Ferdous Alam Khan v Secretary of State for the Home Department

LORD JUSTICE LEWIS: INTRODUCTION

1. This is an appeal against a decision of the Upper Tribunal (Immigration and Asylum Chamber) given on 30 October 2024. By that decision, the Upper Tribunal dismissed an appeal by the appellant, Ferdous Alam Khan, against a decision of the First-tier Tribunal (Immigration and Asylum Chamber) which had, in turn, dismissed his appeal against the decision of the respondent refusing him leave to remain in the United Kingdom. The appellant is a national of Bangladesh. He had claimed that there would be very significant obstacles to his re-integration into Bangladesh or, alternatively, that removal from the United Kingdom would involve a breach of his right to respect for his private and family life, contrary to Article 8 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”).

2. The appeal concerns the “ Joint Presidential Guidance Note No 2 of 2010: Child, vulnerable adult and sensitive appellant guidance ” (“the Guidance Note”) which applies to proceedings in the First-tier Tribunal. The appellant has permission to advance one ground of appeal, namely: “1. The Upper Tribunal erred in law by holding that the First-tier Tribunal’s decision contained no error of law. Contrary to the Upper Tribunal’s conclusion: (1) The First-tier Tribunal had erred in law in failing to follow the [Guidance Note] and making due allowances as to the appellant’s vulnerability.” THE LEGAL FRAMEWORK The Statutory Provisions

3. Section 3 of the Tribunals, Courts and Enforcement Act 2007 (“ the Act ”) establishes the First-tier Tribunal and the Upper Tribunal. Section 7 of the Act provides for the Lord Chancellor, with the concurrence of the Senior President of Tribunals, to make provision for organising the First-tier Tribunals and the Upper Tribunal into chambers. Section 7(2) provides for a person to be appointed as a president of each chamber. Section 23 deals with the powers of the Senior President of Tribunals and Chamber Presidents to give directions. It provides, so far as material to this case, that: “ 23 Practice Directions (1) The Senior President of Tribunals may give directions– (a) as to the practice and procedure of the First-tier Tribunal; (b) as to the practice and procedure of the Upper Tribunal. (2) A Chamber President may give directions as to the practice and procedure of the chamber over which he presides. ….. (5) Directions under subsection (2) may not be given without the approval of– (a) the Senior President of Tribunals, and (b) the Lord Chancellor. (6) Subsections (4) and (5)(b) do not apply to directions to the extent that they consist of guidance about any of the following– (a) the application or interpretation of the law; (b) the making of decisions by members of the First-tier Tribunal or Upper Tribunal. …..”

4. Schedule 4 to the Act makes further provision about chambers and chambers presidents. Paragraph 7 of that schedule deals with arrangements for issuing guidance and provides that: “7. Guidance The Chamber President of a chamber of the First-tier Tribunal or the Upper Tribunal is to make arrangements for the issuing of guidance on changes in the law and practice as they relate to the functions allocated to the chamber.” The Senior President’s Practice Direction

5. The then Senior President of Tribunals, with the agreement of the Loird Chancellor, made a Practice Direction on 30 October 2008 for the First-tier Tribunal and the Upper Tribunal on child, vulnerable adult and sensitive witnesses. A child was defined as a person under 18, a “vulnerable adult” as having the same meaning as in the Safeguarding Vulnerable Groups Act 2006 (“ the 2006 Act ”) and a sensitive witness as meaning “an adult witness where the quality of evidence of the witness is likely to be diminished by reason of fear or distress on the part of the witness in connection with giving evidence in the case”.

6. The use of the definition of a vulnerable adult in the 2006 Act appears to bring a wide range of persons within the scope of vulnerable witnesses for the purposes of the Practice Direction (and also the Guidance Note) even if the circumstances making such a person vulnerable would not, in fact, affect their ability to give evidence or participate in proceedings. By way of example, all persons in residential accommodation, sheltered housing, receiving domiciliary care, or detained in lawful custody are within the definition of vulnerable adults as are persons in receipt of any form of health care. Health care is defined as including treatment, therapy or palliative care of any description. Read literally, the definition would appear to include many people who have prescriptions for medication for conditions which would not affect their ability to give evidence.

7. Paragraphs 2 to 5 of the Practice Direction deals with the circumstances in which a First-tier Tribunal or the Upper Tribunal may refuse to issue a witness summons requiring a vulnerable witness to attend. It also deals with the (limited) circumstances in which a tribunal may refuse to hear evidence from a party, or other witness, who wishes to give evidence.

