Tribunal decisions

The decision

IN THE UPPER TRIBUNAL
IMMIGRATION AND ASYLUM CHAMBER Case No: UI-2026-003095
& UI-2026-003096
First-tier Tribunal No:
PA/01028/2025
PA/01029/2025

THE IMMIGRATION ACTS

Decision & Reasons Issued:

On 7th of October 2026

Before

UPPER TRIBUNAL JUDGE KHAN

Between

LK (Algeria) and NK (Algeria) plus 4
(ANONYMITY DIRECTION Made)
Appellants before the FTT
And

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT (‘SSHD’)
Respondent before the FTT

Representation:
For the Appellant: Ms Katko, Counsel instructed on behalf of the Appellants
For the Respondent: Mr Sheikh, Senior Home Office Presenting Officer

Heard at Field House on 3 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
Introduction
1. This is a decision of the Upper Tribunal (Immigration and Asylum Chamber) (‘the Upper Tribunal’). The Upper Tribunal is an independent decision-making body with powers given to it by an Act of Parliament. This decision is made in the context of the Upper Tribunal’s role in considering statutory appeals from decisions made by the First-tier Tribunal (Immigration and Asylum Chamber) (‘the First-tier Tribunal’).
2. The losing party in an appeal before the First-tier Tribunal can apply for permission to appeal to the Upper Tribunal. If permission is granted, the Upper Tribunal will consider the legal arguments put forward by both sides in the appeal. The Upper Tribunal only has power to set aside a decision of the First-tier Tribunal if it concludes that the arguments put forward by the party that applied to appeal show that the decision involved the making of an error of law: see section 12 of the Tribunals, Courts and Enforcement Act 2007 (‘TCEA 2007’).
3. If the Upper Tribunal finds that a decision of the First-tier Tribunal did not involve the making of an error of law, the First-tier Tribunal decision will stand. If a decision of the First-tier Tribunal is found to involve the making of an error of law the Upper Tribunal has power to set aside the decision. The Upper Tribunal will then decide whether it will remake the decision or whether the appeal might need to be reheard in the First-tier Tribunal.
4. This is a linked family appeal. The first appellant (“LK”) and the second appellant (“NK”) are father and son, respectively. LK has four dependants named on his appeal, who are his wife and three children.
5. The appellants appeal with permission against the decision of First-tier Tribunal Judge Granger (‘the judge’) promulgated on 13 April 2026 refusing their appeal on protection and human rights grounds.
6. The core issue arising in this appeal is whether the First-tier Tribunal acted procedurally unfairly by refusing an adjournment and proceeding with the hearing in the appellants’ absence.
Background
7. The appellants are nationals of Algeria. They fear being killed on return to Algeria by another family seeking revenge for the death of their brother who was involved in a car accident with LK and his wife. The appellants also fear being arrested and imprisoned as they have been convicted and sentenced based on false charges while they have been in the UK.
8. The appellants left Algeria as a family on 28 December 2023 and entered the UK on 05 January 2024, claiming asylum on the same day. The respondent refused their protection claims on 30 January 2025.
9. The appellants appealed that decision to the First-tier Tribunal. The appeal was dismissed in a decision promulgated on 13 April 2026, following an oral hearing, by First-tier Tribunal Judge Granger. By these proceedings, the appellants now appeal the First-tier Tribunal decision to the Upper Tribunal.
10. Permission to appeal the First-tier Tribunal decision was granted by Upper Tribunal Judge Loughran on 02 July 2026.
11. The matter now comes before me to determine whether the First-tier Tribunal erred in law, and if so whether any such error was material and whether the decision of the First-tier Tribunal should be set aside.
12. The appellants and the respondent were ably represented by Ms Katko and Mr Sheikh, respectively. I am grateful to them for their very helpful submissions.
13. The First-tier Tribunal made an anonymity direction and that direction is maintained.
Grounds
14. The appellant brings two grounds of appeal:
Ground 1 submits that the judge materially erred in law because they failed to take into account the full procedural history of the case when exercising their discretion under Rule 28 of The Tribunal Procedure (First-tier Tribunal) (Immigration and Asylum Chamber) Rules 2014.
Ground 2 submits that the judge materially erred in law by proceedings in the appellants’ absence in circumstances which were procedurally unfair thereby depriving them of a fair hearing.
