Tribunal decisions

The decision

IN THE UPPER TRIBUNAL
IMMIGRATION AND ASYLUM CHAMBER Case No: UI-2026-002965
First-tier Tribunal No: PA/61325/2024
LP-01746-2025

THE IMMIGRATION ACTS

Decision & Reasons Issued:

On 9th of September 2026

Before

UPPER TRIBUNAL JUDGE RASTOGI

Between

MG
(ANONYMITY ORDER MADE)
Appellant
and

The Secretary of State for the Home Department
Respondent

Representation:
For the Appellant: Mr S. Iftikar, Counsel instructed by JML Solicitors
For the Respondent: Mr E. Terrel, Senior Home Office Presenting Officer

Heard at Field House on 2 September 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 appeals, with permission, the decision of the First-tier Tribunal (“FTT”) dated 11 March 2026 dismissing his protection claim. I can only set aside that decision if I find there to be a material error on a point of law.

2. The appellant claimed asylum on political grounds on 21 March 2023 and it was refused by the respondent on 9 April 2024. His appeal to the FTT was heard on 10 March 2026 both in his absence and the absence of his legal representative. The judge decided to proceed without them having noted a lack of explanation for their non-attendance, and that no further evidence had been filed despite a previous adjournment to allow the appellant to remedy the deficiencies in the papers. Having considered the original evidence in the bundle and heard submissions on behalf of the respondent, the judge found the appellant had fabricated his asylum claim in order to try to extend his stay in the United Kingdom (he was here initially as a seasonal worker) [17]. In the alternative, the judge considered that even had the appellant been a low-level member of the Rastriya Prajatantra Party (“RPP”) he was able to carry on his activities in Nepal for 7 years without being arrested and detained and then left Nepal on his own passport. The judge decided this indicated that the appellant was not of adverse interest to the authorities in Nepal [18]. The judge noted the lack of evidence to the contrary [19] and that the appellant’s account did not accord with what the respondent’s Country Policy and Information Note (“CPIN”) on Nepal said about the RPP [21]-[22]. Accordingly, his appeal was dismissed.

3. The appellant was granted permission to appeal by Upper Tribunal Judge Loughran in a decision sealed on 2 July 2026 who found it arguable that the judge acted with procedural unfairness by not adjourning the proceedings having noted there was no explanation for the delay when, in fact, there was evidence that an adjournment was sought because the appellant was unable to attend due to his medical condition.

4. The respondent opposed the appeal. There was a Rule 24 notice, although it had not made its way into the 265 page bundle which was provided for the hearing.

5. At the hearing before me, I heard submissions from both representatives. In addition to the material in the bundle, I was also referred to various authorities on the issue of mistake of fact, procedural unfairness and adjournments plus the ‘Practice Direction of the Immigration and Asylum chamber of the First-tier Tribunal’ dated 1 November 2024 (“the Practice Direction”). At the end of the hearing, I reserved my decision.

The Legal Framework

6. The power to proceed in a party’s absence is contained at Rule 28 of the Tribunal Procedure (First-tier Tribunal) (Immigration and Asylum Chamber) Rules 2014 (“the Procedure Rules”) which says:

“28. If a party fails to attend a hearing the Tribunal may proceed with the hearing if the Tribunal—
(a) is satisfied that the party has been notified of the hearing or that reasonable steps have been taken to notify the party of the hearing; and
(b) considers that it is in the interests of justice to proceed with the hearing.”

7. The power to adjourn is contained at Rule 4(3)(h) of the Procedure Rules. Pursuant to Rule 2(3), rules 28 and 4 are both subject to the overriding objective to deal with cases fairly and justly. This includes:

“(2) Dealing with a case fairly and justly includes—
(a) dealing with the case in ways which are proportionate to the importance of the case, the complexity of the issues, the anticipated costs and the resources of the parties and of the Tribunal;
(b) avoiding unnecessary formality and seeking flexibility in the proceedings;
(c) ensuring, so far as practicable, that the parties are able to participate fully in the proceedings;
(d) using any special expertise of the Tribunal effectively; and
(e) avoiding delay, so far as compatible with proper consideration of the issues.”

