Tribunal decisions

The decision

IN THE UPPER TRIBUNAL
IMMIGRATION AND ASYLUM CHAMBER Case No: UI-2026-002746
First-tier Tribunal No: PA/81052/2024

THE IMMIGRATION ACTS

Decision & Reasons Issued:
On 1 September 2026

Before

UPPER TRIBUNAL JUDGE LODATO

Between

AA
(ANONYMITY ORDERED)
Appellant
and

SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Ms Nwachuku, counsel
For the Respondent: Ms Everett, Senior Presenting Officer

Heard at Field House on 18 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
Introduction and Background
1. I have decided to maintain the anonymity order originally made in these proceedings by the First-tier Tribunal (‘the FtT’) because the underlying claim involves international protection issues in that the appellant claims to fear persecution or serious harm on return to Somalia. In reaching this decision, I am mindful of the fundamental principle of open justice, but I am satisfied, taking the appellant’s case at its highest for these purposes, that the potential grave risks outweigh the rights of the public to know of his identity.
2. The appellant appeals with permission against the decision, dated 5 March 2026, of a judge of the First-tier Tribunal (‘the judge’) to dismiss the appeal on international protection and human rights grounds.
3. The appeal arose in the context of the appellant’s core factual claim that he had been detained and tortured by those working on behalf of terrorist organisation, Al Shabaab. The group had shown an interest in him because they sought to recruit him to their ranks. The appellant challenges the fairness of the judge’s decision to exclude a large part of a bundle of material which was served at a very late stage of the proceedings in breach of a series of case management directions. An intimately related challenge is that the judge erred in law in refusing to adjourn the hearing.
The Relevant Parts of the FTT Decision
4. For the purposes of the present proceedings, the following key matters emerge from the decision:
• The judge decided the preliminary matters, which are the focus of the grounds of appeal before me, between [6] and [13] of her decision. Given the importance of this assessment for the purposes of the error of law proceedings, I set it out in full:
[6] The Appellant’s 881-page bundle (“AB”) was not filed in accordance with directions; it was lodged on MyHMCTS on 23 February 2026 without explanation and without an application complying with Maleci (non-admission of late evidence) [2024] UKUT 00028 (IAC). I invited such an application.
[7] The full application was recorded but, in summary, it was said:
(a) Instructing solicitors had been working on this appeal since December 2024 and work was going on throughout June 2025 and September 2025, taking instructions from the Appellant over several engagements due to his trauma.
(b) The Appellant had missed some attendances with the solicitors.
(c) The bundle includes case law (parts of which are unnecessary) and country background material and apologies were given for the inclusion of unnecessary materials that did not focus on the issues to be decided.
(d) There are gaps in the evidence, such as an expert report and it had been realised, the day before this hearing, that a scarring report would be needed along with GP records and a letter from a voluntary society.
[8] I asked the Respondent’s representative whether he was able to deal with the Appellant’s statement. He told me that he would need time to read it and the other documents in the bundle.
[9] I indicated an intention to reduce the number of documents to be read:
(a) I noted that the skeleton argument dated 14 July 2025 (AB, pp. 2 – 11), is that in the stitched bundle (pp.39 – 48).
(b) I excluded the country evidence (AB, pp. 25 – 461) because the country information evidence schedule required by paragraph 10.6 of the Practice Direction of the Immigration and Asylum Chamber of the First-tier Tribunal dated 1 November 2024, had not been provided.
(c) I excluded the extract from legislation (AB, pp. 18 – 24) and the case law (AB, pp. 462 – 881) because, in keeping with the Practice Direction, neither had any place in the Appellant’s bundle.
(d) I asked about the relevance of the college card at AB, p.17. I was told that it goes to private life in the United Kingdom.
(e) I admitted pages 1 – 17 of the Appellant’s bundle.
[10] I gave the Respondent’s representative time to read pages 1 – 17 of the bundle I had admitted, before continuing. When the hearing resumed, the Respondent’s representative confirmed:
(a) He had had sufficient time to read the admitted documents;
(b) From his point of view the Appellant’s witness statement (AB, pp.12 – 15) did not raise any new matter; but
(c) In any event, he consented to me dealing with all matters raised in the witness statement.
[11] The Appellant’s representative made the adjournment application he had indicated earlier, on the bases that:
(a) The Appellant has provided a photograph of scars on his legs, but a scarring report is required;
(b) The Appellant wishes to file his GP records in evidence, as evidence of his mental ill health (I asked for my attention to be drawn to the place in the Appellant’s witness statement dated 20 February 2026 where he mentions mental ill health and was told that it is not mentioned);
(c) The case is legally aided so funding with not be a problem.
[12] I considered the application, mindful of the guidance in Nwaigwe (adjournment: fairness) [2014] UKUT 00418 (IAC), the importance of the issues in this appeal to the Appellant, the importance of acting fairly and justly and noting the parties’ obligations under the Tribunal Procedure (First-tier Tribunal) (Immigration and Asylum Chamber) Rules 2014 (as amended) (“the procedure rules”) and under the guidance in Lata (FtT: principal controversial issues0 [2023] UKUT 00163 (IAC) and TC (PS compliance – “issues-based” reasoning) Zimbabwe [2023] UKUT 00164 (IAC). I refused the application for an adjournment for the combination of the following reasons.
(a) The protection claim was refused on 12 December 2024, the skeleton argument prepared on 14 July 2025 and the Respondent’s review uploaded on 21 October 2025. The Refusal identified the issues, as recognised in the skeleton argument. The Appellant has had more than 6 months to prepare the case he has put forward.
(b) The appeal was lodged on 16 December 2024 with the assistance of the solicitors who continue to represent the Appellant. He has had their assistance throughout.
(c) The Tribunal issued directions on each of 23 May 2025, 22 July 2025 and 8 August 2025 requiring the Appellant to upload the evidence on which he wished to rely by (respectively) 20 June 2025, 5 August 2025 and 1 September 2025. The Appellant is in breach of those (and other) directions. I am satisfied that he has had time and opportunity to file the evidence on which he wishes to rely. His failure to upload GP records (if relevant to the issues) has, in my view, not been adequately explained.
(d) The practice direction and the guidance in each of Lata and TC (Zimbabwe), require the parties to identify the issues the Tribunal is required to decide. No mental health issues were identified by the Appellant or his representatives prior to this hearing.
(e) Expert evidence as to scarring may assist a Tribunal but credibility (which is in dispute in this appeal) is a matter for the Tribunal. There are photographs of marks on the Appellant’s legs which I can (and do) take into account.
(f) I was not told which issue a letter from a voluntary organisation would address.
[13] At the end of the hearing and having heard oral evidence and submissions, I asked the Appellant’s representative if he would like one further opportunity to file a country information evidence schedule to satisfy paragraph 10.6 of the practice direction. He said that he would and I gave him until the end of the following day to do so. The schedule was not filed in that time. I have further waited, until now to finalise this decision; the schedule has still not been filed.
• The judge assessed the facts and the appellant’s credibility from [21]. The following points were made:
• It was noted that the appellant was still a young man and would have been a child when many of the events he described took place. [21]
• The appellant’s credibility was found to be undermined by his failure to seek protection in other safe European countries en route to the UK. [23]
• The judge considered the appellant’s tribal affiliation at [24]:
The Refusal does say that the Respondent accepts “none” of the material facts. In the context of Somalia, tribal affiliation is a material consideration. At the start of the hearing, I sought clarification and was told that the Appellant’s membership of the Ashraf tribe is in dispute. I understand the Ashraf to be a minority tribe in Somalia - NM and Others (Lone women – Ashraf) Somalia CG [2005] UKIAT 00076 which, despite its age, remains country guidance. The Appellant claimed in interview to be a member of the Ashraf tribe (Q.45). He answered a series of questions about that tribe and matters such as its customs and experiences (Qs.46 - 55). My attention has not been drawn to any inaccuracy in any of the answers he gave. He was not cross-examined about his tribe or about his claim to come from Buala which I understand to be in Jubaland (pp.66, 91 & 93). He answered questions about that area (pp.100 – 101). My attention has not been drawn to any evidence suggesting that the Ashraf did not, or does not, have a presence in that area as the Appellant claimed (p.91). I find that the Appellant is a member of the Ashraf minority.
• The judge found that the appellant’s narrative account about the circumstances surrounding his claimed mistreatment and detention had shifted and changed over time. [26]
