Held, appeal allowed and case remitted. Where a decision had to be taken to remake or remit in circumstances where the effect of the error of law below had been to deprive a party before the FtT of a fair hearing, the “normal” assumption that the UT would remake the decision was negatived. Dicta of the Upper Tribunal in another authority referred to a “fairly strong general rule” that, where a first instance decision was set aside on the basis of an error of law involving the deprivation of an appellant’s right to a fair hearing, the appropriate course would be to remit to a newly constituted FtT for a fresh hearing. That was so because the common law right to a fair hearing was generally considered to rank as a right of constitutional importance and it was preferable that the litigant’s statutory right of appeal to the UT should be triggered only where the former right had been fully enjoyed. However, use of the term “a fairly strong general rule” in the authority considered was not suggesting the existence of a rule of law or procedure rather than an observation on what would be the usual outcome. Again, the word “presumption” should only be used with extreme care, and qualitative expressions such as “strong presumption” were to be avoided wherever possible. Accordingly, where an error of law had deprived a party of a fair hearing below, the normal procedure was and should be to remit. If a different course were to be adopted, it needed cogent reasons and, as a separate requirement, those reasons should be adequately expressed. Further, the Upper Tribunal’s discretion pursuant to section 12 of the Tribunals, Courts and Enforcement Act 2007 was the subject of Practice Directions and Practice Statements of the Immigration and Asylum Chambers of the FtT and the UT, which explained how the UT would normally exercise the discretion conferred. In the present case however the UT had departed from the guidance set out in paragraph 7.2(a) of the applicable Practice Statements, and it was therefore incumbent on the judge to provide reasons for that approach; but no sufficient reasons were given, and those that were given concentrated upon the scope of the issues, in apparent reference to paragraph 7.2(b). That reason could not stand because paragraphs 7.2(a) and 7.2(b) should be read disjunctively. In other words, it was insufficient to refer solely to paragraph 7.2(b): the UT had also to consider whether paragraph 7.2(a) applied, which it failed to do. Not only was there no consideration given to paragraph 7.2(a) of the Practice Statements at all, but also the UT’s reference to paragraph 7.2(b) was itself misguided. The UT referred to “the limited scope of the issues” in its Error of Law decision and to “the narrowness of the scope of the issues as they had developed since the [Secretary of State’s] initial refusal” in its substantive decision. What paragraph 7.2(b) of the Practice Statements in fact referred to was “the nature or extent of any judicial fact finding which is necessary”, which was different and which the UT did not address either in its Error of Law decision or in its substantive decision. Therefore the UT’s reference to and interpretation of paragraph 7.2(b) were also wrong. In addition, all facts remained to be found and the nature and extent of the claimant’s relationship with the three children in the case was and remained fully in contention until some concessions were made after the decision of the UT to remake rather than to remit. If the UT had given proper reasons, that would have involved proper consideration of both paragraphs 7.2(a) and 7.2(b) of the Practice Statements which might have led the UT to a different decision. No good reason had been shown for not following the normal course of remitting a decision where the error of law rendered the hearing below unfair; and a conclusion that all facts would have to be found only served to support the need to remit. The Tribunals, Courts and Enforcement Act 2007 established what in normal cases would be a two-tier system (FtT/UT) with the possibility of a second appeal thereafter if the more stringent requirements of the second appeal test were satisfied. Equally, there might be circumstances in which it was appropriate for the UT to remake a decision and the effect of its doing so might be that a party only had the prospect of appealing a primary finding of fact (or law) by the UT if they could satisfy the second appeal test. Such an outcome was not necessarily objectionable; but it did not follow that it was necessarily unobjectionable in all cases. It was essential to bear in mind in the present case that the terms of the applicable Practice Statements had been amended, and also that the errors of law that had been identified in the FtT’s original decision had rendered the hearing before the FtT unfair and had prevented the claimant from presenting his case. In particular, the reference in an earlier version of paragraph 7.2(b) to “highly compelling reasons” meant that the bar for remitting was set higher by paragraph 7.2 as then in force than it was by the current version. It was determinative that the terms of paragraph 7.2 as now in force no longer included the need for “highly compelling reason ” before a case would be remitted under paragraph 7.2(b), and that the hearing before the FtT in the present case was held to be unfair. The finding of unfairness was of fundamental importance. However, it was not the case that all cases where the hearing before the FtT had been unfair would necessarily fall to be remitted: but reasons for not doing so had to be both cogent and expressed. In the present case there were none. Put slightly differently, the admitted error by the UT had deprived the claimant of (a) a fair hearing before the FtT, (b) the first appeal “standard” error of law test in respect of the range of factual findings and evaluative judgments which would have been made by the FtT, and (c) the opportunity to appeal against an adverse finding on a point of law which did not have to meet the second appeal test. Since the point of the paragraph 7.2(a) exception was to avoid those consequences, all of which flowed from the unfairness of the original FtT hearing, those were losses that were substantial and which rendered the UT’s error material. The detailed and thorough evaluation of the case by the UT demonstrated that the decision was nuanced and difficult and that a different outcome could have fallen within the range of reasonable conclusions to which either the UT judge or any other judge could have come. Accordingly, the judgment of the UT would be set aside and the case remitted to the FtT to reconsider the appeal de novo (paras 5, 16–17, 36–50, 62, 63, 64).