Tribunal decisions

The decision

IN THE UPPER TRIBUNAL
IMMIGRATION AND ASYLUM CHAMBER Case No: UI-2023-005640
First-tier Tribunal No: PA/11624/2019

THE IMMIGRATION ACTS

Decision & Reasons Issued:
On 15th April 2026

Before

UPPER TRIBUNAL JUDGE BARTLETT

Between

Secretary of State for the Home Department
Appellant
and

TT
(ANONYMITY ORDER MADE)
Respondent

Representation:
For the Appellant: Ms Everett
For the Respondent: Ms Physsas

Heard at Field House on 24 March 2026

Order Regarding Anonymity

Pursuant to rule 14 of the Tribunal Procedure (Upper Tribunal) Rules 2008, the appellant is granted anonymity.

No-one shall publish or reveal any information, including the name or address of the appellant, likely to lead members of the public to identify the appellant. Failure to comply with this order could amount to a contempt of court.

DECISION AND REASONS
Background
1. I will use the terminology for the parties used in the First-tier Tribunal to avoid confusion given that I will be quoting from that Determination of the First-tier Tribunal. The Respondent will be the Secretary of State for the Home Department and the Appellant will be TT.
2. On 25 July 2019 the appellant claimed asylum. This application was refused by the respondent in a decision dated 4 December 2019. The appellant appealed that decision to the First-tier Tribunal. The appeal was initially decided in the First-tier and then successfully appealed to the Upper Tribunal who remitted it to the First-tier. The First-tier Tribunal decided the appeal in the appellant’s favour and found that she benefitted from the protection of the Refugee Convention in a determination dated 21 March 2023. The respondent appealed this determination to the Upper Tribunal. This is how the Determination dated 21 March 2023 by the First-tier Tribunal Judge (the “Determination”) has come before the Upper Tribunal today. The reason for the delay between the 2023 Determination and this appeal hearing taking place was unclear to all at the hearing.
3. Permission to appeal was granted on 24 April 2023 by the First-tier Tribunal and the grant of permission set out that “[t]he direction of the Judge’s adverse findings combined with the number of them and compared to the relatively few and less significant positive findings made it difficult to see how the Judge came to the conclusion that he did. It is arguable that he erred in the overall assessment”.
4. At the hearing Ms Everett stated that the appellant’s grounds of appeal are that inadequate reasons were given for the Judge’s findings on credibility. She continued to rely on the Grounds of Appeal and submitted that [112] contained an error in the Judge concluding “bearing in mind the standard of proof, I conclude I must accept her account”.
5. The Grounds of appeal rely on one ground which can be summarised as follows – the Judge made a bare statement that the appellant’s account was accepted despite numerous adverse credibility findings and it is not clear why the Judge found the appellant’s account to be credible.
6. Ms Physsas’ submissions, in brief, were that the reasons given were sufficient and the Judge gave evidence based reasons.
Approach
7. I bear in mind the guidance given by Lord Hamblen JSC in HA (Iraq) [2022] UKSC 22 at [72] in relation to the approach I must take in deciding whether the FTT has made an error of law:
“72. It is well established that judicial caution and restraint is required when considering whether to set aside a decision of a specialist fact finding tribunal. In particular:
(i) They alone are the judges of the facts. Their decisions should be respected unless it is quite clear that they have misdirected themselves in law. It is probable that in understanding and applying the law in their specialised field the tribunal will have got it right. Appellate courts should not rush to find misdirections simply because they might have reached a different conclusion on the facts or expressed themselves differently: see AH (Sudan) v Secretary of State for the Home Department [2008] AC 678 per Baroness Hale of Richmond at para 30.
(ii) Where a relevant point is not expressly mentioned by the tribunal, the court should be slow to infer that it has not been taken into account: see MA (Somalia) v Secretary of State for the Home Department [2011] 2 All ER 65, para 45 per Sir John Dyson JSC.
(iii) When it comes to reasons given by the tribunal, the court should exercise judicial restraint and should not assume that the tribunal misdirected itself just because not every step in its reasoning is fully set out: see R (Jones) v First-tier Tribunal (Social Entitlement Chamber) [2013] 2 AC 48, para 25 per Lord Hope of Craighead DPSC.”
8. In R (Jones) v First Tier Tribunal and Criminal Injuries Compensation Authority [2013] UKSC 19, Lord Hope set out [25]:
"It is well established, as an aspect of tribunal law and practice, that judicial restraint should be exercised when the reasons that a tribunal gives for its decision are being examined. The appellate court should not assume too readily that the tribunal misdirected itself just because not every step in its reasoning is fully set out in it."
9. In UT (Sri Lanka) v SSHD [2019] EWCA Civ 1095 at [27] Floyd LJ set out:
“In R v Immigration Appeal Tribunal, ex parted Khan [1983] QB 790 (per Lord Lane CJ at page 794) it was explained that the issues which the tribunal is deciding and the basis on which the tribunal reaches its decision may be set out directly or by inference. If a tribunal fails to do this then the decision may be quashed. He continued:
“The reason is this. A party appearing before a Tribunal is entitled to know, either expressly stated by it or inferentially stated, what it is to which the Tribunal is addressing its mind. In some cases it may be perfectly obvious without any express reference to it by the Tribunal; in other cases it may not. Second, the Appellant is entitled to know the basis of fact on which the conclusion has been reached. Once again in many cases it may be quite obvious without the necessity of expressly stating it, in others it may not.” (emphasis supplied)”
Decision
10. At [48] the Determination records: “A central challenge to the appellant’s credibility is the inconsistent accounts that she has given and the timings of her claim.”
11. [58 and 60] of the Determination record [58] “Her leave having been curtailed in the summer of 2015 the appellant applied for leave to remain outside the Rules in August 2016 (the application is at Respondent’s Bundle, page 86, and is date stamped as being received on 24 August 2016)…
[60] This is elaborated on in a separate covering letter (RB, page 171). I will not set out the account given in full, but it is clearly entirely at odds with both her initial visa application and her subsequent asylum claim. For example, she states that her father is ‘a ruthless and sleazy business man who runs night massage clubs, casino etc’ who was a politician in Sri Lanka. He disapproved of her relationship in the United Kingdom, although that had subsequently ended. She blamed the 2014 attack on either her former partner or her father.”