• It was found to be implausible that the appellant’s uncle was able to exert any influence over Al Shabaab to facilitate his nephew’s release from detention. [27]
• The appellant was found to have provided inconsistent accounts about whether he had ever expressed a willingness to join Al-Shabaab and the adverse interests he had been subject to between 2021 and 2024. [29]-[30]
• At [31], the judge doubted the appellant’s account to have lost contact with his uncle.
• The judge reached the following overall assessment at [32]:
Having considered all the evidence I find that, because of discrepancies and developments in his account and his damaged credibility, the Appellant has not discharged the burden of evidence he carries. While the Appellant may have undergone Islamic education influenced by Al Shabaab and experienced corporal punishment, I am not satisfied that in September 2023 he was told to join them or be killed and I am not satisfied that he is wanted by Al Shabaab as, effectively, a deserter. It follows that I do not find it reasonably likely that on return to Somalia the Appellant would be persecuted by Al Shabaab by reason of imputed political opinion.
Appeal to the Upper Tribunal
5. The grounds of appeal and the scope of the issues to be decided in the error of law proceedings were summarised at [4]-[5] of the appellant’s skeleton argument:
Permission to appeal was granted by First-tier Tribunal Judge Elliott on 26 May 2026, but on a limited basis. Judge Elliott considered that the Judge was entitled to take a robust approach to the Appellant’s procedural defaults. The arguable error is instead whether the combined practical effect of (i) excluding all of the country background evidence and (ii) refusing an adjournment deprived the Appellant of a fair hearing.
The Appellant accordingly does not invite the Upper Tribunal to conduct a disguised merits appeal or simply substitute a different view of credibility. The question is anterior: was the process by which those credibility and risk findings were reached fair when the Tribunal excluded the objective evidence capable of testing the plausibility of the very account it was deciding, while simultaneously refusing the adjournment sought to obtain potentially corroborative medical evidence?
6. At the error of law hearing, I directed the parties’ attention to the recent reported Presidential decision in Dawrani (Judicial discretion – late evidence – sanction) [2026] UKUT 00151 (IAC) and stood the matter down for them to consider and make submissions as to how these principles should be applied in this matter. I heard oral submissions from both parties and address any submissions of significance in the discussion section below.
Discussion
7. Before turning my mind to the grounds of appeal, it is important to set out the principles which fall to be applied. Dawrani recently distilled the proper analytical approach and factors to be considered when a judge is faced with an application to admit evidence and material belatedly served in breach of case management directions. The headnote is in the following terms:
1. In the exercise of the judicial discretion to admit or exclude belatedly served evidence, the principles settled in Maleci (Non-admission of late evidence) [2024] UKUT 00028 (IAC), and supplemented by the SPT's Practice Direction of November 2024, apply. It must no longer be thought that the mere presence of available and relevant evidence will invariably result in its admission, irrespective of whether it has been provided in compliance with case management directions.
2. Judges have a range of available procedural sanctions, such as adjourning the hearing and going on to consider wasted or unreasonably incurred costs or allowing only the truly essential parts of a belatedly served bundle to be admitted. The SPT's Practice Direction countenances such alternative measures. However, it is plainly open to a judge, in their discretion and as a matter of judgment, to sanction the defaulting party by excluding the evidence if it is just and fair to do so.
8. In addition to the headnote, it is worth considering parts of the underlying analysis. Ms Nwachuku relied on [24] of Dawrani where the panel referred to the observation in Maleci that the judge in that case considered the exclusion of evidence after considering the importance of the documents and the consequences to the party who sought to admit them. Ms Nwachuku further argued that the judge was bound to consider, in assessing the overall circumstances of the case, the fact that the appellant was blameless in the procedural failures of his representatives. This broad point was addressed at [42] of Dawrani:
It was argued on the appellant's behalf that the appellant should not be deprived of relevant evidence and be forensically disadvantaged because of the failings of her representatives. However, it would be wrong to approach such questions one-dimensionally. The wider interests of justice fall to be considered in situations such as this. In adversarial proceedings, the other side has a reasonable expectation that they will have a fair opportunity to consider evidence and material deployed against them. […]
9. Nwaigwe (adjournment: fairness) [2014] UKUT 00418 (IAC) is another presidential reported decision in which the following procedural guidance was given in relation to the lawfulness of decisions relating to adjournments. It is unnecessary to go beyond the headnote, which provided:
If a Tribunal refuses to accede to an adjournment request, such decision could, in principle, be erroneous in law in several respects: these include a failure to take into account all material considerations; permitting immaterial considerations to intrude; denying the party concerned a fair hearing; failing to apply the correct test; and acting irrationally. In practice, in most cases the question will be whether the refusal deprived the affected party of his right to a fair hearing. Where an adjournment refusal is challenged on fairness grounds, it is important to recognise that the question for the Upper Tribunal is not whether the FtT acted reasonably. Rather, the test to be applied is that of fairness: was there any deprivation of the affected party's right to a fair hearing? See SH (Afghanistan) v Secretary of State for the Home Department [2011] EWCA Civ 1284.
10. With the above principles in mind, I now turn to the grounds of appeal which Ms Nwachuku accepted involved a considerable degree of overlap because the decision to exclude the country background information might have been cured by adjourning the hearing to allow the respondent a proper opportunity to consider the material. Proceeding without this information was suggested to have rendered the hearing unfair.
11. I am not persuaded that the decision to exclude the country background information occasioned unfairness. It was suggested in the grounds of appeal that the exclusion of this material meant that the judge considered the protection claim in an objective vacuum because, without the background information, the judge’s analysis became too narrowly focussed on the appellant’s credibility. There are two reasons why I found this argument to ring hollow. Firstly, the credibility of the appellant’s narrative account was always likely to be the central and decisive issue to be assessed. In short, if the appellant was disbelieved, according to the applicable legal standard, about the way in which he claimed to have been targeted for recruitment by Al Shabaab, he simply could not overcome the first hurdle of establishing on the balance of probabilities that he was genuinely in fear of persecution. The appellant’s skeleton argument, admitted by the judge, did not make any reference to the country background information in seeking to argue that the appellant ought to be believed because his account broadly cohered with what was known about conditions in the relevant region of Somalia. Secondly, the judge did not express any doubt as to the broad plausibility of the appellant’s claims. Instead, his credibility was primarily rejected on the strength of a range of inconsistencies on the face of his various accounts. The broad country information about terrorist recruitment methods would not have had any bearing on the significant discrepancies identified by the judge when she assessed the appellant’s various accounts. The exclusion of information which was most unlikely to have had an impact on the overall outcome is impossible to regard as compromising the fairness of the proceedings. Even if I am wrong about that, the judge adopted a scrupulously fair and measured approach by affording the appellant’s representatives a final opportunity to provide a schedule, which complied with paragraph [10.6] of the Practice Direction, setting out the matters specifically relied upon with the several hundred pages of reports provided at the door of court. The opportunity was not taken without explanation. If the material was quite as important as it is now suggested to be, it is difficult to understand why the appellant’s representatives at the time did not seize the conspicuously fair opportunity offered by the judge to provide the information in a procedurally appropriate form.
