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United Kingdom Immigration and Asylum (AIT/IAC) Unreported Judgments


You are here: BAILII >> Databases >> United Kingdom Immigration and Asylum (AIT/IAC) Unreported Judgments >> UI2024000332 [2025] UKAITUR UI2024000332 (2 May 2025)
URL: http://www.bailii.org/uk/cases/UKAITUR/2025/UI2024000332.html
Cite as: [2025] UKAITUR UI2024000332

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IN THE UPPER TRIBUNAL

IMMIGRATION AND ASYLUM CHAMBER

Case No: UI-2024-000332

First-tier Tribunal Nos: HU /58288/2021

LH/00692/2022

 

THE IMMIGRATION ACTS

Decision & Reasons Issued:

 

2 nd May 2025

 

Before

 

UPPER TRIBUNAL JUDGE LODATO

DEPUTY UPPER TRIBUNAL JUDGE GILL

 

Between

 

Muzahid Ahmed

(NO ANONYMITY ORDER MADE)

Appellant

and

 

The Secretary of State for the Home Department

Respondent

Representation :

For the Appellant: Mr E Tufan, Senior Presenting Officer

For the Respondent: Mr P Lewis, counsel instructed by Paul John & Co Solicitors

 

Heard at Field House on 25 April 2025

DECISION AND REASONS

Introduction

1.               The Secretary of State appeals with permission against the decision, dated 13 December 2023, of a judge of the First-tier Tribunal ('the judge') to allow the appeal on human rights grounds.

2.               To avoid confusion, and for the remainder of this decision, we will refer to the appellant in these proceedings, the Secretary of State for the Home Department, as the respondent and the respondent in the Upper Tribunal, Mr Ahmed, as the appellant as they were before the First-tier Tribunal.

Background

3.               The broad factual background and immigration history to the appeal is not in dispute between the parties.

Appeal to the First-tier Tribunal

4.               The appellant appealed against the refusal of the claim. The appeal was heard by the judge on 8 December 2023 before allowing the appeal in a decision promulgated on 13 December 2023. For the purposes of the present proceedings, the following key matters emerge from the decision.

5.               At paragraph 3 of the First-tier Tribunal's decision, the judge noted that the respondent had applied for an adjournment to extend the previous adjournment which had been granted. The previous adjournment was ordered because the Upper Tribunal were scheduled to hear an appeal in which it would be assessing and analysing the expert evidence of Mr Stanbury, which covered much the same ground the expert addressed in his report prepared for this appellant's appeal before the First-tier Tribunal proceedings. The judge noted that she had read the report of Mr Stanbury and reached the conclusion that it was not necessary or fair to adjourn and that it was in the interests of justice to proceed given that all of the parties were before her. She permitted additional evidence, relied upon by the respondent, to be admitted into evidence. This evidence appeared to include evidence going to the expert opinion evidence relied upon by the appellant. It was further noted, at [6], that the case of DK and RK (ETS: SSHD evidence; proof) India [2022] UKUT 112 (IAC) was her starting point for assessing the issues in the appeal. However, in the next section of the decision, headed "my findings and of fact and conclusions", the judge departed from many of the findings of principle reached in DK and RK on the strength of Mr Stanbury's expert evidence. The judge adopted the expert opinion evidence about the possibility that hidden rooms may have been used for the purposes of cheating English language tests. There followed an assessment of various parts of his expert report and it was ultimately concluded that there was good reason why a fraudulent test centre might have chosen to have used the hidden room technique of cheating rather than the replacement of candidates with proxy test takers in the main testing room.

6.               Having accepted the broad thrust of Mr Stanbury's expert evidence, the judge went on to consider the particular facts of the case and directed herself to Majumder v SSHD [2016] EWCA Civ 1167 where the Court of Appeal set out factors which would have a bearing on the assessment of dishonesty in matters such as this. The judge relied on the appellant's "rich command of English" and his academic qualifications. She was persuaded that he had provided consistent, plausible and broadly credible evidence about why he had selected the particular college at which he took the relevant test. It was noted that he had no need to cheat and that he had a great deal to lose by doing so. The judge reached her overall conclusions at [26] of her decision where she accepted the credibility of the narrative evidence he had provided. Ultimately, it was decided that he had not used deception and that the central basis on which his application was refused had fallen away, such that his Article 8 human rights appeal fell to be allowed.

Appeal to the Upper Tribunal

7.               The respondent applied for permission to appeal in reliance on a single ground. The sole ground of appeal was that the judge should have adjourned the hearing to await the outcome of Varkey & Joseph (ETS - Hidden rooms) [2024] UKUT 142 (IAC) which was soon to be heard in the Upper Tribunal by a Presidential panel. In a decision dated 25 January 2024, First-tier Tribunal Judge Boyes granted permission for the grounds to be argued noting that the reliability and credibility of the report relied upon by the appellant was of crucial importance in the case and that the Secretary of State had information which was "currently sub judice relating to the claimed credibility and was not able to deploy that properly in the hearing".

8.               At the error of law hearing, we heard oral submissions from both parties. We address any submissions of significance in the discussion section below.