15. The respondent filed a Rule 24 response opposing the appeal and requesting its dismissal. In respect of the grounds, the respondent submits that the judge clearly took into account the procedural history in reaching the decision to refuse the adjournment, and that the appellants’ legal representatives must have been aware of the need to attend the hearing as no decision had been made on their application to adjourn. The respondent further argues that despite the assertion that the appellants’ have been deprived of a fair hearing, the serious allegation made against the appellants’ former legal representatives have not been confirmed via a witness statement to the effect that they told the appellants not to attend the hearing of 27 March 2026.
Procedural issues
16. On 20 August 2026, the appellant filed a Rule 15(2A) application to admit evidence that was not before the First-tier Tribunal but which the appellants considered was relevant to the appeal hearing.
17. In broad terms, the documentary evidence sought to be admitted falls into two categories. Category 1 is described by the appellants as including procedural evidence concerning the circumstances in which the appellants and their former legal representatives, Whalebone Associates, did not attend the hearing on 27 March 2026. It is submitted that the evidence is relied on at this error of law stage to enable the Tribunal to understand the circumstances in which the First-tier Tribunal proceedings came to be conducted in the absence of the appellants and their representatives, and therefore whether there has been any procedural unfairness. I pause at this stage to indicate that there is correspondence in this category which would arguably fall to be covered by legal professional privilege and therefore would not have been before the First-tier Tribunal when it made its decision to refuse the adjournment.
18. Category 2 is described by the appellants as substantive appeal materials prepared for the First-tier Tribunal proceedings, but which were not filed prior to the hearing. It is submitted that the evidence is relied upon to show the extent of the preparation prior to the First-tier Tribunal hearing and to demonstrate that the appellants and their former legal representatives were actively engaged in preparing the appeals.
19. On 03 September 2026, the appellants made a further Rule 15(2A) application to admit the witness statement of Sarah Ferroukhi of Whalebone Associates. It is submitted that the evidence has been provided to explain the circumstances which led to the adjournment request and the First-tier Tribunal proceedings in the absence of the appellants. The lateness for the application was due to Ms Ferroukhi having suffered a bereavement which delayed her completion of the witness statement.
20. At the hearing, I heard submissions from Ms Katko in respect of the two applications and also from Mr Sheikh. Given the volume of documents sought to be admitted by the appellants coupled with the late second application, I indicated I would admit the evidence provisionally (‘de bene esse’ basis) subject to a final decision being made in the course of my substantive decision on the appeal, which I do now.
21. In order to admit fresh evidence under Rule 15(2A), the appellants must demonstrate that the appropriate notice has been submitted, explain why the evidence was not available to the First-Tier Tribunal and how the evidence is ‘relevant’ to the issues at hand. In this regard, the Upper Tribunal has a wide discretion regarding what evidence can be admitted taking into account the overriding objective to determine cases “justly and fairly”: see Kabir v The Secretary of State for the Home Department [2019] EWCA Civ 1162.
22. The appellants have correctly filed their respective Rule 15(2A) applications and explained that the evidence was not provided to the First-Tier Tribunal because on the whole it necessarily post-dated the hearing. I accept that submission. However, in terms of relevance, while I can see that the Category 1 evidence (which includes the witness statement of NK dated 11 June 2026) and the witness statement of Ms Ferroukhi are relevant to the circumstances which led to the adjournment request and the appellants not attending the hearing, the same cannot be said of the Category 2 evidence which in my view has no direct relevance to the issues being determined at this error of law stage. For those reasons, I admit the Category 1 evidence, and the witness statements of Ms Ferroukhi and NK, but refuse to admit the Categeory 2 evidence.
Findings and Reasons
23. I now turn to address the two grounds.
24. Ground 1 submits that judge erred because they failed to take full account of the procedural history of the appeal when exercising their discretion under Rule 28 of the Tribunal Procedure (First-tier Tribunal) (Immigration and Asylum Chamber) Rules 2014 (“Rule 28”).
25. Rule 28 provides:
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) it consider that it is in the interests of justice to proceed with the hearing.
26. The appellants argue that the judge failed to consider the procedural history in reaching their decision not to adjourn the hearing on 27 March 2026. They rely on several points pleaded at paragraph 12 (a)-(e) of the grounds. I will address these points in turn below.
27. At paragraph 12 (a), the appellants rely on correspondence dated 19 October 2025 and 06 November 2025 which they say made clear that there was a ‘technical issue’ with communications meaning that they were not reliably receiving correspondence despite being on record.