8. Paragraphs 6 and 7 of the Practice Directions deals with the manner in which evidence is given. Paragraph 6 provides that the tribunal “must consider how to facilitate the giving of any evidence by a child, vulnerable adult or sensitive witness”. It suggests that it may be appropriate for a tribunal to direct that evidence be given by telephone, video link or other means, or to direct that a person be appointed to facilitate the giving of evidence by a child, vulnerable adult or sensitive witness. The Guidance Note

9. The then President of the Upper Tribunal (Immigration and Asylum Chamber) and the then acting president of the First-tier Tribunal (Immigration and Asylum Chamber) issued the Guidance Note. Paragraph 1 noted that the Guidance Note had been developed following the issuing of the Practice Direction on children, vulnerable adults and sensitive witnesses. It said that, while it dealt specifically with these groups “it is also a reminder of good judgecraft”.

10. Paragraph 2 noted (and set out in a footnote) the definition of vulnerable adult from the version of the 2006 Act then in force. It noted that there were other circumstances in which a person might be vulnerable and which were less easy to identify, such as mental health problems, social or learning difficulties, religious beliefs, sexual orientation, ethnic and cultural background, domestic and employment circumstances and physical disability or impairment that may affect the giving of evidence. At paragraph 3 it noted that: “3.The consequences of such vulnerability differ according to the degree to which the individual is affected. It is a matter for you to determine the extent of an identified vulnerability, the effect on the qualify of the evidence and the weight to be placed on such vulnerability in assessing the evidence before you, taking into account the evidence as a whole.”

11. Paragraph 4 says that it is important, so far as it is possible, to identify issues and solutions at a hearing held before the substantive hearing of an appeal so that the substantive hearing can proceed with “minimal exposure to further trauma of witnesses or appellants”. It notes that is it important not to assume that an individual will want specific or particular arrangements made.

12. Paragraph 5 of the Guidance Note deals with procedure at a substantive hearing of the appeal where any issues relating to children, vulnerable adults or sensitive witnesses were not addressed, or adequately addressed, at an earlier hearing. Paragraph 5.1.i notes that the “primary responsibility for identifying individuals lies with the party calling them but representatives may fail to recognise vulnerability”. Pausing there, I recognise that this paragraph leaves open the possibility of a role for a tribunal in certain cases where a representative has not identified a vulnerability. There would, however, need to be some reason, or some basis in the evidence, for investigating such an issue when a legal representative has not identified a vulnerability. Tribunals are not required to conduct questioning, which may well be intrusive or unwelcome (and, indeed, serve to distract or disorientate a witness from the evidence he or she is giving) without some good reason or proper basis. Cases may arise, however, where the behaviour of a witness at the hearing, or from the evidence, causes a tribunal concern as to whether the witness is a child, vulnerable adult or a sensitive witness.

13. Paragraphs 5.1.ii to ix give guidance on procedural matters, such as arrangements at the tribunal for mobility, hearing, or space for carers; factoring in, where necessary, time for breaks; recording potential behavioural challenges or difficulties; and identifying whether expert evidence as to, for example, mental health or disability is required – particularly if there is a dispute or an issue as to the ability to participate in the hearing.

14. Paragraph 5.2 deals with children. Paragraph 5.3 deals with vulnerable and sensitive witnesses. It refers to the need to consider any request for a single gender tribunal and attendance by an individual to assist the appellant in giving evidence.

15. Paragraph 7 and onwards in the Guidance Note deals with the substantive hearing itself. Paragraphs 10.1 and 10.2 deals with procedural matters at the start of, and during, the hearing and things for the tribunal to be aware of. It deals, for example, with the need to speak clearly, to use plain English and to avoid jargon, and ensure that questions are open-ended and broken down where necessary. It deals with curtailing improper or aggressive cross-examination, being sensitive to ensuring that a witness has understood the questions, and ensuring adequate breaks. Paragraph 10.3 deals with assessing evidence. That paragraph notes, amongst other things, that some forms of disability cause impaired memory, that the order and manner in which evidence is given may be affected by mental, psychological or emotional trauma or disability, and that comprehension of questioning may have been impaired.

16. Paragraph 11 onwards deals with determinations. Paragraph 13 notes that the weight to be placed on factors of vulnerability may differ depending on the matter under appeal, the burden and standard of proof and whether the individual is a witness or an appellant. Paragraph 14 says that the tribunal should consider the evidence, allowing for possible different degrees of understanding by witnesses and the appellant compared to those who are not vulnerable. Paragraph 15 provides that: “15. The decision should record whether the Tribunal has concluded the appellant (or a witness) is a child, vulnerable or sensitive, the effect the Tribunal considered that the identified vulnerability had in assessing the evidence before it and thus whether the Tribunal was satisfied whether the appellant had established his or her case to the relevant standard of proof. In asylum appeals, weight should be given to objective indications of risk rather than necessarily to a state of mind.”

