by Mark Henderson and Rowena Moffatt of Doughty Street Chambers
and Alison Pickup of the Public Law Project
~ 2020 Updated Edition ~
Making an Application
Circumstances in which adjournment may be necessitated
Adjournment applications by the Home Office
Adjournments by the Tribunal
Dealing with the refusal of an application
8.1 The timing of the hearing may be critical to whether the appeal can be determined fairly and safely. In Nwaigwe (adjournment: fairness)  UKUT 00418 (IAC), McCloskey J said that:
As a general rule, good reason will have to be demonstrated in order to secure an adjournment. There are strong practical and case management reasons for this, particularly in the contemporary litigation culture with its emphasis on efficiency and expedition. However, these considerations, unquestionably important though they are, must be tempered and applied with the recognition that a fundamental common law right, namely the right of every litigant to a fair hearing, is engaged. In any case where a question of possible adjournment arises, this is the dominant consideration. It is also important to recognise that the relevant provisions of the 2005 Rules, rehearsed above, do not modify or dilute, and are the handmaidens, their master, and the common law right in play.
8.2 In Nwaigwe  UKUT 00418 (IAC), McCloskey J was discussing r. 21 of the 2005 Procedure Rules, which required a party to show "good reason" when applying for an adjournment. There is no such requirement in 2014 Procedure Rules, in which the power to adjourn is simply an example of the Tribunal's general case management powers given in Rule 4(3)(h) and is, accordingly, governed by the overriding objective in Rule 2 of dealing with cases fairly and justly. The presumption in the previous Procedure Rules against adjourning to allow a party to obtain further evidence is gone, along with the need to demonstrate good reason. As can be seen from McCloskey J's comments in Nwaigwe, fairness was in any case always the overriding consideration and he concluded by observing that following the (then) anticipated changes to the Procedure Rules "FtT Judges dealing with adjournment issues should continue to apply the principles rehearsed above and the decision of the Court of Appeal in SH (Afghanistan) (see further para 8.40 below), giving primacy to the criterion of fairness". Presidential Guidance Note No. 1 of 2014 (which gives guidance on the 2014 Procedure Rules) refers to Nwaigwe as emphasising the importance of fairness in considering adjournment applications.
8.3 Note, however, that rule 2(2)(e) states that dealing with cases fairly and justly includes "avoiding delay, so far as compatible with proper consideration of the issues".
8.4 The Practice Directions state that
"9.1 Applications for the adjournment of appeals (other than fast track appeals) listed for hearing before the Tribunal must be made not later than 5.00 pm one clear working day before the date of the hearing.
9.2 For the avoidance of doubt, where a case is listed for hearing on, for example, a Friday, the application must be received by 5.00 pm on the Wednesday.
9.3 The application for an adjournment must be supported by full reasons and must be made in accordance with the relevant Procedure Rules.
9.4 Any application made later than the end of the period mentioned in paragraph 9.1 must be made to the Tribunal at the hearing and will require the attendance of the party or the representative of the party seeking the adjournment.
9.5 It will be only in the most exceptional circumstances that late applications for adjournment will be considered without the attendance of a party or representative.
9.6 Parties must not assume that an application, even if made in accordance with paragraph 9.1, will be successful and they must always check with the Tribunal as to the outcome of the application.
9.8 If an adjournment is not granted and a party fails to attend the hearing, the Tribunal may in certain circumstances proceed with the hearing in that party's absence."
(See Chapter 7 for the circumstances in which the Tribunal may proceed to hear an appeal in the absence of a party or his representative).
8.5 The Guidance Note on Case Management Review Hearings (see chapter 6) indicates that written adjournment applications made prior to the CMRH will normally be left on file to be dealt with at the CMRH, if there is one. It also confirms that an adjournment application may alternatively be made orally at the CMRH. (The requirement in the Practice Directions to lodge the application 'one clear working day before the date of the hearing' applies only to the full hearing.)
8.5A If the need for an adjournment is already apparent, it should be raised at the CMRH if no prior application has been submitted. Where there is a paper PHR, any adjournment request should be made in writing when the reply form is completed, or before the date of the PHR if possible. As the Guidance Note says, "One of the functions of a CMR hearing is to try to ensure that the parties will be ready to proceed on the date of the substantive hearing." It also indicates unsurprisingly that "It seems highly improbable that the short time scale envisaged by Rule 23 for determining an asylum appeal will amount to good reason in the absence of some other material factor ". That highlights the need to relate the test for adjournment to your individual facts. Although Rule 23 has no equivalent in the 2014 Procedure Rules, this Guidance Note remains on the Tribunal's website as one of the 'Guidance notes for the former AIT that are now relevant to the FTTIAC' and in practice it remains the case that a short listing is unlikely without more to give grounds for a successful adjournment application. Presidential Guidance Note No. 1 of 2014 indicates that a factor weighing against the grant of an adjournment application will be where "The application seeks more time to prepare the appeal when adequate time has already been given". The key therefore is to explain why the time you have already been given is inadequate.
8.5B An adjournment application at this stage will usually be about additional time needed to submit evidence (see para 8.38A) or the availability of a witness (see para 8.44). You will generally be in a better position if you have a clear timetable to propose, if appropriate, supported by directions. This should be realistic, because if you get the adjournment and are still not ready on the date you offered, you will need a cogent explanation for any further adjournment request. If the evidence you seek is expert evidence, you should explain what steps you have taken to identify a suitable expert who could provide the evidence in time for the hearing date, and why the evidence is necessary for the just disposal of the appeal.
8.6 If the need for the adjournment arises because the Home Office has failed to do something, you should normally accompany your adjournment application with a request for a direction requiring the Home Office to do it by a specified date. Otherwise, in the absence of an undertaking from the Home Office, the judge can have no confidence that the adjournment will achieve the desired result.
8.7 If you are making the application after the CMRH or PHR but in advance of the full hearing, then try to comply with the time limit for making the application (5pm one clear working day before the hearing) if you want to have any chance of avoiding attendance at the hearing. If there are good reasons for making an application later than this deadline, and good reasons, such as the vulnerability of the appellant or costs issues, for not wishing to attend the hearing to seek an adjournment, make detailed representations as to why your application should be put before a judge prior to the hearing, and follow this up with a telephone call.