28. I have reviewed the mentioned correspondence of 19 October and 6 November. The letters do indeed confirm that the appellants’ former legal representatives, ‘Whalebone Associates’ had written to Taylor House and POU Central London Correspondence indicating that they had not received Directions and correspondence from the Tribunal. The appellants characterises these issues as ‘technical issues’ which is objected to by the respondent in her Rule 24 in which she states that neither email identified any technical difficulties. I agree with the respondent that the asserted complaints are not expressed in the emails in terms of being ‘technical issues’ but simply that some Tribunal correspondence had not been received.
29. It has not been confirmed to me one way or another whether the judge had this correspondence before them on 27 March 2026. The appellant appears to assume that the judge did not have it, but that rather misses the point. The key question is what material difference, if any, would the correspondence have made to the decision to refuse the adjournment? No one can answer that question with any certainty, and it would be pure speculation to try and do so. However, what is clear is that the appellants previous legal representatives were aware of the hearing date on 27 March 2026 and had requested an adjournment. Whatever communication problems may have been experienced by the appellants in the past, they were not operative in respect of the hearing date of 27 March 2026.
30. At paragraph 12(b), the appellants submits that the successful time extension on 12 December 2025 made it clear there were issues with the legal aid disbursement for the country expert report which would have assisted the First-tier Tribunal in understanding that there were delays in receiving the expert report outside the control of Whalebone Associates.
31. I have considered the points mentioned but they are wholly misconceived. The appellants’ adjournment request dated 26 March 2026 stated ‘’We kindly request an adjournment due to the absence of the country expert report, which we believe is crucial to our client’s case and necessary for a fair determination.” Nothing further was stated about the relevance of the country expert report in the written adjournment request or in the actual legal aid application for extension of disbursement.
32. The judge stated at [16] of the decision “I also noted the basis for the adjournment application was to obtain a country expert report. The Appellants’ representative gave no details as to the relevance of a country expert report to the Appellants case. The Appellants’ legal representative also failed to explain why, if a country expert report was relevant to the Appellant’s case, they had failed to obtain one to date.”
33. In the circumstances, the appellants’ submissions that the information gleaned about the late disbursement for the country expert report would have compensated for the obvious failure of the appellants’ legal representatives to properly set out the nature and relevance of the country expert report, and why the adjournment was needed to obtain is completely misconceived. This amounts to nothing more than a crude attempt to shift the professional shortcomings of Whalebone Associates onto the judge.
34. At paragraph 12 (c), the appellants submit that the Directions dated 16 December appear to only relate to one appellant and not both causing further confusion. This assertion in my view carries little weight. The Tribunal Notice dated 17 December 2025 indicating the hearing date of 27 March 2026 clearly showed that the appeals were linked as per the two case references under the title ‘Appeal No:’ and the Notice also specifically named the appellants.
35. At paragraph 12 (d), the appellants submit that the absence of any reprimand of Whalebone Associates for their serious non-compliance in missing the deadline to submit evidence supports the argument that the judge materially erred in exercising their discretion. This assertion lacks merit. As noted by the respondent in the Rule 24 response, the appellants were legal represented throughout and knew of the relevant timescales. In this regard, it is clear from the decision at [15] that the judge was well aware of the appellants’ failure to comply with the relevant Directions. In my judgment, the appellants have failed to show how the absence of a reprimand supports this ground of appeal.
36. At paragraph 12 (e), the appellants submit that the Directions dated 26 March 2026 issued by the First-tier Tribunal should have given the judge notice that there were irregularities in the conduct of the appeal that warranted additional diligence to ensure fairness. This ground lacks merit. However, if I am wrong, given what the appellants have stated, the issuance of the Directions should have served as a further reason why Whalebone Associates should have attended the hearing on 27 March 2026 to make the very points that the appellants are now levelling against the judge.
