Sufia Begum v The Secretary of State for the Home Department

Where the Upper Tribunal finds an error of law in a First-tier Tribunal decision, the general rule is that it should retain the appeal and remake the decision. Remittal is exceptional. The Tribunal must consider whether the error deprived a party of a fair hearing or opportunity to present the case, and whether the nature or extent of necessary fact-finding makes remittal appropriate.

The loss of the ordinary two-tier decision-making process is a material consideration. Unfairness does not automatically require remittal. The Tribunal must evaluate the nature and impact of the unfairness on the decision as a whole and give cogent reasons if it retains the appeal.

The Appellant, a Bangladeshi national, appealed against refusal of her application under Appendix FM of the Immigration Rules and relied principally on Article 8 outside the Rules. The First-tier Tribunal dismissed the appeal after finding that she could care for herself and would receive support from family in Bangladesh.

Three letters relied upon at the hearing stated that relatives in Bangladesh could not support her. The First-tier Tribunal referred to one letter but its findings were inconsistent with the correspondence. The Respondent conceded an error of law. The Upper Tribunal had to decide whether to remit the appeal to the First-tier Tribunal or retain it for remaking.

1. The First-tier Tribunal’s decision was set aside for error of law. The failure to take account of the letters was both a failure to have regard to a material consideration and capable of being characterised as a material mistake of fact causing unfairness.

2. Under section 12 of the Tribunals, Courts and Enforcement Act 2007, after setting aside a decision the Upper Tribunal must either remit the case to the First-tier Tribunal or remake it. Part 3 of the Practice Direction and paragraph 7 of the Practice Statement establish remaking as the general approach.

3. The exceptions in paragraph 7.2(a) and (b) require careful evaluation. The Tribunal must consider whether the party was deprived of a fair hearing or other opportunity to put the case, and whether the nature or extent of necessary fact-finding makes remittal appropriate. The loss of the normal two-tier process is also material, as explained in AEB v Secretary of State for the Home Department [2022] EWCA Civ 1512.

4. Remittal is not automatic whenever unfairness is established. The relevant questions include the nature of the error, the extent to which it affected the decision as a whole, the value of the findings already made, and the extent of any necessary further fact-finding. Here, the error affected only the discrete issue of support available in Bangladesh. The findings concerning the Appellant’s UK circumstances, medical condition and ability to care for herself were sound and could be preserved.

5. The appeal was therefore retained in the Upper Tribunal for remaking, with the specified factual findings preserved.

• First-tier Tribunal (Immigration and Asylum Chamber): dismissed the Appellant’s appeal against refusal of her application under Appendix FM and Article 8.
• Upper Tribunal (Immigration and Asylum Chamber): found an error of law, set aside the First-tier Tribunal’s decision and directed that the appeal be re-determined in the Upper Tribunal.