8.8 There is no longer any express requirement in the Rules to copy your application to the Home Office but it is good practice to do so. You should also try to speak to the HOPO in order to explain your request and address any concerns that the HOPO has. This can be a frustrating and unrewarding experience, one of the many occasions on which the difficulty in persuading anyone at the Home Office to take responsibility for an appeal until the day before the hearing causes real problems. However, if a HOPO has been allocated, or if a duty HOPO is willing to find the file, his agreement to the adjournment application will increase the prospects of success considerably.
8.9 Most paper adjournment applications are refused. You must assume that the judge will pick up your application expecting to refuse it, despite the emphasis in the Presidential Guidance Note No. 1 of 2014 on the need to consider each application on its individual merits. It is therefore not enough simply to state the reason you need more time (e.g. you are investigating further evidence) in the expectation that a sympathetic judge will consider it self-evident that the matter should be adjourned. You need to formulate your application as if it were a written submission rather than a simple letter conveying the necessary information. You must impress upon the judge why your application, unlike many others, needs to be granted. Anticipate the likely grounds of refusal. Explain, if appropriate, why you could not have completed the task in the time available: for example, you were unaware of the existence of the evidence, or you are dealing with a point only recently taken by the Home Office.
8.9A Tribunal caseworkers may now determine adjournment applications under the Practice Statement authorising Tribunal Caseworkers First-tier Tribunal (Immigration and Asylum Chamber) to carry out functions of a judicial nature. Anecdotally, the odds of a refusal on the papers is even higher if made by a caseworker. It is noteworthy that rule 3(4) of the Procedure Rules permits an application for any decision made by a case worker / case officer to be considered afresh by a judge provided it is made within 14 days after the date on which the Tribunal sends notice of a decision made by a member of staff to a party.
8.10 If you indicated at the CMRH/PHR that you would be ready to proceed, this may be held against you if you subsequently find you have to apply for an adjournment because evidence is not ready. Unless it is obvious, you should anticipate this by explaining why the delay in preparing the evidence was not foreseeable when the CMRH/PHR took place.
8.12 As well as explaining what you would do with the additional time, you must explain why the appeal could not be justly determined on the date fixed. If you are presently seeking further evidence, you must justify to the Tribunal why it would be unsafe to proceed without that evidence. Explain how it will assist you to prove your case, or how it will refute an allegation made by the Home Office. You must convince the judge that if the appeal was determined without this evidence, there would be a real risk of getting it wrong. Where appropriate, draw attention to the provisions of the Child, Vulnerable Adult and Sensitive Appellant guidance, which emphasises the importance of obtaining expert evidence as to a person's ability to participate in the proceedings. Presidential Guidance Note No. 1 of 2014 suggests that a factor weighing against granting an adjournment would be where "The application does not explain how the reason for seeking an adjournment is material to the case, for example, where there is a desire to seek further evidence but this evidence does not appear to be material to the issues to be decided".
8.13 As indicated in the Practice Direction, if a paper application is refused, you should attend the hearing, and you should have decided what to do in the event that you are unsuccessful in renewing your application orally. Study the refusal on the papers. Sometimes, the judge will invite you to renew it at the hearing and indicate the points that he considers you must overcome.
8.14 Judges vary as to the extent to which they are prepared to hear an adjournment application where the facts and grounds do not differ from the application which has already been refused on the papers. Some judges will effectively hear the application afresh and may well grant it even though it had been refused on the papers. Others will not entertain the application unless you can point to some matter which was not before the judge who refused the paper application. You are likely to face a particularly uphill struggle if, as is often the case, your paper application was refused by the Resident or Designated Judge for that hearing centre. It is worth finding out who refused the paper application (and the Tribunal should not refuse to disclose this to you – see NA (Excluded Decision: Identifying Judge) Afghanistan  UKUT 444 (IAC)).
8.15 Where you believe an adjournment to be necessary in the interests of justice, you should pursue the request forcefully and with determination. Beware of sounding antagonistic. Nevertheless, in certain circumstances, it may be appropriate to point out that any saving of time will be illusory if the determination of the appeal is consequently unsafe and so vulnerable to challenge. Judges regularly put the same point to the HOPO. In Nwaigwe (adjournment: fairness)  UKUT 00418 (IAC), the President emphasised the need for judges not to be unduly influenced by the inconvenience of adjourning an appeal on the day of the hearing. He said:
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 (emphasis in original)
8.16 The Court of Appeal has emphasised that the serious consequences of the improper rejection of an asylum appeal mean that appellants should be able to adduce all evidence on which they seek to rely, and an adjournment granted if necessary to enable that (Macharia v IAT  EWCA Civ 3001). The Tribunal has held that judges should follow the guidance laid down by the Divisional Court in R. v Kingston upon Thames Justices, ex parte Martin  Imm AR 172. The issue in that case was whether a magistrates' court acted unfairly in refusing a request for an adjournment made at the hearing on behalf of one of the parties (a barrister). The grounds for the application were that work commitments prevented him being present and that he had been unable as yet to obtain potentially relevant evidence. The Divisional Court rejected the challenge. It identified the following seven factors as relevant:
• The importance of the proceedings and their likely adverse consequences to the party seeking the adjournment;
• The risk of the party being prejudiced in the conduct of proceedings if the application is refused;
• The risk of prejudice or other disadvantage to the other party if the adjournment is granted;
• The convenience of the court;
• The interests of justice generally in the efficient dispatch of court business;
• The desirability of not delaying future litigants by adjourning early and thus leaving the court empty;
• The extent to which the party applying for the adjournment had been responsible for creating the difficulty which had led to the application.
8.17 Simon Brown LJ stated that the proceedings were 'at the lower end of the scale of importance' and that the court was entitled to have regard to its own convenience (the court had no alternative business which it could take). Buckley J relied on the interests of the opposing party in bringing a 'relatively trivial piece of litigation' to a close, the fact that the applicant had in fact had months to prepare his case, and that he was a person 'well-versed in the ways of the law'. He said:
"The principles of natural justice that are prayed in aid in support of this application demand no more than that a party to litigation should be given every reasonable opportunity to prepare and present his case."
