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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 >> UI2025000880 [2025] UKAITUR UI2025000880 (6 May 2025)
URL: http://www.bailii.org/uk/cases/UKAITUR/2025/UI2025000880.html
Cite as: [2025] UKAITUR UI2025000880

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IN THE UPPER TRIBUNAL

IMMIGRATION AND ASYLUM CHAMBER

Case No: UI-2025-000880

First-tier Tribunal No: PA/67660/2023

LP/07313/2024

 

THE IMMIGRATION ACTS

Decision & Reasons Issued:

 

On 6 th of May 2025

 

 

Before

 

UPPER TRIBUNAL JUDGE LODATO

DEPUTY UPPER TRIBUNAL JUDGE GILL

 

Between

 

G.Y.

(ANONYMITY ORDER MADE)

Appellant

and

 

The Secretary of State for the Home Department

Respondent

Representation :

For the Appellant: Unrepresented and in attendance

For the Respondent: Mr Hulme, Senior Home Office Presenting Officer

 

Heard at Field House on 25 April 2025

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.              The appellant is unrepresented and appeals against the decision of First-tier Tribunal Judge Peer ('the judge'), dated 17 December 2024 and heard on 2 December 2024 on the papers. The judge dismissed the appeal on grounds of asylum, humanitarian protection and human rights (Article 8 of the European Convention on Human Rights).

2.              Permission to appeal was refused by the First-tier Tribunal ('FtT') on the grounds that were advanced by the appellant, as they did not identify an arguable error of law. However, consideration was given as to whether permission to appeal ought to be granted on any other arguable errors of law. Permission to appeal was therefore granted by the FtT on the basis it was arguable the judge erred in law in deciding the appeal without a hearing and in failing to consider the guidance in SSGA (Disposal without considering merits; R25) Iraq [2023] UKUT 12 (IAC), particularly as credibility was an issue in dispute in the appellant's case. In granting permission in these circumstances the FtT applied the case of AZ (error of law: jurisdiction; PTA practice) Iran [2018] UKUT 245 (IAC).

Background

3.              In summary, it is the appellant's case that they would be at risk on return to Uzbekistan due to their membership of a particular social group, in that they claimed to be gay or alternatively that they are entitled to humanitarian protection. It is the respondent's case that the appellant's account lacks credibility on the basis that their account is inconsistent without reasonable explanation, lacks detail and elements of the account are implausible and inconsistent with external information. The respondent accepts that if the appellant's account was credible, then he is a refugee on the basis that there is no sufficiency of protection or internal relocation available to him in Uzbekistan. Therefore, it was agreed by the parties that credibility was a key issue in dispute between the parties.

 

4.              The judge made a decision to hear the case without a hearing, referencing Rule 25(1)(a) and (b) of the First-tier Tribunal Procedural Rules, as set out in the judge's reasons at [6] - [10].

 

5.              Having considered the appeal on the papers the judge made adverse credibility findings against the appellant. The judge dismissed the appeal on all grounds.

 

Discussion

6.              We were provided with a composite bundle consisting of 257 pages. We heard submission from both parties and have referred to the relevant evidence and submissions in our discussion below.

7.              During the respondent's submissions, Mr Hulme conceded that the judge's decision involved a material error of law because the judge failed to consider the case of SSGA (Disposal without considering merits; R25) Iraq [2023] when deciding to proceed without a hearing. Mr Hulme accepted that the respondent had requested an oral hearing in the review and that credibility was in dispute, therefore the matter should have been heard at a hearing by the judge.

8.              The appellant agreed with these submissions, stating that he wanted his case to be dealt with fairly and at a full hearing.

9.              A concession by the respondent does not bind the tribunal to accept it. However, we are satisfied that the concession was properly made, and we are equally satisfied that the decision did indeed involve a material error of law.