12. In relation to the discrepancies between the 2016 account and her later account the Judge recorded:
a. [67] “However, this does not explain how it came about that [the case worker] would invent a completely different story from the instructions given to her. Nor does it explain why she would wish to. There would seem to be little incentive, and no reason, for her to take that course of action when the appellant herself had what would appear to have been a perfectly good claim for protection on her own account.”
b. [68] “Mr Lingajothy cannot say that the appellant did not give the instructions in the letter or, if she did not, what instructions she did give. All he can say is that which he has about the state of the file and the background as set out above.”
13. The Judge recorded the factors against the appellant as follows:
a. at [73] he noted the respondent’s criticisms that the appellant’s answers in the substantive asylum interview differed between the 2014, 2016 and current applications and referred to his findings above that recognised these differences;
b. Specifically in relation to the contradictory 2016 claim [101] “The next point is the claim that was made in 2016. This is clearly an unsatisfactory situation. Her account in that completely contradicts her account as it is today”. And [104] “However, even allowing for that, this must also count against the appellant.”
c. at [74] that the respondent’s submission that the appellant’s answers in the substantive asylum interview were vague was “a fair criticism, although allowance must be made for the psychiatric evidence...”
d. At [75] the Judge agreed that “it is inherently implausible that the Sri Lankan authorities would seek to recruit the appellant as a spy…[t]hat is an important factor in assessing her credibility.”
e. [93] “Section 8 has been raised in the Refusal Letter for obvious reasons. This is clearly a highly significant point.” And [97] “However, I do accept that this must count against the appellant”
f. In relation to delay in claiming asylum [100] “Again, when she returned to the United Kingdom she could have claimed asylum. Her explanation (that she was scared that the Sri Lankan authorities would learn of this and she would be at risk) is objectively implausible. Although the state of her mental health certainly may make this less implausible, this must also count against her.”
g. In relation to her return to Sri Lanka [99] “However, I accept that it is inherently implausible that someone with the appellant’s claimed risk profile would return home. This is a further point that must count against her.”
14. The judge considered the following acted in favour of the appellant:
a. At [75] the Judge found answers in the substantive asylum interview about her father’s involvement in manufacturing that the respondent said were inconsistent were not “particularly contradictory”
b. At [82] the account given in the scaring report was consistent with the appellant’s statement and at [84] that scar 1 “is consistent with a deliberately caused injury during an assault as described by the claimant”
c. At [105] “I do not consider that there is anything in the appellant’s evidence that is contradicted by the objective evidence, which is a point in her favour.”
d. At [111] “Whilst there are the inconsistencies set out above, there is a good level of consistency between her statements, her evidence at the hearing and her account to Dr Dhumad. That is a significant point in her favour”
15. The Judge treated the following as neutral factors
a. [87] “One point which I do not consider to be of significance is the question of whether the Sri Lankan authorities orchestrated the attack on the appellant in 2014”
b. [91] “Allied to that is the appellant’s account of being phoned and threatened in the United Kingdom. I do not consider it at all likely that Sri Lankan police (or other body) would call her in the United Kingdom and make threats.”
c. [115] “the medical evidence does not assist in determining the appellant’s past”
16. The Judge draws all of these factors together in [121] in which he states “When I remind myself of [the lower standard of proof], I am driven to conclude that the psychiatric evidence and the scarring report, coupled with the consistency in the appellant’s account and her evidence at the hearing, combine to overcome the other aspects of credibility and mean there is a reasonable likelihood that her account is an accurate one.”
17. It would be incorrect to simply count the factors in favour and against the appellant. It is the Judge’s role to decide the pertinent issues and decide what weight to give each issue.
18. As can be seen from the extracts of the Determination I have set out above the Judge found a substantial number of issues adverse to the appellant’s claim and that these were significant. This included that despite claiming to fear the Sri Lankan authorities she returned to Sri Lanka, her substantive asylum interview answers were vague, parts of her claim were implausible, the significant delay and timing of the asylum claim and that she had made previous contradictory accounts. The issues in her favour were consistency in her later accounts and to medical professionals, that her claim was not contradicted by objective evidence and a scar was consistent with a deliberate injury. It is difficult to reconcile the finding that the appellant’s account was not contradicted by objective evidence when her account included the fact that she returned to Sri Lanak to visit family entering and leaving on her own passport.
19. As can be seen from the above the adverse findings against the appellant were both substantial in number and in weight. Whereas the findings in her favour were not only limited but relatively lightweight in nature. When this is combined with the statement in [112] that the Judge was compelled to accept the appellant’s account because of the standard of proof and the reference to the standard of proof again in [121] without an explanation as to how adverse findings of such number and substance were outweighed by minor positive findings, I find that there is a material error of law in that inadequate reasons were given.
20. For the above reason, I find that there was a material error of law. I consider that due to the factual issues in dispute between the parties, this case is to be remitted for a de novo hearing before the First-tier Tribunal.

Notice of Decision
The Decision of the First Tier Tribunal dated 21 March 2023 contains an error of law and is remitted for a de novo hearing to the First-tier Tribunal.

Judge Bartlett

Deputy Judge of the Upper Tribunal
Immigration and Asylum Chamber

7 April 2026