In an asylum appeal, Lady Justice Elisabeth Laing in the Court of Appeal found the First-tier Tribunal wrongly stopped a witness being cross-examined without first asking whether any unfairness had been caused.
Key facts
- Who: Appellants and the Home Office in immigration and asylum appeals, and anyone whose appeal turns on oral evidence and cross-examination.
- From: Judgment of 16 April 2026
- Source: MR (Pakistan) v Secretary of State for the Home Department [2026] EWCA Civ 473
The Court of Appeal (Civil Division) gave judgment on 16 April 2026 in MR (Pakistan) v Secretary of State for the Home Department [2026] EWCA Civ 473, on appeal from the Upper Tribunal (Immigration and Asylum Chamber). Lady Justice Elisabeth Laing gave the judgment. The case concerns a citizen of Pakistan, referred to as MR. He came to the UK in June 2006, and his application for leave to remain under article 8 of the European Convention on Human Rights was refused in 2012.
Background
In June 2017 MR made an asylum claim. The First-tier Tribunal (Immigration and Asylum Chamber) rejected it, and his appeal rights were exhausted in June 2018.
He made further submissions. In January 2023 the Secretary of State decided that the most recent ones amounted to a "fresh claim". That gave him a right of appeal to the First-tier Tribunal.
The First-tier Tribunal's approach
At the hearing, the Secretary of State's Presenting Officer repeatedly declined to put certain points to MR in cross-examination. The First-tier Tribunal treated that as meaning the Secretary of State was not challenging his evidence on those points. Under rule 14 of the Tribunal Procedure (First-tier Tribunal) (Immigration and Asylum Chamber) Rules 2014, it directed that his two proposed witnesses need not be called. It said it would "take note" of their witness statements.
It also decided that the Presenting Officer had "tacitly accepted" part of MR's case through the nature of her questions. It allowed the appeal, while expressing doubts about the credibility of his claim.
The Upper Tribunal held that the First-tier Tribunal had erred in law and allowed the Secretary of State's appeal. MR appealed to the Court of Appeal with permission.
The question
The Court of Appeal considered two issues:
- whether the First-tier Tribunal erred in law in relying on the Presenting Officer's refusal to put those points;
- whether it erred in finding that she had "tacitly accepted" part of the case.
It also considered the First-tier Tribunal's refusal to decide the appeal on the evidence as a whole, despite the doubts it had expressed.
The decision and reasoning
Lady Justice Elisabeth Laing said she would dismiss the appeal. In her view the Upper Tribunal was right that the First-tier Tribunal's approach was wrong. Before preventing the cross-examination of the witness, it had failed to ask itself whether the Presenting Officer's refusal formally to put those points to MR had caused him any unfairness.
She added that, given the Secretary of State's consistent position throughout the process, it was difficult to see how the First-tier Tribunal could have found any unfairness. She did not need to go that far. Like the Upper Tribunal, she considered the First-tier Tribunal's exercise of its power to prevent further cross-examination was flawed.
What this means for appellants in immigration and asylum appeals
In Lady Justice Elisabeth Laing's view, a tribunal that decides to stop a witness being cross-examined should first ask whether the other side's failure to put its case has caused any unfairness. It is sensible to get legal advice before any deadline passes.