Tribunal decisions

The decision

IN THE UPPER TRIBUNAL
IMMIGRATION AND ASYLUM CHAMBER
Case No: UI-2024-005468

First-tier Tribunal Nos: PA/56006/2023
LP/06165/2024

THE IMMIGRATION ACTS

Decision & Reasons Issued:
On 12th November 2025

Before

UPPER TRIBUNAL JUDGE NORTON-TAYLOR

Between

AS
(ANONYMITY ORDER MADE)
Appellant
and

SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Mr M Aslam, Counsel, instructed by Dean Manson LLP Solicitors
For the Respondent: Ms J Isherwood, Senior Home Office Presenting Officer

Heard at Field House on 5 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.

DECISION AND REASONS

Introduction
1. The Appellant, a citizen of Nepal, appeals with permission against the decision of First-tier Tribunal Judge Bunting (“the Judge”), by which he dismissed the Appellant’s appeal against the Respondent’s refusal of his protection and human rights claims. The protection claim was based on the Appellant’s membership of a particular political party in Nepal, the Rajtantra Independent Party (“RPP”), adverse interest from political opponents who currently hold power in Nepal and therefore control of the security services, and an asserted risk on return due to ongoing interest from the authorities. The human rights claim was based on Article 8 and, specifically a private life said to have been established during the course of some 13 years of residence in the United Kingdom.

2. The Respondent’s refusal of those claims is dated 18 August 2023. The appeal came before the Judge 13 months later.

The Judge’s decision
3. In a relatively brief decision, the Judge set out relevant background including the Respondent’s acceptance that if the Appellant’s claim was “genuine” there would not be sufficient state protection, nor a viable internal relocation option: see paragraphs 10, 11 and 20. Paragraph 15 of the Judge’s decision is important in this appeal. Having recorded that there had been a discussion about the relevant issues, the Judge stated that:

“15. It was accepted by the Appellant that in light of the authorities, there were no para 276ADE/Article 8 claim that could be mounted, and I will therefore not consider that further.”

4. At paragraph 19, the Judge stated that he had taken account of all of the evidence and that reference would be made to some, but not all of it when analysing the Appellant’s case. Under the subheading “Findings and Reasons” and a further subheading of “Credibility”, from paragraphs 27 to 39 the Judge addressed the question of section 8 of the 2004 Act (relating to the delay in the Appellant making his protection claim). In fact, consideration of that issue forms the bulk of the Judge’s decision as a whole. The Judge did not accept the Appellant’s explanation for the delay and concluded that the failure to have made the claim sooner “fundamentally undermines his claim.” At paragraph 39 the Judge stated that the “section 8 point cannot be determinative” and went on to state that there were additional concerns relating to the evidence.

5. The consideration of the protection claim runs from paragraphs 40 to 46. It is appropriate to set these out in full:

“40. The political party he claims to support is referred to in the CPIN ‘Nepal : Political affiliation’ (v1.0, November 2023), and I therefore accept that it exists. However, at 10.1, it is said that they are currently the fourth largest party in the Nepalese Parliament. The recent elections were generally considered to be free and fair (3.1.8).

41. Further, whilst there is widespread corruption (3.1.12), in general, opposition leaders are not at risk (3.1.1), and neither are members or supporters.

42. Whilst it may well be that some people in Nepal are at risk, it has not been explained why this appellant would have been targeted in 2018 and why, after so long out of the country, he would still be of interest to anyone, even in his own home district.

43. He has provided no evidence in support of his claim, such as documents from the police or witnesses to the arrest. Whilst corroboration is not required, his account is inconsistent with the objective evidence (see 3.1.11 and 14.2, CPIN) that political activists are generally free to express their political views.

44. Further, he has not provided any evidence from his political party in support of his claim. Even if there would have been logistical difficulties in arranging live evidence, it would have been straightforward to have provided corroboration of his claim. The lack of such evidence is a clear omission.

45. Taking the above together, I cannot accept any part of the appellant’s account, even on the low standard of proof.

Asylum
46. Against that backdrop, I consider his asylum claim. In light of my findings on
credibility, the appellant is not at risk in Nepal, and his asylum claim must be rejected.”

6. In light of what has already been said, Article 8 was not dealt with save for a passing reference under the subheading of “Notice of Decision” that the appeal was dismissed on “asylum and human rights grounds (Articles 3 and 8 of the ECHR).”

The grounds of appeal and grant of permission
7. The lengthy grounds of appeal were not drafted by Mr Aslam (who had appeared before the Judge). In the event, that has proved to be somewhat unfortunate.

