[2025] UKUT 00350 (IAC)

The appellant submitted his appeal on 14 September 2023, when he made it clear that he wanted the appeal to be decided without a hearing.

In response to the question ‘Why do you think the Home Office decision is wrong?’, the appellant gave the following response on 1 December 2023:

We mean no discourtesy to the appellant by including the mistakes in spelling and grammar. The appellant was no doubt doing the best he could in English, when his first language is Romanian. This summary of the appellant’s case would have been displayed to the judge and the respondent on CCD as the appellant’s ‘appeal reasons’.

Mr Tan accepts that this response was in itself evidence, albeit that the appellant could perhaps have been asked to put it in a formal witness statement, and that it was capable of establishing that he had been present in the United Kingdom before 31 December 2020, but that it did require some clarification.

The ‘appeal reasons’ were reviewed on 11 February 2024 by a legal officer who noted:

The fact that the legal officer thought that the appeal reasons ‘slightly deal’ with the issues in the appeal appears to have been the reason why no clarifying questions were asked. This ‘case note’ would not have been visible to the respondent but was visible to the judge on CCD.

The respondent undertook her review of the appeal on 16 April 2024. She consented at paragraph 10 for the appeal to ‘proceed on the papers’ and identified one PCI: ‘Has the A provided sufficient evidence to show he was a resident in the UK and Islands prior to the specified date (31 December 2020)?’. In respect of that PCI, the review materially stated:

This was, given Mr Tan’s acceptance of how the appellant’s ‘appeal reasons’ could be understood, an implicit rejection of their veracity and the appellant’s credibility.

The appellant was notified on 25 April 2024 that he should consider the respondent’s response and, if he wished to respond, he could upload an additional document or documents. He did not.

The matter was put before a judge to be dealt with ‘on the papers’ on 14 May 2024, in other words to be decided without a hearing pursuant to rule 25. It was incumbent on the judge to consider the ‘appeal reasons’ and supporting documents, any FTT or legal officer review thereof, and the respondent’s review. This should have led to the judge confirming the PCIs to be decided. The issues-based approach applies equally to appeals determined on the papers as it does to oral hearings. The judge was then obliged to consider whether the PCI in this case, as identified in the respondent’s review, could be fairly and justly determined without a hearing in accordance with rule 25, the overriding objective and the guidance in SSGA. Of course, a judge would not fall into error merely by failing to refer expressly to SSGA provided that it was clear from the decision that the guidance was followed. However, in this case, it is clear that the guidance was not.

Whilst both parties had in this case consented to the appeal being decided without a hearing, it appeared as noted above, that the respondent was challenging the veracity of the appellant’s account (i.e. the respondent did not accept that which seems implicit from the ‘appeal reasons’ – the appellant was resident and working in the United Kingdom before the specified date). In these circumstances, and particularly bearing in mind the difficulties faced by AIPs, the judge was obliged either to explain why it was appropriate nevertheless to proceed to decide the case without a hearing or to direct that a hearing be listed. As set out above, this required a consideration of whether the PCI could fairly and justly be determined without a hearing.

In any event, the judge should have been aware that the appellant’s statement of case (the ‘appeal reasons’) and accompanying evidence, even on the legal officer’s brief analysis, only ‘slightly dealt’ with the PCI and that the AIP reform journey permitted clarifying questions in such circumstances, but that none had been asked. The judge should have identified the sole issue in dispute or PCI, as set out in the respondent’s review. The judge should, in the circumstances, have considered whether the appeal could be fairly determined without the appellant being given at least the opportunity to outline fully his evidence regarding the sole PCI, in the light of the respondent disputing the credibility of the appellant’s claim that he was present in the United Kingdom at the relevant time.

We do not consider that the direction on 24 April 2024 (that the appellant could respond to the respondent’s review by uploading additional documents) gave him an effective opportunity to do so. First, he had made clear in his ‘appeal reasons’ that he had no further supporting documents to provide. Second, neither the review nor that direction made sufficiently plain to the appellant that he needed to clarify further his case.

The judge should have recognised, certainly in an appeal by an AIP to be decided without a hearing, that the appellant’s ‘appeal reasons’ were in themselves evidence upon which the appellant relied and taken them into account. The judge lists at paragraph 5 the documents submitted by the appellant, and at paragraph 9 concludes (our underlining added):

It is clear therefore that the judge did not take the appellant’s ‘appeal reasons’ into account when reaching the decision to proceed on the papers or when determining the appeal.

To summarise, when making the decision whether to proceed without a hearing, where the parties have consented or not objected to the matter being decided without a hearing pursuant to rule 25(1)(a), in order to ensure procedural fairness and compliance with the overriding objective, the FTT should do the following:

As is clear from our reasoning above, we find that in failing to take those steps, the judge acted in a procedurally unfair manner, and the decision must be set aside.