Anonymized Summary of Opinion

Factual and Procedural Background

The Appellant, a national of The State, entered The State on 5 July 2009 with student entry clearance. His leave was curtailed in May 2015. Subsequent applications (including for an EEA residence card and for leave to remain on the basis of private and family life) were refused. The Appellant applied for indefinite leave to remain on 30 March 2022; that application was refused on 26 April 2023. He appealed to the First-tier Tribunal (Immigration and Asylum Chamber) on 3 May 2023, relying principally on very significant obstacles to reintegration into The State and on Article 8 ECHR grounds. The First-tier Tribunal dismissed the appeal (decision promulgated 5 March 2024). The Appellant appealed to the Upper Tribunal contending, in the permitted ground, that the First-tier Tribunal erred in law by failing to follow Joint Presidential Guidance Note No 2 of 2010 ("the Guidance Note") and by failing to make due allowance for his vulnerability. The Upper Tribunal dismissed the appeal on 30 October 2024. This judgment is an appeal from that Upper Tribunal decision.

Legal Issues Presented

1. Whether the First-tier Tribunal erred in law by failing to follow the Guidance Note and by failing to record and make due allowance for the Appellant's vulnerability (such that its decision was procedurally unfair).
2. Whether the Appellant had demonstrated "very significant obstacles" to reintegration into The State under paragraph 276ADE(1)(vi) of the Immigration Rules.
3. Whether refusal of leave to remain would breach the Appellant's Article 8 ECHR rights.

Arguments of the Parties

Appellant's Arguments (presented by Attorney Malik)

• The Guidance Note imposes free‑standing obligations on tribunals; failure to follow it (including to record whether the Appellant was vulnerable and the effect on assessment of evidence) is, of itself, an error of law.
• The First‑tier Tribunal failed to record that the Appellant was a vulnerable witness and failed to explain the effect of any identified vulnerability on its assessment of evidence (contrary to paragraph 15 of the Guidance Note).
• It was unnecessary for the Appellant to identify specific prejudice caused by the omission; the absence of the required record meant the Appellant could not know whether an error had occurred and the decision should be quashed.

Respondent's Arguments (presented by Attorney Holborn)

• The Guidance Note is guidance only and does not create additional mandatory legal requirements on tribunals.
• The presidents of chambers lack power to impose free‑standing legal obligations via the Guidance Note; it is intended to assist procedural fairness but is not prescriptive.
• In the present case there was no procedural unfairness: the First‑tier Tribunal had the Appellant's vulnerability in mind, assessed the medical evidence and reached conclusions reasonably supported by the evidence.

Table of Precedents Cited

Court's Reasoning and Analysis

The court analysed the statutory framework (Tribunals, Courts and Enforcement Act 2007, Schedule 4 and the Senior President's Practice Direction) and the Guidance Note's language and purpose. It concluded that the Guidance Note is intended to guide tribunals to secure effective participation and good judgecraft rather than to impose free‑standing legal obligations. The court drew on AM (Afghanistan) to explain that while failure to follow guidance will "most likely" be a material error of law in cases where necessary procedural steps were omitted (leading to unfairness), that does not mean every omission converts into an error of law in the abstract.

Applying that legal framework to the facts, the court found:

• The First‑tier Tribunal had the Appellant's vulnerability (anxiety and depression managed with medication) clearly before it and made explicit findings about diagnosis, treatment and prognosis.
• The First‑tier Tribunal assessed the medical evidence (GP records and two expert reports), considered whether appropriate care could be accessed in The State, and found no cogent evidence of severe depression or of inability to access treatment or of insufficient resilience to manage in The State.
• There was no evidence that the Appellant's vulnerability prevented him from giving effective evidence or that the absence of an explicit record that he was a "vulnerable witness" produced procedural unfairness affecting the decision.

Accordingly, the court rejected the submission that the mere absence of a formal record under paragraph 15 of the Guidance Note rendered the First‑tier Tribunal's decision unlawful. The determinative question was whether procedural fairness had been achieved in substance; on the evidence, it had.

Holding and Implications

DISMISSED

The court dismissed the appeal. The direct consequence is that the Upper Tribunal's dismissal of the Appellant's challenge to the First‑tier Tribunal decision stands. The court held that the Guidance Note is not a source of free‑standing legal obligations such that any non‑compliance automatically entails an error of law; rather, non‑compliance may result in error only where it produces procedural unfairness that materially affects the outcome. No new broad rule was created beyond this clarification of the Guidance Note's status and its correct application to the facts of this case.

Panel

Judgment delivered by Judge Yip and Judge May (agreeing with the leading judgment).