Tribunal decisions

The decision

IN THE UPPER TRIBUNAL
IMMIGRATION AND ASYLUM CHAMBER Case No: UI-2026-000851
First-tier Tribunal No: PA/59259/2023
LP/03000/2024

THE IMMIGRATION ACTS

Decision & Reasons Issued:

On 16th of April 2026

Before

UPPER TRIBUNAL JUDGE NEVILLE

Between

JS
(ANONYMITY ORDER MADE)
Appellant
and

SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Decided without a hearing

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

1. The first hearing of this appeal before the First-tier Tribunal was on 7 November 2024. The judge granted an application for an adjournment from the appellant’s counsel, agreeing that the appeal could not be fairly heard that day. It appears from the judge’s file note that the next date was fixed there and then in front of the parties.
2. The hearing on 11 April 2025 was before a different judge. Neither the appellant nor her representative attended. The appellant could not be reached by telephone, and when the Tribunal clerk later managed to get hold of her solicitors they said they had never received any notice of hearing. The respondent’s representative argued to the judge that the hearing should go ahead in the appellant’s absence, for reasons I can summarise as follows. First, under rule 28 of the Tribunal Procedure (First-tier Tribunal) (Immigration and Asylum Chamber) Rules 2014, such a course was permitted if “reasonable steps” had been taken to notify the appellant of the hearing. Here, the appellant’s counsel had been in court when the date was fixed, so had been verbally notified of the hearing date. Second, the appellant’s solicitors had access to the Tribunal’s online portal MyHMCTS and should have proactively checked for the next hearing date, especially given that the directions issued by the judge at the previous hearing had required a skeleton argument be filed on 4 April.
3. The judge held as follows: (CCD is the name for the case management function within MyHMCTS)
10. In fairness, I found this argument attractive and agreed with it. With the embracing of new technology, gone are the days of written notification for every hearing and the problem that entails with delivery. That is the whole point of CCD. Importantly, if the hearing had been fixed in November 2024, which it seemingly was as I am told and there had been compliance with the timeline, it begs the question why the representatives were not more pro‑active. This was not a first listing. The hearing in November 2024 was already a substantive hearing converted to CMR already. Put succinctly, there is no legal obligation for written notification where a hearing was fixed already previously in open Court. That could only have been done (as is the practice in a CMR) with the parties present (noting Counsel’s convenience) and any other formal dates to avoid. The fact that Solicitors failed to instruct Counsel or ensure it was in his diary is an error on their part (not Counsel). Having had access to CCD and made an application in February 2025 and noting the deadline set by the Judge, for everything to be done by 4 April 2025, it is not unreasonable to expect them to have been more pro‑active in finding out the exact next hearing date if they were still unsure or querying why Counsel had perhaps said 11 April 2025, but they had not received anything in writing. Put simply, they cannot look back and state nothing was received from the Court after the date had already been orally notified.
11. I am satisfied noting the post Lata [2023] UKUT 00163 world, alongside Rule 2, that it is not the Court’s role to remind parties and to contact them about hearings as they have often done on the day of the hearing in the past; and that there is an expectation, indeed obligation, post Lata, for parties to take their hands ‘out of their pockets’ so to speak and find things out themselves. The embracing of new technology comes with it an obligation that everything will evolve around that and not the old paper notice of hearing, which although a safeguard and fall back, is not a pre‑requisite for adequate service under the Procedure Rules.
4. The judge considered the appellant’s written evidence and dismissed her appeal. When notification of that decision was received, the appellant applied for permission to appeal, on the unsurprising basis that it had been unfair to deprive her the opportunity to give evidence and present her arguments when her representatives had never been sent written notice of the hearing. Her grounds of appeal also argued that the Judge ignored the second requirement at rule 28 before proceeding in a party’s absence, that to do so would be in the interests of justice, and ignored the reason why the hearing had been adjourned previously, which was the relevance of an outstanding decision on human trafficking. Permission was granted on all grounds.
5. In response to the appeal the respondent has provided a rule 24 Response, which accepts that the Presenting Officer was wrong to suggest that proactively checking MyHMCTS would have made a difference: the 11 April 2025 appears nowhere on the digital case record. The respondent therefore accepts that:
The Judge’s conclusion that the oral indication in court was sufficient notification, or that the representative should have relied on a system which was in fact inaccurate and incomplete, meant that the appellant was deprived of a fair opportunity to attend and present her case.
The respondent therefore accepts that the hearing preceded in a manner that was procedurally unfair, amounting to a material error of law. The respondent submits that the appropriate course of action is for the decision to be set aside in full and for the appeal to be remitted to the First-tier Tribunal for a fresh hearing with no preserved findings.
6. In her rule 25 Reply, the appellant agrees with that proposed disposal. I consider it appropriate to decide the appeal without a hearing.
7. The respondent’s concession is plainly right; the judge was carelessly misled by the Presenting Officer as to the visibility of the April hearing on MyHMCTS. It should nonetheless be recorded that his reasoning was wholly flawed in any event:
a. No consideration was given to the nature of the claim or to the consequences of proceeding in the appellant’s absence. She is an accepted victim of domestic violence, a claimed victim of human trafficking, and at issue in the appeal was her claim to be at risk of serious violence or death if returned to her home country. As argued in the grounds of appeal, there was no consideration of the reason why the hearing had previously been adjourned. The judge’s decision meant she lost the opportunity to put forward oral evidence and argument in support of her claim that might have led to a different result.
b. Nowhere does the Judge consider that the appellant was absent through no fault of her own. In FP (Iran) v Secretary of State for the Home Department [2007] EWCA Civ 13, procedure rules preventing that factor from being taken into account were ruled unlawful; rules that inflexibly “shut out parties who have done nothing wrong but whose lives and safety may in consequence be put at risk” were contrary to English constitutional law. As later held in Hysaj v SSHD [2014] EWCA Civ 1633 in relation to missed asylum appeal deadlines, “particular care needs to be taken to ensure that appeals are not frustrated by a failure on the part of a party's legal representatives to comply with time limits”. While a lack of personal responsibility for non-attendance will not always be decisive, here the Judge neglected the factor entirely.
c. Nor did the Judge assess the level of seriousness of the supposed failures by the appellant’s representatives. At worst, counsel had failed to communicate an orally notified date, and the solicitors did not (despite the Tribunal usually giving written notice of hearings) thereafter proactively check the online portal to see if the hearing had been listed. Nowhere does the Judge weigh the seriousness of those defaults against the consequences for the appellant.
d. The Judge was plainly mistaken in his understanding of the Tribunal’s procedure. He held that:
“With the embracing of new technology, gone are the days of written notification for every hearing and the problem that entails with delivery. That is the whole point of CCD.”
There has been no such innovation. The 2014 Procedure Rules have always permitted service by email to an address provided for that purpose, and nor has the introduction of MyHMCTS ever signalled the abandonment of giving written notice of hearing. While online listing functionality has been incremental, in every case a notice of hearing is either automatically or manually emailed or posted to the parties or their representatives. The Practice Direction at paras 6.1 and 6.3 provides that where a date for a final hearing is fixed at an interim hearing, written confirmation will be given to the parties. Here, the Tribunal failed to follow its established practice when listing the final hearing.
e. Contrary to the Judge’s reasoning, no support for the approach he took can be found in Lata (FtT: principal controversial issues) India [2023] UKUT 163 (IAC). Lata is concerned solely with the parties’ obligations surrounding the principal issues of controversy in an appeal, and when they will be fixed with them. It says nothing about when it is fair to proceed in a party’s absence due to a failure by their representative, much less that long-established principles of procedural fairness have been abandoned.
8. None of the above should be taken as exonerating the appellant’s representatives; it appears to be accepted that the date was pronounced at the earlier hearing. Nonetheless, the decision to continue in the appellant’s absence was so unfair as to stand as an error of law.
9. I agree with the parties that the correct disposal is to remit the appeal to the First-tier Tribunal for rehearing by a different judge. The effect of the error has been to deprive the appellant of a fair opportunity for her case to be considered.
Notice of Decision
(i) The decision of the First-tier Tribunal involved the making of an error of law and is set aside.
(ii) The appeal is remitted to a differently constituted First-tier Tribunal for re-hearing with no facts preserved.

J Neville
Judge of the Upper Tribunal
Immigration and Asylum Chamber

7 April 2026