12. A further point taken at the error of law hearing against the judge’s decision was that her analysis was not expressly structured according to the three-stage analytical process set out in SSHD v SS (Congo) and Others [2015] EWCA Civ 387; [2015] Imm AR 1036. For this point to succeed would involve a triumph of form over substance. The judge’s decision may have benefitted from being broken down into specific headings of the seriousness and significance of the breaches, the explanation and the overall circumstances but in substance the analysis is not missing any of the required ingredients of a lawful decision. The procedural issue of whether to admit or exclude the material also became somewhat intermingled with the related issue of whether it was fair to adjourn. However, when the judge referred, at [12], to the representative’s inaction over the course of more than 6 months and the repeated breaches of case management directions, this was plainly directed to the seriousness of the procedural failings which had marred the proceedings. Ms Nwachuku properly recognised that the pattern of procedural failings was manifestly serious. This pattern of poor practice was only compounded when nothing was done in response to the opportunity to provide a Practice Direction compliant schedule of country information. Even if not couched in the terms of seriousness and significance there can be no mistaking the judge’s assessment that the appellant’s representatives conduct met this threshold.
13. The judge cannot sensibly be criticised for failing to consider the explanation for the procedural failings in circumstances where no such explanation was ever provided, as was noted at [6] of the decision. There was simply no explanation advanced which could conceivably have weighed in favour of admitting the material.
14. In relation to the overall circumstances, the central point made by Ms Nwachuku, acting on behalf of the appellant’s new legal representatives, was that the judge had not properly assessed the real-world implications for this appellant if the material was excluded and did not consider the fact that he was personally blameless for the failings of his representatives. At [12] of the decision, the judge referred to “the importance of the issues in this appeal to the Appellant”. While this part of the decision appeared to be more focussed on the adjournment application, as I have indicated above, the judge appeared to consider the adjournment and exclusion issues compendiously. This reference leads me to conclude that the real-world implications for the appellant were firmly in the judge’s mind. In addition, the measured decision of the judge to admit the appellant’s witness statement and photographs of his physical scars strongly suggest that the judge attenuated her procedural approach to the importance of the underlying factual claims in the context of a claim for international protection. This appreciation of the high stakes involved is also apparent from the opportunity afforded to the appellant’s representatives to provide a Practice Direction compliant schedule of country information by the following working day. This all strongly tends to suggest that the judge did not adopt an overly blunt, ‘all or nothing’ procedural approach which lost sight of the appellant’s personal interests. As explained in Dawrani, fairness is a multi-faceted concept and not exclusively focussed on the appellant.
15. A further argument levelled against the judge’s decision not to adjourn is that the appellant was unfairly deprived of an opportunity to gather and rely upon expert evidence as to the cause of physical scars. In fairness to Ms Nwachuku, this point was not pressed with any vigour at the error of law hearing. In any event, I am not satisfied that the decision to proceed was unfair on this particular basis. The appellant and his representatives had every opportunity to gather such evidence in the period before the hearing took place and in compliance with several case management directions. There was no explanation as to why these steps were not taken in good time to be available for the substantive hearing. Moreover, it cannot be assumed that expert evidence of this nature would have materially assisted the appellant. Firstly, it simply cannot be known what opinion an expert might have reached. There is considerable speculation inherent in the notion that such evidence would have established the propositions the appellant hoped to rely upon. Secondly, the judge broadly accepted that the scars shown on the photographs, which were admitted into evidence, were caused by corporal punishment. Seen against that backdrop, I am unable to discern any material unfairness in not adjourning the hearing to secure evidence which, at its highest, could only have conferred additional support to a broad finding which the judge reached in any event.
16. The judge was required to balance the interests of fairness to both sides in adversarial proceedings and exercise her discretion lawfully. I am satisfied that she did just that both in her decision to exclude the country background information and in deciding to proceed to hear the appeal.
Notice of Decision
The decision of the judge did not involve errors of law. I dismiss the appeal

P Lodato

Judge of the Upper Tribunal
Immigration and Asylum Chamber

21 August 2026