Tribunal decisions

The decision

IN THE UPPER TRIBUNAL
IMMIGRATION AND ASYLUM CHAMBER Case No: UI-2025-005899
First-tier Tribunal No: PA/01872/2023

THE IMMIGRATION ACTS

Decision & Reasons Issued:

14th October 2026

UPPER TRIBUNAL JUDGE LANDES

Between

TMOS
(ANONYMITY ORDER MADE)
Appellant
and

SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Ms Nnamani, Counsel instructed by Marvel Oaks Solicitors Ltd
For the Respondent: Ms Everett, Senior Home Office Presenting Officer

Heard at Field House on 13 October 2026

Order Regarding Anonymity

Pursuant to rule 14 of the Tribunal Procedure (Upper Tribunal) Rules 2008, the appellant and her husband and children are 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 or her husband and children. Failure to comply with this order could amount to a contempt of court.

DECISION AND REASONS
1. The appellant, a national of Honduras, appeals, with the permission of the First-Tier Tribunal, the decision of a First-Tier Tribunal judge (“the FTTJ”) promulgated on 19 September 2025 dismissing her appeal from the respondent’s refusal of 23 November 2023 of her international protection and human rights’ claims made on 5 March 2022.
Anonymity
2. An anonymity direction was made in the First-Tier Tribunal. The claim is a family asylum claim involving children and bearing in mind their best interests and the public interest in maintaining the confidentiality of the asylum process, I consider there remains a need for anonymity which outweighs the public interest in open justice.
Grounds; my conclusions
3. The FTTJ proceeded in the absence of the appellant, who had earlier requested an adjournment which application was placed before the FTTJ on the morning of the hearing. The appellant was unrepresented, her former representatives having requested an adjournment on her behalf just after 4pm on the day before the hearing on the basis they had closed down their legal aid work in immigration and were unable to represent her [6].
4. The grounds (lodged by the appellant in person but plainly having been settled with the assistance of someone with legal knowledge) said (in summary) that the appellant did not attend the hearing as she reasonably believed the adjournment would be granted and was preoccupied with securing alternative representation. It was averred that proceeding in absence deprived the appellant of the opportunity to present her case and be represented. It was averred that it was unclear whether sufficient efforts had been made to contact the appellant in the context of her vulnerable circumstances, before proceeding. The appellant said she did not receive any calls and had no knowledge of any attempts to contact her, and she ought to have been given the benefit of the doubt in the light of the defective and late handling of the adjournment application by her former representatives.
5. I referred during the hearing to the case of Nwaigwe (adjournment: fairness) [2014] UKUT 00418 which explains that the test to be applied is that of fairness; not whether the FTTJ acted reasonably, but whether there was any deprivation of the affected party’s right to a fair hearing.
6. Ms Everett very fairly submitted that the critical question was whether I could infer fairness from the FTTJ’s consideration at [8] and she did not have a strong view. At [8] the FTTJ said:
“Taking the view that it was incumbent upon the appellant to attend her hearing since it had not been adjourned, and given that she had submitted her bundle of documents already and there was no challenge to the credibility of the fact in her case, I concluded the overriding objectives suggested it would be appropriate to proceed in her absence. The matter depended upon more objective factors and could, in my judgement, be fairly dealt with in the absence of the appellant”.
7. Having heard from Ms Everett, I indicated that I would be allowing the appeal, but I would give full reasons in writing. My reasons are below.
8. There were two decisions to be made by the FTTJ. Firstly, whether to adjourn to give the appellant the opportunity of obtaining legal representation. Secondly, if the adjournment was refused, whether to proceed in the appellant’s absence.
9. The FTTJ considered those questions together although they were separate questions. He asked the respondent’s representative for submissions about whether it was appropriate to proceed in the appellant’s absence [7], but did not consider the question of adjourning for legal representation. I consider it was an error for the FTTJ to fail to at least consider whether he should adjourn to enable the appellant to seek legal representation in circumstances where the appellant had evidently been made aware not long before the hearing that her solicitors could no longer represent her on legal aid, because they were not continuing such work. I consider that in so doing the FTTJ failed to take account of relevant material considerations. I appreciate that the FTTJ took into account that he had before him the appellant’s bundle of documents, that there was no challenge to the appellant’s credibility and the matter depended upon more objective factors, but that did not of itself mean that good advocacy could not make a difference; moreover procedural fairness needs to be considered when putting an appellant in a position where because of late withdrawal of a representative through no fault of her own, she has no option but to proceed unrepresented.
10. When considering whether to proceed in the appellant’s absence, a First-Tier Tribunal must consider whether it is in the interests of justice to proceed with the hearing (rule 28 tribunal procedure rules 2014). The FTTJ said that it was incumbent upon the appellant to attend the hearing, but in the context of fairness and the interests of justice, he made no finding that the appellant knew that in the particular circumstances given the application she had made, she was at risk of her appeal being dismissed if she did not attend the hearing. The FTTJ did not find, for example, that her former representatives had told her that she had to attend despite the adjournment application, and he did not say that the appellant had been contacted and been made aware that the hearing might well proceed at 1 pm whether she attended or not. I do not consider that the FTTJ could fairly infer from the appellant’s failure to attend by 1pm that she did not want to participate in a hearing of her appeal.
11. I conclude that it was not fair or in the interests of justice to decide this case in the appellant’s absence in the circumstances. The overriding objective includes ensuring, so far as practicable, that the parties are able to participate fully in the proceedings. I consider, for the reasons I have explained, that the FTTJ could not fairly infer from the appellant’s failure to attend that she did not want to participate in the hearing. Although the FTTJ was right to say that the matter depended on more objective factors and was not dependent on the credibility of the appellant’s account, that does not mean that the appellant’s evidence or submissions on her behalf could have made no difference (compare the facts in Nwaigwe where any error was immaterial because the appellant could not on any view have succeeded as the matter turned on the contents of submitted bank statements). The critical issue in this case was the safety and reasonableness of internal relocation, on which the appellant could have given relevant evidence and made relevant submissions at the hearing (see for example [24], [25], [28] [29]). She could also have given relevant evidence/submissions in relation to Article 8 ECHR, in particular in respect of the best interests of her disabled daughter.
12. The decision will therefore be set aside with no findings preserved. I agree with the representatives that the appeal should be remitted to the First-Tier Tribunal as the appellant has been deprived of the opportunity to present her case there.
Notice of Decision
The judge’s decision contains a material error of law and is set aside with no findings preserved.
The appeal is remitted to the First-Tier Tribunal (Taylor House) for rehearing before another judge.
A-R Landes

Judge of the Upper Tribunal
Immigration and Asylum Chamber

13 October 2026