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Nwaigwe (adjournment: fairness) [2014] UKUT 00418 (IAC)


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In the case of Nwaigwe (adjournment: fairness) [2014] UKUT 418 (IAC) the unnamed First-tier Tribunal judge had refused to adjourn a case. This was despite a letter from the appellant’s solicitors requesting a short adjournment on the grounds that the appellant was ill and stating that they had been unable to obtain evidence from the doctor or hospital “mainly to legal restraint under the Data Protection Act”. The appeal was dismissed but the appellant sought permission to appeal with a note saying that he had recently been diagnosed as diabetic and had been struggling with the medication.

Permission was granted and the President finds that the earlier judge has erred in law in failing to adjourn. However, he goes on to dismiss the appeal as the error was not material and there was no unfairness to the appellant, who could not possibly have shown that he met the relevant requirements and who in any event had not engaged any further with the appeal process.

Official headnote:

If a Tribunal refuses to accede to an adjournment request, such decision could, in principle, be erroneous in law in several respects: these include a failure to take into account all material considerations; permitting immaterial considerations to intrude; denying the party concerned a fair hearing; failing to apply the correct test; and acting irrationally.  In practice, in most cases the question will be whether the refusal deprived the affected party of his right to a fair hearing.  Where an adjournment refusal is challenged on fairness grounds, it is important to recognise that the question for the Upper Tribunal is not whether the FtT acted reasonably.  Rather, the test to be applied is that of fairness:  was there any deprivation of the affected party’s right to a fair hearing? See SH (Afghanistan) v Secretary of State for the Home Department [2011] EWCA Civ 1284.

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Colin Yeo

Colin Yeo

Immigration and asylum barrister, blogger, writer and consultant at Garden Court Chambers in London and founder of the Free Movement immigration law website.


2 Responses

  1. I think this is a very welcome decision, informed as it is by the recognition of a fundamental common law right, namely the right of every litigant to a fair hearing. It is also worth flagging up the tenor of the President’s reasoning, which is to encourage Judges to step back from the day to day pressures and ask the central question: does fairness require an adjournment?

    ” 8…Regrettably, in the real and imperfect world of contemporary litigation, the question of adjourning a case not infrequently arises on the date of hearing, at the doors of the court. I am conscious, of course, that in the typical case the Judge will have invested much time and effort in preparation, is understandably anxious to complete the day’s list of cases for hearing and may well feel frustrated by the (usually) unexpected advent of an adjournment request. Both the FtT and the Upper Tribunal have demanding workloads. Parties and stakeholders have expectations, typically elevated and sometimes unrealistic, relating to the throughput and output of cases in the system. In the present era, the spotlight on the judiciary is more acute than ever before. Moreover, Tribunals must consistently give effect to the overriding objective. Notwithstanding, sensations of frustration and inconvenience, no matter how legitimate, must always yield to the parties’ right to a fair hearing. In determining applications for adjournments, Judges will also be guided by focussing on the overarching criterion enshrined in the overriding objective, which is that of fairness.”

    I think it is fair to say that very often adjournment requests (certainly written ones) are not dealt with in this spirit and, used in appropriate cases, Nwaigwe will provide very useful authority to support an application.