raising an entirely new issue in a determination for the first time is unfair – Free Movement

It is well established that the requirements of procedural fairness will very often require that a person who may be adversely affected by a decision is given an opportunity to make representations before the decision is taken with a view to producing a favourable result. There is a duty to give fair notice of the concerns which a decision maker has and to give a fair opportunity to respond to those concerns.

In Abdi & Ors v Entry Clearance Officer [2023] EWCA Civ 1455 the Court of Appeal considers these principles in the context of a First-tier Tribunal appeal from the dependent family members of an EEA national.

The issues in dispute

The appellants live in Kenya. They needed to show that they were dependent on their older brother, Ashkir Elmi Abdi, who is a Dutch national living in the UK. Money transfer receipts were sent with their application as evidence of dependency.

The Home Office refused the applications as the transfers were sporadic and there was insufficient evidence of the family’s income and expenditure. This was necessary in order to determine whether they needed the money from Ashkir to meet their essential living needs.  The appellant’s appealed. There was no Home Office Presenting Officer at the appeal hearing.

The First-tier Tribunal Judge dismissed the appeal as they were not satisfied that Ashkir was the source of the money sent to the appellants. The net profit disclosed on his tax return was only slightly higher than the total amount sent. As such, the judge was not satisfied that the money had actually come from him. This was an entirely new issue. It was not raised by the Home Office in the refusal letter or by the judge at the hearing.

Procedural unfairness

The court provides a helpful review of the case law on procedural unfairness in the context of tribunal hearings at paragraphs 28 to 33 of the judgment. Ultimately, it all depends on the facts and circumstances:

“…the tribunal is entitled to reject evidence notwithstanding that the evidence has not been challenged before it. Fairness may, however, require it to disclose its concerns about the evidence so as to afford the parties an opportunity to address them… There is, on the other hand no general obligation on the tribunal to give notice to the parties during the hearing of all the matters on which it may rely in reaching its decision… Where an applicant can generally be expected to be aware that the tribunal will have to assess their credibility, there will generally be no unfairness in a tribunal proceeding without drawing attention to a point which the applicant could reasonably expect to be plainly relevant to that assessment.” [29]

The Upper Tribunal recently considered the new appeal procedure and reminded parties of the importance of identifying the issues in dispute (see Free Movement write up here). The new appeal procedure is designed to identify the controversial issues between the parties in advance of the hearing. A party that fails to identify an issue before the First-tier Tribunal is unlikely to be able to rely on this issue after the hearing (e.g. in an appeal to the Upper Tribunal). The same is surely true of a First-tier Tribunal judge writing a determination. If, by the time the hearing has concluded, an issue has not been identified as controversial or in dispute, the judge should not take it upon themselves to dispute it.

However, this can be difficult to apply in practice, particularly when it comes to general credibility:  

“Where much depends on the credibility of a party which has made several inconsistent statements, that party has a forensic problem as to whether to confront them or focus attention elsewhere. Fairness may in some such circumstances require the inconsistencies to be put to the witness but that will not usually be the case. Usually the tribunal can remain silent, especially if the party is represented, and see how the case unfolds.” [30]

It is often unclear when a point needs to be put to a witness and when it does not. This is particularly true when, despite the new appeal procedure, the issues in dispute between the parties have not been clearly defined and narrowed during the pre-hearing procedure.

Was it an obvious point?

A huge amount turns on whether the point is an obvious one which the appellant ought to have anticipated. Where something has not been raised in the refusal letter, Respondent’s Review, or at the hearing (by either the Home Office Presenting Officer or the judge), it may seem a bit harsh to declare that it was actually perfectly obvious all along that it was an issue that needed to be addressed. However, where the appellant’s general credibility has been called into question, it is often regarded as “obvious” that inconsistencies, lack of detail, or seemingly implausible elements of the claim need to be addressed, even when they are not specifically drawn to the appellant’s attention by the Home Office or judge.

However, in Abdi & Ors the general credibility of the sponsor, Ashkir, had not previously been questioned. Lord Justice Popplewell had:

“…little hesitation in concluding that the failure by the FtT Judge to give the appellants and Ashkir an opportunity to address the point on which she decided the case was unfair. The Refusal Letters had not challenged that the payments which Ashkir said he had made to Ubah had been made by him. They were supported by remittance receipts with Ashkir’s name and personal details on them. Rather, two points had been made in the Refusal Letters, one being that the number of payments was “sporadic” and the other being a lack of information about the recipient’s financial circumstances. Neither of those raised any question about the credibility of Ashkir. The matter requiring to be addressed, so far as his involvement was concerned, was simply the extent of the payments made by him… there was no reason to anticipate an issue as to whether Ashkir had made them.” [34]

Similarly, there was no reason to anticipate a focus on how Ashkir had been able to afford to remit the money. As such, the appeal was allowed and remitted to the First-tier Tribunal to be decided afresh.

Although good news for the appellants in this case, Lord Justice Popplewell was clear that the decision was “reached very much on the facts of this particular case” and would not have a widespread effect on how the tribunal deals with appeals more generally. The case nonetheless provides a helpful summary of the legal principles which may be of use to practitioners seeking to rely on procedural unfairness as a ground of appeal.  

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