17. Annex A to the Guidance Note says, amongst other things (footnotes omitted): “ Why guidance is necessary ?”

16. Effective communication is the bedrock of the legal process; everyone involved in legal proceedings must understand and be understood or the process of law will be seriously impeded. Judges must reduce the impact of misunderstandings in communication. Unless all parties to proceedings understand the material before them and the meaning of questions asked and answers given, the process of law is at best seriously impeded and at worst thrown seriously off course.

17. All possible steps should be taken to assist a vulnerable individual to understand and participate in the proceedings and the ordinary process should, so far as necessary, be adapted to meet those ends. 18.Documents, process and procedure which fail to take into account vulnerability may compromise the quality of the evidence produced; a failure to take into account procedural requirements may result in evidence being potentially inadmissible or unreliable.” THE FACTUAL BACKGROUND The Applicant

18. The applicant is a national of Bangladesh. He entered the United Kingdom on 5 July 2009 with a valid entry clearance as a student valid until 30 June 2012. That leave was extended on a number of occasions. On 28 May 2015, that leave was curtailed. Various applications were made, and refused, for an European Economic Area (“EEA”) residence card. Applications were also made and rejected for leave to remain in the United Kingdom on the basis of the appellant’s family and private life in the United Kingdom. The Decision under appeal

19. On 30 March 2022, the appellant applied for indefinite leave to remain in the United Kingdom. That application was refused on 26 April 2023 and it is that decision which is the subject of this appeal. The decision letter recorded that the appellant did not qualify under the relevant paragraphs of the Immigration Rules. The decision letter also noted that the respondent had given consideration to the question of whether the refusal of the application, and the removal of the appellant from the United Kingdom, would involve a breach of the appellant’s right to respect for his private and family life under Article 8 of the Convention. The respondent decided that refusal of the application would not involve a breach of the appellant’s rights under Article 8 of the Convention, and that there were no other exceptional circumstances justifying the grant of leave outside the Immigration Rules. The appeal to the First-tier Tribunal

20. On 3 May 2023, the appellant appealed to the First-tier Tribunal against the decision. The grounds of appeal were simply that the “decision is unlawful under section 6 of the Human Rights Act 1998 ”. By a written skeleton argument dated 4 September 2023, and prepared on the appellant’s behalf by leading counsel experienced in the field of immigration law, the two issues arising on the appeal were said to be: (1) whether there were very significant obstacles to the appellant’s integration into Bangladesh within the meaning of paragraph 276ADE(1)(vi) of the Immigration Rules; and (2) whether, irrespective of the Immigration Rules, denial of leave to remain was a breach of Article 8 of the Convention.

21. The key points made in that written skeleton argument were that: the appellant had left Bangladesh when he was 17 years old; he had lived all his adult life in the United Kingdom; he was out of touch with Bangladeshi society; the difficulties of integration would be enhanced by the appellant’s depressed state of mind and health related issues and he would not reasonably be able to access appropriate care in Bangladesh; he had no contacts in Bangladesh and no place to live as his mother had died and he was estranged from his father and brother; the chances of obtaining work were slim; and he had a private and family life in the United Kingdom and it was not reasonable for his wife (who was an Indian national) to move to Bangladesh to live with the appellant.

22. Leading counsel submitted an amended written skeleton argument dated 16 February 2024 on behalf of the appellant. That was in materially similar terms to the earlier skeleton argument save, so far as material, that it referred to a report by a psychologist, Ms Costa, dated 13 August 2023, and a report of a psychiatrist, Dr Sultana, dated 16 March 2022.

23. The hearing before the First-tier Tribunal took place on 28 February 2024. The appellant was represented by leading counsel. The appellant, and his wife, both gave oral evidence. They adopted their written statements. There was a bundle of documents running to 673 pages.

24. The decision of the First-tier Tribunal was promulgated on 5 March 2024. The decision set out the immigration history and background. It identified the two issues in dispute, namely those identified by the appellant’s counsel and set out at paragraph 20 above. It recorded the evidence and submissions heard.

25. The decision then dealt with the question of whether there would be very significant obstacles to the appellant re-integrating into Bangladesh within the meaning of paragraph 276ADE(1)(vi) of the Immigration Rules. It set out the relevant case law.

