The Upper Tribunal has addressed the Secretary of State’s failure to comply with court directions and due process obligations in the First-tier Tribunal. The court considered the consequences of disposing of a case because of this failure, without considering its merits. The case is SSGA (Disposal without considering merits; R25) Iraq [2023] UKUT 00012 (IAC).

SSGA claimed asylum upon arrival in the UK in 2009. His initial claim was refused a month after his arrival. The refusal letter stated there was insufficient evidence to support his claims, that he did not provide a credible account, and that he fabricated his story. In 2020, the SSGA made further submissions for protection based on the situation in Iraq. The Home Secretary refused his application, finding that the general security or humanitarian situation did not preclude SSGA from returning to Iraq.

Leading up to the First-tier Tribunal hearing on these questions, the Secretary of State missed four deadlines to submit evidence before the hearing in the span of four months. After repeated noncompliance, the Secretary of State was required to attend a case management hearing to explain her failure to comply. She failed to send a representative. In her absence, the judge set a new and final deadline. He stated that missing this deadline would result in an assumption that the Secretary of State did not oppose the appeal. The Secretary of State missed the deadline and the judge subsequently decided in favour of SSGA.

Appealing this decision, the Secretary of State argued the judge made his decision solely on procedural matters without providing enough analysis or reasoning for his decision on the merits. The Upper Tribunal agreed and remitted the case to the First-tier Tribunal, concluding that, “there is simply no basis upon which any Judge of the FtT (IAC) can dispose of an appeal without considering its merits”.

SSGA raised asylum, humanitarian protection and human rights grounds in his appeal. None of these were addressed by the First-tier Tribunal and the judgment was therefore in breach of section 86 of the Immigration and Nationality Act. In failing to make any findings of fact, the judge did not show what ground he intended the appeal to succeed upon. As a consequence, the decision did not indicate what type of leave SSGA was to receive.

Non-compliance with directions on behalf of the Secretary of State cannot justify a “judge deeming that the party has abandoned completely his or her case in the appeal”. This would be too far-reaching. Instead, the withdrawal of a decision to refuse asylum requires a positive act on the part of the Home Office in the form of a statement in writing that the decision has been withdrawn. The judgment provides a reminder to practitioners of the guidance that applies when consideration is being given to whether or not an appeal should be disposed of without a hearing, including Rule 25(1) of the First-tier Tribunal Rules, and exceptions to that rule.

The Upper Tribunal also said that:

“The Secretary of State’s repeated failure to comply with the directions given in the First-tier Tribunal, compounded by her failure to be represented at the case management review hearing, is lamentable. The explanation given is that the failure to comply with the directions was due to staff
shortages as a result of the Covid-19 pandemic and that steps have been taken to address this issue. Whilst we are mindful that the pandemic has given rise to many difficulties, including difficulties in maintaining adequate staffing levels, for public and private institutions up and down the country including no doubt the Home Office, the reality is that directions were issued requiring compliance by the Secretary of State on five separate occasions in the instant case. Such a repeated failure to comply with directions in the instant case is not satisfactorily explained by the explanation advanced (belatedly) on the Secretary of State’s behalf.”

Notwithstanding the First-tier Tribunal Judge’s error in not considering the merits of SSGA’s case, procedural defects loomed inappropriately over the case, costing everyone involved time, money and anguish during a period of significant backlogs.