Tribunal decisions

The decision

IN THE UPPER TRIBUNAL
IMMIGRATION AND ASYLUM CHAMBER Case No: UI-2025-005813
First-tier Tribunal No: PA/64832/2024
LP/00705/2025
THE IMMIGRATION ACTS
Decision & Reasons Issued:
On 24th of April 2026
Before
UPPER TRIBUNAL JUDGE NORTON-TAYLOR

Between
SECRETARY OF STATE FOR THE HOME DEPARTMENT
Appellant
and
GAN
(ANONYMITY DIRECTION MADE)
Respondent

Representation:
For the Secretary of State: Ms L Clewley, Senior Presenting Officer
For GAN: Ms K Staunton, Counsel, instructed by Sriharans Solicitors

Heard at Field House on 20 April 2026

Order Regarding Anonymity
Pursuant to rule 14 of the Tribunal Procedure (Upper Tribunal) Rules 2008, GAN is granted anonymity.
No-one shall publish or reveal any information, including the name or address of GAN, likely to lead members of the public to identify GAN. Failure to comply with this order could amount to a contempt of court.

DECISION AND REASONS

Introduction
1. For the sake of continuity, I shall refer to the parties as they were before the First-tier Tribunal: the Secretary of State is once again “the respondent” and GAN is “the appellant”.

2. The respondent appeals with permission against the decision of First-tier Tribunal Judge S Khan (“the judge”), promulgated on 17 October 2025. By that decision, the judge allowed the appellant’s appeal against the respondent’s refusal of her protection claim.

3. The appellant’s protection claim was, in summary, based on a fear of the Oromo Liberation Army. The appellant claimed to have been trafficked and seriously abused in Qatar and then again in the United Kingdom. As a consequence, she suffers from significant mental health difficulties. On any view, she is a very vulnerable individual.

4. The respondent accepted all core aspects of the appellant’s account of past events. The respondent did not accept that the appellant would be at risk on return, or, if she were, that she could not safely and reasonably internally relocate.

The judge’s decision
5. Having summarised the appellant’s case, the judge set out the various factual concessions made by the respondent in her reasons for refusal letter (which were all maintained in the review).

6. At [23], the judge recorded what is now the central issue before me, namely the fact that the appellant’s appeal had been placed on the “float list”. That meant that no designated Presenting Officer was allocated to the case. The first sentence of [23] reads as follows:

“The matter was on the float list where the Respondent indicated that they did not need to be represented.”

7. The judge proceeded to hear the appeal in the respondent’s absence.

8. The judge dealt in some detail with an expert medical report which had been served late in the day and which, for a number of perfectly sound reasons, he declined to admit in evidence: [23]-[26].

9. The judge quite properly treated the appellant as a vulnerable witness. The judge considered country evidence contained in the respondent’s CPIN, together with other background information provided by the appellant. The judge concluded that: (a) the appellant was at risk of persecution in her home area; (b) the appellant would not receive sufficient state protection; and (c) the appellant could not safely and/or reasonably internally relocate: [37]-[42]. The appeal was accordingly allowed on protection grounds and the judge did not deem it necessary to deal with Article 8.

The grounds of appeal
10. The grounds of appeal are narrowly drawn. It is said that the judge acted unfairly by proceeding in the respondent’s absence. It is said that the respondent had no control as to which cases were placed onto the float list and that the standard position taken by the respondent was that no protection appeals (i.e. those beginning with the prefix “PA”) were appropriate to be heard without an allocated Presenting Officer. It is said that the judge made an erroneous assumption that the respondent did not wish to participate in the hearing simply because the case was on the float list.

11. The grounds of appeal were supported by a witness statement from Ms Y Khan, Senior Executive Officer at the West London Presenting Officer’s Unit and the person in charge of dealing with court listings on behalf of the Unit. At [4] of her statement, Ms Khan confirmed that:

“Whilst there is no record of the conversation regarding the float list for the 22nd August 2025, I believe the same message regarding PO representation for PA [protection appeal] cases was the same as it is every day.”

12. Permission to appeal was granted by the First-tier Tribunal on 19 December 2025.

Rule 24 response
13. Ms Staunton provided a detailed rule 24 response which, in summary, asserts that there was no error of law, or, if there was, it was immaterial. It is submitted that the respondent failed to demonstrate that the judge made an error of fact, as she would be required to do in order to succeed in this appeal. As to materiality, the appellant’s credibility had been accepted, the judge based her decision on CPIN evidence, and there was nothing to show what else the respondent might have said if she had been represented at the hearing.

The hearing
14. Ms Clewley submitted that it was not at all clear from the judge’s decision why she thought the respondent did not wish to be represented. As to materiality, Ms Clewley pointed out that the appellant’s appeal bundle had been provided late and only after the respondent provided her review. Therefore, the respondent was denied the opportunity of making submissions at the hearing which could have addressed additional evidence provided by the appellant, together with a response to extracts from the CPIN relied on by the other side.

