UI-2024-005720

• Status of case: Unreported
• Hearing date: 18 Nov 2025
• Promulgation date: 31 Dec 2025
• Publication date: 15 Jan 2026
• Last updated on: 15 Jan 2026

The decision

IN THE UPPER TRIBUNAL
IMMIGRATION AND ASYLUM CHAMBER
Case No: UI-2024-005720

First-tier Tribunal No: PA/66632/2023
LP/05762/2024

THE IMMIGRATION ACTS

Decision & Reasons Issued:
On 31st December 2025

Before

UPPER TRIBUNAL JUDGE LODATO
DEPUTY UPPER TRIBUNAL JUDGE R FRANTZIS

Between

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Appellant
and

REBIN TOFIQ HAMAAMIN
(no ANONYMITY ORDER MADE)
Respondent

Representation:
For the Appellant: Mr Leader, counsel instructed by the Government Legal Department
For the Respondent: Mr Cole, instructed by Parker Rhodes Hickmotts

Heard at Phoenix House (Bradford) on 18 November 2025


DECISION AND REASONS

Introduction

1. The Secretary of State appeals with permission against the decision, dated 21 October 2024, of a judge of the First-tier Tribunal (‘the judge’) to allow the appeal on humanitarian protection and Article 3 human rights grounds.

2. The appellant in the appeal before us is the Secretary of State for the Home Department and the respondent is Mr Hamaamin. However, for ease of reference, in the course of this decision we now adopt the parties' status as it previously was before the First-tier Tribunal. We refer to Mr Hamaamin as the appellant, and the Secretary of State as the respondent.

3. This appeal raises the question of whether a First-tier Tribunal Judge is required in law to consider whether a serious criminal is entitled to humanitarian protection even where the exclusion point, in that context, has not been taken by the respondent at any stage throughout the proceedings.

The Criminal Proceedings, the Refusal of the Protection and Human Rights Claims and the Appeal to the First-tier Tribunal

The criminal proceedings

4. On 29 November 2022, the appellant and a co-defendant came before HHJ Wright, at Sheffield Crown Court, to be sentenced for offences of affray and assault occasioning actual bodily harm. The appellant pleaded guilty two months after the plea and case management hearing. The offences were summarised by the judge:

Late at night on 24th July of this year, when in drink, you meted out serious violence in Barnsley town centre to three people. You attacked two men, punching both to the floor. Khalid, you are then seen to be punching an unconscious man repeatedly and stamping on his head. And Hamaamin and Khalid, you then kicked the second apparently unconscious male. The violence was so severe that female bystanders had to intervene to stop you further attacking the men.

Then, in a completely unrelated incident, after inappropriately speaking to a young woman who was at work, you set about meting out violence to her boyfriend who was walking to meet her, hitting him in the face and kicking him repeatedly as he was on the floor, after he had tried to calm you down, leaving him with injuries to his face. The CCTV that I have watched shows utterly disgraceful, shocking violence used by both of you, and it is only by good chance that no one actually suffered any serious injuries.

5. The judge noted that the appellant had a problem with binge drinking. He was given 20% credit for the timing of his guilty plea. The following matters were considered before arriving at sentence:

Balancing the factors, given the level of violence used in these offences, I have come to the conclusion that you each present a risk to the public, particularly when under the influence of alcohol, and that appropriate punishment can only be achieved by immediate custody. […]

The sentences I pass are as follows. […] Hamaamin, Count 3, thirteen months’ imprisonment. Count 4, eleven months’ imprisonment, to run consecutively. A total of twenty-four months’ imprisonment.

The reasons for refusal letter

6. By a decision letter dated 6 December 2023, the appellant’s international protection and human rights claims were refused. The refusals were taken against the backdrop of a decision, dated 22 December 2022, to make a deportation order. The asylum and human rights claim pre-dated the deportation decision by two and a half years and were lodged when the appellant was encountered having arrived in the UK illegally by boat. The overall conclusion was reached that none of the statutory exceptions to deportation under s.33 of the UK Borders Act 2007 were made out, and the deportation process would continue. The appellant was granted a right of appeal against the decision.

7. The decision letter raised s.72 of the Nationality, Immigration and Asylum Act 2002. It was noted that the appellant had not taken the opportunity to respond to the letter of 22 December 2022. He had not therefore sought to counter the respondent’s initial view that he had been convicted of a particularly serious crime and constituted a danger to the community of the UK. It was decided that the requirements of s.72 were satisfied, and it was certified that the appellant was presumed to have been convicted of a particularly serious crime and to constitute a danger to the community of the UK. It was observed that the practical and procedural effect of the certification was that any tribunal considering an appeal on Refugee Convention grounds would be required to first consider whether the presumption had been rebutted. If the presumption were not rebutted, the Refugee Convention ground of appeal would fall to be dismissed without further consideration.

8. The refusal decision moved on to the underlying merits of the claim, based on events which unfolded before the appellant left Iraq. The appellant’s case was that he was in a vehicle with his business partner transporting fruit and vegetables. Unbeknown to him, his colleague was also transporting drugs in the car he was driving. As the driver approached a security checkpoint, he did not stop and instead drove towards the armed men, hitting two of them. The Asayesh opened fire. The driver was killed in the exchange of fire while the appellant was able to make good his escape on foot. The family of the driver hold him responsible for his death.

9. The respondent found that the appellant’s fears did not engage a Refugee Convention reason. He was not considered to be a member of a particular social group on account of being at risk of honour-based violence.

10. The decision took issue with the credibility of the appellant’s narrative account. It was noted he could not recall the precise date when the relevant events took place. It was further doubted that he would make such a journey without his CSID card knowing of the existence of checkpoints. He was considered to have provided inconsistent accounts about whether the driver had slowed down before speeding up and driving toward the checkpoint. There was said to be a lack of detail as to why the driver did not stop. The appellant’s account, that he was able to see the firefight, was treated as inconsistent. The notion that the appellant could escape by running for two hours on foot was regarded to be implausible. The accounts he provided about information he later learned, about the killing of his business partner and the drugs found in the car, were considered to be vague. Finally, it was held against him that he had relied on hearsay and supposition to draw the conclusion that his business partner’s tribe continued to search for him.

11. It counted against the appellant’s overall credibility that he had not sought protection in a safe European country before claiming asylum in the UK.

12. Given the factual assessment, the conclusion was reached that the appellant was not at risk of persecution. Sufficiency of protection and internal relocation were not considered to be viable options if the appellant’s factual claims were credible.

13. Under the heading, Humanitarian Protection – Applying paragraph 339C of the Immigration Rules, the following broad position was taken:

Based on the information provided, and the credibility factors mentioned above you do not qualify for humanitarian protection because there is not a real risk that you would face:

i. the death penalty or execution;
ii. unlawful killing;
iii. torture or inhuman or degrading treatment or punishment of a person in the country of origin; or
iv. serious and individual threat to a civilian’s life or person by reason of indiscriminate violence in situations of international or internal armed conflict.

14. This section of the decision proceeded to reject the proposition that the appellant would be at risk on account of not having the necessary civil status documentation, or due to indiscriminate violence.