37. In summary, none of the matters raised by the appellants at paragraph 12 (a)-(e) of the grounds demonstrate that the judge materially erred in failing to take into account the procedural history of the appeal when exercising their discretion under Rule 28.
38. What the decision does show at [12]-[16] is that the judge was aware that the Tribunal had a discretion to proceed with the hearing in a party’s absence if satisfied that the absent party had been given notice of the hearing date, and the notice had been properly served [12] and it was in the interests of justice to proceed. Having satisfied themselves that notice of the hearing had been given and served at the correct address, the judge then went on to properly consider the procedural history [15], the basis for the adjournment and the overriding objective [16] in the exercise of their discretion. In my view the approach of the judge cannot be faulted in the exercise of their discretion under Rule 28.
39. For the foregoing reasons, ground 1 is not made out and must fail.
40. I now turn to address ground 2 which submits that the judge materially erred by proceeding in the appellants’ absence in circumstances which were procedurally unfair thereby depriving them of a fair hearing.
41. The appellants’ grounds accept that there may have been significant errors in the conduct of the appeal from their former legal representatives, Whalebone Associates.
42. The errors appear to include mistakenly taking the view that when the Notice of Hearing for 27 March 2026 was issued on 17 December 2026, that nullified all prior appeal deadlines, such as the requirement to submit evidence six weeks from 16 December 2025; and, that paragraph 12.1. of the Practice Direction of the Immigration and Asylum Chamber of the First-tier Tribunal (dated 1 November 2024) did not require attendance at the hearing in person even though the appellants’ adjournment request was not made one clear working day before the hearing set for 27 March 2026 (having been made by email on 26 March 2026 at 2.30pm). In this regard, paragraph 12.3. of the Practice Direction provides that in such circumstances, the application must be made at the hearing and will require, save in exceptional circumstances, the attendance of the party or the representative of the party seeking the adjournment.
43. The decision demonstrates at [16] that the judge was aware that the adjournment application had been made by email the day before the substantive hearing which they concluded was entirely unreasonable in the circumstances and therefore proceeded with the hearing.
44. It is clear from the information that was before the judge that they were completely unaware that the appellants had been wrongly advised not to attend the hearing by Whalebone Associates even though they were ready and keen to attend.
45. I have reviewed the witness statement of NK dated 11 June 2026. NK states at [19] that they were aware of the hearing on 27 March 2026 and were not trying to delay things, as they wanted the asylum proceedings to finish as soon as possible, and that they were told not to attend the hearing even though they were ready to do so [24].
46. NK’s account is corroborated by a witness statement filed by Ms Ferroukhi, of Whalebone Associates, dated 03 September 2026. At [3] she states that Whalebone Associates became involved in the appellants’ cases in or around May 2025. She states that on 23 March 2026, they met with the appellants and at that stage the expert report was still outstanding, and an adjournment was contemplated because the expert evidence could not be finalised by the listed hearing date [41]. She accepted that an adjournment application was not submitted as early as it should have been [42] and that the appellants were advised that they did not need to attend the hearing on 27 March 2026, and the appellants did not independently decide simply not to attend their appeal hearing.
47. The Court of Appeal in FP (Iran) v SSHD [2007] EWCA Civ 13 stated at [46] that “there is no general principle of law which fixes a party with the procedural errors of his or her representative.” In reaching this decision the Court of Appeal approved the decision in R (Tofik) v IAT [2003] EWCA Civ 1138 (an asylum case) where it was stated, ‘a client is not necessarily fixed with her or his solicitors’ errors…..at least when the client has been in no way responsible for them.”
48. In the decision of BT (Former solicitors’ alleged misconduct) Nepal [2004] UKIAT 00311 the headnote provides that “If an appeal is based in whole or in part on allegations about the conduct of former representatives, there must be evidence that those allegations have been put to the former representative, and the Tribunal must be shown either the response or correspondence indicating that there has been no response.”
49. Finally, the decision in Nwaigwe (adjournment; fairness) [2014] UKUT 00418 (IAC) makes clear that the test to be applied where a refusal of an adjournment is challenged is not whether the First-tier Tribunal 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?
