Ferdous Alam Khan v Secretary of State for the Home Department

A tribunal guidance note on children, vulnerable adults and sensitive witnesses does not create free-standing legal obligations. Failure to follow a recommended step is not, by itself, an error of law or sufficient to invalidate a decision.

The question is whether the proceedings were procedurally fair and whether the individual had a proper opportunity to participate, give evidence and have it fairly assessed. A tribunal should address vulnerability where there is a proper evidential basis, but it need not undertake intrusive or distracting questioning without good reason. On appeal, the challenger must identify material unfairness or a failure properly to understand or assess the evidence.

The appellant, a Bangladeshi national, appealed against the refusal of indefinite leave to remain. He relied on very significant obstacles to reintegration under paragraph 276ADE(1)(vi) of the Immigration Rules and on Article 8 of the Convention. The First-tier Tribunal dismissed the appeal after considering his depression, medical evidence, private and family life, and the conditions of return.

The Upper Tribunal dismissed a further appeal on 30 October 2024. It accepted that the appellant was a vulnerable witness, but held that the absence of an express reference to the Guidance Note did not render the decision unsafe, procedurally unfair or unlawful. The central issue before the Court of Appeal was whether failure expressly to follow and record compliance with the Guidance Note was, without more, an error of law.

1. Appeal dismissed. The Guidance Note is guidance intended to assist fair and effective participation in proceedings. It does not impose free-standing legal obligations on a tribunal. Failure to take a step mentioned in it does not necessarily establish an error of law or make the decision legally flawed (paras [37]–[41], [48]).
2. The operative question is whether the tribunal dealt with the appeal fairly and justly. This requires consideration of whether the individual had a proper opportunity to participate and give evidence, and whether the evidence was properly understood and fairly assessed. The Guidance Note must not be treated as a checklist divorced from the actual conduct and substance of the proceedings (paras [37]–[41], [47]–[48]).
3. The Guidance Note recognises that the consequences of vulnerability differ according to the degree to which the individual is affected. A tribunal should identify and address vulnerability where there is a proper basis in the evidence or in the person’s behaviour at the hearing. It is not required to conduct potentially intrusive or distracting questioning without good reason (para [12]).
4. The Court of Appeal explained AM (Afghanistan) [2017] EWCA Civ 1123, reported at [2018] 4 WLR 78, as a case in which failures to address a child’s vulnerability and learning difficulties caused fundamental procedural unfairness. Its statement that failure to follow the guidance would most likely be a material error of law was read as addressing the circumstances in which failure to follow guidance results in unfairness, not as establishing an automatic legal consequence (paras [42]–[48]).
5. On the facts, the appellant was represented by leading counsel, gave written and oral evidence, relied on expert medical reports, and did not identify any necessary adjustment that had been refused. The First-tier Tribunal considered his depression and its relevance to access to treatment and reintegration, and there was no proper basis to infer that his evidence had been misunderstood or impaired. The principle that a decision is lawful where procedural fairness has been achieved in substance was supported by R (Singaram) [2025] EWCA Civ 1375 (paras [49]–[53]).

• Court of Appeal (Civil Division): Appeal dismissed on 20 February 2026.
• Upper Tribunal (Immigration and Asylum Chamber): Appeal dismissed on 30 October 2024.
• First-tier Tribunal (Immigration and Asylum Chamber): Appeal dismissed on 5 March 2024 against the refusal of indefinite leave to remain.