Kelechi Emanuel Nwaigwe v Secretary of State for the Home Department

An adjournment application must be determined by reference to the overriding requirement of fairness. Under rule 21(2) of the Asylum and Immigration Tribunal (Procedure) Rules 2005, the tribunal must ask whether the appeal can be justly determined without an adjournment. A failure by the applicant to show good reason is relevant but is not conclusive.

On an appeal alleging unfair refusal of an adjournment, the decisive question is not whether the First-tier Tribunal acted reasonably. It is whether the refusal deprived the party of a fair hearing, applying SH (Afghanistan) v Secretary of State for the Home Department [2011] EWCA Civ 1284. An error in refusing an adjournment is immaterial where the party could not have succeeded in any event.

The Secretary of State refused the appellant's application for leave to remain as a Tier 1 (General) Migrant because his bank statements did not show the required maintenance funds throughout the relevant 90-day period.

The appellant's solicitors sought a short adjournment of the First-tier Tribunal hearing, stating that he was ill and could not provide instructions. The First-tier Tribunal refused the request, determined the matter on the papers, and dismissed the appeal on 4 April 2014.

On appeal, the Upper Tribunal considered whether the refusal of the adjournment was legally unfair and whether any error was material to the outcome.

1. Appeal dismissed. The Upper Tribunal affirmed the First-tier Tribunal's decision. Although the First-tier Tribunal erred in law, its errors were immaterial.

2. Rule 21(2) of the Asylum and Immigration Tribunal (Procedure) Rules 2005 required the First-tier Tribunal to decide whether the appeal could be justly determined without an adjournment. It was not enough to consider only whether the appellant had shown good reason under rule 21(1). The common-law right to a fair hearing was the dominant consideration, and the procedural rules neither modified nor diluted it.

3. The correct appellate test was fairness, not reasonableness. Applying SH (Afghanistan) v Secretary of State for the Home Department [2011] EWCA Civ 1284, the issue was whether refusing the adjournment deprived the appellant of a fair hearing. Tribunals must give primacy to fairness despite legitimate case-management pressures.

4. The First-tier Tribunal had failed to apply that test. It had also mistakenly focused on previous earnings, whereas the refusal decision concerned maintenance funds. However, the bank statements before the Secretary of State conclusively showed that the required level of funds had not been maintained. Those statements were admissible because they formed part of the material considered when the decision was made: see Nasim and Others [2013] UKUT 610 (IAC).

5. Accordingly, the appellant could not have succeeded even if the hearing had been adjourned. The procedural error therefore caused no unfairness and did not vitiate the First-tier Tribunal's decision. The Upper Tribunal also proceeded in the appellant's absence under rule 38 of the Tribunal Procedure (Upper Tribunal) Rules 2008, since he had been notified and his attendance could not affect the result.

• Upper Tribunal (Immigration and Asylum Chamber): Appeal dismissed. The Tribunal found errors in the First-tier Tribunal's approach to the adjournment request, but held them immaterial and affirmed its decision.
• First-tier Tribunal: On 4 April 2014, the appeal was dismissed on the papers after the appellant's adjournment request was refused.
• Secretary of State: On 29 May 2013, the application for leave to remain as a Tier 1 (General) Migrant was refused for failure to meet the maintenance-funds requirement.