50. Bringing all these threads together, it is clear to me that the unfairness in this instant case results from the consequences for the appellants of the avoidable mistakes and errors made by their former legal representatives, Whalebone Associates, who clearly misunderstood the issued Directions and their obligations under paragraph 12.1. of the Practice Direction. It is unarguable that the appellants have been very poorly served and advised by Whalebone Associates. The evidence shows that the appellants genuinely wished to pursue their asylum appeal and attend the hearing on 27 March 2026. They were wrongly advised not to do so by Whalebone Associates, who could not have reasonably believed in the circumstances that an adjournment had been granted, and no attendance was necessary at the hearing.
51. The respondent in her Rule 24 response dated 17 July 2026 correctly observed (at that time) that no witness statement from Whalebone Associates admitting to their failings had been filed. That is no longer the case. The witness statement of Ms Ferroukhi sets out the multiple errors and wrong assumptions made by Whalebone Associates at [37], [38], [42], [52], [53], [58] & [59]. Even though the witness statement clearly tries to minimise responsibility by muddying the waters, it nonetheless takes full responsibility for the procedural failings resulting in the appellants non-attendance at the hearing.
52. Applying the case law, I find the appellants are blameless for their non-attendance at the hearing on 27 March 2026. They are the innocent victims of their professional legal representatives’ procedural failings, and they should not be fixed by those procedural errors made by them.
53. The key issue is whether those procedural failings deprived the appellants of a fair hearing by the judge proceeding in the appellants absence. I find that it did for several reasons.
54. Firstly, the appellants were not disinterested in pursuing their asylum appeal but were actively engaged in its preparation. They clearly needed legal representation given that both of them are vulnerable on account of physical and mental ill health with one appellant being of a young age.
55. Secondly, although the judge accepted the appellants’ core account, there was no written evidence in chief or cross-examination. The judge themselves remarked that they could not resolve the issue regarding the ‘Proof of Notification Reports’ because the documentary evidence was ‘untested’ and ‘unexplained’ and therefore placed no weight on the documents [48].
56. Thirdly, the appellants were unable to give evidence to challenge the assessment of whether sufficiency of protection or internal relocation were available, particularly in circumstances where LK was taken seriously ill in December 2025.
57. For all the foregoing reasons, I find that the procedural failings of the appellants’ previous legal representatives resulting in the adjournment being refused did result in unfairness depriving the appellants of their right to a fair hearing. As was noted in FP (Iran) the “exercise of the right to be heard may literally be a matter of life and death”. I consider that sentiment to be entirely applicable in this case.
58. The respondent has argued that the appellants’ presence would not have made any material difference to the outcome because the judge accepted their core account. However, for the reasons I have stated already and applying the following case law, I do not accept that assertion. In this respect , it was observed in FP (Iran) at [20] “The right to be heard goes deeper than any question about what would have eventuated if the right had been exercised.” In MM (unfairness; E & R) Sudan [2014] UKUT 105 (IAC) the Upper Tribunal stated that the right to a fair hearing was ‘fundamental, irreducible and inalienable” and at [15] that caution should exercised in concluding that the outcome would have been the same if the procedural irregularity had not occurred.
59. For the foregoing reasons, the decision of the first-tier Tribunal did involve the making of an error of law resulting in the appellants being deprived of a fair hearing. The appellants’ appeals are allowed on ground 2 and the decision of the First-tier Tribunal is set aside without any preserved findings of fact.
60. I canvassed the parties in respect of further steps in view of a possible finding of a material error of law. The parties agreed that in the circumstances the appeals should be remitted to the First-tier Tribunal for a fresh hearing before a different judge. That is my view also. Given the critical nature of the findings on ‘fairness’ no part of the determination can be preserved.

Notice of decision
The decision of First-tier Tribunal Judge Granger of 13 April 2026 did involve the making of an error of law and is set aside. The matter is remitted to the First-tier Tribunal for rehearing before a differently constituted tribunal with no findings of fact preserved.

01 October 2026

Upper Tribunal Judge Khan

Judge of the Upper Tribunal
Immigration and Asylum Chamber