Upper Tribunal Upholds Decision on Procedural Fairness in Immigration Appeal

OUTCOME: Dismissed

IN THE UPPER TRIBUNAL IMMIGRATION AND ASYLUM CHAMBER Case Nos: UI-2025-002370, UI-2025-002372 & UI-2025-002373 First-tier Tribunal Refs: PA/68217/2023, PA/68219/2023 & PA/68221/2023 LP/10012/2024, LP/10013/2024 & LP/10014/2024 [NAME] & Reasons Issued: On 22 August 2025 Before UPPER TRIBUNAL JUDGE [APPELLANT]) [NAME] and THE SECRETARY OF STATE FOR THE HOME DEPARTMENT Respondent Representation: For [NAME]: The first appellant in person For the Respondent: [redacted] Heard at Field House on 29 July 2025 Order Regarding Anonymity Pursuant to rule 14 of the Tribunal Procedure (Upper Tribunal) Rules 2008, [NAME] are granted anonymity. No-one shall publish or reveal any information, including the name or address of [NAME], which is likely to lead members of the public to identify [NAME]. Failure to comply with this order could amount to a contempt of court. Anonymity was ordered by the First-tier Tribunal and it is appropriate for that order to continue in force because these are appeals against the refusal of international protection. © CROWN COPYRIGHT 2025

Appeal Number: UI-2025-002730, UI-2025-002372 & UI-2025-002373

DECISION AND

REASONS 1. [NAME] appeal with the permission of Judge Swaney against the decision of Judge Gordon-Lennox, who dismissed their appeals against the respondent’s refusal of their claims for international protection. 2. [NAME] are Nigerian nationals. The first appellant is the father of [NAME], who were born in 2011 and 2012. They entered the United Kingdom lawfully in August 2019. The first appellant entered as a business visitor. [NAME] were his dependents.

3. The first appellant was subsequently granted leave to remain as a visitor for private medical treatment. On 29 May 2020, he claimed asylum, stating that he was at risk from a group in Nigeria called the [NAME] (“[NAME]”), against whom he had spoken out in his professional life as a clergyman. The respondent did not accept that his account was true. In the alternative, she concluded that he would receive a sufficiency of protection in Nigeria or that he could relocate to avoid any threat from the [NAME]. She refused his claim for protection accordingly. The Appeal to the First-tier Tribunal 4. The appellant appealed to the First-tier Tribunal. He was represented by a [NAME] who submitted an Appeal Skeleton Argument (“[NAME]”) which was settled by counsel on 26 August 2024. The [APPELLANT] reference to a bundle of evidence which ran to 210 pages. The bundle included a statement from the first appellant and a number of items which had not previously been considered by the respondent. Amongst those items was a Special Police Gazette Bulletin which described the appellant as a wanted person and a number of new articles which referred to him by name.

5. The respondent reviewed her decision in compliance with the Procedure Rules. She provided an undated Review document which addressed [NAME] and the additional evidence. It ran to 26 paragraphs. The respondent maintained her decision.

6. In response to the Review, the appellant’s solicitors provided a supplementary bundle of 72 pages. That bundle contained background material only.

7. So it was that the appeal came before the judge, sitting in Birmingham, on 17 March 2025. The appellant was represented by the same member of the [NAME] who had settled the skeleton argument. The respondent was represented by a Presenting Officer. The judge heard oral evidence from the first appellant and submissions from the representatives before reserving his decision. He issued his reserved decision, dismissing the appeal on all grounds, on 2 April 2025.

8. The judge did not accept that the first appellant had given a truthful account of his difficulties with the [NAME]. Nor did he accept that the appellant was now wanted by the police on blasphemy charges. He was prepared to accept that the appellant was a religious leader but not the remainder of his account. The judge gave extensive reasons for those findings at [20]-[54]. The judge found the claim to be materially lacking in detail, internally inconsistent, implausible, and unsupported by documentary evidence which could readily have been provided.

