Tribunal decisions

The decision

IN THE UPPER TRIBUNAL
IMMIGRATION AND ASYLUM CHAMBER
Case No: UI-2024-002596

First-tier Tribunal No: PA/04745/2019

THE IMMIGRATION ACTS

Decision & Reasons Issued:

On 6th of November 2025

Before

DEPUTY UPPER TRIBUNAL JUDGE NEILSON

Between

JL
(ANONYMITY ORDER MADE)
Appellant
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Mr Shabbir, instructed by, McGlashan MacKay Solicitors
For the Respondent: Mr Mullen, Senior Home Office Presenting Officer

Heard in Edinburgh on 11 September 2025

Order Regarding Anonymity

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

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

DECISION AND REASONS
Introduction & Background
1. The appellant is a national of Sri Lanka. The appellant appeals with permission granted on 20 June 2025 against the decision of Judge Buchanan of the First-Tier Tribunal (“the FtT”) given on 22 February 2024 (“the 2024 FtT decision”) to refuse the appellant’s appeal against the refusal of his claim for international protection.
2. The basis of the respondent’s claim for asylum/humanitarian protection was that he had come to the adverse attention of a senior politician in Sri Lanka, Mr Bandara. The appellant alleged that on 4 October 2009 he had been asked by another politician (Mr Fernando – a rival of Mr Bandera) to drive his bodyguards to an unspecified location and then drive them back. At that time the home of Mr Bandara was set on fire. The appellant alleged that Mr Bandera and his associates considered that the appellant was involved in the arson attack on his home and made threats against the appellant.
3. The appellant claimed asylum on 6 October 2015. The respondent rejected his claim on 20 January 2016. The appellant appealed and the FtT (Judge Kempton) dismissed his appeal in August 2017 (“2017 FtT decision”). The appellant made further submissions to the respondent on 13 September 2018 and his further claim was refused by the respondent on 25 April 2019. The appellant appealed that decision and it was the refusal of that appeal that was dealt with in the 2024 FtT decision.
4. In the 2024 FtT decision Judge Buchanan dismissed the appeal by the appellant concluding that he was not persuaded that he should depart from the conclusions drawn by the Judge in the 2017 FtT decision.
5. The appeal came before the Upper Tribunal at an error of law hearing on 11 September 2025. At the hearing I heard submissions from the parties and reserved my decision. For the reasons set out below, I find that there was no error of law and I dismiss the appeal.
6. The FtT made an anonymity order in this appeal, and I have considered whether it is appropriate for that order to continue pursuant to Rule 14 of the Tribunal Procedure (Upper Tribunal) Rules 2008 (as amended). Having taken into account Guidance Note 2022 No.2: Anonymity Orders and Hearings in Private, I am satisfied that it is appropriate to make such an order because the appellant has made an application for international protection and I consider that the UK’s obligations towards applicants for international protection and the need to protect the confidentiality of the asylum process outweigh the public interest in open justice at this stage in the proceedings.
Preliminary Issue
7. At the commencement of the hearing Mr Shabbir made an application for a supplementary bundle of documents to be lodged late. This supplementary bundle contained documents and correspondence related to judicial review proceedings that had been taken in this case before the Court of Session earlier in 2025. Mr Shabbir wished to rely upon certain correspondence that he alleged evidenced an agreement between the appellant and the respondent with regard to the status of an affidavit sworn by the appellants solicitor on 5 March 2020 (“the MacKay Affidavit”). Mr Shabbir confirmed that there was no particularly good reason as to why this application was being made at this very late stage. Mr Mullen objected to the application. It was extremely late. The documents related to different proceedings. Having considered the submissions, I rejected the application. It struck me that the appellant was potentially seeking to raise a third ground of appeal by referencing an alleged “agreement” as to the treatment of evidence. The application was being made extremely late. There was the risk of real prejudice to the respondent in allowing in material that may be supportive of an additional ground of appeal at such a late stage.
Grounds of Appeal, Discussion and Conclusions
8. The grounds of appeal put forward by the appellant raise two distinct, but related, points. Both concern the approach taken by the FtT Judge to the evidence put forward by the appellant in relation to a report that the appellant alleges he made to the Kandana police station on 13 December 2009. Mr Shabbir explained that a central element of the appellant’s claim was that he had made a report of a death threat that he had received, to the Kandana Police Station on 13 December 2009. In Mr Shabbir’s submission this was critical as it substantially supported the narrative put forward by the appellant regarding the events in 2009 that occasioned him to leave Sri Lanka.
