Ferdous Alam Khan v SSHD: Court of Appeal clarifies legal status of vulnerability guidance

In Ferdous Alam Khan v Secretary of State for the Home Department [2026] EWCA Civ 148, the Court of Appeal has provided important clarification on the legal status of the Joint Presidential Guidance Note No 2 of 2010 on children, vulnerable adults and sensitive witnesses, confirming that a failure to follow its provisions does not automatically constitute an error of law.

The appellant, a Bangladeshi national, had lived in the United Kingdom since 2009 and applied for indefinite leave to remain on the basis of his private and family life. His application was refused and subsequent appeals to the First-tier Tribunal and Upper Tribunal were both dismissed. Before the Court of Appeal, the sole ground was that the First-tier Tribunal had erred in law by failing to follow the Guidance Note, in particular by not recording whether the appellant was a vulnerable witness or addressing the effect of his vulnerability on its assessment of the evidence.

The appellant suffered from anxiety and depression, for which he was receiving prescribed medication and had previously received counselling. It was not disputed that this placed him within the definition of a vulnerable adult. However, he was represented throughout by experienced leading counsel, no adjustments to the hearing had been requested, and no specific procedural failings were identified during the proceedings.

Lord Justice Lewis, giving the lead judgement with which Lady Justice Yip and Lady Justice May agreed, rejected the appellant's argument that the Guidance Note imposes free-standing legal obligations. The court drew on both the language of the Guidance Note itself and the earlier Court of Appeal decision in AM (Afghanistan) v Secretary of State for the Home Department [2017] EWCA Civ 1123. In that case, Ryder LJ had stated that failure to follow the Guidance Note "will most likely be a material error of law" — phrasing the court in Khan treated as significant. Had the Guidance Note been understood to impose mandatory requirements, Ryder LJ would have said failure "is" an error of law, not that it "will most likely be" one.

The court affirmed that the Guidance Note exists to ensure procedural fairness and effective participation in proceedings. Its purpose is practical rather than prescriptive. The critical question in any given case is whether the proceedings were conducted fairly and justly, and whether the evidence was properly understood and assessed — not whether each step in the Guidance Note was formally observed and recorded.

On the facts, there was no procedural unfairness. The First-tier Tribunal had plainly engaged with the appellant's mental health throughout its decision, making specific findings on the nature and extent of his depression and considering its relevance to both the availability of treatment in Bangladesh and the question of very significant obstacles to reintegration. The appellant had not identified any finding that was infected by the failure to formally record his vulnerability, nor any respect in which his evidence had been misunderstood or impaired.

The judgement underscores that while the Guidance Note carries real weight and tribunals should engage with it carefully, its provisions operate as structured guidance towards fairness rather than a checklist of mandatory procedural steps. A breach of form, absent any substantive unfairness, will not suffice to vitiate a decision.

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