9. The judge examined the documentary evidence provided by the appellant alongside [NAME]. He did not consider the police bulletin to be a reliable 2

Appeal Number: UI-2025-002730, UI-2025-002372 & UI-2025-002373 document. It was copied at an angle. The word “General” in the heading was misspelt. Information including the date was missing from the document. It was inconsistent with the appellant’s account. The judge considered the newspaper articles. He accepted that they had been published but that did not make their content true. The articles had appeared shortly after the refusal of his asylum claim, which cast doubt on their reliability. The Appeal to the Upper Tribunal 10. The appellant’s solicitors sought permission to appeal. The grounds were settled by the same member of the [NAME] who had represented the appellant throughout. There were two grounds: (i) that the judge had failed to provide sufficient reasoning for the credibility findings; and (ii) that the judge had acted in a procedurally unfair manner by failing to bring his concerns about the documentary evidence to the attention of the appellant at the hearing. Judge Swaney considered only the second of those grounds to be arguable, and granted permission to appeal on that basis only.

11. The appellant’s solicitors ceased to act for him during the course of the appeal to the Upper Tribunal. The date on which they did so is not clear to me. It first came to the tribunal’s attention when the appellant wrote to the tribunal to seek an adjournment on 2 July 2025. That application was refused by an Upper Tribunal Lawyer on 10 July 2025 and was not renewed before me. The first appellant was content to represent himself, and did not repeat the unmeritorious suggestion that he was unable to represent the interests of his children.

12. The tribunal’s staff had prepared a bundle of 777 pages for the hearing before me. That is standard practice where a party is unrepresented. The bundle contained the papers relating to the appeal to the Upper Tribunal in addition to everything which had been before the judge in the [NAME].

13. The appellant confirmed at the start of the day that he had received a copy of that bundle, which he had electronically on his telephone. I was uneasy about him proceeding with the case with such a large bundle on such a small screen. Ms [NAME] helpfully indicated that she had a paper copy of the bundle, although it was not bound together in any way. I asked my clerk to holepunch and bind the bundle and provide it to the appellant. The appellant had that bundle for the morning and much of the afternoon whilst I dealt with the other (detained) matter on the list. On resuming the appeal after lunch, the appellant confirmed that he had received the bundle and was prepared to make his submissions.

14. I noted that the appellant had filed additional materials in advance of the hearing. I provided Ms [NAME] with a copy of his written submissions. He provided her with a copy of his medical records. As I explained to him, however, the decision granting permission to appeal was only in respect of the judge’s treatment of the additional documentary evidence. He understood that, and he confined his submissions accordingly.

15. The appellant submitted, in summary, that the judge had overlooked the police report and the newspaper articles, or had given insufficient reasons for rejecting those documents. He stated that he had not been asked any questions about the documents and had not had an opportunity to answer the concerns expressed by the judge. 3

Appeal Number: UI-2025-002730, UI-2025-002372 & UI-2025-002373 16. For the respondent, Ms [RESPONDENT] drew attention to the chronology. The documents to which ground two related had been submitted with [NAME]. The respondent had examined those documents with care and had raised various concerns about them in the Review. The judge was not required to take the appellant through those concerns; he had been on notice of the points and his solicitors had not attempted to submit any further evidence, or an explanation, in the supplementary bundle.

17. The appellant responded, stating that his solicitors had not had conduct of the matter throughout the [NAME] proceedings. There had been some difficulties with funding and the barrister was not really familiar with the case, having been instructed at the last minute. He had not really had notice of the respondent’s concerns about the documents and the proceedings had been unfair as a result.

18. I reserved my decision at the end of the submissions. Analysis 19. Insofar as the appellant suggested that the judge overlooked the police notice and the newspaper articles from Nigeria, that is simply wrong. As I have endeavoured to explain above, the judge turned his mind to those documents and gave various reasons for finding them to be unreliable, in accordance with [NAME] * [2002] UKIAT 439, which he cited at [44].

