Tribunal decisions

The decision

IN THE UPPER TRIBUNAL
IMMIGRATION AND ASYLUM CHAMBER
Case No: UI-2024-004777
and
UI-2024-005024

First-tier Tribunal No: PA/54216/2023

THE IMMIGRATION ACTS

Decision & Reasons Issued:

On 18th of March 2025

Before

UPPER TRIBUNAL JUDGE RUDDICK

Between

II
(ANONYMITY DIRECTION MADE)
Appellant
and

SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the appellant: Ms J. Fathers, instructed by BHT (Sussex)
For the respondent: Ms S. McKenzie, Senior Home Office Presenting Officer

Heard at Field House on 4 March 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
Summary
1. This is an appeal about how judges in this jurisdiction should discharge their fact-finding functions. The appellant argues that the decision dismissing his asylum appeal should be set aside because:
(i) The proceedings before the First-tier Tribunal (“the FTT”) were unfair because the First-tier Tribunal Judge (“the Judge”) engaged in excessive and at times hostile questioning of the appellant and failed to comply with published guidance on the treatment of vulnerable appellants;
(ii) There were multiple errors of law in the Judge’s reasoning. These included (but are not limited to) making findings that were based on speculation or personal belief rather than on the evidence before him and failing to take the appellant’s age at relevant times into account when making adverse credibility findings.
2. For the reasons set out below, I have concluded that the Judge did err in these ways, and that the appeal must be remitted to the First-tier Tribunal to be heard before a different judge.
Anonymity
3. Because this is a protection appeal, the FTT granted the appellant anonymity as a precautionary measure. The Judge then decided that an anonymity order should not be made. The appellant has renewed his application for an anonymity order in these proceedings, and the respondent does not oppose this. I consider that it is appropriate to make an anonymity order because the UK’s obligations towards applicants for international protection and the need to preserve the confidentiality of the asylum process outweigh the public interest in open justice at this stage in the proceedings.
The appellant’s asylum claim
4. It is accepted that the appellant is a citizen of Egypt and was born there in September 2004. It is also accepted that the appellant’s father was a tenant farmer, and had rented agricultural land in an area in the El Beheira governate from the AA family.
5. The appellant arrived in the UK on 30 March 2022 and his asylum claim was registered three days later. He said that he had fled Egypt because his father’s landlords had tried to evict him from his land and seize his crops before the end of his agreed tenancy. The conflict escalated to the point that there was a physical fight between the appellant and his father on the one side and members of the AA family on the other. In that fight, his father killed a young man from the AA family. This was at the end of 2019, when the appellant was 15 years old.
6. The appellant says his father fled in fear of retaliation by the family and his whereabouts are unknown. The police arrested the appellant, interrogated and beat him, and then detained him for a month before releasing him. Members of the AA family continued to harass and assault the appellant. He fled his village to live with relatives, first in Cairo and then in Alexandria, but he was subjected to serious assaults by members of the AA family in both places. He was stabbed and his nose was broken. He then went into hiding with a third relative, in Damanhour, before fleeing the country. He says that this was in around March 2021, when he was 16 years old.
7. The appellant says he spent around seven months in Libya, before travelling to Italy by boat in October 2021. He spent approximately two months in Italy and three months in France but did not claim asylum in either country.
8. The appellant was almost 17 and a half years old when he arrived in the UK and claimed asylum. The respondent conducted an initial screening interview in June 2022, when he was 17 years and nine months old, and a substantive asylum interview in May 2023, when he was over 18.
The respondent’s reasons for refusal
9. On 1 June 2023, the respondent refused the appellant’s asylum and human rights claim. The respondent did not accept that the appellant was telling the truth about his reasons for leaving Egypt; his account was said to have been inconsistent over time and in places implausible, and his credibility had been damaged by his failure to claim asylum in either Italy or France. The respondent also found that even if the appellant was at risk of retaliation from members of the AA family, he could seek protection from the authorities “in cooperation with reconciliation committees”, which had successfully resolved “numerous” blood feuds “over recent years”. Moreover, the appellant would be able to relocate to other parts of Egypt, where he would be safe and able to support himself.
The appellant’s appeal to the FTT