26. The decision considered the length of time that the appellant had been in the United Kingdom and the time spent in Bangladesh (described as his youth and formative years). It noted that the appellant spoke Bengali and English. It noted that he had achieved a number of qualifications during his studies in the United Kingdom. It considered that there was no cogent evidence that it would not be possible for him to find employment. It also recorded his wife’s evidence that they could not live in India, as the appellant would suffer visa issues, issues between her husband and her family, and other issues that would arise if he went to India as he was a Muslim. It also dealt with the difficulties for the wife if she were to move to Bangladesh to live with her husband.

27. The First-tier Tribunal considered the appellant’s evidence that his health and mental well-being had deteriorated considerably since the death of his mother in 2018. It recorded the appellant’s oral evidence that he was currently taking prescribed medication, mirtazapine, for mixed anxiety and depressive disorder (which was confirmed by records from the GP) and had received counselling in the past. The decision analysed the two medical reports and the extent to which reliance could be placed on that evidence. The First-tier Tribunal concluded that: “35. I accept that the medical evidence supports that the appellant had depression. I note that the psychologist and the psychiatrist do not directly or explicitly set out any diagnosis but concur with the underlying GP records and the GP assessment of anxiety and depression arrived at mid-2021. In all the circumstances, I cannot conclude that the evidence reliably supports any clear diagnosis of severe depression. The consensus and it is what the appellant refers to in his own written statement is that his mental health circumstances relate to grief further to the bereavement of his mother in 2018.”

28. The First-tier Tribunal also heard evidence from the appellant’s wife. She explained that the appellant was depressed and could not sleep at night and cried. She did not give any other evidence of specific care needs or support, other than caring for him at night if he could not sleep or was crying. The First-tier Tribunal concluded that: “43. The appellant has mental health difficulties and I accept that he has anxiety and depression. The appellant receives medication for his condition and has also received some individual counselling.”

29. The First-tier Tribunal dealt with the impact of his medical condition on his ability to receive appropriate medical care in Bangladesh and on his ability to re-integrate more generally, together with the other factors relied upon by the appellant. It concluded as follows: “45. The appellant relies on having been able to source and make contact with a psychiatrist in Bangladesh which indicates that engaging psychiatric treatment and support is clearly possible. I accept that Dr Sultana’s letter concurs with the Bangladesh CPIN as to the different provision in Bangladesh. I also note that her opinion is that it is in the appellant’s interest to remain in the UK because relocating to Bangladesh will disrupt his treatment’ and that the ‘current stable environment continues to assist with his recovery’. I fully accept that having a network of support around him and stability supports recovery and that adjustment to a different environment will introduce some disruption. I do not accept that the appellant is not capable of taking steps to access support in Bangladesh.

46. The appellant asserts that he is estranged from his family but also gave evidence of contact with his sister and thereafter contact with a neighbour in the area he grew up in and lived with his family. There is no evidence before me to suggest that the appellant is not capable of making contact with his sister and others in Bangladesh to build relationships and support there. The appellant is an adult who has adapted to life in the UK and although he has depression, there is no evidence of any detail or cogency to suggest that he is not sufficiently resilient to manage in Bangladesh. I accept the country will have altered since he left and since his last visit in 2016 but I do not accept it has altered to the extent that the appellant is to be taken as a person with no familiarity with the customs and culture there at all or ability to adjust to life there.

47. The appellant has not demonstrated to the relevant standard of proof that he could not operate in Bangladesh on a day to day basis and build a meaningful network of relationships in time.

48. There was no evidence of any real detail or cogency available to me to support the assertions that the appellant and his spouse could live together neither in India nor Bangladesh. I do not outright reject that there can be considered to be some level of anti-Muslim sentiment in India to take judicial notice that this can plausibly be said to be increasing in the current context or that there may be degrees of hostility towards Indians in Bangladesh. However, the appellant is presenting he tribunal with highly generalised assertions and there is simply no evidence before the tribunal on which to securely base any findings or conclusions that the environment in either India or Bangladesh is such that the couple could not establish family life in either of those locations even if they faced some difficulty and inconvenience in relocating and establishing that family life. There are sizeable populations of Muslims living in India and if the appellant and his spouse chose to base themselves in Bangladesh, they would be a couple married in accordance with Islamic tradition and she would have his support with readjusting to life there.

49. Having carefully considered all the evidence available, I concluded that the appellant had not demonstrated any factors to the relevant standard of proof which either individually or cumulatively amounted to very significant obstacles to integration as that concept is explained in the case law.”

