Arshad Bano v The Secretary of State for the Home Department

Procedural fairness requires fairness to both parties. It does not require a tribunal to favour an appellant by excluding responsive evidence or granting an unjustified lengthy adjournment.

A representative’s unjustified withdrawal does not automatically require an adjournment. The tribunal must assess whether the unrepresented appellant can still advance the case fairly. Save where there has been no proper judicial consideration at all, an appellant alleging procedural unfairness must ordinarily show that the alleged defect may have caused prejudice by preventing presentation of a better case.

The Secretary of State refused the appellant leave to remain on human-rights grounds. The appellant appealed to the First-tier Tribunal, which dismissed the appeal after admitting the respondent’s late-responsive evidence concerning an earlier immigration application and appeal.

The appellant’s representative rejected an offer of three hours to take instructions, sought a 40-day adjournment and, when that was refused, withdrew from the hearing. The First-tier Tribunal continued with the appellant unrepresented.

The appellant appealed to the Upper Tribunal, alleging that refusal of the adjournment and continuation of the hearing after withdrawal of her representative had denied her a fair hearing.

1. Appeal dismissed. The First-tier Tribunal had made no procedural error, and its decision was to stand.

2. The respondent’s evidence was a proper response to the appellant’s late evidence. It concerned the appellant’s own earlier application and proceedings, of which she and her family were aware. It would have been untenable to prevent the respondent from relying on public records merely because the appellant had served her evidence late.

3. The offer of a three-hour adjournment was fair. The issues raised by the earlier documents and the questions for the appellant and her witnesses were readily identifiable. There was no sound basis for insisting upon a 40-day adjournment, nor evidence that the First-tier Tribunal would have refused a further, properly justified application after the three hours had elapsed.

4. A tribunal should not permit an unjustified withdrawal by representatives to force its hand. It must nevertheless ensure a fair hearing. Applying the principle discussed in Pine v Law Society [2001] EWCA Civ 1574, the relevant question was whether absence of representation made it practically impossible for the appellant to advance her case or made the proceedings obviously unfair. It did not. The appellant knew the relevant circumstances, had family members and witnesses present, did not seek an adjournment after the withdrawal, and her daughter made submissions.

5. Further, even if there had been an impropriety, it caused no prejudice. The appellant neither sought to adduce further evidence nor identified what she or her witnesses could have said to resolve the material contradictions between her current case and the earlier proceedings. The principle in HA and TD v SSHD [2010] CSIH 28 therefore supported the conclusion that any procedural defect would not vitiate the decision.

• Upper Tribunal (Immigration and Asylum Chamber): Dismissed the appellant’s appeal and upheld the First-tier Tribunal’s decision.
• First-tier Tribunal: Dismissed the appeal against the refusal of leave to remain; decision promulgated on 18 December 2018.