Tribunal decisions

The decision

IN THE UPPER TRIBUNAL
IMMIGRATION AND ASYLUM CHAMBER
Case No: UI-2024-004802

First-tier Tribunal No: PA/51715/2024
LP/06269/2024

THE IMMIGRATION ACTS

Decision & Reasons Issued:

On 24th of October 2025

Before

UPPER TRIBUNAL JUDGE NEVILLE
DEPUTY UPPER TRIBUNAL JUDGE WALSH

Between

A K
(ANONYMITY ORDER MADE)
Appellant
and

SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Mr A Slatter, counsel instructed by Forest Khaled Legal
For the Respondent: Mr K Ojo, Senior Home Office Presenting Officer

Heard at Field House on 18 December 2024

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 was born on 21 January 1995 and claims to be a national of Afghanistan who would be at risk from the Taliban on return due to a land dispute. He first arrived in the United Kingdom on 4 June 2016 and claimed asylum, but the respondent discovered that he had been granted protection in Italy so was able to return him there under then-applicable EU law. The appellant made his way back to UK and provided further submissions in support of an asylum claim on 21 December 2022. This was accepted by the respondent as a fresh claim, which was then refused on 17 January 2024.
2. In refusing the claim, the respondent rejected the appellant’s claimed Afghan nationality. During his asylum interview, while able to answer some questions about the country correctly, he was vague or inaccurate in response to others, such as on the location of his home area and aspects of Afghan culture and society.
3. The appeal against the refusal of the appellant’s protection claim was heard by the First-tier Tribunal on 31 July 2024 by video, all participants connecting remotely, at which the Judge heard evidence from the appellant through a Pashto interpreter. The Judge dismissed the appeal in a decision sent to the parties the same day. After setting out an assessment of the appellant’s credibility, including in relation to nationality, the Judge concluded that the appellant is a national of Pakistan rather than Afghanistan.
Scope of the appeal to the Upper Tribunal
The application for permission to appeal
4. The application for permission to appeal was brought on five grounds, and came before a different First-tier Tribunal Judge on 16 October 2021. The permission judge first decided that Grounds 1 and 2 had no arguable merit and refused permission. We agree, and given that they raise separate issues from the other grounds, we need say nothing further about them.
5. Ground 3 asserted several discrete errors in the Judge’s approach to the appellant’s evidence on nationality and Ground 4 asserted that there was no proper evidential basis for the Judge’s finding that the appellant is a Pakistani national, and that such a conclusion had never been put to the appellant so that he could fairly respond. Ground 5 asserted that the video hearing had been unfairly conducted because of technical issues affecting the clarity of the audio: it is asserted that the interpreter repeatedly had to ask questions to be repeated, there was a loud background noise, and the appellant gave the appearance of having “serious difficulty in understanding” questions. It was further asserted that counsel (not Mr Slatter who appeared before us), who represented the appellant at the hearing and drafted the grounds, had raised the issue with the Judge. She had refused to do anything about it, her reasons including that she herself understood Pashto so could make up for any deficiency.
6. Permission was refused on Ground 3 on the basis that the Judge had unarguably provided adequate reasons for her conclusion on nationality, but on Ground 4, which must be taken as mounting a similar argument, permission was granted without any reasons being given. This is contrary to the Upper Tribunal’s guidance in Joseph (permission to appeal requirements) [2022] UKUT 218 (IAC).
7. Permission was refused on Ground 5 because no transcript had been provided and the grounds failed to spell out what material difference the impugned conduct made to the outcome. As it has not been necessary to re-open this ground, we confine ourselves to observing that requiring a transcript at this stage was likely contrary to the Court of Appeal’s judgment in Abdi & Ors v Entry Clearance Officer [2023] EWCA Civ 1455, and that a judge taking the course described could likely establish an arguable error of law without the pleader of the grounds having to second-guess how the Judge wrongly understood the evidence.
8. While that state of affairs is unsatisfactory, the appellant’s remedy was to make a renewed application for permission to appeal to the Upper Tribunal. For reasons we find difficult to understand, no such application was made and it was left to the latterly-instructed Mr Slatter to make it in the face of the court. While we consider that Grounds 3 and 5 demonstrate an arguable error in the Judge’s approach, we refused the application as Ground 4 is sufficiently expansive for us to fairly decide the appeal. Granting permission on Grounds 3 and 5 would have necessitated an adjournment to enable the Secretary of State to fairly respond and required further expense of resources by the parties and the Tribunal. We therefore heard submissions on Ground 4 and reserved our decision.