10. The appellant appealed. In support of his appeal, he submitted a witness statement, medical records, independent country evidence, and reports from two experts, Dr Alison Pargeter and Prof. David Roberts. Both experts wrote both an initial report in response to instructions from the appellant’s representatives and an addendum report, responding to the Respondent’s Review.
The appeal proceedings
11. The appellant’s appeal came before the FTT on 18 July 2024. Ms Fathers appeared on behalf of the appellant in those proceedings as well.
12. In support of his appeal to the Upper Tribunal, the respondent obtained a transcript of those proceedings. My description of what happened at the hearing is based on that transcript.
13. The Judge noted at the beginning of the hearing that the respondent had relied on country evidence that was neither in the bundle nor accessible via the hyperlink given in the refusal decision. After considerable discussion both at the beginning and end of the hearing, it was agreed that the parties could submit additional country evidence after the hearing. This was done, and Ms Fathers confirmed at the hearing before me that she has no complaint about the way this issue was ultimately resolved.
14. The Judge then heard evidence from the appellant. Before the direct examination began, the Judge gave the appellant verbal instructions about how to give evidence:
“Now, will you listen carefully to the questions and answers the questions which are put to you. If they are the sort of questions you can answer yes, no, or I do not know, would you answer them in that way, but if that answer needs some explanation or qualification, let that follow on afterwards. If you are asked about the dates when any event occurred, or numbers of people present at a meeting, or anything like that, and you do not know the exact date or the exact numbers, just give me the best approximation that you can. If you are talking about people, and you know their names, will you refer to them by their names. If you do not know their names but you can refer to them by an appropriate collective noun, as, for example, the police, refer to them in that way, but please do not say things like “they did this”, or “we did that”, without telling me who it is you are talking about. But even if you are talking about, for example, a relative, do not just say “my uncle did this”, because that will not - you may have more than one uncle, so give me the uncle’s name, Uncle Albert, or whatever it may be.
“I am mainly interested in things which happened to you, the things you were involved in, things you saw with your own eyes, but if you want to tell me about something which somebody else told you about, would you make clear that that is what you are doing, and that you will do by saying “well, I do not know, I was not there myself, but I was told that”, and then go on and tell me exactly what you were told, who told you, and, if you know it, whether the person who told you that thing had himself seen the events which he described. If you want to tell me about something - well, I am much less interested in things which other people told you about, but that is the way to deal with that. If you want to tell me about something you read in the newspapers, or heard on the wireless, or saw on the television, again, I am much less interested in that, but tell me that that is where you saw - where you got the information from.”
15. The Judge then asked the appellant if he understood the interpreter, but not if he understood these instructions. He then said they would “make a start” with the oral evidence. Ms Fathers reminded the Judge that she had made an application for the appellant to be treated as a vulnerable witness. This led to the following exchange:
“JUDGE: All right. Well, that is all right, I do not imagine you or [the Presenting Officer] is going to cross-examine in a ruthless and a rigorous manner. I do not know why people do these things, but it is a load of nonsense really.
MISS FATHERS: It is helpful to have the basic guidelines set out. In terms of what we are seeking, it would be breaks when needed, and simple questions and answered in a straight forward way.
JUDGE: Yes.
MISS FATHERS: And ensuring that the appellant understands those questions.
JUDGE: All right, well, let us make a start then.”
16. On direct examination, the appellant confirmed his name and address and adopted his various statements. He was then cross-examined at length. The began as follows:
“Presenting officer (“PO”): So, Mr [I], is that OK? [I], OK, so during the dispute that resulted in the death of a son of the family that you claim to be feuding with, how many people were present?
A. The ones that I know, four.
Q. Four?
A. They are about, yes, yes, four, the one that I know.
JUDGE: When you say four, I think we need to look at that a bit more carefully, because, as I understand it, both you and your father were present. So was it just two other people?”
17. Six questions followed, which appear to be from the Judge, although at this point in the transcript it is not entirely clear. The Judge then asked the PO to locate the page in the bundle that contained the relevant section of the appellant’s asylum interview. He instructed the PO:
“Well, I think the next step would be if you show the question and answers to him, he can see what has been recorded, have it translated what has been written down. I think also would you show him question 57 as well, “I can't really remember, I’m just mentioning the people I know”. So show him from 55 to 57.”
18. The PO asked seven substantive questions about apparent inconsistencies in the appellant’s account about how many people were present at the fight. The Judge then gave the PO further instructions:
JUDGE: Yes, is your point that because of the inconsistencies, and perhaps also because there is no - there is nothing from the police, this story about the fight is an invention?
PO: That would be part of our position.
JUDGE: It is your point, well, I think you need to put that to him.
PO: That will be, I will get---
JUDGE: At some stage put that, I want to know what your case was.
19. The PO had not, at that point, raised any issue about the lack of corroborating documents, and he did not pursue the Judge’s suggestion at this stage.
20. The PO asked 8 further questions, including about why the appellant did not seek police protection after sustaining a serious injury while in Cairo. Among his answers was, “Because I was young and had no one to help me do anything.” The Judge intervened again, as follows:
JUDGE: I had no one to help me?
A. Because I was young and I had no one to help me.
Q. But you were staying with your cousin at this time, were you not? You were staying with a cousin at the time?
A. But they didn't help me.
Q. Do you know why not?
A. They refused to help me, and I used to change classes from time to time.
Q. How old is your cousin?
A. They are older, I don't know their exact age.
Q. Approximately?
A. More than 26 years old, or 27 years old, I don't know the exact ages.
Q. I see. Did you know why they did not want to help?
A. No, I don't know why.
21. The PO asked five further questions, about why the appellant did not go to the police after being attacked in Alexandria. The Judge then introduced a new line of questioning, about why the appellant had not gone to the police to report the two previous attacks later, when he was living with an uncle in Damanhour. Among these questions was, “Well did you discuss with him [your uncle] the possibility of going to see the police in Damanhour rather than go to the great trouble and expense of leaving the country?”
22. The same pattern continued throughout the cross-examination. It was roughly as follows (leaving out simple requests for repetition and exchanges between the Judge and the representatives): eight questions from the PO; two questions from the Judge [page 16-17 of the transcript]; six questions from the PO; eight questions from the Judge [page 18-19]; one question from the PO; four questions from the Judge [page 19]; two questions from the PO; one question from the Judge; [page 21] one question from the PO; seven questions from the Judge [page 21]; one question from the PO; five questions from the Judge [page 22]; two questions from the PO; one question from the Judge [23]; three questions from the PO; one question from the Judge [pages 23-24]; one question from the PO; one question from the Judge [page 24]; two questions from the PO; five questions from the Judge [page 24-25]; four questions from the PO [page 25]; five questions from the Judge [page 25-26].
23. The transcript shows that Ms Fathers asked for the appellant to be given a break after around an hour of cross-examination, but the Judge responded by pointing out that the appellant had not asked for a break. The appellant then confirmed he was content to continue. Two pages later in the transcript, the appellant was given a break, and there was a five minute adjournment.
24. As can be seen from the excerpts above, some of the Judge’s questions sought clarification of the appellant’s evidence. Others were more in the nature of cross-examination or criticism. To give just two further examples of the latter, after the PO had asked a series of questions about why the appellant had not sought police protection, the Judge asked:
JUDGE: Did you not think to yourself, later on you had the incident you would have been able to show the police the scar on your arm, and the nose? I mean, it keeps on going, you could have perfectly easily say to them it did not work the first time because they thought it was just, you know, perhaps behaviour or something like that, but now it has got more serious.
25. When the appellant said that he had left Italy because he had heard that a member of the AA family was in the same city, the Judge asked:
JUDGE: Forgive me, this does seem very, very strange to me, that just because you are told that a single member of this family is also in Italy, you would not claim asylum? Why should that member - why should you be afraid of that single member? Why can the police not protect you from him? It does not make sense to me.
