the hearing and were afraid that you would give incorrect answers under cross examination from the Home Office. You said that you did not feel confident and the thought of [sic] the hearing was increasing your anxiety. Although we tried to assure you that attending the hearing would be beneficial, you explained that you wished for the matter to be decided on the Bundle that had been submitted. You were advised with regards the previous decision of the Tribunal in 2018 in which the IJ raised several credibility issues and that attending Court to clarify any such issues would be in your best interests. We explained the implications, firstly, of a paper hearing and secondly, that the Court [sic] may reject the request to amend the hearing to a paper hearing. You were adamant that you wished for the case to go ahead on the Papers and duly signed a form of authority confirming the same.

We thereafter, on the same day, contacted the Court [sic] to request for the matter to be decided on the papers as we had been Instructed [sic] by our client.”

I pause at this moment to note that the final sentence accords with [6] of the judge’s decision where he says that an application to convert the appeal to a paper case was made on 6 May 2025.

15. The letter from Bhavsar Patel Solicitors continues:

“On 7th May 2025 we received an email from the Court informing us that due to the lateness of the request to change hearing type the hearing would remain listed as an oral hearing and it will be for the Immigration Judge to decide on the day. We telephoned you shortly after receiving the email to inform you of the contents and advised you that you may still attend the hearing. However, you remained adamant that you did not wish to attend and again instructed us for the case to be decided on the papers. You were informed of the implications and in particular that if the Immigration Judge decided to go ahead with the hearing then he could make an adverse finding. You stated that you did not wish to attend the hearing.

We received a telephone call from the Court Clerk on 9th May 2025 asking whether you would be attending the hearing. We duly informed the Court that we had been instructed by you that you wished for the matter to be decided on the papers. The Court Clerk informed us that the hearing may go ahead in your absence.”

I again note that what is said in these passages accords with what is said at [6] of the judge’s decision.

16. Appended to the letter is a form of authority signed by the appellant on 6 May 2025 [CB/52]. This gives the appellant’s name and address before stating:

“Hereby instruct Messrs Bhavsar Patel Solicitors of [address] to request a Paper Hearing sic for my Appeal which listed [sic] for 9th May 2025.

I have been advised fully of the implications of the same.

This has been explained to me in Gujarati.”

17. Despite post-dating Bhavsar Patel Solicitors’ letter and the disclosure of the form of authority, the appellant addresses neither of these things in her first witness statement. She therefore prepared a second statement, dated 1 April 2026, which was served on the eve of the error of law hearing. In this statement, the appellant says that upon attending her solicitor’s office prior to the First-tier Tribunal hearing (she cannot remember the date) she was “presented with a document and asked to sign it (paragraph 3). She says that it was not explained to her what the document was and she signed it “in good faith, trusting that my solicitor was acting in my best interests” (ibid). She goes on to say that “Although the document is dated 6 May 2025, I cannot be sure that it was signed on this date” (ibid). It can reasonably be assumed that the appellant is referring to form of authority.

18. At paragraph 4, the appellant again asserts that she was not told what the document said or meant and that she was not made aware that it related to a paper hearing or that “signing it could mean that my appeal would be decided without anyone attending court on my behalf." At paragraph 5, she says that “Critically, the document was not explained to me in Gujarati” and that the visit to her solicitor’s office “as with all my visits, last no more than five to ten minutes. There was no meaningful discussion of the document of its implications.”

19. What neither of the appellant’s witness statements address is the assertion in Bhavsar Patel Solicitor’s letter that she had told them that she was unwilling to give evidence before the First-tier Tribunal.

The appellant’s oral evidence

20. In cross‑examination, the appellant maintained that her former solicitors, Bhavsar Patel Solicitors, had not properly explained the First‑tier Tribunal proceedings to her and that when she attended their office shortly before the hearing listed for 9 May 2025, she was asked to sign a document which was also not explained to her.

21. The appellant also denied telling her former solicitors that she lacked confidence or that attending the hearing increased her anxiety. Instead, she said she was told that she did not need to go because her barrister would attend on her behalf. She maintained that she had booked a taxi for the hearing but then cancelled it.

