Tribunal decisions

The decision

IN THE UPPER TRIBUNAL
IMMIGRATION AND ASYLUM CHAMBER
Case No: UI-2024-002073

First-tier Tribunal No: PA/51824/2023
LP/02072/2023

THE IMMIGRATION ACTS

Decision & Reasons Issued:

On 16th of July 2025

Before

UPPER TRIBUNAL JUDGE HIRST
DEPUTY UPPER TRIBUNAL JUDGE MERRIGAN

Between

MRG
(ANONYMITY ORDER MADE)
Appellant
and

SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Mr Osmani, Times PBS Solicitors
For the Respondent: Ms Lecointe, Senior Home Office Presenting Officer

Heard at Field House on 3 June 2025

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

1. The Appellant appeals from the decision of the First-tier Tribunal promulgated on 13 January 2024 dismissing his appeal on protection grounds.

Background
2. The Appellant is a national of Afghanistan. In or around 2008 he left Afghanistan for Iran. On 25 November 2011 he entered the UK and claimed asylum. The basis of his claim was that he had been involved in a road traffic accident and faced risk from the family of the victim. His claim was refused. In his First-tier Tribunal appeal hearing, at which the Appellant was unrepresented, he disclosed for the first time that he had previously been sold by his father as a child to a policeman and used as a ‘bacha bazi’ dancing boy. In a decision promulgated on 24 March 2012 the Tribunal rejected both aspects of the Appellant’s case and dismissed the appeal.
3. In or around 2017 the Appellant was removed to Afghanistan. In August 2021 the Taliban resumed power and the Appellant returned to the UK on 5 December 2021. On 14 October 2022 he made further submissions which were refused on 7 March 2023 with a right of appeal. The appeal came before the First-tier Tribunal at a hearing on 13 December 2023 and was dismissed in a decision promulgated on 13 January 2024.
4. Whilst the Appellant’s application for permission to appeal was pending, on 26 September 2024 he made further submissions to the Respondent on the basis of his private life in the UK. Those submissions remain outstanding.
5. On 28 March 2025 the Upper Tribunal granted permission to appeal. On 23 May 2025 the Appellant filed an application to rely on further evidence under Rule 15(2A) of the Tribunal Procedure (Upper Tribunal) Rules 2008.
6. The appeal came before a panel of the Upper Tribunal (UTJ Hirst and DUTJ Merrigan) at a hearing on 3 June 2025. Having heard submissions from the parties we reserved our decision, which is given with reasons below.

Grounds of appeal
7. The Appellant relied on three grounds of appeal:
a. Ground 1: The First-tier Tribunal failed to apply anxious scrutiny to the Appellant’s appeal. In particular, the Tribunal had not given adequate reasons for concluding that a letter dated 8 June 2023 from Mr Abdul Bashir Faquiri was unreliable (Ground 1a) and the Tribunal had not carried out a proper overall assessment of the Appellant’s credibility (Ground 1b);
b. Ground 2: The First-tier Tribunal had failed to consider whether the Appellant was at risk on return on the basis of his political opposition to the Taliban, even if his account of coming to the attention of the Taliban previously were untrue;
c. Ground 3: The First-tier Tribunal had failed to take account of the Respondent’s policy guidance in the relevant Country Policy and Information Note when considering whether the Appellant was at risk on the basis of his ‘westernisation’.