8.18 Because the Divisional Court accepted that the importance (or in that case, the lack of importance) of the litigation was a primary factor in determining whether fairness demanded an adjournment, it is clear that any significant risk that an appellant may be prejudiced in presenting her appeal – in view of the potentially horrendous consequences of such prejudice – may require that adjournment is granted in order to achieve the just determination of the appeal. Following Martin  Imm AR 172, also of relevance will be whether the court's time would be wasted or whether the judge has other matters to hear. The Tribunal regularly lists more appeals than there is time to hear.
8.18A In Al-Jedda v SSHD  EWCA Civ 212, an appeal from a decision of SIAC upholding the deprivation of the appellant's British citizenship, the Court of Appeal noted that the context demanded "anxious scrutiny" and held that SIAC had erred in refusing an adjournment for the appellant to secure better expert evidence. SIAC had wrongly treated as "clinching" factors the need for "rapid determination" and the disruption to its own business, in a case in which the appellant was "significantly prejudiced" by the refusal of an adjournment.
8.19 If an adjournment is granted and it is important that a particular advocate conduct the hearing, remember to check that the new date is suitable. As well as the interests of justice, if you are publicly funded, you can point to the additional expense to the public purse which briefing a new advocate may involve. The Deputy Chief Adjudicator previously stated that:
"I accept entirely that it is good practice to liaise wherever possible with the representatives involved in any particular case when arranging a date. It is my own practice to note, when Counsel appear, Counsel's telephone number and the name of Counsel's clerk so that Listing at the IAA can liaise with Counsel's clerk to agree a mutually convenient date... [L]isting should strive to agree a mutually convenient date when a case should be listed." (Letter dated 15 January 2002 to Glazer Delmar, solicitors)
8.20 Practice now varies between hearing centres. Where the adjournment is granted at a hearing, it is normally possible to fix a new date with the list office there and then. Sometimes you will need to ask the judge to endorse the adjournment form to the effect that it should be re-listed for your convenience. If the adjournment application is made in writing, you should ensure that contact details for the advocate or their clerk are provided and that the Tribunal is asked to liaise with them to find a suitable date. If this is not then done, it is usually worth contacting the Tribunal's listing office to ask for the appeal to be re-listed to a date which is convenient for the advocate. You should, of course, always consider whether it is in the appellant's best interest for her appeal to be delayed to fit around the advocate's availability.
8.21 Presidential Guidance Note No. 1 of 2014 advises judges to consider, of their own motion if necessary, when granting an adjournment, whether any further directions are required. You should consider when applying for an adjournment what further directions would assist in ensuring the appeal can proceed on the next occasion and set these out in your adjournment application.
8.26 The following are among the most common circumstances in which an adjournment may be necessitated (although in no particular order). Some circumstances, such as being unrepresented or the representative having withdrawn at the hearing, are by definition not circumstances in which you will be making the resulting adjournment application. However, they are included here for ease of reference. If your client has instructed you after the hearing, you will need to assess whether an adjournment ought to have been granted.
Absence of appellant
8.27 Rule 19(1) previously mandated the Tribunal to proceed with the hearing if neither the appellant nor her representative attended without satisfactory explanation. However, the Court of Appeal ruled this provision to be unlawful (FP (Iran) v SSHD  EWCA Civ 13) and it was amended (see para 7.14-5) so that the Tribunal is now merely empowered (by rule 28 of the 2014 Rules) to proceed in the absence of either the appellant or her representative. Presidential Guidance Note No. 1 of 2014 identifies as one of the "factors weighing in favour of adjourning an appeal, even at a late stage":
Sudden illness or other compelling reason preventing a party or a witness attending a hearing. Normally such a reason should be supported by medical or other relevant evidence, unless there has been insufficient time to obtain such evidence. However, where there is no likelihood that the party will be able to attend a hearing within a reasonable period, a hearing may proceed in absence where the tribunal considers that this is in the interests of justice in terms of rule 28.
8.28 If your client is too unwell to attend court, you need to obtain a medical certificate confirming this. Often, a HOPO will oppose adjournment on the ground that the medical certificate is unsatisfactory, for example because it does not establish that your client's illness actually prevents her attending court. In Nwaigwe (adjournment: fairness)  UKUT 00418 (IAC), the appellant's representatives had applied for an adjournment shortly before the hearing in the First-tier Tribunal on the basis that they understood the appellant to be ill, but that they had been unable to obtain any medical evidence in the short time available. The President held that it had been wrong for the First-tier Tribunal to refuse the adjournment, observing that:
...where a party applies for an adjournment of a hearing, the Tribunal is obliged, in every case, to consider whether the appeal can be "justly determined" in the moving party's absence. If the decision is to refuse the application, this must be based on the Tribunal satisfying itself that the appeal can be justly determined in the absence of the party concerned. This means that, in principle, there may be cases where an adjournment should be ordered notwithstanding that the moving party has failed to demonstrate good reason for this course.
In Chisthi (14953), the IAT adopted the following passage by Bingham LJ in R v Bolton Magistrates Court, ex parte Merner (1991) CLR 848:
"The Court is not obliged to accept any excuse, however unconvincing it may be. If the Court suspects the grounds to be spurious or believes them to be inadequate, the Court should ordinarily express doubts and thereby give the defendant the opportunity to resolve those doubts. It may call for better evidence or require further enquiries to be made or adopt any other expedient fair to both parties. The ultimate test must always be one of fairness and if a defendant claims to be ill and with apparently responsible medical reports in support of his claim, the Court should not reject that claim and proceed to hear the case in the defendant's absence without satisfying itself that the claim may properly be rejected and that no unfairness will thereby be done."
8.29 Often, problems arise simply because the doctor has not realised that his medical certificate may be subjected to challenge by the HOPO in adversarial proceedings and has therefore failed to pre-empt potential criticisms. HOPOs sometimes appear to think that asylum seekers who do not even speak English should be expected to advise doctors upon what issues must be expressly covered in the certificate.