15. The overall conclusion was expressed in the following way:

For reasons given above I am not satisfied that you qualify for refugee status or humanitarian protection under Part 11 of the Immigration Rules.

16. The refusal decision went on to consider whether the appellant’s Article 8 human rights would be breached by the decision. The Article 8 dimension of the proceedings are not in issue in the current error of law proceedings, and we need say no more about this part of the decision.

17. In addition to what is to be found on the face of the refusal decision, for reasons which will become clear, it is equally important to record what does not appear on the face of the decision. The refusal decision contains no reference to, or analysis of, paragraph 339D of the Immigration Rules which relates to exclusion from humanitarian protection. In a brief concluding paragraph, the refusal decision noted that no other Articles of the ECHR would be breached by the refusal. Article 3 was not expressly mentioned nor was it considered in substance.

The appeal to the First-tier Tribunal

18. The appellant appealed against the refusal of the claim. His grounds of appeal were:

Removing the appellant from the UK would breach the UK's obligation under the Refugee Convention
Removing the appellant from the UK would breach the UK's obligation in relation to persons eligible for a grant of humanitarian protection
Removing the appellant from the UK would be unlawful under section 6 of the Human Rights Act 1998

19. The schedule of issues was articulated in the appellant’s skeleton argument (‘ASA’) dated 2 April 2024. It was suggested that s.72 of the 2002 Act did not apply to the appellant because his sentence only exceeded 2 years by a process of aggregation. In any event, the appellant’s position was that there was not a Refugee Convention reason underpinning his protection claim and that the asylum claim could not succeed in principle. It was indicated that there was a single issue to resolve in the appeal: “Is the Appellant’s account of events in Iraq reasonably likely to be true?”. No submissions were explicitly argued in support of an Article 3 claim. In particular, it was not suggested that the claim could succeed on Article 3 grounds of a lack of documentation, inhumane prison conditions or indiscriminate violence. Submissions were solely directed to the credibility of the appellant’s factual claim about what he said had happened in Iraq. Exclusion from humanitarian protection was not discussed.

20. In her review of 26 April 2024, the respondent continued to rely on the refusal decision. The issues to be determined in the appeal were summarised as:

I. Does Section 72 of the Nationality, Immigration and Asylum Act 2002 apply to the Appellant due to his criminal convictions?

II. Does the Appellant have a well-founded fear of persecution upon return to Iraq?

III. Credibility

21. In response to the ASA point about the length of sentence, it was observed that the 2002 Act had been amended to apply to offending which attracted a period of imprisonment in excess of 12 months. It was noted that the asylum claim was no longer pursued because there was not a Refugee Convention reason. The credibility points which had been previously taken in the refusal decision were maintained. Nothing was said in relation to whether the appellant was excluded from humanitarian protection.

22. The appeal was heard by the judge on 30 September 2024. Mr Cole appeared for the appellant in the FTT as he did before us. The appeal was allowed in a decision dated 21 October 2024. It is fair to say that the decision is brief at just over three pages. At the outset, it was noted ([3]) as agreed between the parties that the claim did not invoke the Refugee Convention. Under the heading “Law”, the judge sought to identify the issues to be decided:

The Appellant will succeed if he shows any of the following:
a. removal would breach the UK’s obligations in relation to persons eligible for a grant of humanitarian protection;
b. removal from the UK would be unlawful under section 6 of the Human Rights Act 1998 (public authority not to act contrary to the ECHR.)

23. For the purposes of the present proceedings, we have noted the following key matters from the decision:

a. At [6], the judge noted that he had considered all of the evidence, even if not specifically referred to, and that he would focus on the key matters. The low standard of proof was recorded.

b. At [7], the judge referred to the appellant’s conviction and sentence in broad terms without noting the underlying nature of the offending nor that the respondent had certified that the presumption under s.72 of the 2002 Act applied.

c. At [8], the judge noted the point taken by the respondent against the appellant under s.8(4) of the Asylum and Immigration (Treatment of Claimants, etc) Act 2004.

d. At [9]-[11], the judge summarised the appellant’s narrative account about the incident in which his business partner was said to have been killed in an exchange of fire with the Asayish and the sequence of events which followed.

e. The judge summarised, at [12], the position adopted by the respondent in the refusal decision:

The Respondent does not accept that the Appellant has been consistent or plausible. The RFRL cites inconsistencies in his account of saying he was a labourer instead of a fruit seller, approaching the checkpoint, seeing his friend shoot at the guards and finding out about the drugs. The Respondent does not accept he could escape on foot. The Respondent does accept that there would be no sufficiency of protection or internal relocation in Iraq if he is telling the truth.

f. At [13], the judge briefly set out background information relating to blood feuds and tribal disputes, prison conditions in the Iraqi Kurdish Region, torture and unfair trials and the likely death penalty for drug trafficking and being responsible for the death of a member of the Asayesh.

g. The decisive fact-finding analysis is at [14]-[16]:

Contrary to the Respondent’s characterisation, the Appellants account in his Asylum Interview Record (AIR) is detailed and coherent. He provides other details in his later witness statement but he sets out the core of his account at the earliest opportunity; he was not asked the basis of his claim in the Screening Interview Record (SIR).

The Appellant said in evidence that he did not consider his response of “labourer” in the SIR to be inconsistent with his job buying fruit for the market. He said that he loaded and unloaded the fruit, it was manual labour. I accept that his description of checking the car before they set off to relate to the car itself and he was not suggesting that he had inspected the fruit and vegetables after his friend concealed the drugs inside. He also said that he did not know his friend was transporting drugs. He expected his friend to stop as usual at the checkpoint. The checkpoints were temporary and moved around. One could not predict where a checkpoint would be in advance. He clarified some of his answers in the SIR. I accept that he has made a genuine effort to substantiate his protection claim.

The Appellant has been consistent about the core of his account from the earliest opportunity and his claim is consistent with background evidence. Notwithstanding s. 8(4) of the AIA 2004 I find that there is a reasonable likelihood that what the Appellant says is true. I find that he would be at risk on return, and the Respondent accepts that there is no sufficiency of protection or internal relocation alternative. I allow the appeal on protection grounds.

h. The appeal was allowed in the following terms:

I allow the appeal on humanitarian protection and Article 3 ECHR grounds.

i. The judge did not refer to the s.72 certificate or exclusion from humanitarian protection in the decision.

Appeal to the Upper Tribunal

24. The respondent applied for permission to appeal in reliance on the following grounds:

i. Ground 1 – the judge unlawfully failed to determine whether the appellant had rebutted the s.72 presumption and that this failure rendered the decision to allow the appeal on humanitarian protection grounds unlawful.

ii. Ground 2 – the judge failed to provide adequate reasons for the acceptance of the proposition that the appellant could proceed through checkpoints when seen against the guidance in SMO and KSP (Civil status documentation, article 15) (CG)) Iraq [2022] UKUT 110 (IAC). It was further suggested that the judge did not provide lawfully adequate reasons to reject the respondent’s challenge to the plausibility of the appellant’s claimed escape from the Asayesh and the wholesale failure to address an unsuccessful asylum claim made in Germany.

