Some appeals should still be listed for a hearing even where an unrepresented appellant has not asked for one

In a newly reported decision, the Upper Tribunal has reminded judges that a hearing should be held whenever credibility is disputed on any material issue or fact and that it will only be a rare case where it is “appropriate and fair” to decide such a case on the papers. The tribunal said that it is “difficult to envisage” a case involving an appellant in person cases where that approach would be appropriate. The case is Ghira (R 25, AIP, Fairness) Romania [2025] UKUT 350 (IAC).

The headnote states:

1. Where the parties consent to, or do not object to, the matter being decided without a hearing, i.e. proceeding ‘on the papers’, and the exception in rule 25(1)(a) of the FTT Procedure Rules applies, there remains a judicial decision whether to proceed without a hearing.  The FTT must still consider whether the appeal can be disposed of fairly and justly without a hearing, in accordance with the overriding objective and common law fairness.

2. When making such a decision, the FTT reformed appeal process together with the relevant Practice Direction dated 1 November 2024, fairness principles and the guidance relevant to appellants in person (‘AIP’), require the judge to:

(i) Consider the material contents of the case record, any directions given and the responses thereto including any legal officer’s and judge’s case notes.

(ii) Identify from the evidence and the respondent’s review, the principal controversial issues (‘PCIs’) to be resolved in order to decide the appeal.

(iii) Address whether it is appropriate in the circumstances to decide the appeal without a hearing by determining whether the case can be dealt with fairly and justly in that manner, in the light of the available evidence and the PCIs.  This is likely to be a straightforward assessment, capable of concise (and often highly concise) reasoning. 

(iv) In cases involving AIPs, the judge should, in particular:

a. consider whether the AIP’s ‘appeal reasons’ and uploaded documents address each of the PCIs;

b. if not, consider whether the AIP has been given an opportunity to clarify their case and evidence in relation to the PCIs, through ‘clarifying questions’ or otherwise;

c. consider whether it is necessary in accordance with the overriding objective to give directions or order an oral hearing be listed, which would afford the AIP that opportunity.

d. In any event, follow the guidance in SSGA (Disposal without considering merits; R25) Iraq [2023] UKUT 12 (IAC), which states that a hearing should be held whenever credibility is disputed on any material issue or fact, unless satisfied that it is one of those rare cases in which it would be appropriate and fair to do so (in which case reasons for that conclusion should be given in the decision).  It is difficult to envisage AIP cases where this approach would be appropriate.

While the tribunal would no doubt prefer for there to be more appeal decisions made on the papers, it will rarely be in an appellant’s best interests to request that their appeal decision is made on the papers without a hearing. Where they nevertheless make such a request, this case is a good reminder to the tribunal that the request should not automatically be agreed to.