8.30 You should, however, check the certificate before submitting it. Check firstly that it expressly states that your client cannot attend the appeal hearing (as opposed to 'work' which is the box a doctor is often inclined to tick). Unless it is self-evident from the illness, the certificate ought also to explain what the effects of her illness are which prevent her attending. If the certificate does not do so, try to contact the doctor yourself to ask for these issues to be covered.
8.31 If the judge who refused the application has made adverse comments about the medical certificate, it is vital that you try to address these prior to the hearing. If there is no time to have these addressed or if the judge at the hearing remains unconvinced, you may ask the judge to delay determining the appeal for a period to allow the submission of further medical evidence. In Awadh (12783), the IAT approved this course. But it held that the judge must either invite submissions on the merits at the first hearing or, if he did not do this, provide an opportunity for submissions should he be unsatisfied by the further medical evidence.
8.33 See also the discussion of the power under r.28 to proceed with the hearing in the absence of a party (para 7.19).
Absence of representative
8.34 The Tribunal should not normally refuse an adjournment when the appellant's advocate becomes unavailable for good reason at short notice. Illness of a representative should, in contrast to an appellant, be accepted at 'face value' (at least assuming that the representative is 'reputable'): Muia v SSHD (17223).
8.35 In Okiji v SSHD (13079), the adjudicator had refused an adjournment application based on counsel's illness, commenting that 'I found it extraordinary that an adjournment request was received because a counsel was indisposed. The normal practice of the bar is to send somebody else to take the brief, even at one moment's notice.' The Tribunal disagreed:
"As the Tribunal has said many times before, where a representative gives a good reason for failure to attend, an adjudicator should hesitate long before accepting that an adjournment is not necessary. Further, where it is reported to an adjudicator that counsel had been taken suddenly ill, in many circumstances it would not be reasonable to expect another counsel to take over the case at a moment's notice. While the late handing over of the conduct of a case may be consistent with the traditions of the Bar, it is not always consistent with the interests of the appellant."
Withdrawal of representative
8.36 Where a representative declines to continue to act shortly before or at the hearing (other than because the appellant dispensed with his services), an adjournment should be granted. The position is even stronger where a representative withdraws during the hearing. In Kandeepan (15124), the adjudicator had refused to adjourn when counsel for the appellant withdrew during the course of the hearing. The Tribunal held that:
"[T]he manner in which the Adjudicator then proceeded with the hearing demonstrated a striking lack of judgment as to what was the appropriate course to adopt in the interests of justice and fairness. There was no question of the Appellant having dispensed with the services of his Counsel during the course of the hearing which might have justified the continuation of it. In these circumstances, the only proper course was for the Adjudicator to adjourn the hearing before her."
8.36A When Refugee and Migrant Justice and then the Immigration Advisory Service went into administration in 2010 and 2011 respectively, the Tribunal granted blanket adjournments for some weeks in all appeals where the RMJ or IAS were on record as representing the appellant. Fairness and the need to treat like cases alike would suggest that this should be treated as a precedent for other firms which may close at short notice for similar reasons in future.
Whether or not an appellant is articulate the need for representation if [it] is wanted appears almost axiomatic given the obligation to give the most anxious scrutiny to cases of this kind. (Ajeh v SSHD (21379))
8.38 These decisions were criticised in a judicial review permission application, R v SSHD and IAT, ex parte Bogou  EWHC 292 (Admin). The criticism was that the Tribunal had not expressly had regard to the relevant test in the Procedure Rules for adjournment. It is submitted that the criticism is not well-founded. The Tribunal concluded that representation was an 'almost axiomatic' precondition for anxious scrutiny of asylum appeals. That would appear to make clear that it considered that the appeal could not be justly determined without an adjournment to permit proper representation. The comments of Sedley LJ in AK (Iran) v SSHD  EWCA Civ 941 at para 25 are plainly relevant here, in particularly if it is suggested that an adjournment should not be granted because the shortage of publicly funded representation meant the appellant was unlikely to find it. However, note that Presidential Guidance Note No. 1 of 2014 advises that a factor weighing against adjourning the appeal is where:
The application does not show that anything material would be achieved by the delay, for example, where an appellant wants more time to instruct a legal representative but there is no evidence that funds or legal aid is available
It should not, of course, ordinarily be the case that "there is no evidence that funds or legal aid is available" for an appeal against the refusal of a protection claim. This issue may however arise in Article 8 appeals where legal aid is only available if Exceptional Case Funding ('ECF') is granted. ECF will be granted for Article 8 appeals where the Legal Aid Agency is satisfied that there would be a breach of the individual's Convention rights if legal aid is not available. In Article 8 cases, this will be the case where the appellant would not otherwise be able to effectively participate in the hearings. The Public Law Project has published a guide to obtaining ECF for unrepresented individuals and a guide for immigration providers. Where an application for ECF has been made to the LAA, the Tribunal should adjourn an appeal pending a decision on that application by the LAA. If the application is granted, then an adjournment may be needed for the appellant to find a provider or, if it is granted only shortly before the hearing, for the provider to take instructions and prepare for the appeal. A refusal to adjourn in such circumstances would be likely to give grounds for an appeal, or for judicial review of the refusal to adjourn (see para 8.67 below), given that it has been accepted by the LAA that representation is necessary to prevent a breach of Convention rights.
Further evidence required
8.38A The Tribunal Guidance Note on Case Management Review Hearings states that
"One of the principal reasons why an adjournment may be sought is to allow medical or expert reports to be obtained. If a request is made for an adjournment on this basis, regard should always be given to whether such a report would be necessary or material. There may be reports already lodged which address the point in question or it may be that the report proposed will have no material bearing on the outcome of the case. In order to assist in assessing the need for a report, the Appellant's representative should be asked to exhibit a copy of the letter of instruction."
8.38B It will be likely to be necessary to explain why you have not been able to obtain the evidence within the time available, and why the appeal cannot be justly determined if the appellant is not given the opportunity to secure the evidence in question. Presidential Guidance Note No. 1 of 2014 cites as a factor weighing in favour of granting an adjournment:
Where further time is needed because of a delay in obtaining evidence which is outside the party's control, for example, where an expert witness fails to provide a report within the period expected
On the other hand, its list of factors weighing against granting an adjournment include that:
(a) The application to adjourn is not made at the earliest opportunity.
