Tribunal decisions

The decision

IN THE UPPER TRIBUNAL
IMMIGRATION AND ASYLUM CHAMBER Case No: UI-2026-002344
First-tier Tribunal No: PA/64354/2023
LP/10508/2024

THE IMMIGRATION ACTS

Decision & Reasons Issued:
On 1 September 2026

Before

DEPUTY UPPER TRIBUNAL JUDGE HILLS

Between

MA
(ANONYMITY ORDER MADE)
Appellant
and

SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Mr Simrit of Counsel, instructed by Landmark Law Solicitors
For the Respondent: Mr Ojo, Home Office Presenting Officer

Heard at Field House on 7 August 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 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 appellant is a male citizen of Bangladesh. He appealed to the First-tier Tribunal (FtT) against a decision of the respondent refusing his protection claim. In a decision dated 26 February 2026, the FtT dismissed the appeal on asylum, humanitarian protection and human rights grounds. The appellant appeals that decision to the Upper Tribunal.

2. The basis of the appellant’s claim is that he would be at risk on return because of his political activities both in Bangladesh and sur place; and because he is a gay man. He also appeals on the basis of his private life.

3. Given the nature of the appeal and issues under consideration, I have decided that the anonymity order should remain in place.

Grounds of Appeal

4. The grounds of appeal are as follows:

i. Procedural unfairness – unreasonable refusal to adjourn; circular reliance on the absence of the appellant.
ii. Failure to consider material political evidence; no individualised risk assessment.
iii. Misapplication of HJ (Iran) v SSHD [2011] 1 AC 596; speculative/stereotyped reasoning.
iv. Irrational inconsistency.
v. Inadequate reasons.

5. Permission to appeal was granted by the FtT on all grounds, however the Judge granting permission noted that grounds (ii) to (v) were less arguable than ground (i).

Discussion and Findings

6. The first ground of appeal argues that it was unfair for the FtT Judge to refuse the appellant’s adjournment application and to proceed with the hearing in his absence.

7. The FtT Judge explained at [6] to [11] the circumstances which led to the adjournment request and the reasons for his decision to refuse it. The day before the hearing, solicitors for the appellant lodged an application for adjournment. That was because the appellant was said to be unfit to attend or participate in the hearing due to an acute medical condition and physical injury sustained the day before the hearing. A certificate of attendance from a doctor at the Urgent Treatment Centre at the Royal London Hospital was provided, along with photos. The appellant’s solicitors said that the appellant was in significant pain, had mobility difficulty, was physically unwell and medically advised to rest.

8. The respondent objected to the adjournment, arguing the evidence produced was not a sufficient reason for the appellant to not attend, and noted the procedural history of the case.

9. The FtT Judge said at [9]:

“It is right that the Appellant’s original application for asylum was made on 19 April 2021. It was refused on 23 November 2023. A hearing on 20 February 2025 was adjourned, although this appears to have been for administrative reasons. It was listed again on 10 June 2025, but the Appellant raised a new matter on 9 June 2025, which the Respondent was unable to deal with at the hearing. It is also right to note that a wasted costs order has been made against the Appellant’s solicitors at an earlier stage of these proceedings, although I attach no criticism of the Appellant in this regard.”

10. In concluding that the hearing should proceed, the FtT Judge said at [10]:

“10. Having considered the application, I concluded that it was both fair and in the interests of justice to proceed. I accept that the Appellant attended the hospital the day before the hearing […] However, there was no evidence that either of these conditions would have affected his mobility or prevented him from attending the hearing. The final hearing of this matter has already been adjourned on a previous occasion due to the late submission of evidence by the Appellant which, even on his account, should have been available months sooner at the latest. It was in the interests of justice to proceed and the Appellant had been given a fair opportunity to attend.

11. The FtT Judge also noted at [11] that he asked the appellant’s legal representative to notify him of the outcome of the adjournment application and said that he would be given time to attend, however the appellant did not attend.

12. Mr Simrit argued that given the FtT Judge accepted the medical evidence, it was irrational for him to then hold there was no evidence the appellant’s conditions affected his mobility or attendance. Further, that the FtT Judge relied on the absence of the appellant to reject the aspect of his claim relating to sexuality, arguing that created a circular unfairness. In sum, he submitted that in a credibility-heavy appeal, fairness required adjournment.

13. Mr Ojo said that while the FtT Judge acknowledged the medical evidence, it contained limited information and did not explain why the appellant was unable to give evidence. He noted the previous delays, that the appellant’s representatives were present, and that the appellant was given a further opportunity to attend after the FtT Judge had refused the adjournment application. Taking into account the overriding of objective of the Tribunal Procedure (First-tier Tribunal) (Immigration and Asylum Chamber) Rules 2014, Mr Ojo submitted that the FtT Judge was entitled to refuse the adjournment and that it was not unfair of him to do so.