25. First-tier Tribunal Judge Parkes granted permission for both grounds to be argued.

26. The parties provided written submissions in response to our directions. At the error of law hearing, we heard oral submissions from the parties. We address any submissions of significance in the context of the discussion section below.

Legal Analysis

The key statutory provisions, the relevant Immigration Rules and MS (Somalia)

27. The statutory right of appeal against a decision to refuse a protection claim is set out at s.82 of the 2002 Act which provides (where relevant):

82 Right of appeal to the Tribunal
(1)  A person (“P”) may appeal to the Tribunal where—
(a)  the Secretary of State has decided to refuse a protection claim made by P,
[…]
(2)  For the purposes of this Part—
(a)  a “protection claim” is a claim made by a person (“P”) that removal of P from the United Kingdom—
(i)  would breach the United Kingdom's obligations under the Refugee Convention, or
(ii)  would breach the United Kingdom's obligations in relation to persons eligible for a grant of humanitarian protection;
(b)  P's protection claim is refused if the Secretary of State makes one or more of the following decisions—
(i)  that removal of P from the United Kingdom would not breach the United Kingdom's obligations under the Refugee Convention;
(ii)  that removal of P from the United Kingdom would not breach the United Kingdom's obligations in relation to persons eligible for a grant of humanitarian protection;
(c)  a person has “protection status” if the person has been granted leave to enter or remain in the United Kingdom as a refugee or as a person eligible for a grant of humanitarian protection;
(d)  “humanitarian protection” is to be construed in accordance with the immigration rules;

[…]

[Underlining added]

28. Pausing here, two points fall to be made about the statutory formulation of rights of appeal flowing from humanitarian protection principles. First, the meaning of humanitarian protection is to be construed in accordance with the Immigration Rules. Second, the legislation consistently refers to the UK’s “obligations in relation to persons eligible for a grant of humanitarian protection”. The version of the Immigration Rules in place when the refusal decision was taken provided as follows, where relevant for present purposes:

Definition of a claim for humanitarian protection
327EA. Under this Part, a claim for humanitarian protection is a request by a person for international protection due to a claim that if they are removed from or required to leave the UK, they would face a real risk of suffering serious harm (as defined in paragraph 339CA) in their country of origin, and they are unable, or owing to such risk, unwilling to avail themselves of the protection of that country.
327EB. A claim for humanitarian protection must meet the requirements of paragraphs 327AB(i) to (iv) otherwise it will not be recorded as a valid claim for humanitarian protection.
327EC. If someone makes a claim for humanitarian protection, they will be deemed to be an asylum applicant and to have made an application for asylum for the purposes of these Rules. The claim will be recorded, subject to meeting the requirements of Rule 327AB(i) to (iv), as an application for asylum and will be assessed under paragraph 334 for refugee status in the first instance. If the application for refugee status is refused, then the Secretary of State will go on to consider the claim as a claim for humanitarian protection.

[…]

Grant of humanitarian protection
339C. An asylum applicant will be granted humanitarian protection in the United Kingdom if the Secretary of State is satisfied that:
(i) they are in the United Kingdom or have arrived at a port of entry in the United Kingdom;
(ii) they are not a refugee within the meaning of Article 1 of the 1951 Refugee Convention;
(iii) substantial grounds have been shown for believing that the asylum applicant concerned, if returned to the country of origin, would face a real risk of suffering serious harm and is unable, or, owing to such risk, unwilling to avail themselves of the protection of that country; and
(iv) they are not excluded from a grant of humanitarian protection.

339CA. For the purposes of paragraph 339C, serious harm consists of:
(i) the death penalty or execution;
(ii) unlawful killing;
(iii) torture or inhuman or degrading treatment or punishment of a person in the country of origin; or
(iv) serious and individual threat to a civilian’s life or person by reason of indiscriminate violence in situations of international or internal armed conflict.

Exclusion from humanitarian protection
339D. An asylum applicant is excluded from a grant of humanitarian protection for the purposes of paragraph 339C(iv) where the Secretary of State is satisfied that there are serious reasons for considering that the asylum applicant:
(i) has committed, instigated or otherwise participated in the commission of a crime against peace, a war crime, a crime against humanity, as defined in the international instruments drawn up to make provision in respect of such crimes; or
(ii) has committed, instigated or otherwise participated in the commission of a serious non-political crime outside the UK prior to their admission to the UK as a person granted humanitarian protection; or
(iii) has been guilty of acts contrary to the purposes and principles of the United Nations; or
(iv) having been convicted by a final judgement of a particularly serious crime (as defined in Section 72 of the Nationality, Immigration and Asylum Act 2002), constitutes a danger to the community of the UK; or
(v) is a danger to the security of the UK.

[…]

Refusal of humanitarian protection
339F. Where the criteria set out in paragraph 339C is not met humanitarian protection will be refused.

[Underlining added]

29. The Immigration Rules copied above refer to the provisions of s.72 of the 2002 Act. Where relevant to the matters to be decided in this appeal, this section provides as follows:

72 Serious criminal
(1) This section applies for the purpose of the construction and application of Article 33(2) of the Refugee Convention (exclusion from prohibition of expulsion or return).
(2) A person is convicted by a final judgment of a particularly serious crime if he is—
(a) convicted in the United Kingdom of an offence, and
(b) sentenced to a period of imprisonment of at least 12 months.
[…]
(5A) A person convicted by a final judgment of a particularly serious crime (whether within or outside the United Kingdom) is to be presumed to constitute a danger to the community of the United Kingdom.
(6) A presumption under subsection (5A) that a person constitutes a danger to the community is rebuttable by that person.
[…]
(8) Section 34(1) of the Anti-terrorism, Crime and Security Act 2001 (c. 24) (no need to consider gravity of fear or threat of persecution) applies for the purpose of considering whether a presumption under subsection (5A) has been rebutted as it applies for the purpose of considering whether Article 33(2) of the Refugee Convention applies.
(9) Subsection (10) applies where—
(a) a person appeals under section 82 of this Act or under section 2 of the Special Immigration Appeals Commission Act 1997 (c. 68) wholly or partly on the ground mentioned in section 84(1)(a) or (3)(a) of this Act (breach of the United Kingdom's obligations under the Refugee Convention), and
(b) the Secretary of State issues a certificate that a presumption under subsection (5A) applies to the person (subject to rebuttal).
(10) The Tribunal or Commission hearing the appeal—
(a) must begin substantive deliberation on the appeal by considering the certificate, and
(b) if in agreement that a presumption under subsection (5A) applies (having given the appellant an opportunity for rebuttal) must dismiss the appeal in so far as it relies on the ground specified in subsection (9)(a).