8. Summarising the grounds (which have been labelled (a)–(i)), the Appellant challenges the Judge’s decision on the following bases. First, the Judge was wrong to have stated that the Article 8 issue was conceded. Second, the Judge had misunderstood aspects of the Appellant’s immigration history in the United Kingdom and this undermined the findings on section 8 and in relation to Article 8. Third, the Judge failed in other respects to address Article 8 (clearly, the additional points are all tied up with the first ground). Fourth, the Judge failed to adequately address the Appellant’s own evidence in relation to the protection claim. There was an absence of findings and/or reasons. There was also a failure to consider the Appellant’s mental health. Fifth, the Judge failed to carry out an adequate assessment of risk on return.

9. Permission to appeal was granted on all grounds by a decision of the First-tier Tribunal dated 29 November 2024.

10. I make an observation at this stage. This is a case in which an important aspect of the challenge concerns the question of whether a concession had been made on the Appellant’s behalf. On the face of the Judge’s decision, it had been, whereas the grounds specifically say that Article 8 remained in play and should have been addressed. Further, this is a case in which Counsel, who appeared before the Judge, was not the author of the grounds. In such circumstances, it is important that solicitors and/or the drafter of the grounds of appeal make every effort to try and establish, by way of evidence, the true position of what was or was not said below.

11. Here, Mr Aslam was not seemingly contacted in order to obtain his recollection of the hearing, nor was there any request to listen to the audio recording. As I will set out below, the difficulty with which I was initially faced was in part resolved by Ms Isherwood’s candid and helpful intervention with reference to the hearing minute note produced by the relevant Presenting Officer. Such evidence will not always be available.

12. I take this opportunity to remind the Appellant’s representatives (the solicitors and the author of the grounds) Counsel of the need for particular care in cases such as the present.

13. I emphasise that I make no criticism of Mr Aslam in respect of what I have just said.

Procedural matter: service of the error of law bundle
14. Unfortunately, I am bound to make another observation concerning the preparation of this appeal by the Appellant’s representatives (again, making no criticism of Mr Aslam). He confirmed to me that on instructions, the error of law bundle had been filed on the Tribunal’s CE File system but had not been served by email on the Respondent, as it should have been. Whether the solicitor’s firm undertakes much work in this jurisdiction or not, it should be aware, or at least make every effort to become aware, of the need to serve materials on the Respondent by way of email. That is set out in directions and, if there is any doubt, contact should be made with the Tribunal’s administrative staff for further assistance.

15. A repeat of this failure may result in further action being taken by the Tribunal.

The hearing
16. As highlighted previously, the question of whether Article 8 had been conceded was very much a live issue.

17. Mr Aslam, with his customary frankness, confirmed that he had no written record of his submissions before the Judge and could not be certain as to what he had said at the hearing, it being over a year ago. He did however state that it would have been unlikely that he would have made a concession on Article 8, given that the Appellant’s claim had some substance to it (based on fairly lengthy residence in this country).

18. Ms Isherwood’s production of the Presenting Officer’s minute of the hearing was of real assistance. It clearly confirmed that oral submissions on Article 8 had been made by Mr Aslam. That was consistent with the Appellant’s skeleton argument and the fact that Article 8 had been addressed in detail by the Respondent in her reasons for refusal letter.

19. Given the fact that this point had not been flagged up as a matter of dispute in advance of the error of law hearing, I did not regard it appropriate to adjourn and seek either the audio recording or the views of the Judge (intending no disrespect to him). Having considered the overriding objective and there being no application to adjourn or other objection raised by the parties, I decided to proceed on what was before me.

20. Mr Aslam submitted that the Judge had for some reason misapprehended or misrecorded the Appellant’s case and that the failure to have considered the Article 8 claim constituted a material error. In respect of the protection claim, he confirmed that whilst the Appellant had had some mental health issues in the past, that had not been a matter relied on as part of the protection or Article 8 claims and to that extent paragraph 23 of the grounds was not being pursued. He also accepted that the Judge had dealt with the section 8/delay point in some detail. However, he submitted that it was apparent that the Judge regarded this issue as being of great significance to the assessment of the Appellant’s credibility. By implication, he suggested that it had been given undue significance in respect of the Appellant’s case as a whole.

21. The main thrust of Mr Aslam’s submissions related to the Judge’s assessment of the substance of the Appellant’s protection claim and in particular the evidence relied on by the Appellant, as opposed to materials relied on by the Respondent. He submitted that there had in effect been no real assessment of the credibility of the Appellant’s evidence. The Appellant had put forward appropriate detail in relation to the claimed 2018 police raid on his home and why he believed the authorities would retain an adverse interest in him on return. The evidence included a letter from his parents in Nepal to that effect, asserting that there had been a visit to the home in August 2023. The Judge had instead relied almost entirely on passages from the executive summary of the Respondent’s CPIN and the assertion that there had been no explanation or “no evidence” in support of the claim, both in terms of past events and future risk. It was submitted that this constituted a further error of law.

