Tribunal decisions

The decision

IN THE UPPER TRIBUNAL
IMMIGRATION AND ASYLUM CHAMBER
Case No: UI-2024-000986

FtT Case No: PA/01447/2021

THE IMMIGRATION ACTS

Decision & Reasons Issued:
On the 08 April 2025

Before
UPPER TRIBUNAL JUDGE RIMINGTON
UPPER TRIBUNAL JUDGE NORTON-TAYLOR

Between
HH
(ANONYMITY ORDER MADE)
Appellant
and
SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the appellant: Mr D Seddon, KC, Counsel, instructed by Mishcon de Reya
For the respondent: Mr S Singh, KC, and Mr T Tabori, Counsel, instructed by the GLD

Heard at Field House on 5, 6 and 7 February 2025

Anonymity Order

Pursuant to rule 14 of the Tribunal Procedure (Upper Tribunal) Rules 2008, the appellant and all witnesses (irrespective of whether the witness gave written evidence, oral evidence, or the evidence of the witness was hearsay evidence adduced by another witness) are granted anonymity.

No-one shall publish or reveal any information, including the name or address of the appellant and/or any witness (irrespective of whether the witness gave written evidence, oral evidence, or the evidence of the witness was hearsay evidence adduced by another witness), likely to lead members of the public to identify the appellant and/or any witness. Failure to comply with this order could amount to a contempt of court.

OPEN DECISION AND REASONS

Introduction
1. In the exceptional circumstances of this case, we have produced a summary error of law decision (the “open” decision), together with a detailed error of law decision (the “closed” decision) which shall remain confidential unless or until our direction under rule 14 of the Upper Tribunal’s Procedure Rules and contained in the closed decision is varied or discharged.

Background
2. The appellant made a claim for international protection in the United Kingdom based on the Refugee Convention and Article 3 ECHR. He has been accused of serious criminal offences in his home country, which led the respondent to conclude that he should be excluded from the protection of the Refugee Convention pursuant to Article 1F(b) (serious non-political crimes). In addition, the respondent concluded that Article 3 (or indeed any other provision of the ECHR) would not be violated by removal to his home country.

3. The appellant appealed to the First-tier Tribunal. An anonymity direction was made at that stage and the hearing was conducted in private. By a decision sent out in November 2023, the First-tier Tribunal dismissed the appellant’s appeal on all grounds. In summary, the judge found that:

(a) In almost all respects, the appellant and his witnesses were not reliable;

(b) The respondent had proved that there were serious reasons for considering that the appellant had committed serious non-political crimes in his home country and therefore he was excluded from the protection of the Refugee Convention;

(c) The appellant had failed to demonstrate that return to his home country would violate Article 3 or any other provisions of the ECHR because of any of the factors he had relied on.

4. The appellant appealed to the Upper Tribunal on a number of grounds, in summary asserting that the judge had:

(a) Erred in the assessment of the appellant’s credibility and that of his witnesses;

(b) Erred in the assessment of evidence from other sources;

(c) Erred by not accepting post-hearing evidence and submissions;

(d) Erred in the approach to Article 1F(b) of the Refugee Convention and Article 3 ECHR;

(e) Erred by failing to prepare the decision in a timely fashion.

5. Permission to appeal was granted on all grounds apart from Ground 4 of the original grounds in relation to the applicable standard of proof and that particular aspect of the challenge is no longer before us.

6. The parties provided relevant materials in preparation for the error of law hearing. These included a composite bundle, an authorities bundle, and detailed skeleton arguments.

The error of law hearing
7. Mr Seddon, KC, relied on the grounds of appeal and his skeleton argument. He assisted us with detailed oral submissions.

8. Mr Singh, KC, and Mr Tabori relied on their skeleton argument and a rule 24 response, and they too provided helpful oral submissions.