30. In MS (Somalia) v SSHD [2019] EWCA Civ 1345; [2019] 3 W.L.R 705, the Court of Appeal considered how a tribunal should approach proceedings where an asylum claim is brought by a serious criminal, but the Secretary of State has not issued the certificate referred to at s.72(9) of the 2002 Act. In his judgment, Hamblen LJ noted, at [19], that the Secretary of State recognised that such a certificate ought to have been issued for the appellant in those proceedings. He had been sentenced to a period of imprisonment of 25 months for convictions for assault occasioning actual bodily harm. The period of imprisonment was of importance because before s.72 of the 2002 Act was amended by the Nationality and Borders Act 2022, the threshold for a sufficiently lengthy period of imprisonment was two years. In the proceedings below, the FTT considered itself to be constrained from considering the s.72 provisions because a certificate had not been issued. At [61] of his judgment, Hamblen LJ explained that this aspect of the FTT decision was not a ground of appeal to the Upper Tribunal, a position which appeared to be maintained at the error of law hearing.

31. Between [62] and [70], Hamblen LJ drew upon previous authorities and held that the FTT’s approach to this issue was legally flawed:

[62] The first issue to be addressed is whether it is open to the SSHD to raise this ground of appeal in circumstances where this was not an issue appealed to the UT, nor does the ground reflect the way the matter was put before the FTT. Mr Waite contended that the nature of the issue raised means that the SSHD should be allowed to pursue this ground. He submitted that the FTT and the UT were obliged by section 72 of the 2002 Act to apply the presumption regardless of whether a certificate had been issued and of the position of the SSHD.

[63] Section 72 relates to article 33(2) of the Convention under which the benefit of the prohibition of expulsion or return under article 33(1) “may not, however, be claimed by a refugee” who, having been convicted of “a particularly serious crime, constitutes a danger to the community of that country”. Although there is no specific reference to article 33 in the FTT decision, by claiming that he remained a refugee and challenging the SSHD's decision to deport him MS was necessarily relying on article 33(1) and the SSHD was seeking to rely on MS's convictions in support of the deportation decision, and, specifically before the FTT, on the certificate which had been issued.

[64] Under section 72 a person sentenced to imprisonment for at least two years is to be presumed to have been convicted of “a particularly serious crime and to constitute a danger to the community” of the UK. That statutory presumption is of general application and it applies regardless of whether a section 72 certificate has been issued.

[…]

[67] These authorities make it clear that, once the facts giving rise to the statutory presumption have been established, it would be an error of law for the relevant decision-maker to fail to apply the presumption, irrespective of whether a certificate had been issued.

[…]

[69] In the present case the fact of MS's sentence of at least two years was before the FTT and the UT and they were accordingly obliged by section 72 of the 2002 Act to apply the presumption when considering the lawfulness of the decision to deport MS notwithstanding his status as a refugee.

[70] Given the obligation on the FTT and the UT to apply the statutory presumption, and the public interest in deportation of serious criminals who are to be regarded as a danger to the community of the UK, I am satisfied that this is a ground of appeal which the SSHD should be allowed to raise, even though it has not previously been raised in these terms and was not an issue appealed to the UT.

The Robinson doctrine, and its development

32. In R v SSHD, Ex parte Robinson [1997] Q.B. 929, the Court of Appeal considered the procedural difficulty which arises when a strong point of Refugee Convention law has not been taken by an asylum-seeker who could benefit from such an argument. Lord Woolf M.R. (as he then was) reached the following conclusion, at 945G-946D:

It is now, however, necessary for us to identify the circumstances in which it might be appropriate for the tribunal to grant leave to appeal on the basis of an argument not advanced before the special adjudicator, or for a High Court judge to grant leave to apply for judicial review of a refusal of leave by the tribunal in relation to a point not taken in the notice of appeal to the tribunal.

Because the rules place an onus on the asylum-seeker to state his grounds of appeal, we consider that it would be wrong to say that mere arguability should be the criterion to be applied for the grant of leave in such circumstances. A higher hurdle is required. The appellate authorities should of course focus primarily on the arguments adduced before them, whether these are to be found in the oral argument before the special adjudicator or, so far as the tribunal is concerned, in the written grounds of appeal on which leave to appeal is sought. They are not required to engage in a search for new points. If there is readily discernible an obvious point of Convention law which favours the applicant although he has not taken it, then the special adjudicator should apply it in his favour, but he should feel under no obligation to prolong the hearing by asking the parties for submissions on points which they have not taken but which could be properly categorised as merely "arguable" as opposed to "obvious." Similarly, if when the tribunal reads the special adjudicator's decision there is an obvious point of Convention law favourable to the asylum-seeker which does not appear in the decision, it should grant leave to appeal. If it does not do so, there will be a danger that this country will be in breach of its obligations under the Convention. When we refer to an obvious point we mean a point which has a strong prospect of success if it is argued. Nothing less will do. It follows that leave to apply for judicial review of a refusal by the tribunal to grant leave to appeal should be granted if the judge is of the opinion that it is properly arguable that a point not raised in the grounds of appeal to the tribunal had a strong prospect of success if leave to appeal were to be granted.

33. In order to decide whether the Secretary of State in the present proceedings can seek to argue a point which was never taken in the FTT, or indeed in the refusal decision, it is necessary to examine the extent to which the Robinson doctrine has developed over time. In particular, it is essential to assess whether the doctrine is confined to obligations which stem from the Refugee Convention and if the Secretary of State may take Robinson-obvious points. If the doctrine extends beyond the Refugee Convention to other international legal obligations, we will need to consider whether the humanitarian protection principles can continue to be properly described as international legal obligation now that the UK has departed from the EU whose organs delivered the Qualification Directive from which humanitarian protection, or subsidiary protection, principles were drawn.

Is the Robinson doctrine confined to Refugee Convention obligations?

34. Two recent judgments of the Court of Appeal provide the starting point to grapple with this question. George v SSHD [2024] EWCA Civ 1192; [2025] 1 W.L.R. 1025 and SA v SSHD [2025] EWCA Civ 357 appear to have come to differing conclusions about the scope and reach of the Robinson doctrine.

35. In George, the Court of Appeal were concerned with an appeal brought by the Secretary of State against the decision of the Upper Tribunal, on remaking, to allow the appellant’s appeal against his deportation. The underlying criminality was of exceptional seriousness in that the appellant was convicted for his part in a gang-related murder. In the Court of Appeal, the Secretary of State sought to argue that the UT ought to have considered whether the offending was so serious that it reached the ‘public revulsion’ threshold explained in R v Bouchereau (Case 30/77); [1978] QB 732 such that this amounted to imperative grounds justifying expulsion. This point was taken notwithstanding its abandonment in the UT. Elisabeth Laing LJ, giving the lead judgment, summarised Robinson at [15]-[17]. Despite the procedural failings which led to the Bouchereau point being argued for the first time at the hearing before the Court of Appeal, Elisabeth Laing LJ was minded to consider the merits. However, this was not on the strength of Robinson, but because the issue raised a point of public importance. The reasons for not applying Robinson in this context were explained at [74]-[76]:

[74] I have two reservations about deciding this appeal on its merits, nevertheless. First, it is clear from Directive 2 and from the relevant decisions of the Court of Justice that the national authorities have a significant role in cases such as these. In the first instance, it is for the Secretary of State to define the relevant interests. It is true that Schedule 1 to the Regulations represents, at a high level, the Secretary of State's assessment of the relevant interests, and that the UT quoted the policy in determination 3. This court does not have, however, any assessment by the Secretary of State of the facts of this case against the criteria in Schedule 1 and in the policy, as there is no reasoning or assessment in the decision which is relevant to the Secretary of State's current ground of appeal; and no such assessment was made by the F-tT or by the UT. Essential building blocks for this appeal were missing. This is a paradigm case (had the point of law been right) in which an assessment by the Secretary of State of the facts against the relevant public interests would have been essential, together with the assessments of the F-tT and of the UT. Had this court reached a different view about the merits of this appeal, it would simply not have been in a position to make the relevant assessment itself. It would have had to remit the case to the UT. This consideration weighs against the exercise by this court of its discretion to permit the Secretary of State to argue this point now.