22. Ms Isherwood made brief but pertinent submissions, contending that the Judge had confirmed at paragraph 19 that he had had regard to all of the evidence and that the conclusions on section 8 had not been determinative of credibility.

23. At the end of the hearing I announced to the parties my decision that I was allowing the appeal on the basis that the Judge had committed material errors of law. I now set out my reasons for that decision.

Reasons
24. I make two preliminary points. First, I remind myself of the need for appropriate judicial restraint before interfering with the Judge’s decision. This is based on numerous pronouncements by the higher courts. Second, I express my gratitude to both representatives at the hearing for their professionalism and overall assistance. This appeal would have been a good deal more difficult to determine without their input.

25. I am satisfied that the Article 8 aspect of the Appellant’s case was not conceded before the Judge. Combining the Presenting Officer’s hearing minute (which I accept was near-contemporaneous), the content of the skeleton argument, and Mr Aslam’s recollection (which I acknowledge was not clear), I am satisfied that oral submissions were made on the point. I cannot of course be certain that the Judge wrongly recorded what is set out in paragraph 15 of her decision, but it is, in my view, more likely than not that he did.

26. On that basis, there is an error of law, namely a failure to have considered an important aspect of the Appellant’s case. That error is material because, as I have already said, there was some substance to the Article 8 claim (that is not of course to say that it would inevitably have succeeded, if considered).

27. The Judge’s decision must be set aside on that basis.

28. However, it is important to address the protection issues as well in order to determine the scope of any re-making of the decision.

29. In relation to the section 8 point, I would not consider there to be any free-standing error of law by the Judge. I have a concern that the consideration of this issue took up the great bulk of the consideration of the Appellant’s case, but ultimately the fact that it was dealt with first does not of itself disclose an error. Further, the Judge did confirm that the adverse conclusion was not determinative and there were other concerns relating to the Appellant’s account: paragraph 39.

30. I am satisfied that there is no merit in the assertion that the Judge erroneously failed to deal with any mental health issues. Mr Aslam confirmed that that did not ever form part of the Appellant’s case and I regard this aspect of the grounds as being poorly drafted and potentially disingenuous. Greater care must be taken by the author of those grounds in the future.

31. Having said that, I conclude that the Judge did materially err in respect of her consideration of the Appellant’s own evidence as to past events in Nepal and future risk. I fully acknowledge his confirmation that he had taken all of the evidence into account. Yet the Appellant, as the losing party, was entitled to see from the face of the decision what findings had been made on his evidence, together with supporting reasons, even if briefly stated. The difficulty in this case is that the Judge seemly relied solely on certain passages from the executive summary of the Respondent’s CPIN. The summary does not represent the underlying country evidence itself (as has been stated in several of the authorities) and those passages said nothing about the specific evidence put forward by the Appellant: see paragraphs 40 and 41. In respect of paragraphs 42 – 44, the Judge did not address the Appellant’s witness statement evidence and/or oral evidence concerning why he had been targeted in 2018, whether the police raid in fact took place, and why, despite the passage of time, there might have been ongoing interest in him by the Nepalese authorities. Even in the absence of corroborative evidence (which the Judge correctly noted was not a requirement), there was evidence before the Judge which needed to be engaged with.

32. Whilst not each and every item of evidence considered need be set out by a judge, core matters should be in order that the losing party can tell why they have been unsuccessful. The CPIN passages might have undermined the plausibility of what the Appellant was putting forward, but there nonetheless needed to be findings on whether his own evidence was true. The omission of any evidence from the Appellant’s political party was, I accept, relevant, but could not have been determinative in light of the caution to be applied to the absence of corroborative evidence.

33. The failure to have addressed the Appellant’s own evidence is material because, as the Respondent had conceded, if his account was true, he would have succeeded in his protection claim.

34. In light of the above, the Judge’s decision must be set aside in relation to the protection issue as well.

Disposal
35. No findings can be preserved in this case. In relation to the Article 8 claim there has been no substantive consideration of the evidence at all and so there is nothing to preserve in any event. In respect of the protection claim, the errors in the credibility assessment are such that the section 8/delay findings cannot stand: it would be artificial to conclude otherwise.

36. Having regard to all the circumstances, including the relevant issues and the extensive fact-finding exercise required, I remit this appeal to the First-tier Tribunal for a complete rehearing. The parties had no objection to this course of action.

Notice of Decision
The decision of the First-tier Tribunal did involve the making of material errors of law and that decision is set aside.

The appeal is remitted to the First-tier Tribunal for a complete rehearing with no preserved findings.

Directions to the First-tier Tribunal
(1) The appeal will be reheard by the First-tier Tribunal at the Taylor House hearing centre before a judge other than Judge Bunting;

(2) On rehearing the appeal, there shall be no preserved findings.

H Norton-Taylor

Judge of the Upper Tribunal
Immigration and Asylum Chamber

Dated: 7 November 2025