26. There were other occasions where the Judge’s language strayed into the confrontational. For example, when asking the appellant why he did not know what had happened to the land in dispute, the Judge used the phrases “now what on earth do you mean by that?” and “surely to goodness you want to know”.
27. There was a brief re-examination by Ms Fathers, in which the Judge intervened to cut off a line of questioning about whether Damanhour was in the same governate as Beheira, explaining to Ms Fathers, “Well, that is like saying it is in a different county, Sussex or Surrey, is it not? It does not make any difference, a policeman is a policeman throughout the country.” [page 27]
28. He later interrupted after the appellant had explained that he had been confused by the interpreter referring to his uncle as his maternal uncle, asking:
Sorry, I do not understand that answer at all. You say something was interpreted as my paternal uncle, what was interpreted as a paternal uncle, and what was wrong about that? [page 28]
29. Following the respondent’s submissions, there was a somewhat contentious discussion of the respondent’s missing evidence, in which the Judge told the Presenting Officer the Home Office’s failure to provide country evidence was “feeble” and then accused Ms Fathers of “playing silly games” when she objected to that evidence having been submitted at the end of the respondent’s submissions.
30. Finally, Ms Fathers made her submissions, during which the Judge put to her a number of his concerns about the appellant’s evidence, including the lack of corroboration, his “not very compelling” reasons for not claiming asylum in Italy, and his dissatisfaction with the expert report.
The challenged decision
31. The Judge’s decision is just over 62 pages long. It is unnecessary for the purposes of this appeal to describe its structure or summarise its contents. In my discussion below I will address the aspects of the decision that require it to be set aside. The Judge concluded that the appellant’s account of the events that had led him to leave Egypt was untrue. Even if it were true, the appellant could seek protection from the police. Moreover, he had not shown that he would be unable to resolve the dispute with the assistance of a “reconciliation committee”. He could also relocate safely elsewhere in Egypt and he would be able to support himself. The appeal was dismissed on all grounds.
The grounds of appeal
32. The appellant appealed on four grounds. He was initially granted permission only on three grounds before renewing his application on the fourth. This resulted in his appeal having two separate reference numbers. The fourth ground criticised the Judge’s assessment of whether the appellant’s removal from the UK would violate his right to a private life, as protected by article 8 of the European Convention on Human Rights (ECHR). Although the appellant was eventually granted permission on this ground as well, Ms Fathers confirmed at the hearing before me the he was no longer pursuing it, and I say nothing more about it.
33. The three remaining grounds are that:
(i) “The Judge erred in failing to take proper account of the Appellant’s age and in failing to apply” the Joint Presidential Guidance Note No 2 of 2010: Child, vulnerable adult and sensitive appellant guidance. Ms Fathers clarified at the hearing before me that this ground was focussed on the Judge’s assessment of the appellant’s evidence. To the extent that the Judge was said to have made the same error in his conduct of the hearing, that formed part of Ground Three.
(ii) “The Judge’s approach to the Appellant’s credibility and evidence was flawed and irrational”. Rather than set out all of the various errors that the appellant included under this broad heading, I will set out the appellant’s most cogent arguments in my discussion below.
(iii) “Fairness and appearance of bias”. The appellant made three arguments under the heading:
(a) During the hearing, the Judge “descended into the arena, taking over the position of the cross-examiner”.
(b) In his decision, the Judge had engaged in an extensive consideration of the role and effectiveness of the reconciliation committees. Given that this issue had been touched on only briefly in the refusal decision, it was unfair for the Judge to make the findings he did without first putting any of his thoughts on the issue either to the appellant or to his representative. A similar complaint was made about the Judge’s findings about Prof. Roberts’ report.
(c) The Judge’s conduct of the hearing created an appearance of bias.
34. Because of an administrative error, the respondent filed two separate and somewhat inconsistent Rule 24 responses. Shortly before the hearing, she confirmed that she wished to rely on the Rule 24 response dated 22 October 2024. The appellant also filed a reply under Rule 25.
The hearing before the Upper Tribunal
35. At the hearing before me, the parties and I all had a 521-page composite bundle from the appellant. This included the bundles before the FTT, the post-hearing submissions on the country evidence, the full transcript of the hearing, and the Rule 24 responses and Rule 25 reply. I am grateful to both parties for their submissions. I have taken them into account and I will refer to where relevant below.
