Tribunal decisions

The decision

IN THE UPPER TRIBUNAL
IMMIGRATION AND ASYLUM CHAMBER
Case No: UI-2024-001228
First-tier Tribunal No: PA/56116/2022
IA/00582/2023

THE IMMIGRATION ACTS

Decision & Reasons Issued:
On 9th December 2025

Before

UPPER TRIBUNAL JUDGE LANE

Between

ST
(ANONYMITY ORDER MADE)
Appellant
and

Secretary of State for the Home Department
Respondent

Representation:

For the Appellant: Mr Winter
For the Respondent: Mr Mullen, Senior Presenting Officer

Heard at Edinburgh on 29 May 2025

DECISION AND REASONS

1. The appellant is a citizen of Gambia born on 15 July 1975. He appealed to the First-tier Tribunal against a decision of the Secretary of State dated 22 December 2022 refusing his claim for international protection. The First-tier Tribunal dismissed the appeal in a decision dated 31 January 2024. The appellant now appeals to the Upper Tribunal.

2. The is one grounds of appeal which, given its relative brevity, I set out below verbatim:

Ground 1- error of law in light of MAH (Egypt) v Secretary of State for the Home Department [2023] EWCA Civ 216

1. The FTT erred in law at paragraphs 34-35 in light of MAH:

(i) in essence this appeal, like MAH, did not turn on inconsistency. Rather the FTT considered that there were further steps which the appellant could, and should, have taken to corroborate his account. The FTT in this case fell into the same error as identified in MAH. Namely that FTT applied what in substance was too high a standard of proof, when the law requires no more than reasonable degree of likelihood; that in substance the FTT required the appellant to produce corroborative evidence to support various aspects of his account, when there is no requirement in law that there must be corroboration. Although there was some criticism of the expert report, no criticism was taken with the expert that the appellant could be seen as being an opposition MP who was critical of the government (see paragraph 15 of FTT decision; paragraphs 21 and 24 of expert report at pages 58-59 of the consolidated bundle). Separatim there were no credibility issues, in terms of inconsistency, raised by the Home Office or the FTT against the witness where his evidence was of watching a live stream on UDP TV of the appellant being threatened by government authorities. No challenge was made to the witness having worked as a diplomat at the Gambian High Commission in the UK. Bearing in mind the relatively low standard of proof, the accepted facts, no adverse credibility issues being taken against the witness and nothing to undermine the expert confirming that the appellant was a vocal critic of the government, the FTT erred by requiring more of the appellant than was necessary (MAH at paragraphs 1, 4 and 87);

(ii) thereafter the FTT erred by reaching an irrational decision on the basis of the evidence before the FTT if the legal principles had been correctly applied (MAH at paragraph 98). Although there was some criticism of the expert report, no criticism was taken with the expert that the appellant could be seen as being an opposition MP who was critical of the government (see paragraph 15 of FTT decision). Separatim there were no credibility issues, in terms of inconsistency, raised by the Home Office or the FTT against the witness where his evidence was of watching a live stream on UDP TV of the appellant being threatened by government authorities. No challenge was made
to the witness having worked as a diplomat at the Gambian High Commission in the UK. Bearing in mind the relatively low standard of proof, the accepted facts, no adverse credibility issues being taken against the witness and nothing to undermine the expert confirming that the appellant was a vocal critic of the government, the FTT erred by requiring more of the appellant than was necessary and thus reaching an irrational decision (MAH at paragraph 87);

(iii) the FTT was wrong to refuse permission. Although there were gaps in the expert report, the expert’s qualifications and expertise were not doubted and no credibility issues were taken with the witness who was able to corroborate part of the appellant’s account. That evidence indicated that the appellant would be at real risk. Although the FTT directed itself to the fact that there was no requirement to produce corroborative evidence, the FTT misapplied that in terms of the approach taken.

3. At [18], the First-tier Tribunal records that ‘he respondent accepts that the appellant was an MP of the United Democratic Party in Gambia. [18/243]. At RFR4, it is accepted that the appellant was a politician from 2017 to 2022.’ The appellant’s expert witness, Dr NO, stated that ‘there are instances when the client made commentary on anti-corruption and governance matters which made their way into the media. Indeed, the client’s speeches on the floor of parliament, in which he admonished the Gambian President’s office for the misappropriation of public funds are available on open-source media platforms such as youTube’. [58/243]’

4. The judge states (more than once) that he accepts that the appellant does not need to support his claim with corroborative evidence. However, he noted that the appellant could have produced evidence (i) of support from the UDP the Gambian party to which the appellant claims to belong; (ii) from ‘supporters’ present when the government forces ‘‘descended on me and my supporters’; (iii) at [22], of the use of ‘brute force’ by the government to allow ineligible voters to cast ballots; the appellant’s claimed detention at the time of the ballot (the appellant claimed to be a prospective parliamentary candidate in the constituency.