15. Ms Staunton submitted that the evidence from Ms Khan was insufficient to show what had actually happened on the day of the hearing. The judge’s use of the word “indicated” at [23] suggested that a “positive” act had taken place, with the respondent having confirmed that she did not wish to be represented at the hearing. Ms Staunton emphasised the need for fairness to both parties. The respondent had had an opportunity to put forward all CPIN references in the reasons for refusal letter and review. Nothing relied on by the judge was actually new to the respondent.

16. In reply, Ms Clewley denied that the respondent had to establish an error fact before been able to rely on procedural unfairness.

17. In response to my observations on possible disposal should I find there to be material error of law, neither representative had any objection to the appeal being remitted to the First-tier Tribunal, with all positive credibility finding on past events preserved, and for Judge Khan herself to re-decide the appeal with the benefit of representation from the respondent at the next hearing.

Conclusions on error of law
18. I exercise appropriate judicial restraint before interfering with a decision of the First-tier Tribunal. I fully appreciate that a judge need not set out every aspect of the evidence relied on and/or every step of their reasoning on any particular matter.

19. Notwithstanding the above, I have concluded that the judge did err in law by proceeding to hear the appeal on a procedurally unfair basis. This conclusion is based on the following reasons.

20. I have no reason to disbelieve Ms Khan’s evidence that the respondent has no input into whether an appeal is placed on the float list. I accept that it is an administrative step taken by HMCTS.

21. I accept Ms Khan’s evidence that the Presenting Officer’s Unit is informed on a daily basis as to which cases are on the float list and whether that status is appropriate. In light of her position and in the absence of any cogent countervailing information, I also accept Ms Khan’s evidence that the respondent’s ‘standing communication’, as it were, is that protection appeals (i.e. those with a prefix of “PA”) do require a Presenting Officer. To my mind, that would be represent an entirely sensible position to adopt, given the potential complexity and general importance of protection cases.

22. The dispute between the parties as to what in fact occurred on the day of the hearing relates to what the judge said in the first sentence of [23] and what Ms Khan said (and did not say) in her witness statement. In terms of [23], I am bound to say (with respect) that the reader is left wondering whether the judge thought that the presence of the appeal on the float list of itself represented an indication that the respondent did not wish to be represented, or whether there had been some other specific communication from the respondent relating to the appeal confirming that representation was unnecessary. Having read and re-read that sentence, I simply cannot be confident that the judge was seeking to convey the second scenario rather than the first. There are no other words of explanation as to any specific communication from the respondent on the day. There is nothing to show that the judge herself sought to obtain clarification from the respondent, perhaps by way of asking a member of the administrative staff to contact the Presenting Officer’s Unit, or asking for a Presenting Officer at the hearing centre to attend in person and state a view. I shall return to this point at the end of my decision.

23. Turning to Ms Khan’s evidence, I acknowledge that perhaps more could have been said by way of detailed explanation of the arrangements between HMCTS and the Presenting Officer’s Unit. However, I accept her word that there was no recording of the conversation between the two on the day of the hearing with which I am concerned. I shall also return to this point at the end of my decision. I accept that Ms Khan has given her evidence in good faith when stating that her genuine belief was that the standing communication relating to protection appeals was put forward on the day.

24. There is a further consideration here. Prior to Ms Khan signing of her witness statement, she would have been appraised of why her evidence was sought: i.e in support of the application for permission to appeal. If there had been evidence recorded on the relevant database that the respondent had specifically stated that the appeal could be heard without a Presenting Officer, this would have been disclosed in her statement, in line with the duty not to mislead the Tribunal.

25. Even if such ‘positive’ steps are not recorded by the respondent, I come back to the point that the judge did not state what evidence underpinned the “indication” referred to at [23] other than the appeal simply being on the float list.

26. If, as it appears to me was a distinct possibility, the judge’s reference to an “indication” was in truth and assumption on her part, it would significantly undermine the fairness of proceeding in the respondent’s absence.

27. The appellant submits that what the judge did at [23] was consistent with what is said in WA (Role and duties of judge) [2020] UKUT 127 (IAC): a judge must record what has happened at a hearing where unusual circumstances arise in order that the reader can determine what took place and how it was dealt with. The problem in the present case is that the judge did not set out clearly what had happened ‘behind the scenes’ in terms of the respondent’s position on representation at the hearing.

28. In my view, the decision in Ghira (R25 – AIP - Fairness) [2025] UKUT 350 (IAC) has a bearing on the present appeal. That case concerned a decision by the First-tier Tribunal to decide an appeal without a hearing (‘on the papers’). The Upper Tribunal confirmed that even where the parties consent to that course of action, or do not object to it, the decision remained one of judicial discretion which involved considering issues of fairness and the overriding objective.

29. The present case is analogous, albeit with reference to a different rule under the First-tier Tribunal’s procedure rules. Rule 28 (relating to proceeding in a parties absence) gives judges a discretionary power which needs to be exercised with reference to the “interests of justice”. In other words, it is a matter of judicial discretion and one which must obviously include questions of fairness to both parties.

30. If that analogy is right, it is not apparent from [23] that the judge exercised her discretion in a considered way. Even if the analogy does not apply, what I have said about the uncertainty as to why the judge believed that representation was not necessary is sufficient for the conclusion that there has been procedural unfairness.