9. Mr Shabbir set out what the appellant claims occurred in relation to the report to the Kandana Police Station in 2009. The issue was raised before Judge Kempton in the FtT at a hearing on 24 October 2016. The hearing was adjourned to allow the respondent to investigate whether such a report was made. Through its Risk and Liaison Overseas Network (“RALON”) the respondent made an enquiry and reported back that the police had no record of this. At a continued hearing in December 2016 the appellant sought an adjournment to allow him to carry out an independent check. On the 13 and 14 January 2017 the solicitor for the appellant (“Mr MacKay”) made telephone enquiries, details of which are set out in two attendance notes of 13 and 14 January 2017. Thereafter a letter dated 15 January 2017 was provided from the Kandana Police Station that makes reference to a report being made by the appellant on 13 December 2009 regarding a death threat (“The Kandana Police Letter”). The Kandana Police Letter was initially delivered to a solicitor in Sri Lanka, Mr Silva. Mr Silva then sent the Kandana Police Letter to Mr MacKay under cover of a letter of 20 January 2017 (“the Silva Letter”).
10. I checked with Mr Shabbir as to the documentation that was before Judge Kempton when the hearing reconvened in June 2017. Mr Shabbir confirmed that the Kandana Police Letter and the Silva letter were before Judge Kempton, but not the attendance notes of January 2017. However, he did accept that nobody could say with any confidence what was before Judge Kempton – an issue that Judge Buchanan also highlighted in the 2024 FtT decision. I also note that in the MacKay Affidavit at paragraph 7 it is stated “The appropriate documentation was made available to the First Tier Tribunal and the Home Office, confirming the steps we had taken, enclosing the relevant letters and copy DHL envelope along with the paper trail of documents showing how they had been obtained from Sri Lanka.” See also paragraphs [86] and [87] of the 2024 FtT decision re what was before Judge Kempton.
11. Mr MacKay provided the MacKay Affidavit in March 2020 – in that affidavit Mr MacKay confirmed the background behind the obtaining of the Kandana Police Letter and the Silva Letter and in particular confirmed that the two attendance notes of 13 and 14 January 2017 were a true account of what occurred. The MacKay Affidavit was not before Judge Kempton.
12. The MacKay Affidavit, the 13 and 14 January 2017 attendance notes, the Kandana Police Letter and the Silva Letter were before Judge Buchanan. At paragraph 170 of the 2024 FtT decision he concluded:-
“In my judgement, the evidence from the appellant’s Scottish Solicitor is such that I am not persuaded that he was ultimately directly in touch with police in Sri Lanka; and for that reason, I do not consider his evidence to be materially supportive in the appeal. It carries very limited weight.”
13. Mr Shabbir submitted that the FtT made two errors of law in arriving at this conclusion. Firstly, if the judge wanted to challenge the evidence of Mr Mackay, then from a procedural point of view that is something that he should have raised with the appellant’s representative in the hearing. Secondly the judge has failed to clearly set out any reasons as to why he has rejected the evidence put forward by the appellant in relation to the veracity of the Kandana Police Letter. In Mr Shabbir’s submission it is clear from the MacKay Affidavit that Mr MacKay was in contact with the Kandana Police Station and there had to be some reason set out as to why the FtT took a different view.
14. For the respondent Mr Murray submitted that there was no procedural unfairness in the approach taken by the Judge. It was simply an evaluation of the evidence that was before him. On the issue of the reasons, he submitted that the Judge had set out reasons to support his findings and that the reasons given were adequate. In any event Mr Muray submitted that any error of law on this particular issue was not material to the decision to refuse the appeal.
15. In deciding whether the FtT’s decision involved the making of a material error of law, I have reminded myself of the principles set out in a long line of cases, including Ullah v Secretary of State for the Home Department [2024] EWCA Civ 201, at [26], Yalcin v SSHD [2024] EWCA Civ 74, at [50] and [51], Gadinala v SSHD [2024] EWCA Civ 1410, at [46] and [47], and Volpi & Anor v Volpi [2022] EWCA Civ 464, at [2-4] and of the danger of “island-hopping”, rather than looking at the evidence, and the reasoning, as a whole. See Fage UK Ltd & Anor v Chobani UK Ltd & Anor [2014] EWCA Civ 5 [114]. In particular I bear in mind the Court of Appeal’s guidance in Ullah [26] (i) the Upper Tribunal should not rush to find an error of law simply because it might have reached a different conclusion on the facts or expressed themselves differently; (ii) where a relevant point was not expressly mentioned by the First-Tier Tribunal, the Upper Tribunal should be slow to infer that it had not been taken into account; (iii) when it comes to the reasons given by the First-Tier Tribunal, the Upper Tribunal should exercise judicial restraint and not assume that the First-Tier Tribunal misdirected itself just because not every step in its reasoning was fully set out; and (iv) it is of the nature of assessment that different tribunals, without illegality or irrationality, may reach different conclusions on the same case. The mere fact that one tribunal has reached what might appear to be an unusually generous view of the facts does not mean that it has made an error of law.