(b) The application is speculative, such as, for example, a request for time for lodging further evidence where there is no reasonable basis to presume that such evidence exists or could be produced within a reasonable period
... (d) The application does not explain how the reason for seeking an adjournment is material to the case, for example, where there is a desire to seek further evidence but this evidence does not appear to be material to the issues to be decided.
8.39 You will therefore aim to show in your application that you have made it at the earliest opportunity, that you (or your client) are not to blame for any delay in obtaining the evidence, that there is a finite period within which it is clear that the evidence can be obtained, and that it is likely to be material to the issues in the appeal. If you have instructed local lawyers to try to obtain documents in the country of origin, explain when you instructed them and show how you acted with reasonable expedition to follow up this line of enquiry. If you have been trying to track down a witness abroad, explain what steps you have taken already. If these have so far been unsuccessful, explain what further steps you intend to take and why you still believe that you will ultimately be successful.
8.40 In Macharia v IAT  EWCA Civ 3001, Peter Gibson LJ said that:
"There may be circumstances where, in the interest of justice, or for the effective disposal of the appeal, it would be proper to grant an adjournment, particularly in a case where it is the asylum seeker putting in the further evidence. Throughout, the Tribunal has to bear in mind that an asylum decision has potentially grave consequences for the asylum seeker whose very life may be put at risk by an adverse decision..."
In SH (Afghanistan) v SSHD  EWCA Civ 1284, holding that the First-tier Tribunal had acted unfairly in refusing an adjournment in a fast-track case, Moses LJ observed that:
The principle applicable to the request for an adjournment to adduce evidence on behalf of the appellant was not in dispute. It is fundamental that the parties should be allowed to answer adverse material by evidence as well as argument (see, e.g., In Re. D  AC 593 at 603) and all the more so where the subject matter, such as a claim for asylum, demands the highest standards of fairness ( R v Secretary of State for the Home Department ex-parte Fayed  1 WLR 763-777 ).
8.41 In R (F) v Special Adjudicator  EWHC 777 (Admin), Silber J said that the same principle applied in a human rights context, and that if to refuse an adjournment
"would have inevitably prevented the claimant from putting forward relevant and potentially cogent evidence in favour of her appeal, [t]hat to my mind, constitutes a powerful factor in favour of granting an adjournment or at least proceeding but offering to consider the report before producing his [determination]."
He identified the cause of the lateness and degree of disadvantage to the respondent or the Tribunal as significant factors.
8.42 Where further documentary evidence will not affect the oral examination of witnesses, submission of that evidence after the hearing may address any perceived prejudice to the Home Office or inconvenience to the Tribunal which might otherwise arise from an adjourned hearing. In F  EWHC 777 (Admin), Silber J said that:
"[W]here a Special Adjudicator is being asked to adjourn a hearing because a report said to be relevant is about to become available and has not previously been available for understandable reasons, he ought to consider not merely whether to grant an adjournment but also if he does not whether he will agree to consider the report after the hearing and then if he believes it to be relevant to receive and consider submissions on it. "
8.43 See para 39.20 for the procedure advised in Adjudicator Guidance Note 4 (which is published on the Tribunal's website as one of the 'Guidance notes for the former AIT that are now relevant to the FTTIAC') to deal with this.
8.44 An adjournment should normally be granted when a material witness – whether expert or factual – is unavailable for good reason on the fixed date but will be able to attend within a reasonable period. In AS (Pakistan) v SSHD  EWCA Civ 703, the Court of Appeal held, referring to the context of anxious scrutiny, that the Tribunal had been wrong to refuse an adjournment to allow the appellant to call two witnesses who she believed would support her explanation as to damaging evidence adduced by the respondent. The reason given by the Tribunal was that the appellant could give the evidence herself; but as the Court held, the point was that her evidence would be more likely to be accepted if it were supported by the evidence of the proposed witnesses.
8.45 If the Home Office objects to an adjournment on this ground, you may invite the Home Office to accept the witness' written statement. If it does so, then oral evidence from the witness is unnecessary. If it wishes to dispute the witness' evidence, it will be more difficult for the Home Office to oppose an adjournment to permit oral evidence.
8.46 It is, however, important that you check the witness' availability as soon as you decide to call him, and that you make any application to the court promptly. Impress on the witness that if he subsequently becomes unavailable then he must tell you immediately. See further chapter 25 on expert witnesses. Issues that arise where the witness has an outstanding asylum claim are addressed in chapter 15.
Being taken by surprise by arguments/evidence from the Home Office
8.47 In Macharia v IAT  EWCA Civ 3001, Peter Gibson LJ emphasised the need for a
"safeguard...requir[ing] a party other than the party producing new evidence to have a fair opportunity to deal with that evidence, and that must entail that he has time both to consider the material and also to see whether any further relevant material needs to be adduced to counter the new evidence."
8.48 The Tribunal has also held that where the Home Office produces evidence late, you should be entitled to an adjournment to seek evidence to rebut it (see e.g. Tambwe (14020)). Presidential Guidance Note No. 1 of 2014 gives as an example of "factors weighing in favour of adjourning an appeal, even at a late stage":
Late changes to the grounds of appeal or the reasons for refusal which change the nature of the case. The terms of rules 19(7), 23(2)(b) and 24(2) should be taken into account, as appropriate, when considering changes to the grounds or reasons.
8.49 Adjournment may also be necessitated where the HOPO is permitted at a late stage to put in issue a point which was not previously in dispute between the parties. Remember, however, that your primary submission in those circumstances should usually be that the Home Office should not be permitted to change its case at such a late stage, especially if the issues have been agreed at a CMRH, and given the obligation on the Home Office to provide, within 28 days of the date of being served with the notice of appeal, a statement of the grounds for opposition to the appeal whenever it wishes to change or add to the grounds or reasons given in the decision (Rule 24(2)). In Carcabuk and Bla v SSHD (00/TH/01426) the Tribunal concluded that:
"A concession can be withdrawn but, if a HOPO seeks to do this, the adjudicator must be satisfied that the appellant will not be prejudiced if the hearing continues and should only allow an adjournment if persuaded that there was good reason to have made and to withdraw the concession.