[75] Second, the principle in Robinson No 1 [1998] QB 929 is limited to points of refugee law which favour a person who claims to be a refugee, and which are “obvious” and arguable with “a strong prospect of success” (see para 17 above). The reason for that principle is that it is necessary to enable the United Kingdom to comply with its obligations under the Refugee Convention. This is not a case to which that principle applies. I am only aware of one case in which this principle has been extended in favour of the Secretary of State, also in a refugee case, where it was obvious that the appellant was excluded from the protection of the Refugee Convention, as a self-confessed torturer, by article 1F (A (Iraq) v Secretary of State for the Home Department [2006] Imm AR 114 ). Counsel did not refer us to any other relevant cases. There are obvious policy reasons why this principle should not be extended any further in favour of the Secretary of State.

[76] The only basis, therefore, on which this court could consider this appeal is its discretion to entertain points of law which were not argued below. I consider, on balance, that it is appropriate to invoke that discretion, in order to decide the underlying point of law, which, as I have said, is an important one.

[Underlining added]

36. SA was an appeal which hinged on a jurisdictional point as to whether the appellant could benefit from a grant of humanitarian protection precluding her return to Yemen, a country of which she had never claimed to have been a citizen (see [23]-[24] and [29]-[30] of the judgment). It was decided that the UT ought to have afforded the parties an opportunity to make submissions on a jurisdictional point derived from the 2002 Act which had never been pleaded, but which was the decisive point relied upon to decide the appeal. The court discussed the relationship between asylum, under the Refugee Convention, and humanitarian protection principles at [9]:

[9] By paragraph 327EC, if someone makes a claim for humanitarian protection they will be deemed to be an asylum applicant and to have made an application for asylum for the purposes of the Immigration Rules. That means that initially they will be assessed under paragraph 335 for refugee status. It is only if that application is refused that the Secretary of State will then go on to consider the claim for humanitarian protection. That reflects the position that a claim for humanitarian protection is a genuine alternative to a claim for asylum, designed to afford protection to persons who need it but do not meet the qualifying criteria under the Refugee Convention, such as those whose lives or safety, if returned to their home area, would be imperilled by endemic violence: see the explanation of the history of and relationship between claims for asylum and claims for international protection set out by Sedley LJ in QD (Iraq) v Secretary of State for the Home Department [2009] EWCA Civ 620, [2011] 1 WLR 689, particularly at [7] to [9].

37. The court ultimately concluded that the appeal fell to be decided on jurisdictional and procedural fairness principles drawn from Virk & others v Secretary of State for the Home Department [2013] EWCA Civ 652. However, because the parties had founded their arguments on the Robinson doctrine, Arnold LJ, made the following observations about whether these principles had any application in a matter which engaged humanitarian protection principles as opposed to obligations arising under the Refugee Convention. She said this at [45]-[46]:

[45] That being so, it is unnecessary to dwell on the question of where the boundaries of the Robinson principle are to be drawn. I do accept, however, that since the underlying justification for allowing a strongly arguable point to be raised by the tribunal of its own motion is to ensure compliance by the state with its international obligations, the principle cannot be as narrowly confined when it operates in favour of the Secretary of State as the Presidential Panel of the UT suggested in AZ (Iran) at [64]. It must include all situations in which the point identified by the court or tribunal gives rise to a real danger of the state recognising someone who does not qualify for international protection as being entitled to such protection, as well as vice versa. The application of an express exclusion to the facts is simply one example, possibly the most likely example, of when such a scenario would arise.

[46] Of course, the UT in AZ (Iran) made those observations in the context of considering the rather different question of when permission to appeal should be given to raise a (non-jurisdictional) ground which was not raised or argued in the lower tribunal. The Panel in that case was right to emphasise at [70] that "there must be an extremely sound reason for, in effect, compelling the parties to an appeal to engage with a matter that neither of them has identified." The sound reason in a Robinson-type case is the negative impact on the state's adherence to its international obligations that would be likely to arise from a failure by the tribunal to determine the point.

[Underlining added]

38. While we accept that the analysis in SA is, strictly speaking, obiter because the appeal was decided on an alternative rationale, we agree with the parties before us that it is plainly highly persuasive given the court’s consideration of previous authorities which touched on the Robinson doctrine and the legal context which turned on consideration of humanitarian protection principles.

39. In deciding this appeal, we have considered an extensive range of authorities which have touched on the limits of the Robinson doctrine and whether it reaches beyond Refugee Convention matters. It would not be helpful to summarise all of those previous authorities, many of which simply restate and apply the original meaning of Robinson. However, there are several authorities which suggest that Robinson has developed since the principle was originally enunciated.

40. MH (Syria) v SSHD [2009] EWCA Civ 226; [2009] 3 All E.R. 564, brought together two otherwise unrelated appeals to consider issues under the Article 1F exclusion clause of the Refugee Convention. The parties raised what they contended were Robinson-obvious points. This might give the superficial impression that these matters were confined to analysis of Refugee Convention legal principles. However, closer consideration of the second matter before the court, DS, reveals something more nuanced. While the initial refusal decision in DS’s case certified his exclusion under Article 1F(a) of the Refugee Convention, it was also decided that he was ineligible for humanitarian protection (see [49]). DS’s appeal against the decision was allowed because it was found that Article 1F did not apply, a conclusion which was endorsed on further appeal by the AIT (see [50]-[51]). Of importance for present purposes is what was said at [62]-[64] and [75] of the judgment of Richards LJ:

[62] In his skeleton argument, Mr Sheldon advanced four grounds of appeal in relation to the immigration judge's decision, namely that she (1) failed to reach a reasoned conclusion as to whether DS was entitled to refugee status, and in particular failed to consider whether (a) any risk arose for a Convention reason and (b) such risk amounted to persecution rather than prosecution; (2) failed to consider categories of exclusion under Article 1F other than "crimes against humanity"; (3) failed to apply the correct burden and standard of proof when making the findings she did under Article 1F; and (4) made irrational and/or inadequately reasoned findings under Article 1F. On this basis he contended that the senior immigration judge, on the reconsideration, was wrong to find that the immigration judge had made no error of law. He also advanced other, more specific criticisms of the senior immigration judge's determination.