9. At the end of the hearing we reserved our decision.

Conclusions on error of law
10. In undertaking our assessment of whether the First-tier Tribunal erred in law, we have reminded ourselves of the need for appropriate judicial restraint. This principle has been emphasised in numerous cases over the course of time, including: Biogen Inc. v Medeva plc [1996] UKHL 18, at [54]; SSHD v AH (Sudan) [2007] UKHL, at [30]; Henderson v Foxworth Investments [2014] UKSC 41, at [67]; MA (Somalia) v SSHD [2010] UKSC 49, at [45]; Fage UK Ltd. v Chobani UK Ltd. [2014] EWCA Civ 5, at [114] and [115]; Herrera v SSHD [2018] EWCA Civ 412, at [18]; UT (Sri Lanka) v SSHD [2019] EWCA Civ 1095, at [19]; Lowe v SSHD [2021] EWCA Civ 62, at [29]; Volpi v Volpi [2022] EWCA Civ 464, at [2]-[5]; HA (Iraq) v SSHD [2022] UKSC 22, at [72]; Yalcin v SSHD [2024] EWCA Civ 74, at [50] and [51]; and most recently Gadinala v SSHD [2024] EWCA Civ 1410, at [46] and [47].

11. The essential propositions we derive from these authorities can be summarised as follows:

(a) Although "error of law" is widely defined, the Upper Tribunal is not entitled to set aside the decision of the FTT simply because it does not agree with it, or because it thinks it can produce a better one. It is not for us to substitute our view of the evidence for that of the judge;

(b) The need for caution in reversing a judge's evaluation of the facts “is based upon much more solid grounds than professional courtesy. It is because specific findings of fact, even by the most meticulous judge, are inherently an incomplete statement of the impression which was made upon him by the primary evidence. His expressed findings are always surrounded by a penumbra of imprecision as to emphasis, relative weight, minor qualification and nuance…of which time and language do not permit exact expression, but which may play an important part in the judge's overall evaluation”;

(c) An appeal court should not interfere with the trial judge's conclusions on primary facts unless it is satisfied that he was “plainly wrong” or that the decision “cannot reasonably be explained or justified”. What matters is whether the decision under appeal is one that no reasonable judge could have reached;

(d) An appeal court is bound, unless there is compelling reason to the contrary, to assume that the trial judge has taken the whole of the evidence into his consideration. The mere fact that a judge does not mention a specific piece of evidence does not mean that he overlooked it;

(e) The judge must of course consider all the material evidence (although it need not all be discussed in his judgment). The weight which he gives to it is however pre-eminently a matter for him;

(f) An appeal court can therefore set aside a judgment on the basis that the judge failed to give the evidence a balanced consideration only if the judge's conclusion was rationally insupportable;

(g) The reasons for judgment will always be capable of having been better expressed and there is no requirement to give reasons for reasons. An appeal court should not subject a judgment to narrow textual analysis. Nor should it be picked over or construed as though it was a piece of legislation or a contract;

(h) An appellate court should not assume too readily that a tribunal has misdirected itself just because not every step of its reasoning is fully set out;

(i) A first-instance judge is free to draw, or decline to draw, inferences from the facts of the case before them using their common sense;

(j) An appellate court should be astute to challenges based on a selection of evidence rather than the whole of the evidence - what has been described as “island hopping”.

12. We have regard to what Underhill LJ said at [67] of Yalcin, where he observed that “the focus should be on the way the judge performed the essence of the task required.” In so doing, we must read the judge’s decision sensibly and holistically.

13. We have borne the above in mind when considering all aspects of the appellant’s challenge. Having said that, we make it clear that we have assessed every aspect of that challenge on its merits, recognising that it is in principle possible that a number of apparently lesser errors can accumulate to demonstrate a material error of law in a decision.

