Heard on 09 July 2014
Summary
If the Tribunal does not grant an adjournment request, the decision is arguably wrong. This could be for failure to take into account material considerations, permitting immaterial considerations to interfere, denying the party concerned a fair hearing, failing to apply the correct test.
Most times the question will be whether the refusal denies a person of the right to a fair hearing.
Where this is challenged on fairness grounds, the question for the Upper Tribunal is not whether the First Tier Tribunal acted reasonably. The test is one of fairness, was the person denied the right to a fair hearing ?
Facts of the case
This involved refusal of a Tier 1 (General) appeal, where neither the appellant or the Home Office were in attendance.
The appellant’s solicitors wrote in advance of the hearing asking for an adjournment stating the appellant was ill.
The Judge decided that for lack of detail he had failed to show good reason why he could not attend.
The appeal was dismissed as the Home Office’s decision was not challenged.
Permission to appeal was granted on the basis that the appellant had through his Solicitor notified the court he was unable to attend through illness. He did not attend the hearing.
Point of law established by the case
The key issue from the Procedure Rules is whether an appeal can be ‘justly determined’ in the applying party’s absence.
The Judge decided that because of the nature of the refusal, whereby the appellant could not meet the maintenance part of the Immigration rules in any way, based on the documents provided at the date of decision, the appeal was dismissed.
What does this mean for you and your appeal?
If you need to make an adjournment request of your hearing for any reason, the Judge will look at the reasons you are giving, but principally at whether you would be denied a fair hearing if the case proceeded on the day.
If your case is likely to fail in any event, you may not get your adjournment.
You should always seek advice when your case is before the Immigration Tribunal.
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