30. Dealing with Article 8, the First-tier Tribunal found that there would be an interference with the appellant’s right to private life and family life in the United Kingdom with his wife. However, it found that the interference was a proportionate means of achieving a legitimate aim, namely the maintenance of immigration control. It set out detailed reasons for that conclusion. The First-tier Tribunal dismissed the appeal. The Appeal to the Upper Tribunal

31. The appellant appealed to the Upper Tribunal. In its first ground of appeal, the appellant alleged that the First-tier Tribunal erred in law in failing to follow the Guidance Note.

32. The Upper Tribunal held that it was satisfied that the appellant fell within the definition of a vulnerable witness. It noted that it was conceded that there was no reference in the decision to the Guidance Note and no finding that the appellant was a vulnerable witness. It then considered whether those matters rendered the decision unsafe and unlawful.

33. The Upper Tribunal noted that, while the primary responsibility was on the appellant’s legal adviser to raise the issue of vulnerability, the First-tribunal Judge had a responsibility in that regard. The Upper Tribunal concluded, however, that: “17. It is therefore trite that the responsibility was on the judge to make sure that the appellant gave his evidence in the best practical conditions and needed to determine the relationship between the vulnerability and the evidence that was adduced. I am also satisfied from AM (Afghanistan ) that, although it will most likely be a material error of law not to make a specific note that the appellant is a vulnerable witness and apply the guidance, that this is not always the case.

18. In this appeal, the grounds do not identify which reasonable adjustments should have been put in place to allow the appellant to give his best evidence. Certainly none appear to have been requested by the very experienced counsel M Gill KC at the hearing. Nor there was there any mention of the appellant being a vulnerable witness or any request for reasonable adjustments made in the skeleton argument.

19. There is no specific pleading in the grounds identifying how the appeal was conducted unfairly apart from a general assertion that the guidance was not followed. Secondly, it is not recording which finding the judge made which was materially impacted by the judge’s failure to take into account the appellant’s vulnerability. Mr Malik KC referred in submissions to the appellant’s evidence that he was in contact with his sister and in contact with a neighbour in Bangladesh, but there was no reference to any error in these findings in the grounds; there does not to be any dispute that this was the appellant’s evidence in the appeal and in any event in the appellant’s bundle in the GP medical notes there is reference to the appellant’s sister being a pharmacist and being able to assist him with checking his medication.

20. In these circumstances, I am not satisfied that the failure of the judge to specifically refer to the Presidential Guidance rendered the appeal procedurally unfair nor infected the judge’s view of the evidence.

21. I am also further satisfied, as stated in the Rules 24 response, that the judge clearly had the appellant’s vulnerability at the forefront of her mind throughout the hearing. It is clear from reading the decision as a whole that the judge was abundantly aware of the appellant’s mental health problems, made findings on the extent of his problems and these findings form part of her consideration when making his decision. Although of course, the Joint Presidential Note and Guidance applies as much to human rights appeals as to protection appeals, this appeal was a human rights appeal and the credibility of the appellant was not the central issue. For those reasons, I am not satisfied that this ground is made out.” THE APPEAL

34. Mr Malik KC submitted that the First-tier Tribunal failed to follow the Guidance Note and that, of itself, made its decision wrong in law. He submitted that the First-tier Tribunal was required both to comply with the common law principles of procedural fairness and what he described as the free-standing obligations imposed by the Guidance Note. Mr Malik relied, in particular, upon the observations by Ryder LJ in paragraph 30 of his judgment in AM (Afghanistan) v Secretary of State for the Home Department (Lord Chancellor intervening) [2017] EWCA Civ1123, [2018] 4 WLR 78 . That stated that the Practice Direction issued by the Senior President of Tribunals and the Guidance Note “are to be followed” and “Failure to follow them will most likely be an error of law”.

35. Mr Malik accepted that there was no failure to follow the guidance set out in paragraphs 5.1, 5.2 or 5.3, or in paragraph 10.1 and 10.2 of the Guidance Note by the First-tier Tribunal in hearing the appeal. However, he submitted that there was a failure to record whether the First-tier Tribunal had concluded that the appellant was vulnerable and the effect that the identified vulnerability had on its assessment of the evidence, as required by paragraph 15 of the Guidance Note. That was to be seen against the recognition in paragraphs 3 and 13 to 14 of the Guidance Note that the effect on the quality of the evidence may vary. The appellant was not required to identify or establish that he had suffered specific prejudice or that he had been treated in a procedurally unfair manner. A breach of the Guidance Note was sufficient of itself to make the decision of the First-tier Tribunal wrong in law. Furthermore, Mr Malik submitted that it was not possible to determine how the First-tier Tribunal might have dealt with the evidence if it had recorded the appellant’s vulnerability and there was no basis for the Upper Tribunal to refuse to allow the appeal on the basis that the First-tier Tribunal’s decision would have been the same, irrespective of the error.