8. The Practice Direction says, as relevant:

“12.1. An application for the adjournment of an appeal must be supported by full reasons and any reasonably available supporting material or evidence and made no later than 4.30 p.m. one clear working day before the date of the hearing. It must be accompanied by proposed draft directions for the judge to consider.

12.2. For the avoidance of doubt, where a case is listed for hearing on, for example, a Monday, the application must be received by 4.30 p.m. on the previous Thursday.

12.3. Any application made later than the end of the period mentioned in paragraph 12.1 must be made at the hearing and will, save in exceptional circumstances, require the attendance of the party or the representative of the party seeking the adjournment.

12.4. Parties must not assume that an application will be successful even if made in accordance with paragraph 12.1.

12.5. If an adjournment is not granted and the party fails to attend the hearing, the Tribunal may proceed with the hearing in that party’s absence.”

9. The leading authority on mistakes of fact is E&R v Secretary of State for the Home Department [2004] EWCA Civ 49 and in which Carnwath LJ set out the following approach to challenges based on mistakes of fact:

“"66. In our view, the time has now come to accept that a mistake of fact giving rise to unfairness is a separate head of challenge in an appeal on a point of law, at least in those statutory contexts where the parties share an interest in co-operating to achieve the correct result. Asylum law is undoubtedly such an area. Without seeking to lay down a precise code, the ordinary requirements for a finding of unfairness are apparent from the above analysis of CICB. First, there must have been a mistake as to an existing fact, including a mistake as to the availability of evidence on a particular matter. Secondly, the fact or evidence must have been "established", in the sense that it was uncontentious and objectively verifiable. Thirdly, the appellant (or his advisers) must not been have been responsible for the mistake. Fourthly, the mistake must have played a material (not necessarily decisive) part in the Tribunal's reasoning."

10. The appellant also relies on MM (unfairness; E & R) Sudan [2014] UKUT 105 (IAC) and Nwaigwe (adjournment: fairness) [2014] UKUT 00418 (IAC), both of which were heard by the then President of the Upper Tribunal, McCloskey J or by a panel including him. The headnote in MM says:

“(1) Where there is a defect or impropriety of a procedural nature in the proceedings at first instance, this may amount to a material error of law requiring the decision of the First-Tier Tribunal (the “FtT”) to be set aside

(2) A successful appeal is not dependent on the demonstration of some failing on the part of the FtT. Thus an error of law may be found to have occurred in circumstances where some material evidence, through no fault of the FtT, was not considered, with resulting unfairness (E & R v Secretary of State for the Home Department [2004] EWCA Civ 49).”

11. The headnote in Nwaigwe says:

“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.”

12. In relation to adjournments, Mr Terrel relied on Bilta (UK) Ltd (in liquidation) & Ors v Traditional Financial Services Ltd [2021] EWCA Civ 221 which undertook a thorough review of the authorities on adjournments before setting out a series of principles at [49] as follows:

“Mr Scorey's propositions were as follows:

(1) Whether as a matter of the common law's insistence on a fair trial, or the requirements of Article 6, or the application of the overriding objective, the test is the same, namely whether a refusal of an adjournment will lead to an unfair trial.

I agree. This is a consistent thread from the early cases (Dick v Piller, Green) which refer to a miscarriage of justice or an injustice, through Teinaz ("a denial of justice") to the more recent cases, which repeatedly identify the question as one of fairness: see in particular Terluk at [18] and Solanki at [32].

(2) Although the decision is a discretionary one, the appellate court will adopt a "non-Wednesbury" review of the lower court's decision.