5. The absence of such evidence but, more significantly, the inability of the expert to confirm these parts of the appellant’s account notwithstanding the fact that there had been considerable mainstream and social media coverage of the elections led the judge to find that ‘the absence of any mention of the clashes and intimidation claimed by the appellant, and the absence of mention in media sources about the appellant’s detention for days which must have been known to his supporters, gives rise to my conclusion that the appellant’s account may not have happened as claimed.’

6. I am aware that the fact that in MAH the Upper Tribunal also stated that it was not requiring the appellant to corroborate his account and that it applied the lower standard of proof; these statements did not prevent the Court of Appeal from finding that the Upper Tribunal had erred in law. The Court of Appeal in MAH noted that ‘ Strictly speaking it could be said that it is not entirely accurate to refer to this as a standard of "proof", because the applicant does not in fact have to prove anything. It could more accurately be described as being an "assessment of risk" [51]. Unlike the Upper Tribunal in MASH, however, the First-tier Tribunal in the instant appeal was clear as to burden and standard of proof: ‘The burden of proof rests on an appellant. The standard of proof is a reasonable degree of likelihood, which can also be expressed as a reasonable chance or a serious possibility.’

7. At [87] in MAH, the Court of Appeal found that ‘each of the three perceived deficiencies in the evidence adduced on his behalf was to the effect that he could have but had not obtained corroborative evidence to support his claim. In the circumstances of this case, bearing in mind both the relatively low standard of proof and the fact that the Appellant had adduced positive evidence which supported his claim (as the UT recognised), evidence both of what he had himself witnessed and evidence of experts which was consistent with his claim, I have reached the conclusion that the UT required more of him than was necessary. It then fell into error by concluding that the failure to adduce corroborative evidence undermined his credibility with the result that his evidence was found not to be "truthful", at para. 87.’

8. In the instant appeal, however, whilst the expert is able to support some of the appellant’s claims there are very striking gaps (see above). In my opinion, there is a difference between expecting an appellant in the United Kingdom with limited resources to obtain evidence in support of his/her account of past events in a foreign country and expecting an acknowledged expert witness with the resources, contacts and expertise to gather evidence of major events in the political life of, in this case, Gambia. I find that the role played by expert evidence in the instant appeal is significantly different from that in MAH. I find that the judge has not expected the appellant to corroborate his claim but he has, not unreasonably, expected a country expert to be able to produce evidence of major political events in which the appellant claims to have participated. The judge was entitled to attach weight in his credibility analysis to inability of the expert to support the appellant’s version of past events.

9. There is additional significant factor in the instant appeal which is absent from MAH, that is the issue of delay. The judge wrote as follows:

31. The appellant’s claim for asylum was made about 5 months after his first arrival into the UK. [183/243]; and only made after he was arrested by the police in relation to an unrelated matter.

33. I consider however, that the appellant’s delay in claiming asylum once here in the United Kingdom materially undermines his credibility. The appellant is well educated. He is someone
who has acted as parliamentarian representing constituents’ interests in the Gambia. In that capacity he would have encountered many ‘complaints’ or ‘arguments’ for them which he would not have had first hand direct knowledge about, but would need to use his resourcefulness to inform himself about the circumstances complained by them. So when he arrived in the UK, I think it reasonably likely that he would have had the capacity and interest to investigate how best to pursue refugee status, had that been his intention. I think the appellant had a reasonable opportunity to make his asylum claim before being arrested in the UK. I consider his conduct to have damaged his credibility.

36. In my judgement, the long delay in making a claim for asylum once the appellant arrived into the UK damages his credibility to a material extent. The explanation given is not supported by material to show that in fact the appellant delayed making a claim pending accumulation of funds to pay a lawyer. Nor is it supported by reference to any attempt by the appellant to find out from a lawyer what costs might need to be budgeted for if he pursued a claim through them. I give little weight to the explanation offered for the delay.

10. Delay in claiming asylum can, in certain circumstances, be in itself sufficient to undermine the credibility of an appellant. Here, it was plainly a significant factor in the judge’s comprehensive assessment of the appellant’s credibility. The judge already had doubts that the account which the appellant had put before the Tribunal was accurate. He was entitled to find that the unexplained delay of the appellant (an intelligent and educated individual who could reasonably have been expected to know about and be able to claim international protection in the United Kingdom) in claiming asylum (and only then after he had been arrested) led him rationally to conclude that the appellant had failed to discharge the burden of proof on him in the appeal. Accordingly, I find that the judge has not erred in law in the ways identified in MAH. The appellant’s appeal is dismissed.

Notice of Decision

The appeal is dismissed.

C. N. Lane

Judge of the Upper Tribunal
Immigration and Asylum Chamber

Dated: 2 October 2025