36. Mr Holborn, for the respondent, submitted the Guidance Note was guidance only, not prescriptive. It was intended to ensure that the procedure in the First-tier Tribunal was procedurally fair. It did not impose additional, mandatory legal requirements. Furthermore, it could not do so as the presidents of a chamber do not have a power to establish additional mandatory legal requirements. They had power to issue guidance on changes in the law and practice so far as they related to the functions allocated to a chamber. Discussion and conclusion

37. I am satisfied that the Guidance Note is intended to provide guidance to ensure that parties are able effectively to participate in proceedings and to ensure that their evidence is properly and fairly considered. It is intended to assist the tribunal to deal with a case fairly and justly. The Guidance Note does not impose a set of free-standing legal obligations on a tribunal. The fact that a tribunal has not taken the steps set out in the Guidance Note does not necessarily mean that the tribunal has erred in law, still less that its decision on an appeal is legally flawed. The issue will ultimately be whether the proceedings were procedurally fair so that there was a proper opportunity to give evidence and have that evidence properly and fairly assessed. I reach that conclusion for the following reasons.

38. First, it is clear from the Guidance Note itself that it is not seeking to lay down free-standing legal obligations that have to be met in the way contended by the appellant. The language of the Guidance Note is consistent with it giving guidance to assist a tribunal to ensure that it is dealing with cases fairly and justly. Its title is “Guidance Note”. The first line of the first paragraph refers to it as “guidance”. It notes that the guidance, although specific to particular groups, “is also a reminder of good judgecraft”. That is reinforced by Annex A to the Guidance Note which asks why guidance is necessary. It notes that effective communication is the bedrock of the legal process: everyone needs to understand and be understood “or the process of law will be seriously impeded” (paragraph 16). Paragraph 17 refers to “All possible steps” being taken to assist a vulnerable adult “to understand and participate in the proceedings”. Paragraph 18 points out documents, processes and procedures which fail to take account of vulnerability “may compromise the quality of the evidence produced”. The whole tenor of the Guidance Note, therefore, is directed towards ensuring that the proceedings before First-tier Tribunals enable individuals to participate effectively so that their evidence is properly understood and properly assessed. That is not consistent with treating the Guidance Note as if it were intended to lay down a set of free-standing legal obligations, viewed in the abstract and divorced from the actual conduct of proceedings.

39. Secondly, that conclusion is reinforced by the language used to describe the steps that the Guidance Note indicates that it might be appropriate for the First-tier Tribunal to take in a particular case. Paragraph 3 of the Guidance Note recognises that the consequences of vulnerability differ according to the degree that the individual is affected. In that context, the steps set out reflect the purpose of the Guidance Note and the intention of enabling effective participation. Paragraph 5 deals with the early identification of possible issues in that regard and set out a number of possible steps that could be taken to address such issues. Paragraph 10.1 and 10.2 again set out a series of possible steps that could be taken to address such issues at or during the hearing. Paragraph 10.3 is a reminder that a tribunal should “Be aware” of certain factors when assessing evidence.

40. Paragraphs 11 to 15 of the Guidance Note reflect the outcome of the steps referred to earlier in the Guidance Note. Those paragraphs remind the tribunal of the need to give a clear decision with reasons (paragraph 11). They encourage the tribunal to consider the evidence allowing for different degrees of understanding (paragraph 14). The decision should (not must) record whether the tribunal has decided that a person is a child or a vulnerable or sensitive adult and assess the effect of that on the evidence. That, again, is seeking to guide, or assist the tribunal in reaching a conclusion which will be based on a proper assessment of the evidence.

41. The language, and content, of the Guidance Note taken as a whole is, therefore, consistent with it being guidance on how a First-tier Tribunal should discharge its functions. The Guidance Note is not seeking to impose free-standing legal obligations on a tribunal. In particular, there is nothing in the language to suggest that the Guidance Note is setting out mandatory specific steps that a First-tier Tribunal must take, with the consequence being that any failure to take such a step means that it has erred in law and its decision is necessarily, and for that reason alone, legally flawed.

