Tribunal decisions

The decision

IN THE UPPER TRIBUNAL
IMMIGRATION AND ASYLUM CHAMBER
Case No: UI-2024-004125

First-tier Tribunal Nos:
PA/01424/2024
PA/60482/2023

THE IMMIGRATION ACTS

Decision & Reasons Issued:
On 12th February 2026

Before

UPPER TRIBUNAL JUDGE MAHMOOD
RESIDENT TRIBUNAL JUDGE HUGHES
(sitting as a Deputy Upper Tribunal Judge)

Between

AR
(ANONYMITY ORDER MADE)
Appellant
and

The Secretary of State for the Home Department
Respondent

Representation:
For the Appellant: Ms S. Khan, Counsel instructed by AJO Solicitors
For the Respondent: Dr S. Ibisi, Senior Home Office Presenting Officer

Heard at Manchester Civil Justice Centre on 18 November 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. The parties are entitled to apply on notice to vary this direction.

DECISION AND REASONS
Introduction
1. This is the decision of the panel following an attended hearing on 18 November 2025. For the reasons we set out below, we have concluded that the Appellant’s appeal be allowed and the matter be remitted to the First-tier Tribunal for rehearing on all matters.
2. We deal with procedural matters first. Mr A.J. Olorunfemi, a solicitor at AJO Solicitors, explained in his letter to us that he had been responsible for the past delay when an adjournment of this case was caused by his errors. His errors included that he had failed to send his skeleton argument to the correct e-mail address for the Respondent and failing to prepare or to provide a bundle of documents for the hearing. Ms Khan explained matters to us further and we are prepared on this occasion to accept the apology made by Mr Olurunfemi, but it remains essential that the directions of the Upper Tribunal are complied with and that what occurred in this case does not occur again.
3. We also note that thereafter the Respondent’s skeleton argument was then delayed. Dr Ibisi apologised and we accept that apology but again stress the importance of the Upper Tribunal’s directions be complied with.
Background and Permission to Appeal
4. The Appellant, a national of Iraq, appeals against the decision of First-tier Tribunal Judge Davies (“the Judge”) who by way of a decision dated 2 July 2024, dismissed the Appellant’s appeal on international protection and human rights grounds.
5. As will become clearer in terms of relevance, the Appellant’s date of birth is 4 April 2005. The Appellant’s claim in respect of asylum matters relate to when he was aged 17 and under.
6. Permission to appeal was refused by the First-tier Tribunal. On a renewed application, permission to appeal was granted by Upper Tribunal Judge Ruddick.
7. The learned Upper Tribunal Judge noted that the application was out of time by a week but because the Appellant was unrepresented, time was extended to admit the application and in the interests of justice it was permitted to proceed.
8. The grant of permission stated as follows:
“The appellant has raised a series of objections to the judge's evaluation of the country evidence and of the credibility of his account. It is arguable that these are infected by several assumptions about the country context and findings of implausibility. These arguably include: [17-20], where the judge relies on characterising the appellant's relationship as nothing more than a "school friendship" as a reason for rejecting his account of being at risk as a result, without any reference to the country context, and the implausibility findings at [19] and [21] (with regard to the appearance of the girl's cousin), [23] (with regard to what it is "very likely" the appellant's father would have told him) and [29] (with regard to the lack of relationship between a previous land dispute and the current claimed threat) and [30] (with regard to the speed with which the appellant's travel was arranged).
The First-tier Tribunal’s Decision
9. The Judge said at paragraph 13 of his decision that credibility was the central issue before him.