20. The real question, and it is the question which caused Judge Swaney to grant permission to appeal, is whether the judge acted in a procedurally unfair manner by failing to raise his concerns about the documents from Nigeria with the appellant, or by inviting the respondent’s representative to put any concerns to him in cross-examination.

21. The grounds of appeal cite what was said in Browne v Dunn [1893] 6 R 67, HL, about the need to give a witness whose credibility is to be impeached an opportunity to address the matter which is said to justify such a conclusion. Lest it be thought that those dicta are of somehow of lesser significance nowadays, I recall that they were cited extensively in Lord [NAME] judgment in [NAME] v Griffiths [2023] UKSC 48; [2025] AC 374. The Supreme Court in that case held in that case that was a long-standing general rule in civil cases that a party was required to challenge by cross-examination the evidence of any lay or expert witness of the opposing party on a material point if he or she wished to submit to the court that the evidence should not be accepted.

22. In my judgment, however, there was no breach of that rule in this case for the following reasons.

23. Firstly, it is clear that the appellant was cross-examined at some length and that he was under no illusions that his credibility was in issue. His account had been disbelieved in the Refusal Letter and the Review, and he understood that that challenge remained the mainstay of the respondent’s case before the [NAME].

24. Secondly, the judge’s concerns about the documents from Nigeria were concerns about those documents. He had concerns about the appearance and timing of the documents and the obvious spelling error on the wanted poster (in which “General” was spelt “Geneal”). These were not concerns about the veracity of the appellant’s testimony which had to be put to him pursuant to the rule in [NAME] v [NAME]. That principle does not require that any factor which 4

Appeal Number: UI-2025-002730, UI-2025-002372 & UI-2025-002373 might be held against a party’s case is raised with them in the witness box; it requires that factors which might undermine their own testimony be raised with them so that they have an opportunity to deal with it. If an individual has given inconsistent evidence, for example, then the rule requires (generally) that they be alerted to the problem. It does not require that they be given an opportunity to address during their oral evidence anything which might be said in support of their opponent’s case.

25. Thirdly, and as Ms [APPELLANT] noted in her concise and helpful submissions, the appellant was clearly on notice of the respondent’s concerns about these documents because they were spelt out in the respondent’s Review, at [13]-[14] in particular. The respondent identified in the first of those paragraphs that there was a spelling mistake in the wanted notice. She identified in the second of those paragraphs that the timing of the newspaper articles would cause her to submit that they were unreliable. The appellant had an opportunity to address those concerns, whether by adducing further written evidence or by making a further statement. He did not do so, and the supplementary evidence bundle contained only two pieces of background material.

26. The appellant suggested for the first time before me that his solicitors had represented him poorly and that his barrister was not familiar with his case. No such allegation has ever been put to the appellant’s representatives, however, and the papers tell a different story. [NAME] was competently prepared, as were the papers. There is no reason to think that the appellant was poorly served, whether by his solicitors or by the barrister who had conduct of his case from [NAME] to the hearing before the [NAME] and the lodging of grounds of appeal against the judge’s decision.

27. For all of these reasons, I do not accept that the judge acted in a procedurally unfair manner in taking these points against the documents and in finding them unreliable. The appellant knew that his case was contested factually from first to last, the points taken against the documents were not taken against him as a witness, and he was in any event squarely on notice of those points from the Review.

28. In my judgment, therefore, ground two discloses no legal error in the decision of the [NAME]. Since the appellant does not have permission to advance any other argument before the Upper Tribunal, his appeal is hereby dismissed. Notice of Decision The appeal to the Upper Tribunal is dismissed. The First-tier Tribunal’s decision to dismiss the appeal shall stand. [NAME] Judge of the Upper Tribunal Immigration and Asylum Chamber 4 August 2025 5

Appeal Number: UI-2025-002730, UI-2025-002372 & UI-2025-002373 6