In the case of Nwaigwe (adjournment: fairness)  UKUT 418 (IAC) the unnamed First-tier Tribunal judge had refused to adjourn a case. This was despite a letter from the appellant’s solicitors requesting a short adjournment on the grounds that the appellant was ill and stating that they had been unable to obtain evidence from the doctor or hospital “mainly to legal restraint under the Data Protection Act”. The appeal was dismissed but the appellant sought permission to appeal with a note saying that he had recently been diagnosed as diabetic and had been struggling with the medication.
Permission was granted and the President finds that the earlier judge has erred in law in failing to adjourn. However, he goes on to dismiss the appeal as the error was not material and there was no unfairness to the appellant, who could not possibly have shown that he met the relevant requirements and who in any event had not engaged any further with the appeal process.
If a Tribunal refuses to accede to an adjournment request, such decision could, in principle, be erroneous in law in several respects: these include a failure to take into account all material considerations; permitting immaterial considerations to intrude; denying the party concerned a fair hearing; failing to apply the correct test; and acting irrationally. In practice, in most cases the question will be whether the refusal deprived the affected party of his right to a fair hearing. Where an adjournment refusal is challenged on fairness grounds, it is important to recognise that the question for the Upper Tribunal is not whether the FtT acted reasonably. Rather, the test to be applied is that of fairness: was there any deprivation of the affected party’s right to a fair hearing? See SH (Afghanistan) v Secretary of State for the Home Department  EWCA Civ 1284.