Upper Tribunal hands down guidance on out of country appeals heard before Supreme Court judgment in Kiarie and Byndloss

In AJ (s 94B: Kiarie and Byndloss questions) Nigeria [2018] UKUT 00115 (IAC) the Upper Tribunal has handed down guidance on the application of Kiarie and Byndloss to appeals which were heard prior to the handing down of the Supreme Court’s judgment.


The Appellant had been removed prior to the hearing of his appeal, pursuant to certification under section 94B of the 2002 Act.  The UT found that the First-tier Tribunal judge had erred in law in failing to consider whether it was necessary for the Appellant to give oral evidence albeit he had not had the benefit of the Supreme Court’s judgment.


The UT’s guidance for FTT judges is set out at paras [44-52] of the determination.  The UT concluded:


69. Both in the present case and in any other appeal where the section 94B certificate has not been quashed, if the First-tier Tribunal, as a result of adopting the step-by-step approach, concludes that the appeal cannot lawfully be determined unless the appellant is in the United Kingdom, the Tribunal should give a direction to that effect and adjourn the proceedings, to enable the respondent to secure the appellant’s return.


Andrew Jones at Wilson Solicitors LLP and Marisa Cohen acted for the Appellant