16. In considering both grounds of appeal I have also taken into consideration the established principles set out in Tanveer Ahmed -v- SSHD 2002 UKIAT 00439 and Devaseelan (Second Appeals, - ECHR - Extra- Territorial Effect) Sri Lanka [2002] UKIAT 00702.
17. At its core the issue in this appeal turns upon the evidential value to be attached a document – the Kandana Police Letter. The principles for dealing with the assessment of evidence as set out in Tanveer Ahmed are accordingly relevant here. In particular, that in asylum and human rights cases it is for an individual claimant to show that a document on which he seeks to rely can be relied on and that the decision maker should consider whether a document is one on which reliance should properly be placed after looking at all the evidence in the round.
18. I am also conscious that Judge Buchanan was dealing with an appeal where the Devaseelan principles would apply – as this was an appeal in circumstances where an earlier decision had already been made by Judge Kempton on essentially the same facts. This is recognised by Judge Buchanan at paragraph [165] of the decision. The Kandana Police Letter and the Silva Letter had been before Judge Kempton in 2017. In addition, there was also a separate document relied upon by the appellant in relation to the 2009 report. This was an extract (obtained on 2 May 2016) from the information book of Kandana Police Station relating to an entry for “12/13/2009”. This was before Judge Kempton. It is unclear whether the attendance notes from January 2017 were before Judge Kempton but they were certainly available and could have been placed before the Judge.
19. Before considering the two appeal points it is important to consider the substantive point put forward by Mr Shabbir and what Judge Buchanan found on the evidence before him. In the attendance note of 13 January 2017 Mr MacKay sets out that he contacted the Police Station at Kandana using the telephone number in the RALON report, after checking that number on google. Mr MacKay records that he spoke with a police officer who told him he could not put the call through but he was then told to call back tomorrow on the mobile number of “Nishanka” to check regarding the RALON attendance at their offices. There is then a reference in the note to “the police officer is second in charge of police station” but it is not clear if that is a reference to the person Mr MacKay was speaking to or to “Nishanka”. The second attendance note is dated 14 January 2017 and records a call that Mr MacKay had with Kandana Police Station “on the number given yesterday”. It was during this call that arrangements were made for a letter to be provided substantiating the entry from 2009 and the request was that this was to be picked up from the Police Station.
20. The Judge deals with this evidence at paragraphs [146] to [150] of his decision. His findings were:-
“146. The appellant produces a copy of an internal office memo about a call made by the appellant’s Scottish solicitor on Friday 13 January 2017.
147. In my judgement from what is recorded, the solicitor was unable to speak to any officer within Kandana Police Station because the call could not be put through. He was redirected to call a mobile phone number of “Nishanka” to “check regarding the RALON attendance” and was then invited to “call back tomorrow”. The attendance note for the following day shows that the solicitor made a call “to the number given yesterday.” That was not the number of Kandana Police Station; but was a number for “Nishanka”
148. I note too that it was the appellant himself who arranged collection from the “police station” in response to the call which was made, rather than the solicitor directly.
149. I do not know who Nishanka is or what formal connection that person has with Kandana Police Station.
150. In my judgement, I am not persuaded that the Scottish Solicitor was speaking on a phone link to Kandana Police Station when he called Nishanka on the mobile phone number given to him on either the first or the second call.”
21. Mr Shabbir’s primary criticism was that Mr MacKay in his attendance note of 13 January 2017 sets out that he called the Kandana Police Station on a number that was in the RALON report and that he checked the number on google. He was then given a mobile telephone number for Nishanka to call the next day. He was told who Nishanka was. Against that background Mr Shabbir states that the evidence clearly shows that Mr MacKay was in contact with the Kandana Police Station and the Judge has given no explanation as to why he has found that Mr MacKay was not in contact with the Police.
22. However, the issue here is that the number that Mr MacKay is told to call back on is a mobile number said to belong to Nishanka. As the Judge states, at [149] he did not know who Nishanka is or what formal connection he had with Kandana Police Station. I do not consider that the Judge is taking issue with the call on 13 January – rather he is taking issue with the call on 14 January. That appears clear from paragraph [150]. It is the call to the mobile number that is the problem.