Ground 11
14. We begin by addressing the delay challenge (although it came at the end of the pleaded grounds, it in fact provided a logical starting point). We acknowledge that it took the judge a number of months to prepare and then send out the decision. We acknowledge that the appropriate marker for decisions to be prepared and sent out is three months from the date of hearing. The judge’s decision was sent out approximately 12 months from the date of hearing, but 9 months from the time at which further evidence and submissions from the appellant had been admitted in February 2023. The three months marker applied at approximately the middle of May 2023. In our view, the ‘delay clock’ started to run from then until the decision was sent out in November 2023; a period of some 6 months. With this in mind, together with the very large amount of evidence which had to be considered by the judge, we do not regard the delay alone as fatally undermining the decision. Nor in the first instance do we regard it as a factor which requires us to consider the rest of the judge’s decision with special care over and above the anxious scrutiny we have already applied to the appellant’s assertions that the judge “forgot”, “omitted consideration of” or “failed to consider adequately” relevant evidence. In case we were wrong about that and for the sake of completeness, we have in any event subjected the decision to an increased level of attention.

Ground 1
15. Applying the appropriate judicial restraint referred to previously, we conclude that the judge was entitled to conclude that the evidence relating to alleged problems faced by another individual was unreliable and that it did not support the claim that the appellant was the subject of an unfair prosecution or that he would be at risk of ill-treatment on return to his home country.

Ground 2
16. We conclude that the judge was entitled to have refused to admit certain post-hearing evidence and submissions. The evidence before the judge was already voluminous and there were extremely detailed submissions (written and oral), and it was both fair and rational to draw a line in the sand. In any event, we are satisfied that the evidence which was not admitted was not significant and further could not have made any material difference to the judge’s findings.

Ground 3
17. The judge was entitled to regard findings made by a judge in other proceedings as being worthy of “significant” and “very significant weight”. Those findings were clearly relevant to the case with which the judge was concerned and the question of weight was a matter for them.

18. We are satisfied that the judge was entitled to conclude that the respondent had indeed presented evidence in support of her case on the Article 1F(b) issue. The respondent had set out her case clearly throughout.

Ground 5
19. The judge had had to consider a large amount of evidence when making findings on the important issues in the case. The judge was not required to refer to each and every item of evidence, or to give reasons for each and every step in the assessment process. Reading the decision holistically and sensibly, we are satisfied that the judge had regard to the relevant evidence and that the reasons in support of the findings were legally adequate. In particular, the judge dealt adequately with the evidence relating to the criminal charges against the appellant in his home country.

Ground 6
20. A large number of criticisms were made against the judge’s assessment of the credibility of the appellant and his witnesses. In our judgment, these are all without any real substance. We reiterate that the judge was not required to refer to every aspect of the evidence, nor was the judge required to give reasons for reasons. Read holistically and sensibly, and having regard to the appropriate judicial restraint, the judge was entitled to make the adverse credibility findings set out at length in the decision. The judge was entitled to find that much of the expert evidence was deserving of little or no weight.

Ground 7
21. Ground 7 asserts that the judge acted unfairly or otherwise unlawfully by rejecting certain evidence as being “self-serving”. We reject this. The judge in fact considered the evidence in question in the context of the evidential picture as a whole. It is a mischaracterisation to suggest that the judge rejected the evidence solely on the basis that it came from individuals who had some connection to the appellant. Once again, the weight attributable to the evidence was a matter for the judge.

Ground 8
22. This ground alleges procedural unfairness on the part of the judge. It is said that the judge took matters against the appellant which he had not had a fair opportunity to address at the hearing. In considering this ground, we bear in mind that the requirements of fairness are context-specific and we have directed ourselves to what was said in Maheshwaran v SSHD [2002] EWCA Civ 173, at [5]-[6]:

“5…Undoubtedly it is open to the tribunal expressly to put a particular inconsistency to a witness because it considers that the witness may not be alerted to the point or because it fears that it may have perceived something as inconsistent with an earlier answer which in truth is not inconsistent. Fairness may in some circumstances require this to be done but this will not be the usual case. Usually the tribunal, particularly if the party is represented, will remain silent and see how the case unfolds.