If a concession made before an adjudicator is to be withdrawn before the Tribunal, the Home Office must notify the appellant in good time. Adjournments will not be granted to allow for such withdrawals without good reason."
See also the guidance given by the Upper Tribunal in Kalidas (agreed facts – best practice)  UKUT 00327 (IAC) (discussed at para 6.18A and approved by the Court of Appeal in IM (Pakistan) v SSHD  EWCA Civ 626).
8.49A Although made in the context of an appeal from the Upper Tribunal to the Court of Appeal, the Court in AM (Iran) v SSHD  EWCA Civ 2706 expressed disapproval of the manner in which the Secretary of State had applied to withdraw a concession made below to the effect that the appellant would be at real risk of ill treatment were he considered to be a Christian convert:
"39. …[Counsel for the Secretary of State] had submitted that it would not be in the interests of justice to hold the Secretary of State to the concession…
40. I would accept that the Court may, depending on the circumstances, permit a concession that was made in a tribunal hearing to be withdrawn. …
41. In Secretary of State for the Home Department v. Davoodipanah  EWCA Civ 106 a concession had been made before the Immigration Adjudicator. On an appeal to the Immigration Appeal Tribunal, the Secretary of State considered that the concession had been wrongly made; and revisited an issue that was implicitly covered by the concession.
44. In my view the Secretary of State's application to withdraw the concession made before the UT cannot easily rely on principles of justice and fairness, particularly when it is sought to do so in a belated and informal way. One would expect those who seek to withdraw a concession to explain both promptly and frankly why the concession was made, why it was mistaken and why it is now just and fair that they be allowed to withdraw it. It is striking that when the application for permission to appeal to the UT from the UT decision was made, the Secretary of State's newly instructed and experienced counsel (who was not the counsel instructed before this court) did not seek assert that there was a mistake or seek leave to withdraw the concession."
8.49B In SSHD v JS (Uganda)  EWCA Civ 1670 the Court of Appeal commented on the situation where the Secretary of State takes a decision which is made on a mistaken premise. In these circumstances, the Court held that 'the decision can be revisited so that the law is properly applied, unless it would be unjust to allow this such as where there has been reliance to the detriment of the individual (see Elias LJ in [Koori v SSHD  EWCA Civ 552] at …).'
Mistake by representative (whether you or a previous representative)
8.50 If the need for adjournment arises through the failings of an appellant's representatives, then in the clear absence of an effective remedy against the representative and the potential adverse consequences to the appellant of her representative's conduct, it should seldom be just to refuse an adjournment in order to remedy the prejudice.
8.51 In the past, the Home Office have relied upon the House of Lords' decision in Al-Mehdawi v SSHD  UKHL 7 for the (unattractive) proposition that appellants must suffer the consequences of their representative's mistakes. The Court of Appeal has now established beyond doubt in FP (Iran) v SSHD  EWCA Civ 13 that this does not apply to asylum appeals (para 91) and Sedley LJ said that 'there is no general principle of law which fixes a party with the procedural errors of his or her representative' (para 46). In a series of strongly worded decisions, the former President of the Upper Tribunal has made clear that representatives who persistently fail to comply with the Tribunal's directions can expect to face the consequences, but the appellants themselves should not be penalised. As he put it in VA (Solicitor's non-compliance: counsel's duties) Sri Lanka  UKUT 00012 (IAC):
"The Tribunal was blackmailed in this case by the Appellant's representatives on a previous date, 14 July 2016. The order of that date is attached. This is aptly described as "blackmail", in the figurative sense, because while the Tribunal could have refused to adjourn the hearing and insisted upon proceeding, this was in truth a theoretical possibility only given the virtual inevitability that any constitution of the Tribunal would have given paramount importance to the Appellant's right to a fair hearing – in this discrete context, a professionally prepared and properly presented hearing."
In that case, the appellant's solicitor was required to file a witness statement by 9am the following morning explaining his default and to attend before the Upper Tribunal to explain in person.
8.52 You may again refer to R. v Kingston upon Thames Justices, ex parte Martin  Imm AR 172 where the Divisional Court found that a significant factor in determining the fairness of the refusal to adjourn was that the party was himself an experienced barrister. The contrast with the vulnerability of the asylum seeker and her dependence on her representative could hardly be greater.
8.52A Note the dicta in several Tribunal decisions such as BO and Others (Extension of time for appealing) Nigeria  UKAIT 00035 and MM and others (Out of time appeals) Burundi  UKIAT 00182 to the effect that allegations should be put to the previous representatives. In SV (Alleging misconduct and suppressing evidence) Iran  UKAIT 00160, the Tribunal explained that
"The decision in MM does not mean that the Tribunal will not accept that an appellant has been the victim of professional incompetence unless the advisor concerned accepts the criticism but it does mean that the Tribunal will be very reluctant to accept that a criticism is well founded unless it has been put to the advisor concerned and the comments noted."
To await decisions in other cases
8.53 In the Court of Appeal and Administrative Court, it is often considered sensible to adjourn cases behind a lead case where they raise common issues, whether the lead case is in the same court or a higher court. However, you may hear judges say that they have a policy of not adjourning appeals to await decisions in other cases. It appears odd that the Tribunal should not be prepared to adjourn in circumstances in which the Court of Appeal and Administrative Court consider it sensible, and such a policy is not universally applied. In TR (CCOL cases) Pakistan  UKUT 33 (IAC), in which the First-tier Tribunal judge had signed his decision the day after the determination of the Upper Tribunal was promulgated in a group of relevant test cases which he was aware were under consideration, the Upper Tribunal found that he had erred in failing to check whether a decision had been made in those cases before signing his decision, or to adjourn the appeal pending the decision if it had not yet been made. It said:
We would also add that we are surprised that this IJ, deciding this case when he did, did not at least consider whether he should adjourn or delay promulgation in order to see whether it was necessary to reconvene so he had NA and Others available. We appreciate that immigration judges do their best to work to strict time limits and targets, and we acknowledge that there may have been listing considerations in play that may have had a bearing and might explain the non-adjournment, but there is no public interest in reaching decisions in cases where it is known that a very relevant test case decision from a panel of judges is imminent.