 

10.          Rule 25(1)(a) and (b) states:

 

"25.-”(1) The Tribunal must hold a hearing before making a decision which disposes of proceedings except where-”

(a)each party has consented to, or has not objected to, the matter being decided without a hearing;

(b)the appellant has not consented to the appeal being determined without a hearing but the Lord Chancellor has refused to issue a certificate of fee satisfaction for the fee payable for a hearing;"

11.          In this case the respondent had requested an oral hearing in its Review dated 24 June 2024 and the appellant, who was unrepresented consented to the hearing being heard without a hearing. Therefore Rule 25(1)(a) and (b) did not apply to the circumstances in this case.

 

12.          Furthermore, the case of SSGA (Disposal without considering merits; R25) Iraq [2023] provides guidance as to how these procedural rules should be approached at headnote 4(iv):

 

"4. The following guidance applies when consideration is being given to whether or not an appeal should be disposed of without a hearing:

...

(iv) A hearing should be held whenever credibility is disputed on any material issue or fact. Cases in which it would be appropriate to determine an appeal without a hearing if credibility is materially in issue would be rare indeed. In almost all cases, the appropriate course of action would be to list the case for a hearing and decide the case on such material as is before the Tribunal."

 

13.          It is not in dispute that the credibility of the appellant's account was disputed on a material issue, namely the appellant's account of being a gay man. This issue goes to the heart of the appeal. Credibility is recognised as a material issue in dispute by the judge at [11] - [12] of the decision. However, when deciding to proceed without a hearing the judge makes no reference to SSGA (Disposal without considering merits; R25) Iraq [2023] or credibility at [6] - [10]. Adverse credibility findings were made in this case without a hearing taking place and the appellant was therefore deprived of an opportunity to have a fair hearing. Accordingly, we are satisfied that the judge made an error in law in proceeding to hear the case without a hearing and that this was a material error of law.

 

14.          We are satisfied that although the ground of appeal upon which permission was ultimately granted did not feature in the grounds of appeal, permission was properly granted in accordance with AZ (error of law: jurisdiction; PTA practice) Iran [2018] UKUT 245 (IAC), as this additional ground was correctly identified as having a strong prospect of success, for the reasons previously set out, in a case where the appellant was unrepresented.

 

15.          As indicated at the conclusion of the error of law hearing, we find that the decision of the judge involved a material error of law and falls to be set aside

 

Disposal

16.          We heard submissions from both parties as to whether the underlying appeal should be remitted to the FtT to be heard afresh, or whether it should be retained in the Upper Tribunal to be remade. Both parties submitted that the matter should be remitted to the FtT.

 

17.          The starting point is paragraph 7.2 of the Practice Statements of the Immigration and Asylum Chambers of the First-tier Tribunal and the Upper Tribunal which provides:

 

"7.2. The Upper Tribunal is likely on each such occasion to proceed to remake the decision, instead of remitting the case to the First-tier Tribunal, unless the Upper Tribunal is satisfied that:

 

(a) the effect of the error has been to deprive a party before the First-tier Tribunal of a fair hearing or other opportunity for that party's case to be put to and considered by the First-tier Tribunal; or

 

(b) the nature or extent of any judicial fact finding which is necessary in order for the decision in the appeal to be re-made is such that, having regard to the overriding objective in rule 2, it is appropriate to remit the case to the First-tier Tribunal."

 

18.          When considering what fairness demands and bearing in mind the guidance in Begum (Remaking or remittal) Bangladesh [2023] UKUT 46 (IAC), we are satisfied that the basis on which we have found an error of law deprived the appellant of a fair hearing and a full opportunity to put his case to be considered by the FtT. It follows that the only appropriate course is to remit the matter to the First-tier Tribunal to decide the appeal afresh. 

 

Notice of Decision

 

19.          The decision of the First-tier Tribunal involved a material error of law and is set aside. The matter is remitted to the First-tier Tribunal to be decided de novo and to be heard by a judge other than First-tier Tribunal Judge Peer. We do not preserve any findings of fact.

 

 

A. Gill

 

Deputy Judge of the Upper Tribunal

Immigration and Asylum Chamber

 

 

30 April 2025

 

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