[63] In the course of oral argument, however, it became clear that the issues separating the parties were narrower than had appeared. Mr Sheldon confirmed that the Secretary of State was not appealing in respect of the immigration judge's decision on Article 3. Mr Grieves, for his part, made clear that DS was not seeking to support the immigration judge's decision on the asylum appeal. His recollection was that the asylum appeal was not pursued before the immigration judge or at least that it was not contended that the risk of harm feared on return was for a Convention reason. In any event he did not seek to argue before us that a Convention reason existed. Remarkably, the Secretary of State's grounds for reconsideration in the tribunal did not raise this point, but the absence of a Convention reason was an obvious error in the immigration judge's decision and ought to have been identified by the senior immigration judge of his own motion. The full extent to which the Secretary of State is entitled to rely on the principle in R v Secretary of State for the Home Department, ex p. Robinson [1998] QB 928, 946C, has not yet been decided (see GF (Afghanistan) v Secretary of State for the Home Department [2005] EWCA Civ 1603, paras 14-17). But in this case, where DS accepts the error and does not seek a finding in his favour in respect of his asylum claim, I do not think that the Secretary of State should be precluded from raising the point in this court. It follows that the Secretary of State's appeal in respect of the immigration judge's decision on the asylum appeal must succeed on ground (1).

[64] Since DS's success in relation to Article 3 is not in issue and it is accepted that he must fail in his asylum claim, it might be thought that there was nothing left to argue about. Mr Grieves explained, however, that DS had a continuing concern about his claim for humanitarian protection under para 339C of the Immigration Rules. That claim was refused by the Secretary of State under para 339D. The immigration judge referred to those provisions in an early section of her determination, on the relevant law; and, although her findings did not deal in terms with the claim to humanitarian protection, her decision to allow the appeal must be taken to have encompassed the claim. The Article 1F criteria for exclusion from the protection of the Refugee Convention are the same as the para 339D criteria for exclusion from a grant of humanitarian protection. The points advanced by the Secretary of State in relation to Article 1F in the context of asylum are therefore equally relevant to the claim for humanitarian protection. This is a matter of importance for DS, since the grant of humanitarian protection gives a status and advantages beyond those afforded by the ability to rely on Article 3 to resist removal from the United Kingdom. It follows that the substance of the Secretary of State's appeal in respect of Article 1F, although moot in so far as it relates to the asylum claim, has a continuing significance for the claim to humanitarian protection and is not something that DS is prepared to concede. For that reason I think it right to entertain the relevant grounds of appeal despite the unsatisfactory way in which the matter has come before the court and the oddity of addressing arguments directed to Article 1F in a case where an asylum claim is no longer advanced.

[…]

[75] I readily accept that the Secretary of State might have had a case against DS under Article 1F(b) or (c) had the evidence and argument been presented in that way. But that was not the case advanced. The case was put squarely on participation in crimes against humanity, within Article 1F(a). That was the basis of the Secretary of State's original decision and of her case before the immigration judge. That was the issue to which the evidence and submissions on behalf of DS were addressed. In order to pursue a case under Article 1F(b) or (c), the Secretary of State would have had to give notice of the precise way in which the case was put, and DS would have had to be given an opportunity to obtain additional expert evidence and make further submissions. That was not done. The issues arising under Article 1F are potentially complex and the immigration judge could not sensibly reach a view on the application of Article 1F(b) or (c) simply on the basis of evidence and submissions directed to Article 1F(a). If, despite the way in which the Secretary of State's case was put, the immigration judge considered that Article 1F(b) or (c) ought to be considered, it would have been open to her to invite the parties to deal with the issues, granting an appropriate adjournment for the purpose. But it cannot be said that she was required to go down that line, let alone that she was required to determine the case under Article 1F(b) or (c) on the basis of the existing material. Even if the Secretary of State is entitled to rely on the Robinson principle in relation to an issue such as this, which it is unnecessary to decide, the applicability of Article 1F(b) and (c) was not an obvious point (one with a strong prospect of success) such as to engage the principle and to require the immigration judge to take the point for herself.

41. From the foregoing observations, it can be discerned that the Court of Appeal plainly did not consider itself to be constrained against considering a Robinson-obvious point once the conclusion was reached that there was not a Refugee Convention reason underpinning the claim. As in the matter before us, upon the asylum claim falling away because there was not a Refugee Convention reason, there remained the humanitarian protection dimension of the protection claim to consider. The court in MH found that the Robinson doctrine could not avail the respondent because the necessary groundwork had not been performed in setting out the reasoning to refuse the claim on the strength of Article 1F (b) and (c) in the context of the humanitarian protection claim. Importantly, the court did not adopt the principled position that Robinson-obvious points were confined to matters of Refugee Convention law.

42. In reaching its conclusion on these points, the Court of Appeal in MH had regard to GH (Afghanistan) v SSHD [2005] EWCA Civ 1603; [2006] Imm A.R. 235. This appeal was concerned with a point taken for the first time in the Court of Appeal that the adjudicator had, at first instance, misstated the standard of proof which applied to the consideration of an Article 3 human rights claim. Giving the lead judgment, Brook LJ summarised Robinson at [14], before discussing the underlying purpose, and limits, of the doctrine at [15]-[17]:

[15] It will be appreciated that an obligation on a tribunal to pursue a point of law not raised by the party whom the point favours is a very unusual feature of an adversarial system, which is what the immigration appeals system is. Only in very limited circumstances does an obligation, as opposed to a power, to take points of its own motion arise in the equally adversarial world of civil litigation: see e.g. Schmidt v Wong [2005] EWCA Civ 1506 at [8]. In a public law context there may also be a public interest involved, over and above the interests of the competing parties. In E and R v SSHD [2004] EWCA Civ 49, [2004] QB 1044, for instance, Carnwath LJ explained at [64] how in some public law contexts there is a public interest in ensuring that decisions are taken on the best available information. In an asylum context there may be a public interest in ensuring that this country complies with its international obligations.

[16] The obligation identified in Robinson can therefore be best explained as an aspect of the duty of the court to give anxious scrutiny to the claim of an asylum-seeker, because as Lord Woolf says failure to afford asylum to a person obviously entitled to it would be a breach by this country of its obligations under the refugee Convention. So stated, the doctrine would appear to be only available for the assistance of the asylum-seeker, but a modest extension of it was made by this court in A(Iraq) v SSHD [2005] EWCA Civ 1438, where it was apparent on the face of the adjudicator's decision that the asylum-seeker fell under Article 1F of the refugee Convention, as a person who had committed a serious non-political crime in the country of origin before coming to the UK. This court accepted that because of the mandatory terms of Article 1F the United Kingdom, if it did not enforce that rule, would, equally as in Robinson, be in breach of its positive obligation under the refugee Convention not to accord asylum to a person whom the Convention expressly excludes. Accordingly, if that point was or should have been obvious to the Adjudicator on the facts he should have taken it of his own motion.

[17] It remains undecided how much further, if at all, that approach can be relied on by the Secretary of State to complain of a failure by the court to take points that the Secretary of State had not taken. For our part, we would wish to come to that question with considerable caution, not least because the inequality of resources between the government and the average asylum-seeker makes it unattractive for the Secretary of State to appeal to a forensic indulgence originally formulated in favour of the asylum-seeker. It is not necessary to pursue that enquiry in the present case, because no extension of the Robinson jurisprudence in favour of the Secretary of State can apply here. That is because the present case concerns not the refugee Convention, but the European Convention on Human Rights. In contrast to the provisions of Article 1F of the refugee Convention, the signatory state to the ECHR has no positive obligation to refuse relief in any case. If, therefore, as is alleged to have occurred in this case, the state purports to grant relief under an article of the ECHR when properly understood such relief is not available, the state, in contrast to the position in A(Iraq), commits no breach of the international instrument that it purports to be applying. Accordingly, the overriding obligation to prevent such breaches that was identified in A(Iraq) does not exist.