6. The requirements of fairness are very much conditioned by the facts of each case. This has been stressed in innumerable decisions – see the many citations to this effect in Rees v Crane [1994] 2 A.C.173. We have no doubt that the claimant’s submission is framed in terms which are far too wide and in words which are not to be rigidly applied to every situation. Whether a particular course is consistent with fairness is essentially an intuitive Judgment which is to be made in the light of all the circumstances of a particular case – see R v Secretary of State for the Home Department, ex parte Doody [1994] 1 AC 531 per Lord Mustill at p.560D."

23. Ground 8 sets out four specific examples of where it is said the judge acted unfairly. In respect of the first example, the witness in question did not attend the hearing and it cannot be said that the appellant was ambushed by anything taken into account by the judge.

24. In respect of the second example, the points taken against this aspect of the appellant’s case were self-evident and based on evidence he had adduced and was obviously aware of.

25. In respect of the third example, again the evidence referred to had been adduced by the appellant. It cannot be said that the appellant was taken unawares. Further, the judge was entitled to rely on other sources of evidence to support relevant findings.

26. In respect of the fourth example, it was open to the judge to rely on the absence of any comment by the appellant on what his witnesses said. It was not for the judge to raise every possible shortcoming in the evidence put forward by the appellant.

Ground 9
27. This ground asserts that the judge erred by placing no weight on a report from an organisation.

28. The judge was aware that the report was not an expert report. The judge was aware of the background of the organisation. The judge was not alleging that the authors of the report had been lying. In our judgment, the judge properly weighed the report in the context of the evidence as a whole. The reasons provided for placing no weight on that evidence were sustainable.

Ground 10
29. The final ground relates to alleged errors as to the risk on return. It is said that the judge either failed to have regard to relevant factors, or that the assessment was flawed and unsupported by legally adequate reasons.

30. We again remind ourselves of our task in this appeal. It is not for us to make our own findings on the evidence which was before the judge. Our role is to assess whether the judge’s assessment is vitiated by any errors of law.

31. We are satisfied that the judge took proper account of all aspects of the evidence which were relevant to the various risks relied on by the appellant. The judge was aware of factors specific to the appellant. The judge took account of country information and evidence from other sources which was case-specific.

32. The judge reached sustainable findings on the core issues of whether the appellant would be at risk from the state and/or non-state actors.

Summary
33. The judge’s decision contains no material errors of law and there is no basis on which to set it aside.

Anonymity
34. This appeal concerns a claim for international protection and it is appropriate to make an anonymity direction, notwithstanding the important principle of open justice. Although we have upheld the judge’s decision dismissing the appellant’s appeal on protection grounds, this case remains pending and it may be that the protection issues are revisited in due course. We therefore proceed on a precautionary basis.

Confidentiality
35. The reasons for our conclusion that it is appropriate to issue both open and closed decisions in this case are set out fully in the latter. In reaching the conclusion to restrict disclosure of the closed decision, we have carefully considered the competing interests at play: on the one hand, the important principle of open justice and the right to freedom of expression under Article 10 ECHR; on the other, the risk of serious harm to the appellant and/or other individuals should they be identified. We have directed ourselves that the burden of establishing derogation from the principle of open justice rests with the person seeking that derogation. We have weighed in the balance the effect that a confidentiality order has on the ability of the public (whether directly or through media reporting) to understand and scrutinise the way which we have decided this appeal and, on a broader level, to understand how the justice system works: Cape Intermediate Holdings v Dring [2019] UKSC 38, at [42]-[43]. On the particular facts of this case, the balance lies in favour of prohibiting disclosure of the closed decision, any information contained therein, and the audio recording of the error of law hearing in the Upper Tribunal.

Notice of Decision
The making of the decision of the First-tier Tribunal did not involve the making of an error on a point of law.
The appeal to the Upper Tribunal is dismissed on all grounds.
The decision of the First-tier Tribunal stands.

H Rimington
H Norton-Taylor
Judges of the Upper Tribunal
Immigration and Asylum Chamber
Dated: 8 April 2025