42. Thirdly, that reading of the Guidance Note is consistent with the observations in AM (Afghanistan) . That case concerned the giving of guidance on the general approach to ensuring effective participation in tribunal proceedings by children and vulnerable persons. That appears from paragraph 1 of the judgment of Ryder LJ, where he said that the court was giving guidance: “on the general approach to be adopted in law and practice by the First-tier Tribunal (Immigration and Asylum Chamber) (“the FTT”) and the Upper Tribunal (Immigration and Asylum Chamber) (“the UT”) to the fair determination of claims for asylum from children, young people and other incapacitated or vulnerable persons whose ability to effectively participate in proceedings may be limited”.

43. At paragraph 47, Underhill LJ also referred to the question as concerning “t he guidance to be given to tribunals about how to handle claims brought by persons whose ability to participate in proceedings is affected by incapacity or vulnerability”.

44. The immediate issue in AM (Afghanistan) involved a claim for asylum by a person aged 15 at the time that he gave evidence. A psychologist had prepared a report stating that the claimant had moderate learning difficulties and would experience significant difficulties accurately recalling questions and answers during tribunal hearings. The psychologist advised on a number of steps that should be made to assist the claimant if he was required to give oral evidence (see paragraph 12 of the judgment of Ryder LJ). None the less, the First-tier Tribunal in that case dismissed the claimant’s appeal noting that there were several inconsistencies in his statement, there was very little detail, and “the claimant was unable to recall simple questions about his previous life, such as how often he charged his phone” (see paragraph 14). The Upper Tribunal dismissed a further appeal. It was in that factual context that Ryder LJ (with whom the other members of the Court agreed) concluded that: “….I have come to the firm view that the UT judge took no sufficient steps to ensure that the claimant had obtained effective access to justice and in particular that his voice could be heard in proceedings that concerned him. Procedurally, the proceedings were neither fair nor just. That was a material error of law. The claimant was a vulnerable party with needs that were not addressed. In my judgment the overriding objective in rule 2 of the Tribunal Procedure (First-tier Tribunal) (Immigration and Asylum Chamber) Rules 2014 (“the FTT Rules”) and in rule 2 of the Tribunal Procedure (Upper Tribunal) Rules 2008 (“the UT Rules”) was ignored and for the reasons which follow, there was a fundamental procedural unfairness sufficient for this court to intervene. The parties agree. The merits of the appeal and remittal to the FTT “.

45. As Ryder LJ noted at paragraph 17, the First-tier Tribunal did not properly consider the impact of the claimant’s age, vulnerability and the evidence of a significant learning difficulty on his ability to participate effectively in the asylum process and the appeal and, in particular, when the First-tier Tribunal made adverse credibility findings, and rejected the claimant’s account of past events because of inconsistency “and in dismissing the asylum claim on that basis”. It was in that context that the Court of Appeal came to give its guidance – a situation where errors in the approach to the hearing, and the assessment of the evidence, led to procedural unfairness. At paragraph 24, Ryder LJ turned to this issue under the heading “Procedural fairness”. At paragraph 27, Ryder LJ said that : “…the tribunal and the parties are required so far as practicable to ensure that the appellant is able to participate fully in the proceedings and that there is a flexibility and a wide range of specialist expertise which a tribunal can utilise to deal with a case fairly and justly”.

46. Ryder LJ then dealt with the various powers under the Tribunal Procedure (First-tier Tribunal) (Immigration and Asylum Chamber) Rules 2014, and various practice statements. At paragraph 30, Ryder LJ made the observations relied upon by the appellant. It is necessary to set out that paragraph in full. Ryder LJ observed that: “30. To assist parties and tribunals Practice Direction (First-tier and Upper Tribunals: Witnesses) , was issued by Carnwath LJ, with the agreement of the Lord Chancellor on 30 October 2008. In addition, [2009] 1 WLR 332 Joint Presidential Guidance Note No 2 of 2010 was issued by the then President of UTIAC, Blake J and the acting President of the FTT (IAC), Judge Arfon-Jones. The directions and guidance contained in them are to be followed and for the convenience of practitioners, they are annexed to this judgment. Failure to follow them will most likely be a material error of law. They are to be found in the Annex to this judgment.”