There is undoubtedly support in the cases for describing the question of an adjournment as a discretionary decision, as in one sense it plainly is, CPR r 3.1(2)(b) (which is where the Court's power to adjourn is found) providing that the Court "may" adjourn a hearing. But as pointed out by David Richards LJ in argument, if the question is whether the resulting trial will be fair, this is more of an evaluative question. Nothing turns in the present appeal on the precise classification and I prefer to say simply that the question on appeal is whether the lower court was entitled to reach the decision it did, and that in this particular context it is clear from the authorities that the appellate court must itself be satisfied that a decision to refuse an adjournment was not such as to cause injustice or unfairness. Again, this is a consistent thread from the early cases through Teinaz and Terluk to Solanki. And I accept Mr Scorey's submission that insofar as Dhillon at [33(c) and (d)] suggests that the appellate court's review is similar to that of any discretionary case management decision, it is out of line with the other authorities.

(3) When considering whether a particular outcome is fair, it should not be assumed that only one outcome is fair.

This is established by the authorities: Terluk at [20], Dhillon at [33(b)]. But equally in some circumstances there is really only one answer: see Teinaz at [20] ("some adjournments must be granted").

(4) Fairness involves fairness to both parties. But inconvenience to the other party (or other court users) is not a relevant countervailing factor and is usually not a reason to refuse an adjournment.

This is again established by the authorities. As to fairness involving fairness to both parties, see Dhillon at [33(a)], Solanki at [35]. As to the requirements of a fair trial taking precedence over inconvenience to the other party or other court users, see Teinaz at [21]. But Mr Scorey acknowledged, as can be seen from the earliest cases, that uncompensatable injustice to the other party may be a ground for refusing an adjournment.”

13. Mr Terrel directed me to the General Medical Council v Hayat [2018] EWCA Civ 2796 on the question of the nature of the evidence required to support an adjournment on medical grounds, see [37] which says:

“There are a number of authorities dealing with the nature and standard of the evidence necessary to found an application for an adjournment on the grounds of ill health. There must be evidence that the individual is unfit to participate in the hearing: see Governor and Company of the Bank of Ireland v Jaffery [2012] EWHC 724 (Ch) at [19]. That evidence must identify with proper particularity the individual's condition and explain why that condition prevents their participation in the hearing: see Levy v Ellis Carr [2012] EWHC 63 (Ch) at [36]. Moreover, that evidence should be unchallenged: see Brabazon-Drenning at [18].”

14. At [41] Coulson LJ said that “a pro-forma sick-note …. may well be insufficient to justify non-attendance, particularly if it refers only to an unfitness to attend work” and at [42]:

“The courts have generally supported tribunals who have refused to adjourn hearings when presented with medical evidence that was inadequate or insufficient: see Forrester Ketley, by way of example. The onus remains on the individual to engage with the Tribunal and the process, and "a culture of adjournment is to be deprecated": see Adeogba at [61] where, in addition, at [59], Sir Brian Leveson expressly rejected the suggestion that the Tribunal should have made its own further enquiries.”

The ‘new evidence’

15. Whilst not expressly disputed before me, the procedural mechanism allowing me to consider whether the judge made an error of law through a mistake of fact is through the admission of new evidence (not before the FTT) pursuant to Rule 15(2A) of the Tribunal Procedure (Upper Tribunal) Rules 2008. When considering such an application I need to consider the principles set out in Ladd v Marshall [1954] 1 WLR 1489 which apply to asylum cases pursuant to [91] of E and R.

16. Those principles were summarised at [23(ii)] of E and R as follows:

“The Ladd v Marshall principles are, in summary: first, that the fresh evidence could not have been obtained with reasonable diligence for use at the trial; secondly, that if given, it probably would have had an important influence on the result; and, thirdly, that it is apparently credible although not necessarily incontrovertible. As a general rule, the fact that the failure to adduce the evidence was that of the party's legal advisers provides no excuse: see Al-Mehdawi v Home Secretary [1990] 1AC 876.”

17. In E and R, the Court of Appeal were tasked with considering the extent those principles should be further relaxed in asylum cases. At [91(iii)] Carnwath LJ concluded that on appeal to the Court of Appeal:

“The admission of new evidence on such an appeal is subject to Ladd v Marshall principles, which may be departed from in exceptional circumstances where the interests of justice require.”