[Underlining added]

43. In AM (Serbia); MA (Pakistan); MA (Sudan) v SSHD [2007] EWCA Civ 16; [2007] I.N.L.R. 211, the Court of Appeal considered the vires of a change to the procedural rules which precluded any reframing of grounds of appeal. In finding that the rule change was “fundamentally flawed” reliance was placed on the Robinson doctrine, and a different conclusion was reached to that expressed in GH (Afghanistan) about its applicability beyond the Refugee Convention to the ECHR. Maurice Kay LJ said this at [29]:

[29] […] The significance of Robinson is in its demonstration of the role of the courts and the Tribunal in ensuring that the United Kingdom does not fall foul of the Refugee Convention, even where an obvious point of Convention law has been missed by the practitioners. It surely applies on the same basis to the ECHR, where the argument is even stronger because, by section 6 of the Human Rights Act 1998, it is unlawful for a public authority to act in a way which is incompatible with an ECHR right and courts and the Tribunal are "public authorities" for this purpose: section 6(3)(a). There is then a further logical stage in the argument. […]

44. Perhaps the clearest and highest authority for the proposition that the Robinson doctrine is not confined to matters of Refugee Convention law is in the recent Supreme Court judgment in CAO v SSHD [2024] UKSC 32; [2025] A.C. 1117. The nature of the appeal proceedings was set out at the outset of the judgment, at [1], where Lord Sales and Dame Siobhan Keegan introduced the issues to be decided in the following terms:

[1] This appeal concerns the meaning and effect of section 55 of the Borders, Citizenship and Immigration Act 2009 ("section 55" and "the 2009 Act", respectively). This provision is concerned with safeguarding and promoting the welfare of children in the United Kingdom, including when decisions are made regarding their immigration status. The court also has to consider the interaction of section 55 with article 8 of the European Convention on Human Rights ("article 8" and "the ECHR", respectively), as given effect in domestic law by the Human Rights Act 1998 ("the HRA"), which is also concerned with the protection of children's welfare.

45. Despite the focus of the Supreme Court being upon Article 8 human rights and the best interests of the child, Robinson was relied upon to consider the prospect of a judge of the FTT dealing with a point when it had not been addressed in the refusal decision. The court said this at [48]:

[48] Although this is the general position, there may nonetheless be circumstances where, even though a point has not been taken, it is obvious that it requires examination in order to reach a proper conclusion regarding the best interests of a child affected by the decision. For example, if a decision affected a child and no attempt at all had been made to consider their best interests, that would be an obvious omission and the FTT would be bound to investigate to make sure that proper consideration was given to that issue: compare R v Secretary of State for the Home Department, Ex p Robinson [1998] QB 929, 945G–946D (Lord Woolf MR) and R (Maguire) v Blackpool and Fylde Senior Coroner [2023] UKSC 20; [2023] 3 WLR 103, paras 141–142. Since in a human rights appeal the FTT is the new primary decision-maker, whose decision supersedes that of the Secretary of State, it is subject to a form of the usual public law duty on a decision- maker to make such inquiries as it may consider to be necessary to inform itself about relevant matters (taking into account the responsibility on the parties in this context to present all the evidence they wish to rely upon in support of their case and the usual justified expectation that they will have done that) and will commit an error of law if, being on notice of a vital gap in the evidence, it irrationally fails to make relevant inquiries to address that: Secretary of State for Education and Science v Tameside Metropolitan Borough Council [1977] AC 1014, 1065B (Lord Diplock); R (Khatun) v Newham London Borough Council [2004] EWCA Civ 55; [2005] QB 37, paras 35–36 (Laws LJ).

[Underlining added]

46. Before leaving this theme, the Court of Appeal judgment in Bulale v SSHD [2009] QB 536 is a further example of the Robinson doctrine being deployed to resolve non-Refugee Convention proceedings where the underlying dispute related to a deportation order against an individual who had permanent residence under the EU regulations then in force. At [24], the court referred to “organs of the state and the appellate authorities are bound to exercise their powers to ensure the state’s compliance with its international obligations” and stressed the need to proceed with caution before extending the doctrine. As was observed in AZ (error of law: jurisdiction; PTA practice) Iran [2018] UKUT 00245 (IAC), Bulale was concerned with the jurisdiction of the Court of Appeal to address a matter raised for the first time before the court.

47. We are satisfied that the preponderance of the authorities favour the proposition that the Robinson doctrine is not limited to matters of Refugee Convention law. The doctrine, internally limited to strong arguments, applies more broadly to international legal obligations such as matters founded on the ECHR.

To what extent is the Secretary of State able to rely on the Robinson doctrine?

48. The leading case on the circumstances in which the Secretary of State may rely on the Robinson doctrine remains A (Iraq) v SSHD [2005] EWCA Civ 1438; [2006] Imm A.R. 114. In that appeal, the Secretary of State argued that it was lawful to raise, for the first time in the IAT, an appellant’s exclusion from the Refugee Convention under Article 1F because he was a self-confessed torturer in Saddam Hussein’s Iraqi regime. At the outset of his discussion on whether the Robinson doctrine applied in such circumstances, Carnwath LJ (as he then was) framed his consideration of the issue in this way, at [27]:

[27] I will comment only briefly on these authorities. A more detailed analysis is in my view unnecessary given the narrow way in which Miss Chan puts her case. She confines her argument, as I understand it, to a case where there is, on the face of the decision, a clear error of law in the application of the statutory definition of “refugee”. The issue as to whether the Robinson principle (or any variant of it) can be invoked by the Secretary of State in other circumstances does not arise for decision.

49. The court relied principally on Robinson and the reported and starred decision of the AIT in Gurung (Exclusion - Risk - Maoist) Nepal * [2002] UKIAT 04870. Between [28] and [33], Carnwath LJ extended the reach of the Robinson doctrine founded on the appellate jurisdiction to decide errors of law. Observations were also made in relation to the procedural implications of taking this incremental step. Carnwath LJ held:

[28] In this context, I would respectfully emphasise and adopt two points from the passages already quoted:

“… it is the duty of the appellant authorities to apply their knowledge of Convention jurisprudence to the facts as established by them” (Robinson)

“The question of whether or not a person falls under the Exclusion Clauses is not an optional one: it is an integral part of the refugee determination assessment.” (Gurung)

At first sight, therefore, if the facts found by the Adjudicator lead in law to the opposite conclusion to that found by the Adjudicator, it is the duty of the appellate authorities to correct it.