8.54 The appropriateness of adjournment depends upon the relevance of the lead case and the imminence of judgment. The more detail that you can give on both counts, the better your chances. Adjournment will be most appropriate where the point in issue in the pending decision will affect the evidence that needs to be given in the present appeal, or the test that the fact-finder must apply.
8.55 You must reassure the judge that he is not being asked to adjourn the appeal when you have no idea when the other case will be heard, and only a sketchy idea of its relevance. The strongest scenario will be where the case has already been heard and only judgment is awaited. The Upper Tribunal now notifies First-tier Tribunal judges of upcoming Country Guidance cases and publishes a list of pending cases, the issues they raise, and whether they have yet been listed or heard. You should consult this list, which is updated regularly, particularly if it is apparent that there has been no recent relevant Country Guidance decision. It is available at: https://www.judiciary.uk/about-the-judiciary/who-are-the-judiciary/judicial-roles/tribunals/tribunal-decisions/immigration-asylum-chamber/
Challenging a remittal by the Tribunal
8.56 Under the Tribunals, Courts and Enforcement Act 2007, an appeal may be made to the Court of Appeal against any decision of the Upper Tribunal which is not an excluded decision, which will include a decision by the Upper Tribunal to remit an appeal to the First-tier Tribunal for a rehearing. Where an in-time application is made to the Court of Appeal for permission to appeal against a decision to remit, the First-tier Tribunal proceedings should be stayed. Where an application has been made, or is about be made out of time, it may be necessary to apply to the First-tier Tribunal to adjourn the hearing to await consideration by the Court of Appeal.
Conditions recently changed in the country of origin
8.57 The Home Office has sometimes applied for an adjournment when conditions have recently deteriorated in a country of origin. Its motivation in such cases has often appeared to be the hope that conditions will improve again by the time the appeal is relisted. That is an impermissible approach. The judge is required to determine the appeal on the basis of country conditions as of the date of hearing.
8.58 However, you will occasionally have to apply for an adjournment as a result of recently changed circumstances in the country of origin. This is not because you hope that circumstances will change again before the appeal is heard, but because you have had insufficient time to obtain up-to-date evidence, most often expert evidence, as to the implications of the changed conditions for your client. Depending on the specific factual matrix, the Home Office may also argue that a change in country conditions is a "new matter" (see, generally, chapter 5). The Home Office Rights of Appeal Guidance instructs presenting officers to apply for an adjournment to consider the "new matter" if consent for the Tribunal to consider it is not given.
8.59 You ought to be offered an opportunity to make representations on any Home Office application for an adjournment. It will often make such an application where it has been directed to do something within a particular period and has failed to do it. You may wish to argue alternatively that the Home Office should be prevented from advancing the allegation to which the direction was relevant. Where the Home Office applies to adjourn the matter only at the start of the hearing, especially without any attempt to agree an adjournment in advance, it may be appropriate to apply for your costs thrown away of attending the hearing under rule 9, although note the relatively narrow approach indicated by Presidential Guidance Note No. 1 of 2014 (paras 27-32) and the Presidential Guidance Note No. 2 of 2018 to the circumstances in which costs will be awarded.
8.59A The Home Office Appeals Process guidance provides the following guidance on adjournments to HOPOs (p.11):
Substantive hearings can be adjourned for various reasons. Examples of why a PO may ask for an adjournment include: • new evidence has been submitted which needs to be checked • there is new case law which the PO considers may substantially affect the appeal outcome and the PO needs to seek advice on what lines to take • there is an appeal by a family member on similar facts and the cases should be heard together.
The above list is not exhaustive of reasons why an adjournment may be sought. An adjournment should only be sought where it is considered necessary. Where an appeal can proceed without an adjournment for example, where new evidence is submitted and that evidence is unlikely to be determinative of an appeal, then the PO should not ask for an adjournment.
There will be times where a PO is confronted with new evidence or caselaw on the day of the hearing. Where a PO considers that they would be able to continue with the appeal provided they were given time to consider the new material this should be explained to the Tribunal with a request that a brief delay to the hearing be granted. As with an adjournment request it will be for the Tribunal to decide whether to grant the PO any time.
8.61 The HOPO may try to obtain an adjournment on the basis that he is prejudiced by having insufficient time to consider your evidence because of its late submission. The reality may be that the file was not allocated to the HOPO until the day before the hearing. Countering such applications is discussed at para 27.13.
8.62 The Tribunal has in the past been known to accede to applications to adjourn appeals from a particular country en masse, such as Iraqi cases following the start of the second Gulf War. If you have sufficient evidence of present country conditions, you may wish to challenge such adjournments.
8.63 The Tribunal may adjourn a hearing despite neither party having made such an application and even if both parties object to the adjournment. The judge must still show that the adjournment is consistent with the overriding objective, and his decision will be challengeable (as in No 19 (R (SSHD) v IAT)  EWHC 1067 (Admin) where both appellants and the Home Office brought judicial review proceedings against the Tribunal's decision to adjourn).
8.64 It will however be rare for a judge to adjourn of his own motion. In the past, some judges have done so when the Home Office has not instructed a HOPO to attend because the judge feels a HOPO would assist. However, the Tribunal has now established that a judge should not normally adjourn on this ground (see chapter 40). Where a judge decided to issue a witness summons of his own motion (a power which should also be exercised sparingly, see para 9.45), he would also probably have to adjourn the hearing. The Tribunal has on occasion adjourned the hearing so as to direct that the parties seek further country information which it deemed necessary in order to properly determine the appeal (e.g. Iimi v SSHD  UKIAT 05558).