9. The issue before the Judge in relation to nationality was contained within the refusal decision, where the respondent had detailed several questions asked of the appellant at interview concerning the country. The appellant had answered several correctly, but the respondent described the answers to others as “vague” and observed that he had not responded to others. He had additionally failed to provide any documents proving his Afghan nationality. In his witness statement made for the purposes of the FtT proceedings, the appellant had complained that several of his answers were incorrectly recorded, for example the answer when asked where in Afghanistan his home province was misspelled as Bathnan (which does not exist) instead of Baghlan (which does). Asked where this was in Afghanistan, he was recorded as saying it was in a place called “Shamal” whereas this is actually Pashto for the word “north”. He had also given more detail in response to other questions than had been noted by the interviewer. Contrary to what was stated in the refusal decision, he had given a partial described an Afghan car number plate.
10. In relation to nationality, the burden of proof was squarely on the appellant. While none of the appellant’s corrections serve to conclusively establish his nationality, the examples above and others in the papers before the Judge did show him to be advancing a positive evidential case. Counsel who represented the appellant before the Judge had distilled this into written submissions, which again were before the Judge.
11. While the Judge traverses a number of the above matters in addressing nationality, as already noted her reasoning concludes with a finding that he is a national of Pakistan. As asserted in the grounds, with which the respondent has not disagreed, the notion that the appellant is from Pakistan was never raised such that the appellant could respond. It is not a conclusion reached in the refusal decision, nor was it argued by the respondent’s presenting officer at the hearing or put to the appellant in cross-examination. It is a matter of fundamental procedural fairness that potentially adverse considerations be put to an appellant for comment.
12. Mr Ojo argued that the Judge, having found that the appellant had not proved that he was from Afghanistan, was entitled to make an observation as to his likely national origin. If that was how the Judge had conducted her fact-finding exercise we would agree; the issue before the Judge was not the appellant’s true nationality, but instead whether he had proved that he was from Afghanistan. Yet the possibility that he was from Pakistan, the Judge making observations as where and how commonly Pashto speakers are found in that country, clearly played a decisive part in her reasoning. If her decision was to depend on the appellant being a Pakistani national masquerading as an Afghan national, on the basis that he shared those characteristics, then this did need to be spelled out. Even after giving the appropriate benefit of the doubt, and carefully applying the well-known principles summarised in the Practice Direction from the Senior President of Tribunals: Reasons for decisions, the inescapable conclusion is that the Judge reached her own view that the appellant was truly from Pakistan, then reasoned her way to that conclusion.
13. Contrary to Mr Ojo’s submissions, we cannot safely find that a negative outcome on nationality was inevitable, despite the rather flimsy basis upon which the appellant had explained his lack of documents and witnesses. Nor can the issue of nationality be separated out from the other issues in the appeal or other aspects of the appellant’s credibility. For those reasons, we conclude that the Judge’s finding on nationality is unsafe, that this stands as an error of law, and that the appeal must be re-heard. We should add that if we had been unable to decide the appeal solely by reference to Ground 4, fair investigation of the issues raised concerning the conduct of the hearing may have required consideration of the other grounds.
14. Given the extent of the fact-finding now required, that the appellant has not yet had a fair hearing of his appeal such as to justify depriving him of the two-layer appellate structure, and due to the other concerns expressed as to the fairness of the hearing, the appropriate order is to remit the appeal to the First-tier Tribunal for complete re-hearing by a different judge.
15. We maintain the anonymity order made by the First-tier Tribunal. The risk of harm upon identification and maintaining the integrity of the UK asylum system justify derogation from the principle of open justice.
Notice of Decision

(i) The decision of the First-tier Tribunal involved the making of an error of law and is set aside.
(ii) The case is remitted to the First-tier Tribunal for re-hearing with no facts preserved, to be heard by a different judge.

J Neville

Judge of the Upper Tribunal
Immigration and Asylum Chamber

14 October 2025