10. The Judge correctly identified that because this Appellant had sought asylum after the coming in force of section 32 of the Nationality, Borders and Asylum Act 2002 then differing standards of proof applied to different questions in respect of the protection claim. The Judge also correctly cited the Upper Tribunal’s reported decision in JCK (s.32 NABA 2022) Botswana [2024] UKUT 00100.
11. The Judge noted the various strands to the Appellant’s case. These included the issue with his claimed girlfriend and that a ‘grenade’ was thrown, the land dispute that the Appellant now claimed to be embroiled in and that the Appellant stating he had been disowned by his parents. The Judge also considered the Appellant’s circumstances in terms of being ‘undocumented’ for the purposes of the applicable Country Guidance caselaw.
12. The Judge said at paragraph 23:
“The Appellant though technically a child was around 17 years of age at the time and perfectly capable of remembering this important information.”
13. The Judge had dismissed the Appeal on asylum, humanitarian protection and human rights grounds.
Grounds of Appeal
14. The Appellant’s grounds of appeal are not well drafted. Nor are they separately enumerated. Breaking them down, the grounds contend as follows:
(1) There was an inconsistent application of cultural norms in respect of honour crimes and societal expectations in Iraq;
(2) The Judge erred by making erroneous assumptions about school segregation in Iraq;
(3) The Judge failed to consider the impact of the trauma he had suffered in respect of his evidence now provided;
(4) The remaining narrative in the grounds contends that there was an overemphasis in respect of external inconsistencies in the evidence and a misinterpretation in respect of the risk of persecution.
The parties submissions summarised
15. The Appellant’s solicitors had relied on a skeleton argument dated 2 April 2025 in readiness for the hearing at the Upper Tribunal.
16. Ms Khan provided an application to amend Appellant’s grounds of Appeal. That application states:
“The Appellant accepts that it is reasonable to expect professional representatives to set out the basis of the application for permission to appeal with an appropriate degree of particularity and legibility. However, the Appellant would submit that lack of skill or pressures of time may lead to clear points not being identified. The Appellant would rely on the case of E v Secretary of State for the Home Department ex parte Robinson [1997] WLR 1162 in this case. The Appellant would argue that there are two obvious points that have not been identified in this case that ought to be considered, namely: i. Judge Davies failed to take account of the Appellant’s age at the time of events in his assessment of credibility. ii. Judge Davies failed to assess the facts on the lower standard when considering whether there was a breach of article 3.”
17. At an earlier hearing, Upper Tribunal Judge Mahmood had granted permission with reference to the decision of the Court of Appeal in R v Secretary of State for the Home Department ex parte Robinson [1998] 1 QB 929).
18. Dr Ibisi said in her skeleton argument before us in relation to the First-tier Tribunal Judge’s decision that:
“it was an error for the Judge to fail to explicitly apply the lower standard to the factual assessment in consideration of Article 3; and,
the Judge was required to make a separate assessment of the facts to the lower standard on Article 3. “
19. Dr Ibisi did not accept though that amended grounds which relied on the Appellant’s vulnerability was made out. She said in summary that the Judge noted the Appellant’s age at paragraph 3 and 23 of his decision and that the Judge had ”…made a reasonable finding that although the Appellant was around 17 years old, he would have been perfectly capable of remembering important information in relation to the position and political affiliation of the family he allegedly fears” Dr Ibisi also submitted that, “These findings were open to the Judge to make based on the evidence before them”.