Discussion
36. As noted above, the appellant argues that the Judge erred in many different ways, both in his conduct of the hearing and in how he decided the issues before him. I do not consider it necessary to address all of the claims. Some are more persuasive than others. In particular, I am not persuaded that the Judge acted unfairly in not putting his concerns about the country or expert evidence to the appellant. It is clear from the transcript that the Judge did put those concerns directly to Ms Fathers during her submissions. Moreover, the Judge agreed that both parties could make post-hearing submissions on the country evidence, which allowed the appellant time to make further submissions in response.
37. Most of the appellant’s grounds are, however, made out.
38. I begin by considering the appellant’s complaints about the conduct of the hearing, although this was his third ground of appeal. I have carefully considered the most recent caselaw on the Judge’s role in FTT proceedings in this jurisdiction, Hima v SSHD [2024] EWCA Civ 680 and Hossain v SSHD [2024] EWCA Civ 608. I recognise that the FTT is a specialist tribunal, and that FTT judges have been described as having a “quasi-inquisitorial” role rather than a “merely supervisory” one. There is nothing inherently wrong with FTT judges putting their concerns about an appellant’s case directly to the appellant. Indeed, fairness may require them to do so, so that the appellant has an opportunity to respond.
39. However, viewing all of the circumstances of this appeal in the round, I conclude that the Judge conducted the hearing unfairly. He indicated from the outset that he thought the concept of treating the appellant as vulnerable due to his age and anxiety was “nonsense”. Although he said “alright” to Ms Father’s request for the appellant to be treated as a vulnerable witness, it is clear that in his conduct of the hearing, he disregarded the Joint Presidential Guidance. His opening instructions were long and complex, and the Judge made no effort to confirm that the appellant understood them; this may be what led Ms Fathers to renew her application for him to be treated as a vulnerable witness. The Judge pushed back against Ms Father’s first request that the appellant be given a break, and he spoke disrespectfully to the appellant before he was later allowed to take a break.
40. I consider, moreover, that the Judge’s conduct would have been unfair even if the appellant had not been accepted to be vulnerable. He intervened persistently throughout the appellant’s cross-examination, and his questions went far beyond clarification. He at times sought to direct the course of the PO’s examination, suggesting certain lines of enquiry or raising new ones. On a number of issues, he asked significantly more questions than the PO did. The tone of several of his questions was sceptical, and some questions can only be described as hostile. Any appellant would have reasonably felt that he was facing two cross-examiners at once, with the Judge taking perhaps the leading role.
41. In accordance with the guidance in Hossain at [79], I have taken into account that Ms Fathers did not complain to the Judge during the hearing about his role in the cross-examination. However, I have noted the various moments at which she did engage in a discussion with the Judge about issues of procedure and fairness, including about the vulnerable witness guidance and the submission of late evidence by the respondent. I consider that counsel should be allowed to exercise their judgment about when further complaint is likely to be productive. More fundamentally, it is trite that lack of complaint cannot make an unfair process fair.
42. Grounds One and Two challenge the reasoning in the Judge’s decision. Both grounds are made out.
43. I agree that the Judge did not properly take the appellant’s age or vulnerability into account in assessing his credibility. A [32(c)], the Judge considered the appellant’s explanation for having been inconsistent over time about where one of the more violent attacks on him took place. He expressly rejected the appellant’s claim to have been “still quite young” at the time, because he was “c. 16 years old”. In fact he had just recently turned 15, and whether one describes that as “young” or “quite young”, it was necessary to take his youth into account to some degree.
44. The Judge then dismissed as irrelevant the appellant’s explanation that “I could not concentrate well that time in my life as this family was causing me a lot of problems”. He wrote:
“even if what he stated was true and members of the [AA] family had, while he was still in Egypt, been "causing [him] a lot of problems" and he had in consequence not been able to concentrate well at that time, that is not to the point. When he went to interview, he was not being troubled by members of the [AA] family.”