47. The Court of Appeal regarded the purpose of the Guidance Note as being to “assist parties and tribunals”, that is to assist them in ensuring that cases were fairly and justly dealt with. Further, and more significantly, Ryder LJ said that “Failure to follow them will most likely be a material error of law” (emphasis added). That statement is inconsistent with the Court of Appeal having understood that the Guidance Note imposed free-standing legal obligations which had to be complied with if the tribunal were not to err in law. If that were its understanding, Ryder LJ would have said that failure to follow the Guidance Note “is a material error of law” not “will most likely be” a material error of law. The more natural reading of paragraph 30 is that the failure to follow the Guidance Note may result in a material error of law, that is, just as had happened in AM (Afghanistan) itself, the failure of the tribunal to address its mind to what procedures were necessary to enable the claimant to participate effectively in the appeal meant that his evidence was not properly understood, or assessed, and as a result the decision on the appeal may be legally flawed.

48. For those reasons, I reject the appellant’s submissions that the Guidance Note imposes free-standing legal obligations. A failure to take one of the steps set out in the Guidance Note does not necessarily mean that the First-tier Tribunal has erred in law and does not, of itself, mean that the decision is legally flawed. Rather, the question will be whether the First-tier Tribunal has acted in a way which means that the appeal has not been fairly and justly dealt with or, to put it more simply, whether there has been procedural unfairness which materially affects the decision.

49. There is nothing to suggest on the evidence that there was any procedural unfairness, or any failure to assess the evidence properly. The appellant was represented by leading counsel. He and his wife gave written and oral evidence and he adduced experts’ reports. Mr Malik does not suggest that there was any need to make adjustments to the proceedings during the hearing to enable the appellant to participate effectively.

50. Similarly, there is no evidence to suggest that any vulnerability on the part of the appellant affected his ability to give evidence or on the First-tier Tribunal’s assessment of it. The vulnerability consisted of the fact that he was receiving health care in the form of prescribed medication for depression. The appellant’s anxiety and depression were, on analysis, capable of being relevant to two issues: would he be able to receive appropriate health care in Bangladesh if he returned there, and would the depression in some way present a very significant obstacle (alone or with other factors) to his re-integrating into Bangladesh?

51. On the first issue, the First-tier Tribunal assessed the medical evidence, and concluded that the appellant had anxiety and depression (and had in the past received counselling) but there was no evidence to support a finding of severe depression. The First-tier Tribunal concluded that the evidence did not establish that the appellant could not access relevant support in Bangladesh to deal with that medical condition. There is no suggestion, or proper basis, on which it could be said that that conclusion was flawed in some way.

52. In relation to the second issue, the First-tier Tribunal considered whether there were very significant obstacles to re-integration and concluded at paragraph 46 of its reasons that “although he has depression, there is no evidence of any detail or cogency to suggest that he is not sufficiently resilient to manage in Bangladesh”. Again, there is no proper basis for suggesting that that conclusion is flawed. The First-tier Tribunal had written and oral evidence from the appellant and also had two expert medical reports and other medical evidence from his GP records. There is no proper basis on the evidence for concluding that the appellant’s depression did affect, or might have affected, the decision-making process in some way. There is no evidence to suggest that the First-tier Tribunal misunderstood, or failed properly to assess, the impact of the appellant’s depression. There is no evidence to suggest that the appellant was unable to give evidence effectively because of his depression. In any event, in this case, the appellant’s wife gave evidence, in writing and orally, about the impact of the appellant’s depression on him.

53. Mr Malik submitted that it was not necessary for the appellant to explain or give evidence about how the failure to record that the appellant was vulnerable, and to explain the effect that that had on the assessment of his evidence, led to the decision being flawed. He submitted that the absence of any record means that the appellant could not know if there had been an error. I would reject that submission. First the underlying purpose of the principles of procedural fairness (and of the Guidance Note) is to enable the appellant to have the opportunity to participate effectively in the proceedings. A decision will not be unlawful where that purpose has been achieved in substance, and there is no basis for concluding that there has been any material unfairness or breach (see, e.g. R (Singaram) v Secretary of State for the Home Department [2025] EWCA Civ 1375 at paragraphs 49-51). Secondly, there is nothing on the evidence in this case from which it could properly be inferred that the appellant was in some way prevented from putting his case fairly or having it assessed properly. Thirdly, as a practical matter, the appellant is able, and indeed in many ways, best placed to demonstrate how it is said that the First-tier Tribunal failed adequately to assess his evidence. He has not identified any way in which his evidence on the critical issues was misunderstood or impaired by his depression. The fact that he has not identified any deficiency in the substance of the decision is an additional powerful indicator that there was no procedural unfairness and that his case was treated fairly and justly.

54. For those reasons, I would dismiss the appeal. LADY JUSTICE YIP

55. I agree. LADY JUSTICE MAY

56. I also agree.