The Correct Approach to Appeals from the First-tier Tribunal
20. The legal test to be met by the Appellant to show a material error of law is to be found in the Court of Appeal’s decision in R(Iran) and others v Secretary of State for the Home Department [2005] EWCA Civ 982; [2005] Imm. A.R. 535.
21. We remind ourselves that the expertise of the First-tier Tribunal has been impressed upon the Upper Tribunal for very many years, including more recently in the decision of the Court of Appeal in MH (Bangladesh) v Secretary of State for the Home Department [2025] EWCA Civ 688 9 June 2025. In particular the judgment of Arnold LJ, with whom Singh and King LJJ agreed. Paragraph 29 makes clear:
“There have been many recent authorities in both the Supreme Court and this Court on the need for appellate courts and tribunals to be cautious before interfering with findings of fact and evaluative assessments by lower courts and tribunals, and in particular specialist tribunals such as the FTT. For present purposes it is sufficient to cite Lord Hamblen’s summary in HA (Iraq) v Secretary of State for the Home Department [2022] UKSC 22, [2022] 1 WLR 3784 at [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 [2007] UKHL 49; [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 [2010] UKSC 49; [2011] 2 All ER 65 at para 45 per Sir John Dyson.
(iii) When it comes to the 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] UKSC 19; [2013] 2 AC 48 at para 25 per Lord Hope of Craighead.”
Analysis and Consideration
22. We conclude that the Respondent is correct to concede that the Judge materially erred in law in respect of his conclusions in respect of Article 3 ECHR.
23. Dr Ibisi referred to the Respondent’ policy guidance: “Assessing credibility and refugee post status post 28 June 2022”. We consider that the Respondent’s policy guidance sets out matters correctly in respect of s32 of the Nationality and Borders Act 2022.
24. As Dr Ibisi said and with which we agree, the Judge did not apply the correct standard to the Article 3 ECHR claim. That was, as Dr Ibisi said, a material error of law.
25. The correct standard of proof to be applied to an Article 3 ECHR claim when an asylum claim has been correctly dismissed to the balance of probabilities standard still requires the Article 3 ECHR claim to be considered to the lower ‘real risk’ standard and not to the balance of probabilities.
26. Whilst in the past it might have been sufficient for advocates to submit, and for the First-tier Tribunal to conclude that an Article 3 claim stands or falls with the Refugee Convention claim, that is no longer the correct approach when section 32 of the Nationality and Borders Act applies.
27. Importantly, there remains a requirement that there be a separate consideration of the Appellant’s claim pursuant to Article 3 EHCR. Claims based on Article 3 ECHR remain subject to the lower standard of proof. That requires that “substantial grounds have been shown for believing” that expulsion would result in the person being exposed to a “real risk” of torture or inhuman or degrading treatment or punishment as set out in Soering v United Kingdom (1989) 11 EHRR 439 at [91].
28. If that had been the only error of the Judge, then an option we might have considered would have been to remit the matter to Judge for him to consider the appeal using the correct Article 3 standard of proof.
29. We need to consider though the Judge’s decision in respect of the assessment of the Appellant’s credibility, which he had identified as the ‘central issue’ in the case.
30. In our judgment, there was failure by the Judge to apply the vulnerable witness guidance. Indeed, we were concerned to read that the Judge had said at paragraph 23 of his decision that when the Appellant was aged 17, he was ‘technically’ a child. In our judgment the Judge materially erred in coming to such a conclusion. The Appellant when aged under 18 was a child. There was nothing ‘technical’ about it.
31. The effect of the Appellant being under the age of 18 required the Judge to consider the Appellant’s claim in line with him being of younger years when he experienced the events he claimed to have experienced and also to treat the Appellant as a vulnerable witness. The Judge did neither. Whilst the Judge noted the Appellant’s age, that of itself was not sufficient.
32. The Judge was required to follow the guidance in AM (Afghanistan) v Secretary of State for the Home Department [2017] EWCA Civ 1123; [2018] 4 WLR 78 Sir Ernest Ryder with whom LJJ Underhill and Gross agreed said,
31. The Practice Direction and the Joint Presidential Guidance Note provide detailed guidance on the approach to be adopted by the tribunal to an incapacitated or vulnerable person. I agree with the Lord Chancellor's submission that there are five key features:
• (a) The early identification of issues of vulnerability is encouraged, if at all possible, before any substantive hearing through the use of a CMRH or pre-hearing review: Joint Presidential Guidance Note, paragraphs 4 and 5.