18. Of course, in E and R and no doubt many other cases in which these issues apply, the ‘new’ evidence sought to be admitted relates to the substantive issues under consideration. In the present appeal, the potential mistake of fact arises from a case management decision. As will be seen below, the evidence to prove the mistake only came into existence on the day of the FTT hearing and it was only when the judge’s decision was promulgated that it became clear the judge was not aware of it.

19. Neither the respondent in the Rule 24 notice nor Mr Terrel in submissions invited me to decline to admit the evidence now relied on (and discussed further below). Rather, the thrust of the respondent’s opposition to the appeal, is that the judge was not in error to have proceeded in absence because the appellant did not follow the correct procedure for making a last minute adjournment application and, in any event, the application itself was inherently weak. In fact, in making his submissions to that effect, Mr Terrel relied on the evidence sought to be admitted.

20. Accordingly, for the above reasons, I admit the evidence and I will consider the question of culpability under the broad approach set out in E and R.

Discussion of the evidence and the competing arguments

21. It is not in dispute that, based on the aforementioned ‘new evidence’, the case record from the FTT’s case management system shows the adjournment application, founded upon the appellant’s ill-health, noting that he was awaiting a letter from his GP and that, in the circumstances, the representatives were not going to attend (because they are privately funded). The adjournment application concluded that, if refused, the appeal should be considered on the basis of the material already before the Tribunal. The FTT acknowledged the application which was noted to be timed at 10.24 on 10 March 2026.

22. The appellant’s representatives also filed an email from the appellant to them (timed at 09.53) explaining that he cannot attend due to back pain and a headache. There is an inference, at least, that by the time of his email of 09.53, the appellant had already spoken to his representatives and that they had asked him for something in writing which he then provided. There was then a short delay before the representatives contacted the Tribunal at 10.24.

23. No contemporaneous medical evidence was provided with the adjournment application, but the appellant now relies on a sick note from his GP saying that the appellant was assessed on 8 June 2026 and he was certified as having been unfit for work from 9 to 20 March 2026.

24. The judge’s decision is silent as to the time the decision to proceed with the appeal was made. The decision is also silent as to what enquires, if any, were made of the case management system or the Tribunal’s administration team to identify whether the appellant or his representatives had made contact with the Tribunal to explain their absence.

25. Mr Terrel had the hearing record from the presenting officer at the hearing before the FTT. Therein it said the hearing took place between 10.45 and 10.55. Mr Iftikar confirmed he had no reason to doubt that to be the case.

26. It follows that although the adjournment application was made after the listed start time of the hearing at 10am, it was with the FTT prior to the case being called on.

27. Whilst it is clear that by the time the judge made the decision to proceed, the adjournment application was before the Tribunal, there is no evidence that any further steps were taken to inform the Tribunal of the appellant’s reasons for absence such as, for example, a telephone call. Self-evidently, there is an inherent risk that, in circumstances where an adjournment application is made after the court day has begun, a decision may already have been made to proceed with a case in the absence of an explanation.

28. Mr Terrel relied on section 12.3 of the Practice Direction as to the expected procedure for last minute adjournment applications (see [7] above) to submit that the judge was entitled to assume there was no adjournment request given the absence of either the appellant or the representative at the hearing.

29. He further submitted that underpinning the Practice Direction is likely to be the need to deprecate and disincentive last minute adjournment applications. He further relied on the nature of the application itself and submitted that it failed to comply with what the authorities have consistently found to be necessary in order to successfully obtain an adjournment on medical grounds. In short, that is medical evidence that the party is unfit to attend court. He submitted that the brief explanation provided the appellant falls far short and it is not rescued by the retrospective sick note which only addresses the appellant’s unfitness to work and must have been based solely on the appellant’s account of his ill-health in March.