8.65 Sometimes, a hearing will be adjourned simply due to lack of court time, lack of judges, or the court files having been mislaid. This may be unforeseeable and unavoidable. However, if the appeal is adjourned in circumstances which should have been foreseeable and avoidable, then you may wish to ask the Tribunal to pay your client's costs thrown away. The Tribunal previously accepted it should pay compensation for costs thrown away when a hearing is adjourned through its own fault. It produced a newsletter which includes reports of applications for compensation and the decisions it has reached. In an appropriate case, a refusal to pay compensation could be challengeable by means of judicial review, though you would have to weigh carefully whether the cost of the application was justified by the amount at stake. One example where this course might be considered is where the appellant is paying privately for representation at the appeal, and the costs thrown away by adjournment may render her unable to pay for further representation. Appeals allocated to the 'float list' (that is, cases which are not allocated a specific courtroom, presenting officer and judge but are put on a reserve list in case, due to adjournments or other unforeseen circumstances, a judge becomes free on the day) are relatively frequently adjourned on the day, following a long wait. There may be good cause for complaint and an application for compensation from the Tribunal in these circumstances, especially in cases which are manifestly unsuitable for the float list, such as those involving the elderly, young children or those with mental or physical disabilities. Asylum appeals will not be allocated to the float list.
8.66 If your adjournment application is refused, you must decide whether to challenge the refusal to adjourn immediately or whether to proceed with the appeal and then, if appropriate, raise the refusal to adjourn as part of your application for permission to appeal against the determination dismissing the appeal. Unlike other chambers of the First-tier Tribunal, there is no right of appeal against "a procedural, ancillary, or preliminary decision" so the only means of challenge prior to the appeal being determined is judicial review of the refusal to adjourn: see R (Gudanaviciene) v First-tier Tribunal (IAC)  EWCA Civ 352, para 36.
8.67 As indicated by the quotation in para 8.1 above, adjournment may raise acute issues of fairness. The High Court has on occasion been willing to entertain applications for judicial review of a refusal to adjourn, and indeed to entertain urgent applications for an interim injunction prohibiting the judge from proceeding with the hearing. For example, an interim injunction was granted by the Administrative Court in R (Hwez and Khadir) v SSHD  EWHC 1597 (Admin), prohibiting the hearing of an Iraqi Kurd's asylum appeal during 2001 pending the judicial review challenge to the refusal to adjourn. In R (Gudanaviciene) v First-tier Tribunal (IAC)  EWCA Civ 352, an order was granted staying the hearing of the claimant's deportation appeal pending the determination of her application for judicial review of the refusal of ECF (see para 8.38 above).
8.68 Bringing immediate judicial review proceedings will only be appropriate (so as to avoid refusal by the Upper Tribunal or Administrative Court on the basis that a suitable alternative remedy exists) where your adjournment application raises a point of principle and/or where waiting to appeal the final determination is clearly not a sensible remedy. The latter may apply where the refusal has placed the appellant in a particularly invidious position in terms of the conduct of the hearing, such as where an application for ECF has not yet been decided (or has been refused) and she will otherwise be unrepresented, and risks causing prejudice which the Tribunal could not remedy effectively on appeal. The grant of an adjournment to the Home Office may also cause prejudice that cannot be remedied on appeal, e.g. where its real ground for adjournment appears to be the hope that conditions may subsequently improve in the country of origin.
8.69 Home Office barristers sometimes advance the misconceived argument that a claimant must show that it was perverse to refuse to adjourn. In SH (Afghanistan) v SSHD  EWCA Civ 1284, the Court of Appeal made clear that the issue is fairness, not rationality. Peter Gibson LJ observed that:
"...when considering whether the immigration judge ought to have granted an adjournment, the test was not irrationality. The test was not whether his decision was properly open to him or was Wednesbury unreasonable or perverse. The test and sole test was whether it was unfair."
8.70 If you are refused an adjournment and the circumstances are not such as to merit an immediate challenge (or an injunction is refused), or if your adjournment application is refused at the hearing so that you have no time to apply for an injunction, you will be faced with the question of how (if at all) to conduct the appeal. Your options are either to present the hearing as best you can, withdraw your representation, or offer no evidence. It will seldom be helpful or appropriate to withdraw your representation or to offer no evidence if you have any instructions upon which you can present the appeal. Consider in advance what you will do if the adjournment is refused.
8.71 You will invariably decide to proceed with the hearing where the adjournment application related to a discrete piece of evidence which did not affect your ability to lead the rest of your evidence. If you do proceed, you should continue your efforts to obtain the evidence despite the refusal of the adjournment. If it is obtained before the determination is promulgated, it can be sent to the Tribunal; you should also copy it to the HOPO in such circumstances. If it is received after the appeal is determined, it can be used to support an application for permission to appeal to the Upper Tribunal.
8.72 If your client has attended, but has instructed you that he is too ill to give evidence, you may decide not to call your client (making it clear that you are doing so because he is too ill) and simply make submissions. Obviously, if your client is not there, you will take the same course.
8.73 The most difficult situations often arise where an advocate is instructed to meet his client on the day and no interpreter attends with the result that the advocate is unable to take instructions. It will rarely be justifiable not to hold a conference prior to the date of the hearing in an asylum case. Similarly, there is no excuse for not arranging to have an interpreter at the hearing if the appeal is publicly funded. If you do find yourself in the unfortunate position of being briefed to meet your client for the first time on the day of the hearing and you have been unable for whatever reason to take instructions, you have a difficult decision to make if your adjournment request is refused. If you have a full witness statement and written instructions, and your client has indicated a desire to give oral evidence, you may decide to take the risk of calling your client to allow cross-examination. But you cannot lead evidence if you do not have adequate instructions.
8.74 You may in those circumstances indicate that you are unable to call your client due to inadequate instructions and your inability to communicate with her. You should therefore make any submissions you can on the refusal letter and any documentary evidence. It will not normally be appropriate to say that you offer no evidence if there is some evidence before the Tribunal. You must not of course withdraw the appeal. (You will anyway be unable to get instructions to that effect.) You may in extreme cases inform the Tribunal that you do not feel that you have sufficient instructions to represent the appellant and are therefore withdrawing. However, the effect of that decision may be that the appellant is cross-examined by the HOPO without any representative, so the better course will normally be to invite the Tribunal to determine the matter on the papers and then appeal the determination if appropriate.
8.75 Continuing the hearing should not prejudice you in challenging on appeal the Tribunal's refusal to adjourn. You will have asked the Tribunal to note that you are continuing under protest and will have renewed your request for an adjournment at every appropriate point in the hearing. You will have drafted a note immediately after the hearing, detailing how your client was prejudiced, and recording what was said at the hearing.