Discussion

9.               It is important to keep in mind that there is a single ground of appeal in this matter. This ground is that the Judge erred in law in refusing the Secretary of State's application to adjourn the hearing given the knowledge that a senior panel of the Upper Tribunal would soon hear an appeal in which they would be closely examining the expert evidence of Mr Stanbury. That appeal in the Upper Tribunal was due to be heard a mere ten days after this appeal in the First-tier Tribunal was heard. In assessing the substance of this procedural ground of appeal we must be cautious not to be tempted to look to later developments and assess the merits of the decision to proceed through the lens of hindsight. The only challenge is to the lawfulness of the decision to adjourn at the time of the hearing and based on the information then known.

10.           The Secretary of State might have argued other grounds of appeal about the consistency of the judge's reasons with DK and RK or the cogency of the findings going to Mr Stanbury's evidence. No such complaints were argued, and we must keep in mind that the limits of this error of law appeal are to the ground which is before us and that is solely founded on the procedural complaint that the judge simply should have acceded to the application to adjourn. We are bound to record that other judges may have reached different conclusions on this evidence. Were we the primary fact-finders, we certainly would not have accepted Mr Stanbury's evidence, but we must exercise discipline and restraint not to trespass on the lawful findings of fact reached by a judge tasked with discharging that very responsibility. It follows that the question is not whether we might have reached a different decision on this evidence, the question is instead whether the First-tier Tribunal Judge was lawfully entitled to proceed to decide the appeal when she did. There is a high threshold before the procedural matter of judgement of whether a hearing should be adjourned can be said to be unlawful. In this case, while there was an error of law hearing listed in the Upper Tribunal a matter of days after this matter was heard, there always remains an element of uncertainty around other such proceedings and there could be no guarantee that the Upper Tribunal hearing would have proceeded when it did. The procedural background to the hearing in the First-tier Tribunal is of importance. The judge noted that this was not the first occasion on which an application had been made to adjourn. The proceedings had already been adjourned in the past. Any continued delay was a relevant factor to take into account as weighing against the interests of fairness and justice.

11.           The judge was unarguably entitled to take the delay factor into account and the fact that both parties were present and that there was no intrinsic barrier to the appeal proceeding on the appointed date. In the respondent's grounds of appeal to this tribunal, the profoundly unattractive argument was advanced, at [3], that the Secretary of State had relied on four experts who refuted Mr Stanbury's evidence in the Upper Tribunal proceedings and that this evidence was unavailable to be deployed in the First-tier Tribunal. It was boldly suggested that it was clearly not practical to make arrangements to rely on this evidence in all of the various appeals in the First-tier Tribunal proceedings where Mr Stanbury' expert evidence had been relied upon. It was asserted that there were 50 such matters in the First-tier Tribunal.

12.           The reason we say this is a profoundly unattractive argument is that the Secretary of State cannot make a tactical decision to withhold their best evidence to respond to the merits of an appeal before the First-tier Tribunal simply because that evidence is soon to be deployed before the Upper Tribunal. In seeking to adjourn the hearing, the respondent ought to have placed herself in the position of being able to respond to the appeal with the best available evidence if the application to adjourn was unsuccessful. The respondent manifestly failed to take that forensically sensible approach and deprived herself of evidence which may have effectively rebutted the evidence of Mr Stanbury. In electing to withhold such evidence, a litigation risk is taken that the other side's evidence will be accepted if not effectively rebutted.

13.           There was no evidential foundation for the assertion made at [6] of the grounds that the judge's decision was at odds with the decisions taken by many other First-tier Tribunals faced with similar applications. In any event, this would not go to the lawfulness of whether this judge's decision was an appropriate exercise of judgment on a procedural application in which some judges may have been inclined to accede to the application, while others may have been inclined to reject such an application.

14.           The very fact that different judges may have reached different conclusions weighs in favour of the lawfulness of this particular decision to proceed at the time the judge did. The respondent did not direct us to any authority to suggest that the judge was duty-bound to adjourn this hearing because of an imminent hearing before the Upper Tribunal. Mr Lewis, in his written submissions, directed us to the reported case of NN (Teachers: Matabeleland/Bulawayo: risk) Zimbabwe CG [2013] UKUT 198 (IAC) in which the Upper Tribunal made it clear that the general position is that cases should not be adjourned to await the determination of pending country guidance. We agree that the starting point must be in the First-tier Tribunal that decisions ought not to be adjourned to await the uncertain outcome of Upper Tribunal test cases. Overall, we are satisfied that there was no unlawfulness in the judge deciding to proceed to hear this appeal. That is not to say that other judges may not have legitimately reached a different conclusion, both as to the application to adjourn and the underlying merits of the appeal. However, we must exercise discipline in not seeking to simply substitute the substantive decision we might have reached in these proceedings and we must be guided by the ground of appeal that this judge ought not to have proceeded at the time she did. These are different and distinct questions.

15.           On the basis on which this appeal has been advanced, we are satisfied that there is no unlawfulness disclosed in the decision to proceed to hear the appeal and decide it in the way it was. Mr Lewis made a number of submissions going to the materiality of any suggested error of law and argued that the judge's factual findings were sound and broadly consistent with authority. We need not address that question because we are satisfied that there was no error of law, much less a material error of law.

Notice of Decision

16.           The decision of the First-tier Tribunal did not involve an error of law, and we dismiss this appeal.

 

P Lodato

 

Judge of the Upper Tribunal

Immigration and Asylum Chamber

 

 

1 May 2025

 

 

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