22. The appellant said she did not know why her former solicitors would give a different account in their letter. She denied being “adamant” that the appeal should proceed on the papers and stated she was unaware that a paper determination was even possible.

23. The appellant also disputed the solicitors’ claim that they had gone through her First‑tier Tribunal witness statement with her in Gujarati on 29 April 2025. In response to questions from the Tribunal, the appellant confirmed that she did not know what was said in that statement because she cannot read English. She accepted that she nonetheless signed the statement, because she trusted her solicitor.

24. The appellant accepted receiving a telephone call from her solicitors prior to the hearing, though she could not recall the exact date. She denied telling them that she did not wish to attend the hearing; rather, she said the solicitors told her that she did not need to attend and that her barrister would go in her place. She maintained that she had been willing to attend the hearing, particularly given that her case had been ongoing for five years.

25. When it was put to her by Mr Sheikh that her former solicitors’ account was truthful and that she was lying, the appellant rejected this and said the solicitors’ version of events was incorrect.

Discussion

Ground 1: Procedural unfairness

26. Essentially, the appellant’s case is that her former solicitors, of their own volition, decided that she should not attend her own appeal hearing and made her sign a document asking that it be converted to a paper appeal without explaining what this meant. She also asserts that they prepared a witness statement for her to sign, despite the contents not having been read back to her in Gujarati.

27. Mr Sheikh submitted that the appellant’s account was simply not credible and that she was not telling the truth, likely because, following the dismissal of her appeal, she regretted not attending the hearing. He therefore invited the Tribunal to prefer the account given in the letter from Bhavsar Patel Solicitors.

28. Mr Broachwalla argued that the appellant had given a consistent account and that her evidence should be afforded significant weight. He submitted that her claim that she had been ready to attend the hearing but was advised not to do so by her solicitors was corroborated by other evidence, including: paragraphs 18 and 19 of Mr Karavdra’s witness statement; the letter of Mr Gorania; text messages with the social worker; and the support plan. He also reiterated that the appellant had pre-booked a taxi to attend the hearing.

29. I attach little weight to the evidence that the appellant pre-booked, and subsequently cancelled, a taxi to the hearing centre. Regardless of whether I accept the appellant’s or her former solicitors’ version of events, it is clear that the decision not to attend the hearing was made only three days before it was due to take place. Therefore, under either circumstance, the appellant could have booked the taxi in advance but then, as the hearing approached, changed her mind about attending.

30. I also attach little weight to the evidence from the appellant’s friends, Mr Karavdra and Mr Gorania. As Mr Sheikh submitted, neither witness was present at the solicitors’ office on 6 May 2025, and their accounts are based solely on what the appellant told them. It is also unclear when the appellant relayed these events to them.

31. In relation to the text messages between the appellant and her social worker, one message dated 30 April 2025 records the social worker stating that she “had emailed your solicitor for an update but unfortunately he did not replied [sic] to my previous emails. I really hope he will do that now.” A further undated message shows that the social worker had attempted to contact the appellant’s former solicitors by email, telephone and text message, but had received no response. However, on the same day, the appellant forwarded a text message stating: “Hi… there’s no decision from the court yet. As soon as anything comes we will contact you [thumbs up emoji]”. It can reasonably be inferred that the forwarded message was from the appellant’s solicitors, and that it must post‑date the hearing of the appeal.

32. While Mr Broachwalla submitted that the difficulties experienced by the social worker in contacting the solicitors supported the appellant’s contention that they acted unprofessionally, I do not consider that to be a rational inference from the text messages. The mere fact that a legal representative may be difficult to contact does not, without more, support the conclusion that they would mislead a client into not attending their own appeal hearing.