Discussion and decision
Ground 1
8. On behalf of the Appellant, Mr Osmani concentrated his oral submissions on ground 1. He submitted that the First-tier Tribunal had erred by failing to give the benefit of the doubt to the Appellant in its overall credibility assessment. He emphasised that the Appellant had not been represented in his 2012 appeal; that, combined with the political change in Afghanistan since 2012, meant that the First-tier Tribunal should have been cautious in its approach to the findings in the previous determination. The Appellant had mental health issues and his oral evidence to the First-tier Tribunal should have been assessed with great caution. The First-tier Tribunal had quoted the letter from Mr Faquiri selectively and had failed to have proper regard to the explanation given by the Appellant for it being supplied via Whatsapp rather than in hard copy. The Tribunal’s reading of the letter, which led to its conclusion that the letter contradicted the Appellant’s evidence, irrational and did not apply anxious scrutiny.
9. In relation to Ground 1(b), Mr Osmani submitted that the First-tier Tribunal had failed to assess the Appellant’s claim to be at risk of forced recruitment on return and had not considered or taken into account the objective evidence in the First-tier Tribunal bundle. The Appellant had said that he did not wish to be recruited and the First-tier Tribunal could have questioned him further about his fear.
10. The panel did not accept those submissions. The Appellant’s mental health diagnosis post-dated the First-tier Tribunal hearing and it does not appear to have been suggested that the Appellant, who was represented by counsel below, be treated as a vulnerable witness. It was entirely open to the First-tier Tribunal to interpret the letter in the way that it did and the reasoning at paragraphs 12-20 of the decision does not disclose any error of law. Similarly, given that the Appellant was represented by counsel at the First-tier Tribunal, it was not the judge’s role to question him to attempt to elicit further details or evidence of his claim. There was no error of law in the First-tier Tribunal’s approach.
Ground 2
11. The Appellant submitted that the First-tier Tribunal erred in law by failing to consider whether he would be at risk on return on the basis of his political opposition to the Taliban, whether or not his account of having previously come to the Taliban’s attention was accepted. For the Respondent, Ms Lecointe accepted that the First-tier Tribunal had not given any express consideration in the determination to the change in the country situation following the Taliban takeover, but submitted that following Volpi v Volpi [2022] EWCA Civ 464 the panel should not assume that the judge had not taken the evidence into account.
12. At paragraph 22 of the decision, the judge accepted that the country evidence showed that the Taliban sought to forcibly recruit young men, commenting that the Appellant’s account in that regard was “plausible”. However, at paragraph 23 the judge went on to dismiss the issue of risk arising from forced recruitment on the basis that the Appellant had previously been found to be untruthful in his 2012 appeal.
13. The Appellant’s case, as set out in his witness statement, was that he had returned to Afghanistan in 2017 but that in the months prior to the Taliban takeover in August 2021 the Taliban had ramped up forced recruitment of young men; he had been beaten for refusing to join and had received medical treatment.
14. The events of 2021 obviously post-dated the findings of the previous Tribunal in the Appellant’s 2012 appeal, and required the First-tier Tribunal to give them separate consideration. In particular, having found that the Appellant’s account of forced recruitment was plausible in the context of the available country evidence, more detailed reasons were required to explain why (i) the Appellant’s account of being targeted for recruitment in 2021 and beaten for his refusal was rejected, and (ii) he was not at real risk of forced recruitment on return. The reasoning at paragraph 23 only addressed the first question and did not address the second aspect, which was independent of the Appellant’s credibility. That was a material error in light of the country evidence and CPIN before the First-tier Tribunal which showed significant security issues and forced recruitment in the Appellant’s home area.
15. The panel therefore finds a material error of law in relation to ground 2.
Ground 3
16. The First-tier Tribunal addressed the issue of whether the Appellant was at risk on return as someone who had been ‘westernised’ at paragraph 24. The judge noted that ‘westernisation’ was an amorphous term, but concluded that as the Appellant had lived in Afghanistan for most of his life and in Iran for some years, his residence in the UK was not enough to show that he had been ‘westernised’.
17. The Appellant submitted that in reaching that conclusion, the First-tier Tribunal erred by failing to consider the Respondent’s policy guidance in the Afghanistan CPIN (‘Afghanistan: Fear of the Taliban’, version 3.0, April 2022) which had been before the Tribunal in the appeal bundle. The relevant question for the First-tier Tribunal was not whether the Appellant had in fact adopted ‘western’ values or customs but whether the Taliban were likely to perceive him as ‘westernised’ on the basis of his time spent in the UK.
18. On behalf of the Respondent, Ms Lecointe submitted that the judge had been entitled to take into account the Appellant’s immigration history, but she acknowledged that the decision did not appear to have adequately addressed the country situation with regards to the Appellant.
19. The issue of risk arising from ‘westernisation’ was squarely in issue before the First-tier Tribunal and was raised both in the Appellant’s witness statement and in his appeal skeleton argument. The 2022 CPIN, which was the relevant version at the time of the First-tier Tribunal appeal hearing and decision, indicated at §2.4.9 that persons considered to be at risk of persecution included:
“Persons who do not conform to, or are perceived to not conform to, strict cultural and religious expectations/mores, in particular women, and which may also include persons perceived as ‘Westernised’ after having spent time in the West, though no clear definition of what ‘Westernised’ means or entails is available.”
20. The judge was right to note that ‘westernisation’ is an amorphous concept, and the Tribunal does not appear to have been taken to the guidance provided by the Upper Tribunal in YMKA & Ors (‘westernisation’) [2022] UKUT 00016. However, the panel accepted that the question was whether there was a real risk that the Appellant would be perceived as ‘westernised’ by the Taliban authorities, rather than whether the Appellant considered himself ‘westernised’ as the judge indicated at paragraph 24 of the decision. The decision does not make reference to the CPIN (perhaps because of the volume of objective evidence which was filed without references) and the First-tier Tribunal’s reasoning does not indicate that any regard was had to the guidance or to the issue of perception identified therein.
21. On balance, we consider that the First-tier Tribunal erred in relation to risk arising from ‘westernisation’ by asking itself the wrong question and failing to have regard to the CPIN. That error was material to the outcome of the appeal. Ground 3 also succeeds.

Disposal
22. The parties agreed that if the panel found a material error of law in the First-tier Tribunal decision, the appropriate course was for the appeal to be remitted to the First-tier Tribunal for hearing by a different judge. Having regard to the relevant Practice Direction, we consider that remittal is the appropriate course given the fact-finding required. We do not consider it appropriate to preserve any findings.

Notice of Decision
The decision of the First-tier Tribunal involved the making of material errors of law and is set aside.
The appeal is remitted to the First-tier Tribunal for rehearing before a different judge with no findings preserved.

L Hirst

Judge of the Upper Tribunal
Immigration and Asylum Chamber

14 July 2025