This runs directly contrary to what is well known about the effects of trauma on memory. Traumatic events – in this case, a series of increasingly violent assaults – affect a person’s perception of an event and the storage of that perception in short term memory at the time. They also affect the process of retrieving the memory later. In other words, the effects of traumatic events on memory may persist long after the events have ended. As with the appellant’s youth, the effects of trauma do not necessarily explain away all inconsistencies, but nor can they rationally be dismissed as irrelevant.
45. The appellant raises various different complaints under Ground Two. Having read the decision with care, I consider that there is one error that recurs at multiple points in the decision and that is sufficient to require the decision to be set aside. This is that the Judge repeatedly makes findings of fact on the basis of his own intuition or belief, and without reference to (and sometimes in contradiction to) the evidence before him. As Lord Justice Neuberger remarked in HK v Secretary of State for the Home Department [2006] EWCA Civ 1037 at [29]
“Inherent probability, which may be helpful in many domestic cases, can be a dangerous, even a wholly inappropriate, factor to rely on in some asylum cases. Much of the evidence will be referable to societies with customs and circumstances which are very different from those of which the members of the fact-finding tribunal have any (even second-hand) experience […] decision-makers must constantly be on guard to avoid implicitly recharacterizing the nature of the risk based on their own perceptions of reasonability”.
46. Throughout his findings, the Judge repeatedly decides the issues before him by reference to how, in his view, “it is expected that” various actors both in Egypt and the UK would behave or to what he considers to be “an obvious and inherent lack of likelihood”. See, e.g.: [29(a)], [31(b)], [31](c)], [32(c)], [32(e)], [32(g)], [32(k)].
47. The discussion of the appellant’s failure to claim asylum in Italy is representative of this type of reasoning. The appellant had said that he left Italy out of fear, after a friend of his father’s, Mr MA, had told him that a member of the AA family was in the same city. The Judge found that it was “to be expected that Mr MA would”
“(1) have appreciated and told him (Mr I) that, because he had no passport or other document showing him to be entitled to be in Italy (or to enter France), and had no documents vouching the truth of his "asylum" claim, he (Mr I) was in an irregular situation, and
(2) have advised Mr I that he should
(i) seek advice from a lawyer in Italy as to how he should regularise his position,
(ii) continue to stay with him (Mr MA) in Milan while attempts were made to obtain documents from Egypt vouching his claim, and
(iii) not leave Milan or attempt to travel on to France, and
(3) not have made arrangements for Mr I to travel on to France.
In these circumstances, I am not satisfied that it is reasonably likely that Mr MA would have permitted Mr I (if the account which he gave was true) to travel to France or have made arrangements for him to do so (at least without first seeking advice from a lawyer in Italy as above). “
48. It is impossible to identify the basis of the Judge’s confident expectation here, as the only evidence about Mr MA before him appears to have been that he was from the appellant’s village and was about the same age as his father.
49. The Judge took a similar approach to the question of the risk to the appellant on return, in spite of an acknowledged lack of evidence. At [37], for example, he wrote:
“No evidence, either from Mrs Pargeter […] or otherwise was placed before me as to the likely outcome, if a reference to a reconciliation committee were made by Mr I or Mrs A, by reference to what has happened in other comparable cases. I have no knowledge myself of the workings and/or practice of the reconciliation committees in Egypt. But in the circumstances of this appeal, it is difficult to imagine that a reconciliation committee would reach any conclusion other than [that …] the members of the [AA] family should not for the future take any action against [the appellant] and that no requirement that he (Mr I) should leave [his village] or pay any compensation to the members of the [AA] family should be imposed on him. I am not satisfied that that would not be the outcome of any such proceedings.”
50. In summary, the Judge’s reasoning is so persistently based on his own personal beliefs rather than on the evidence before him that his decision would need to be set aside for this reason alone.
51. Under the circumstances, I do not need to address other potential errors in his reasoning, such as his highly prescriptive approach to what the expert evidence should have contained.

Notice of Decision
The hearing before the FTT was fundamentally unfair and the Judge’s decision of 21 August 2024 dismissing the appellant’s appeal contained material errors of law. The decision is set aside in its entirety and the appeal is remitted to the First-tier Tribunal for a fresh hearing on all issues, before any judge other than Judge CH Bennett.

E. Ruddick

Judge of the Upper Tribunal
Immigration and Asylum Chamber

10 March 2025