• (b) A person who is incapacitated or vulnerable will only need to attend as a witness to give oral evidence where the tribunal determines that “the evidence is necessary to enable the fair hearing of the case and their welfare would not be prejudiced by doing so”: Practice Direction, paragraph 2 and Joint Presidential Guidance Note, paragraphs 8 and 9.
• (c) Where an incapacitated or vulnerable person does give oral evidence, detailed provision is to be made to ensure their welfare is protected before and during the hearing: Practice Direction, paragraphs 6 and 7 and Joint Presidential Guidance Note, paragraph 10.
• (d) It is necessary to give special consideration to all of the personal circumstances of an incapacitated or vulnerable person in assessing their evidence: Joint Presidential Guidance Note, paragraphs 10.2 to 15.
• (e) Relevant additional sources of guidance are identified in the guidance including from international bodies: Joint Presidential Guidance Note, Annex A, paragraphs 22 to 27.
32. In addition, the Joint Presidential Guidance Note at paragraphs 4 and 5 makes it clear that one of the purposes of the early identification of issues of vulnerability is to minimise*8 exposure to harm of vulnerable individuals. The Joint Presidential Guidance Note at paragraph 5.1 warns representatives that they may fail to recognise vulnerability and they might consider it appropriate to suggest that an appropriate adult attends with the vulnerable witness to give him or her assistance. That said, the primary responsibility for identifying vulnerabilities must rest with the appellant's representatives who are better placed than the Secretary of State's representatives to have access to private medical and personal information. Appellant's representatives should draw the tribunal's attention to the Practice Direction and Joint Presidential Guidance Note and should make submissions about the appropriate directions and measures to be considered eg whether an appellant should give oral evidence or the special measures that are required to protect his welfare or make effective his access to justice. The Solicitors Regulation Authority practice note of 2 July 2015 entitled “Meeting the needs of vulnerable clients” sets out how solicitors should identify and communicate with vulnerable clients. It also sets out the professional duty on a solicitor to satisfy him/herself that the client either does or does not have capacity. I shall come back to the guidance to be followed in the most difficult cases where a guardian, intermediary or facilitator may be required.”
33. We conclude that the Judge materially erred in respect of the assessment of the Appellant’s evidence. Whilst we accept that the Judge would have been concerned about the changing nature of the Appellant’s various claims and indeed that some of the issues in respect of the Appellant’s claimed girlfriend appeared fanciful, fairness dictated that the Judge nonetheless assess the claim in accordance with the vulnerability guidance. It was necessary for the Judge to explain whether he had taken the Appellant’s age and vulnerability into account and whether it made a difference to the findings that he was making. The Judge’s failure to do so amounts to a material error of law.
34. Whilst the Judge might have come to the same decision had he considered matters in the correct manner, we must apply the most anxious scrutiny to this young Appellant’s claim and we must not assume that the same result would have ensued.
35. We therefore conclude that the Judge’s decision is infected with material error in respect of the findings reached.
36. We therefore set aside the Judge’s decision in its entirety. We have considered whether or not this is a matter which ought to remain for further consideration here at the Upper Tribunal or be remitted to the First-tier Tribunal. We apply AEB [2022] EWCA Civ 1512 and Begum (Remaking or remittal) Bangladesh [2023] UKUT 00046 (IAC). We consider whether to retain the matter for remaking here at the Upper Tribunal, in line with the general principle set out in statement 7 of the Senior President’s Practice Statement. We take into account the history of this case, the nature and extent of findings to be made as well as the nature of the errors in this case. We further consider it would be unfair for either party to be unable to avail themselves of the two-tier decision-making process. We conclude that the appropriate decision in this case is that we remit the matter to the First-tier Tribunal with no retained findings.
37. At the remitted hearing, the Appellant shall refer to those parts of the Senior President of Tribunal’s Practice Direction of the Immigration and Asylum Chamber of the First-tier Tribunal dated 1 November 2024 which is of relevance.

Notice of Decision
The decision of the First-tier Tribunal contains a material error of law and is set aside.
The matter is remitted to the to the First-tier Tribunal for hearing afresh on all issues.
None of the current findings shall stand.
The anonymity direction continues to apply because the matter relates to an international protection claim.

Abid Mahmood
Judge of the Upper Tribunal
Immigration and Asylum Chamber

31 January 2026