23. In my opinion that was a view that the Judge was entitled to come to. He does not arrive at that view in isolation from the broader evidence. He notes that it was the appellant who arranged collection from the Police Station [at 148] and he deals with a related document – the Kandana Police Station extract dated 13 December 2009 that was also before Judge Kempton in 2017. That would appear to be an extract also related to the report made to the Police in 2009 – and Judge Buchanan deals with that at paragraphs [46] through to [55]. He highlights a number of inconsistencies and issues with the evidence in relation to that extract. At [140] he also references the fact that Da Silva does not mention being sent in 2017 to collect a copy of the 2009 complaint.
24. Ultimately what this comes down to is an assessment of the weight to be attached to the documentary evidence. At paragraph [170] the Judge concludes that the evidence provided by the Scottish Solicitor (by which I take him to mean the MacKay Affadavit, the attendance notes and the Kandana Police Letter and the Silva Letter) – carry very little weight. In accordance with Tanveer Ahmed principles the onus was on the claimant to show that the documents could be relied upon – and having considered the evidence in the round the Judge has determined that he should attach very little weight to the documents. The Judge has given his reasons and in a lengthy decision has dealt with all of the “new” documentary evidence that was placed before him (being the new material referenced at paragraph [106]. At paragraph [169] he concluded that the documentary evidence is not reliable. The Judge was also conscious that he was dealing with a case where the Devaseelan principles applied when he states at [165]:-
“I approach the evidence in the instant appeal with some caution, in line with Devaseelan principles, because it appears that having been alerted by the Judge to deficiencies in the evidence as at August 2017, the ‘deficiencies’ are now apparently addressed in evidence before me”
And also at [171]:-
“When I weigh the whole evidence before me, I conclude that the appellant does not persuade me that I should depart from the conclusions drawn by Judge Kempton in 2017.“
25. In accordance with Devaseelan principles the facts relating to the 2009 report to the police were before Judge Kempton in 2017. The only new “fact” if it can be called that – is the MacKay Affidavit – but even that is simply an explanation of how the Kandana Police Letter was procured and a confirmation that the attendance notes of January 2017 are accurate. By itself I do think that the position regarding the Kandana Police Letter is something that the Judge is entitled to treat with circumspection.
26. I consider that there is a danger in an appeal like this that there is a failure to look at the evidence and the reasoning as a whole by focussing on a very narrow and specific issue. In my view there were sufficient grounds for the Judge to come to the view that the Kandana Police Letter was not something to which he could attach weight.
27. On the first issue of whether or not there was a failure by Judge Buchanan to put to the appellant or his representative the fact that he had concerns about any part of the Mackay Affidavit I am not satisfied that there was an error of law. Judge Buchanan does not take issue with the evidence that was provided in the Mackay Affidavit. The evidence contained in the Mackay Affidavit simply sets out the background behind obtaining the Kandana Police Letter and that what is contained in the attendance notes of 13th and 14th January 2017 is true and accurate. What Judge Buchanan has to do in accordance with Tanveer Ahmed principles is assess the document (the Kandana Police Letter) in light of all the evidence. The approach is set out in paragraphs [146] to [150] of the 2024 FtT decision and at paragraph [170]. At no point does Judge Buchanan state that he disputes the terms of the MacKay affidavit. He may interpret what is contained in there differently from the way in which the appellant would have liked it to be interpreted – but the Judge sitting in the FtT has to, in considering documentary evidence, assess it in line with Tanveer Ahmed principles – and that will mean assessing a document having looked at all the evidence in the round. It is not the role of the FtT Judge to put to the appellant in the hearing his views on each and every document where he may come to the view that little weight should be attached to it.
28. In any event I am not persuaded that even if there was a failure to set out sufficient reasoning that the evidence in relation to the report to the Police in 2009 by itself would have made a material difference to the outcome of the case. I say that for two reasons. Firstly, the Judge did not find any of the other documentary evidence reliable [170]. Secondly there was in any event a dearth of evidence to support the view that the appellant would be at risk on return. At [101], [103] and [166] the Judge references that there is no evidence beyond 2018 to show a risk on return. In these circumstances I am not persuaded that even if there had been a report made to the Police in 2009 that that would have resulted in a finding that in 2023/24 the appellant was at risk on return given the absence of any evidence to support that.
Conclusion
29. I do not find that there has been any error of law either in relation to the procedural issue or the substantive issue. I accordingly dismiss the appeal.
Notice of Decision
The decision of the FtT did not involve the making of a material error on a point of law and the appeal is accordingly dismissed.

S NEILSON
Deputy Judge of the Upper Tribunal
Immigration and Asylum Chamber
28.10.25