33. I further find that the care plan is of limited evidential weight. It is dated 9 June 2025 – approximately one month after the First‑tier Tribunal hearing – and records that “Client stated she received a call from her solicitor who stated client does not have to attend the court hearing on 09/05 only the solicitor. Client stated after the hearing her solicitor informed the client that now they have to wait around 6 weeks for the response…”. That passage is ambiguous as to the circumstances in which the appellant was told she did not need to attend. It may reflect, as the appellant claims, that she was misled about the need for her attendance; equally, it may be consistent with a scenario in which she expressed reluctance to give oral evidence and was advised accordingly.

34. Having considered all the evidence in the round, I reject the appellant’s explanation. On balance, I find it more likely than not that the account set out in the letter from Bhavsar Patel Solicitors represents the correct version of events:

a. First, as Mr Sheikh submitted, the appellant’s evidence must be approached with caution in light of Judge Monson’s earlier finding that she was not a reliable witness.

b. Second, despite the seriousness of the allegations she now makes about the conduct of her former solicitors, and notwithstanding that she received their response to her complaint in early January, she has taken no steps to escalate the matter to the Legal Ombudsman or the SRA.

c. Third, and most importantly, I am not persuaded that it is likely that the appellant’s solicitors, whether through incompetence, malice, or otherwise, would of their own volition have advised her not to attend her own appeal hearing and then procured her signature on a form authorising the case to proceed on the papers without explaining the consequences. On balance, it is more plausible that, as the hearing date approached, the appellant – who suffers from anxiety – became concerned about the prospect of being cross-examined, particularly given the previous adverse credibility findings, and was therefore reluctant to attend the hearing.

35. I therefore find that the appellant’s decision not to attend the hearing was her own and, in the circumstances, it was not procedurally unfair for the judge to proceed and determine the appeal in her absence.

Ground 2: Failure to consider Article 3 ECHR

36. I am satisfied that the judge did not err by failing to consider the appellant’s appeal under Article 3 on medical grounds.

37. The appellant’s skeleton argument prepared for her appeal listed only two issues for determination: whether there were any insurmountable obstacles to the appellant living in India; and whether her removal would breach her right to a family or private life under Article 8 ECHR. Article 3 was not expressly raised.

38. However, Mr Broachwalla contended that as the appellant was not represented at the hearing, it was incumbent on the judge to carefully look at the material before him. Had he done so, Mr Broachwalla argued, it would have been clear that Article 3 needed to be addressed. First, he said, the respondent’s decision under appeal expressly dealt with Article 3; second, the appellant’s witness statement expressly addressed her mental health issues; and, third, medical evidence had been provided in the appellant’s bundle, including her GP records and a psychiatric report written by Dr Mala Singh.

39. I am unpersuaded by Mr Broachwalla’s submissions. In Lata (FtT: principal controversial issues) [2023] UKUT 163 (IAC) (recently endorsed by the Court of Appeal in AL v Secretary of State for the Home Department [2026] EWCA Civ 370), the Upper Tribunal explained that, in appeals before the First-tier Tribunal, the parties are required to define and narrow the issues in dispute. These are to be clearly identified in the appellant’s skeleton argument and the respondent’s review. A judge is not required to consider all the potential issues that may favourably arise, even if not expressly relied upon by a party. Importantly, a party that fails to identify an issue before the First-tier Tribunal is unlikely to have a good ground of appeal before the Upper Tribunal.

40. Accordingly, the mere fact that the respondent addressed Article 3 in her decision did not oblige the judge to do so in circumstances where the appellant’s skeleton argument, prepared by her solicitors, did not advance it as a ground of appeal. The judge was reasonably entitled to conclude that the appellant no longer sought to pursue that aspect of her claim. Although the appellant referred to her mental health difficulties in her witness statement (which, in evidence before me, she denied even knowing the contents of), this did not require the judge to undertake an assessment under Article 3. Rather, he was entitled to consider those matters within the framework of the appellant’s Article 8 claim, as he did at [22]. Therefore, the inclusion of medical evidence in the appellant’s bundle – much of which pre-dated Judge Monson’s earlier decision – did not oblige the judge to do more than assess it through the lens of Article 8.

Notice of Decision

The appeal is dismissed

M R Hoffman

Judge of the Upper Tribunal
Immigration and Asylum Chamber

9th April 2026