31. I do not accept Ms Staunton’s submission that the respondent has to demonstrate an error of fact before been able to rely on procedural unfairness. That is because the lack of clarity in the judge’s decision makes it impossible to discern what the “fact” might have been: was it nothing more than assumption, or was there something more concrete and specific?

32. Finally, the unfairness I have identified is not cured by what the judge said at [26]. When read in context, the judge’s reference to fairness was clearly made in relation to whether the expert report of Dr Dhumad should be admitted.

Conclusions on materiality
33. This issue has given me pause for thought. It is right that the respondent had had the opportunity to put forward CPIN evidence in her reasons for refusal letter and review. It is also right the judge’s risk assessment was predicated in very large part on the CPIN. Query what else a Presenting Officer could have said at the hearing if they had attended? However, for the following reasons I have concluded, by relatively narrow margin, that the materiality threshold is met in this case.

34. Where the error of law in question is that of procedural unfairness, the Court of Appeal have said that the materiality test is demanding: would remission (in other words, setting aside the judge’s decision) be “pointless because the result would inevitably have been the same.”: Abdi v ECO [2023] EWCA Civ 1455, at [38].

35. As a result of repeated non-compliance with the First-tier Tribunal’s case management directions, the appellant’s bundle and skeleton argument was only filed and served after the respondent had provided her review document. Although there was then a significant period of time before the hearing, the fact remains that the respondent had not had an opportunity to specifically respond to the appellant’s full case. There was no obligation on the respondent to provide a second review (although doing so might have been a sensible step to take).

36. Representation from the respondent at a hearing can have various benefits. Aside from cross-examination (which would not of applied in this case), it can go beyond simply repeating what has been said in, for example, a reasons for refusal letter and/or review. It can elaborate on aspects of the country information already referred to; it can respond to country information relied on by the other side; and it can respond to matters raised by the judge.

37. The judge did allude to the appellant’s own country information (which went beyond the CPIN) and in respect of which the respondent had not been able to respond. The fact that that additional evidence was supportive of what was said in the CPIN appears to have carried some weight in the overall assessment.

38. All-told, the procedural unfairness was material.

Disposal
39. As mentioned earlier in my decision, at the hearing I canvassed with the representatives the possibility that this appeal could be remitted to the First-tier Tribunal for Judge Khan herself to re-decide it. I reiterate that neither representative objected to such a course of action.

40. The factual matrix in terms of past events is clear-cut: everything of relevance was accepted by the respondent and those concessions were not disturbed by the judge. There was no suggestion before me that any of these concessions were to be revisited.

41. I see no procedural fairness objection to the same judge now re-deciding the case. She would have the benefit of representation from the respondent. It would not amount to an artificial exercise. Judge Khan, like all judges, can be expected to discharge their judicial duties fairly and with an open mind. In appropriate cases, of which this appears to be one, that would apply even if the judge has already dealt with the matter.

42. I have decided to set the judge’s decision aside, but only to the limited extent of the procedural unfairness identified in my decision. All findings of fact as regards past events are to be preserved.

43. It is not for me to issue directions to the First-tier Tribunal, but I would suggest the following. The matter could be allocated to Judge Khan, who could then list a case management hearing before her at which all relevant issues could be discussed. Judge Khan would then be better-placed to make a final decision on whether she should in fact hear the substantive appeal.

Observations
44. As alluded to previously, I have two observations to make. The first relates to the respondent. If, as appears to be the case, protection appeals are put onto float lists by the First-tier Tribunal without prior notice to the respondent, it seems to me only sensible that the respondent maintains some form of record as to what is actually said in any specific case on the day. That should include confirmation of any objection to an appeal being heard without a Presenting Officer. If an appeal proceeds in the respondent’s absence and an onward appeal is pursued, evidence of the relevant communication could then be adduced.

45. The second observation relates to the approach to be taken by judges. I preface this observation by acknowledging that Judge Khan may have had knowledge of a specific communication from the respondent confirming that representation was unnecessary. However, for the reasons given, but was not made clear. In order to avoid the uncertainty which has arisen in this appeal, it would be prudent for judges to expressly record precisely what they knew about the respondent’s position in any given case. That may include making enquiries with the First-tier Tribunal’s administrative staff, and/or requiring contact to be made with the Presenting Officer’s Unit on the day, and/or bringing in a Presenting Officer to the hearing room to discuss the issue. In my view, that approach would be consistent with WA, Ghira and good practice.

Anonymity
46. It is appropriate to maintain the anonymity direction in this case.

Notice of Decision
The making of the decision of the First-tier Tribunal did involve the making of an error on a point of law.
I remit the case to the First-tier Tribunal, subject to the terms of my error of law decision.

Directions to the First-tier Tribunal
1. The appeal is remitted to the First-tier Tribunal (Hatton Cross hearing centre) for it to be re-decided in due course in line with the error of law decision;

2. In the first instance, the appeal should be allocated to Judge S Khan, for her to determine what procedural steps should be taken thereafter.

H Norton-Taylor
Judge of the Upper Tribunal
Immigration and Asylum Chamber
Dated: 20 April 2026