14. Mr Ojo raised an additional point. He said that the Home Office Presenting Officer’s note of attendance recorded that the appellant was offered an opportunity to provide evidence via video link. Mr Simrit disagreed and said that was not the case. Both agreed that the decision of the FtT Judge makes no reference to an offer being made to have the hearing via video link. I have therefore proceeded on the basis that the appellant was not given an opportunity to give evidence via video link.

15. The legal test to be applied when considering an adjournment is fairness, see for example Nwaigwe v SSHD [2014] UKUT 00418 (IAC). It is not a question of whether it was reasonably open to the FtT Judge to refuse the adjournment request, but whether the decision to refuse the adjournment and proceed in the absence of the appellant deprived him of a fair hearing. That is the test I must apply.

16. At [10], the FtT Judge concluded that it was fair and in the interests of justice to proceed with the hearing. The factors which appear to have been relevant are that the appellant had not produced evidence that satisfied the FtT Judge that his mobility was affected or that he was otherwise prevented from attending the hearing, the procedural history of the matter, and that the appellant had been informed the hearing would go ahead and he was given a further opportunity to attend.

17. Those factors do not, however, address why the FtT Judge considered a fair trial could take place in the absence of the appellant. Credibility was in issue. The FtT Judge noted at [14] and [15] that he did not hear any evidence. At [30] to [40], he considered the appellant’s sexuality. He said at [33] that the evidence in relation to this issue was sparse and set out at [34], [35] and [36] reasons for not accepting the documentary evidence. The FtT Judge concluded at [40] that it was not reasonably likely the appellant was gay.

18. The main reason the FtT Judge concluded the appellant was not gay was because of a lack of evidence. While the FtT Judge considered fairness at [10], he did not explain how a fair trial could take place without the appellant, in circumstances where he considered the evidence was sparse and gaps in that evidence could have been supplemented by oral testimony.

19. While the medical evidence is not detailed, it was accepted by the FtT Judge. That evidence confirmed that the appellant attended hospital the day prior to the hearing. Similarly, while the FtT Judge considered the procedural history of this matter was protracted, he did not ascribe responsibility for that delay solely to the appellant. For example, one adjournment was said to be down to administrative reasons, and in relation to the previous wasted costs order the FtT Judge said he made no criticism of the appellant for that.

20. It is right that the FtT Judge had in mind the need to avoid delay in the proceedings and to maintain robust case management. There will, of course, be occasions where it is not unfair to proceed with a hearing in the absence of an appellant. In the circumstances of this case, however, where the FtT Judge accepted the medical evidence, procedural delays were not solely due to the appellant and where the documentary evidence which went to central points in issue was considered by the FtT Judge to be sparse, it was unfair to proceed with the hearing in the absence of the appellant.

21. In light of the above, I find that the FtT Judge materially erred.

22. Given that I have upheld the appeal on the basis of the first ground, I do not need to address the other grounds of appeal.

Disposal

23. The decision of the FtT Judge is vitiated for the reasons set out above. I set aside the decision of the FtT Judge.

24. I asked Mr Simrit and Mr Ojo for their views on disposal, in the event I upheld the appeal. Mr Simrit said that either remittal to the FtT or a remaking in the Upper Tribunal would be appropriate, while Mr Ojo considered remaking in the Upper Tribunal preferable. Mr Simrit asked, in the event that I upheld the appeal, to preserve the findings of fact relating to the appellant’s political opinion and he pointed to [19] to [29] of the FtT Judge’s decision. Mr Ojo did not object to that course of action.

25. I do not consider it appropriate to preserve any findings. That is because I have found that the decision to proceed in the absence of the appellant led to an unfair hearing which, as a result, impacted the entire decision. Given the nature of the error of law, a de novo assessment will need to be made of the evidence and facts.

26. In light of that, I remit the matter to the FtT and do not preserve any findings.

Notice of Decision

The decision of the First-tier Tribunal is set aside as it involved an error of law. No findings are preserved.

Directions to the First-tier Tribunal

1. The appeal is remitted to the First-tier Tribunal (Taylor House);
2. The remitted appeal shall not be conducted by First-tier Tribunal Judge J G Richards;
3. The anonymity direction is maintained.

N Hills

Deputy Judge of the Upper Tribunal
Immigration and Asylum Chamber
Dated: 24 August 2026