30. Mr Iftikar was not able to explain or excuse the absence of the representatives from the hearing, but his overarching position was that, as revealed by [2] of the judge’s decision, the judge proceeded on the mistaken assumption that there was no reason for their absence. Accordingly, the judge did not take into account all of the circumstances when deciding whether to proceed in absence of the appellant pursuant to rule 28 of the Procedure Rules.

31. Mr Iftikar acknowledged Mr Terrel’s submissions about the nature of supporting evidence in medical cases, but submitted that such factors were matters for the judge, but the judge did not do so because he had not seen the application. He submitted that the judge would have had to consider factors such as the appellant’s reason for not attending, how important it was to the case for the appellant to give oral evidence, the fact of the previous adjournment, and whether fairness required the appellant’s attendance or an adjournment. As to fault, he submitted this is likely to fall at the feet of the Tribunal’s administration team. However, all that one can be sure about is that the judge based the decision to proceed in the appellant’s absence on the lack of explanation for that absence, and that was a mistake.

32. As to the resulting unfairness, Mr Iftikar submitted that the judge arrived at adverse credibility findings, namely that the appellant had fabricated his asylum claim. He submitted that because credibility was at the core of the claim, this strengthened the need for the appellant to be present in the interests of fairness so that any concerns could be put to him.

Conclusions

33. I turn first to whether a mistake of fact took place. Applying the structure at [66] of E&R, it is uncontroversial to say that there has clearly been a mistake of fact, namely that at the time the judge was considering whether to proceed with the hearing in the appellant’s absence, there was no explanation for that absence. That mistake is established by undisputed evidence from a reliable source, namely the FTT’s own case management system. That deals with the first and second question. Jumping ahead to the fourth question, it is beyond doubt that the mistake was material (if not decisive) to the judge’s decision to proceed in the appellant’s absence.

34. On the third question, I am required to consider culpability. That is more difficult. It is perhaps inevitable that ill-health on the day means that a late last-minute adjournment application is inevitable. The communication by the appellant to his solicitors appeared to have taken place only very shortly before the listed start time for the hearing, although it appears that may not have been the first communication. Inevitably there would be some delay between receiving the appellant’s email and uploading the application onto the case management system. Overall, I find the timing was not, of itself, unjustified. However, I cannot understand why the representatives were not at the hearing centre ready to deal with the appellant’s case, or at least, very nearby. As far as they were concerned, they were on record as representing a client whose case started at 10am. To say at 10.24 they are not coming in light of an only recently communicated change of circumstances is not a good explanation. Had they been at the hearing centre, as they ought, the adjournment application would have been made directly to the judge who would, therefore, have known of it and considered all the material circumstances before deciding what to do. Accordingly, there is culpability attached to the appellant’s legal representatives.

35. The discussion in E and R about fault arises in the context of evidence that was not before the Tribunal hearing the appeal at first instance, but which should have been. In such a situation in asylum cases there is an alternative process available, namely the paragraph 353 fresh claim procedure, to ensure that someone who may face risk of serious harm and/or persecution on return to their home country may be safeguarded in the event that new material becomes available.

36. That is not the case here. In the event that the judge’s decision here stands, so too will the finding that the appellant fabricated his asylum claim. Applying the 353 procedure and the principles in Devaseelan (Second Appeals, ECHR, Extra-Territorial Effect) [2002] UKAIT 702 in the face of such a finding will make it very difficult for the appellant to get another chance at successfully demonstrating the merit of his asylum claim (because this is not a ‘fresh evidence’ type of case). Accordingly, there is an alignment here with the sorts of consideration applied in E and R when considering the need for flexibility in the application of the Ladd and Marshall principles in an asylum context, and also with the observations Carnwath LJ made at [64] and [66] when acknowledging the parties’ shared interest in co-operating to achieve a correct result in asylum cases, even within the context of the adversarial process. I also find that the need for a more flexible approach accords with the confirmation in MM that the overriding principle is one of fairness. [25] of MM says:

“The pivotal importance of the error of fact upon which the reasoning of the judge was demonstrably based helps to explain why, in appeals raising issues of international protection, there is room for departure from an inflexible application of common law rules and principles where this is necessary to redress unfairness. This is especially so where the respondent has, in the words of Carnwath LJ in E & R, paragraph [66], failed to co-operate to achieve a correct result. As we have seen, generally, the first of the Ladd v Marshall principles requires that the new evidence which was not considered at the earlier hearing could not with reasonable diligence have been obtained at that stage. Plainly that cannot be said here because the letter was written by the very solicitors who were presenting the case before the Tribunal and so it was available. It is established that neither the rule in Al-Mehdawi v SSHD [1990] 1 AC 876 (that a procedural failure caused by an appellant’s own representative did not lead to an appeal being in breach of the rules of natural justice) nor a failure to meet the first of the Ladd v Marshall principles applies with full rigour in asylum and human rights appeals: see, e.g. FP (Iran) v SSHD [2007] EWCA Civ 13. The decision of the Court of Appeal in E & R v Secretary of State points towards a broader approach, in which the common law right to a fair hearing predominates.”

37. Finally, I do not find this broader approach in asylum cases, with reference to the overarching objective of ensuring fairness to conflict with Bilta on which Mr Terrel relied (see [11] above).

38. As was recognised at proposition (4) at [49] of Bilta, fairness applies to both parties. It is to that I now turn.

39. The principal impact on the respondent, had the case been adjourned, would have been delay. That would also be the case if I find there to be an error of law in the judge’s decision.

40. In relation to the appellant I accept that, had the judge seen the adjournment application, it does not mean it would have been granted. Furthermore, I accept that the evidence on which the application was founded falls significantly short of what was found to be necessary in Hayat.

41. However, in my judgment, that misses the point that the reasons the judge gave for proceeding with the appeal in the appellant’s absence were wrong given that, by the time of the decision to proceed, the adjournment application had been made. Had the judge known of the appellant’s explanation for his absence, the judge would have needed to balance the various factors in order to decide whether fairness required an adjournment to permit the appellant to attend so that his evidence could be tested, or whether to proceed in his absence. The fact the appellant felt unable to attend through ill-health was a necessary factor to consider in that exercise. The lack of any supporting evidence, let alone of the type set out in the authorities as being the necessary type, and any reason provided for there not being any evidence would also need to be considered. As the Upper Tribunal said in Nwaigwe, all material considerations would need to be considered in order to ensure that a fair decision was reached. It was not fair to have proceeded in the appellant’s absence without considering the reasons he was not there. That information was available, but not to the judge. Whilst the representatives bear some responsibility for the circumstances in which the application was not drawn to the judge's attention, the ultimate question remains whether the hearing was fair, particularly in a protection appeal where adverse credibility findings were central to the outcome.

42. Accordingly in these circumstances I find the judge’s decision to hear the appeal in the appellant’s absence under the misapprehension the appellant had not provided a reason for his non-attendance, was a mistake of fact which constitutes an error of law. Had the judge been aware of the application, the decision whether to proceed under rule 28 would necessarily have involved a materially different evaluative exercise. The appellant was potentially deprived of a fair hearing as a result.

43. Accordingly, the decision is set aside pursuant to section 12 of the Tribunal, Courts and Enforcement Act 2007 with no preserved findings and remitted to the FTT to be heard afresh by a different judge. In arriving at that decision I have had regard to section 12(2)(b)(ii) of the Tribunal Courts and Enforcement Act 2007 (“the 2007 Act”), the decisions in AEB v SSHD [2022] EWCA Civ 1512 and Begum (Remaking or remittal) Bangladesh [2023] UKUT 00046 (IAC), and para. 7.2 of the Senior President’s Practice Statements. Neither party argued otherwise.

Notice of Decision

The decision of the First-tier Tribunal involved the making of a material error of law and is set aside.

The appeal is remitted to the First-tier Tribunal to be heard by a different judge.

SJ Rastogi
Judge of the Upper Tribunal
Immigration and Asylum Chamber

7 September 2026