Personal Immigration

Adjournments and the right to a fair hearing

In the case of Nwaigwe (adjournment: fairness) [2014] UKUT 418 (IAC) the Upper Tribunal stated that in most cases, the main question to be determined in an application for an adjournment is whether the refusal would deprive the appellant of a fair hearing. The question for the Upper Tribunal on appeal is not whether the First-tier Tribunal Judge acted reasonably, but whether there was in fact a deprivation of the affected party's right to a fair hearing. The official headnote reads:

"If a Tribunal refuses to accede to an adjournment request, such decision could, in principle, be erroneous in law in several respects: these include a failure to take into account all material considerations; permitting immaterial considerations to intrude; denying the party concerned a fair hearing; failing to apply the correct test; and acting irrationally. In practice, in most cases the question will be whether the refusal deprived the affected party of his right to a fair hearing. Where an adjournment refusal is challenged on fairness grounds, it is important to recognise that the question for the Upper Tribunal is not whether the FtT 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? See SH (Afghanistan) v Secretary of State for the Home Department [2011] EWCA Civ 1284".

The appellant's solicitors requested a short adjournment on the grounds that the appellant was ill, stating that they had been unable to obtain evidence from the doctor or hospital mainly due to legal restraints under the Data Protection Act. The First-tier Tribunal judge refused to adjourn the case and the appeal was dismissed. The appellant sought permission to appeal with a note saying that he had recently been diagnosed as diabetic and had been struggling with the medication.

Permission was granted and The Hon. Mr Justice McCloskey, President of the Upper Tribunal, found that the First-tier Tribunal Judge had erred in law by failing to adjourn. The error consisted of the Tribunal considering the "good reason" limb of rule 21 of the Procedure Rules, but not whether the appeal could be 'justly determined'. The Judge, however, went on to find that this error of law was not material as the sole question for the First-tier Tribunal was whether, based on an assessment of the documentary evidence, the Secretary of State's decision was sustainable. The appeal was therefore dismissed.

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