[29] There is nothing in the statutory scheme to limit the duty of the IAT in this respect. It has jurisdiction to correct errors of law, properly identified in the grounds of appeal, as has been done in this case. I accept that account also needs to be taken of another important principle, that of “finality”. Consistently with that principle, it is well-established that an appellate court will not permit a point to be taken for the first time at the appeal stage unless all the relevant facts are before it “as completely as would have been the case if the controversy had arisen at the trial” (The Tasmania [1890] 15 App Cas 225, per Lord Herschell).

[30] The jurisdiction of the IAT is more flexible than that of the appellate courts, in that, having found an error of law, it has power to hear evidence and make its own findings of fact. However, I would accept that, at least in relation to an appeal by the Secretary of State, even if an “obvious” point has been missed, it would be wrong to allow it to be taken for the first time on appeal if it depends on the finding of further facts which are left uncertain by the decision. But if the facts are clear, then in my view it is the duty of the IAT to ensure that the correct legal test is applied.

[31] The essential question therefore is whether the Adjudicator’s decision does disclose such an error of law. In my view, it clearly does. On the basis of the claimant’s written statement of 16th August, 2003, and his oral evidence to the Adjudicator (both incorporated into the decision), the only rational conclusion was that Article 1F applied. The facts as found showed that he had committed at the very least “serious non-political crimes” within the meaning of paragraph (b), such as to disentitle him to the protection of the Convention.

[32] The Tribunal proceeded on the basis that the claimant’s case was that he had been “forced to participate in the Fedayeen”, and that therefore there was a live issue as to whether he was a voluntary participant. Had that been the state of the evidence before them, I would not have thought it right to interfere with their conclusion. There would have been a factual issue which required further investigation. However, that was not the state of the evidence. The most recent statement of the claimant not merely admitted, but relied on, the fact that he had been a voluntary participant in the Fedayeen, and indeed had “held an elite position” in it. (It is not clear from the Tribunal’s decision whether they were in fact shown the statement itself, although it was quoted in the Notice of Appeal to the IAT.) Furthermore, as I have already observed, the Tribunal was clearly wrong in law to think it arguable that such activity was “political” in terms of the Convention.

[33] For those reasons, I would allow this appeal on the grounds that the Adjudicator’s decision, on the facts found by him, was clearly erroneous in law, and that the Tribunal should have so found. As already noted, Miss Chan accepts that in these circumstances the matter should be remitted to the AIT.

50. A further point worth drawing out from Gurung is what was said by the Presidential panel at [43] as to when the groundwork has been laid, even implicitly, in the refusal decision to permit the Secretary of State to fairly take a point at a later stage of the proceedings:

[43] In our view the first step should be to scrutinise what was actually said in the Reasons for Refusal letter. Even when not expressly raising exclusion issues, their contents may sometimes nevertheless be considered to have effectively put the appellant on notice that exclusion is an issue. Here what seems crucial to us is to focus on the subject matter of what is raised in the Reasons for Refusal letter rather than on formal reference to Art 1F or the Exclusion Clauses. The subject matter of Art 1F is, as already noted, serious criminality. Where, as we think happened in this case, the terms in which the respondent deals with the prosecution/persecution issue sufficiently indicate that exclusion subject-matter is involved (e.g. in this case the Reasons for Refusal letter noted that the appellant claimed to be a member of an armed, illegal, revolutionary organisation committed to armed struggle), that may be viewed as enough to put the appellant on notice that his possible criminality made Art 1F a live issue.

51. Returning to the Presidential decision in AZ, discussed above at paragraph [47], while it was found to be permissible for the tribunals to consider Robinson-obvious points (following R (Begum) v Social Security Commissioners [2002] EWHC 401 (Admin)) (see [63] of AZ), the compass for the tribunal’s consideration of Robinson-obvious points was narrowly confined, at [64]:

[64] In its application to asylum law, the “Robinson” approach applies only in favour of the individual, who is seeking asylum; not in favour of the Secretary of State. An exception, however, arises where the point identified concerns a possible breach of the Refugee Convention, which would result from recognising a person as a refugee who is, in fact, covered by one of the exclusion clauses in the Refugee Convention (see, in this regard, paragraph 21.38 of MacDonald’s Immigration Law and Practice (Ninth Edition) and A (Iraq) v Secretary of State for the Home Department [2005] EWCA Civ 1438.

52. However, as can be seen from the consideration of the recent Court of Appeal judgment in SA, the narrowness of this formulation has been doubted. Moreover, as can be seen from the analysis above of MH, the Secretary of State was permitted to take a Robinson-obvious point in DS’s case which could only have been meaningfully considered in the context of humanitarian protection, as opposed to under the Refugee Convention. This appears to allow, in limited circumstances, the respondent to take a Robinson-obvious point even where Refugee Convention principles are no longer in play.

53. It is worth re-emphasising what was held at [17] of GH (Afghanistan) (cited above) where the need to proceed cautiously if seeking to enlarge the areas in which the Secretary of State may take a Robinson-obvious point.

54. MS (Somalia), discussed above in the context of s.72 certification, was a judgment which was not couched in Robinson language, but there are obvious parallels. Here was an appeal where the Secretary of State sought to raise an argument that an appellant could not benefit from the protection against refoulment in the context of the Refugee Convention because he was a serious criminal and presumed to be a danger to the community of the UK. Not only did the Secretary of State fail to certify the point in accordance with the statutory scheme, but the point was also not taken in the FTT and was expressly taken, and then abandoned, in the UT before it was resuscitated in the Court of Appeal. While the Court of Appeal analysis turned on the s.72 statutory presumption, it is difficult to conceptualise the procedural course of events as not also amounting to the Robinson doctrine in action. Here was a matter of hard-edged Refugee Convention law, in the shape of the refoulment provision of Article 33, which was not only strong but irresistible in the sense that the necessary threshold for a statutory presumption to take hold unarguably existed such that the tribunal was required to consider the point.

What does an obvious point mean in the Robinson context?

55. The meaning of obvious in the context of the Robinson doctrine was considered by Dyson J (as he then was) in R v IAT, ex parte Shen (CO/3808/98). In a passage cited at [22] of A (Iraq), Dyson J said this at [29]:

[29] […] But the word “obvious”, used by the Court of Appeal in ex parte Robinson, is used in a rather special sense. It means a point which has a strong prospect of success, as opposed to a point which is merely arguable. Usually, a point which has a strong prospect of success will be a point which jumps out of the pages, and which competent and experienced counsel would be expected to identify and at least incorporate in a skeleton argument prepared for a hearing. But it is not impossible for a point not to be spotted even by experienced counsel but which, once identified and considered, it is clear has a strong prospect of success.

Is humanitarian protection still an international legal obligation following the UK’s departure from the EU?

56. In his submissions, Mr Cole argued that even on a broader understanding of the Robinson doctrine, that it relates to international legal obligations as opposed to only the Refugee Convention, humanitarian protection could no longer be so described. This was because the principles which govern humanitarian protection are now contained within the Immigration Rules. As such they neither have the force of statute nor are they directly applicable international legal obligations in the UK because the source international instrument, the Qualification Directive, was a creature of EU law, an international body of which the UK is no longer a member. The point had superficial appeal, but on closer analysis can be seen to be misconceived.

57. A useful starting point to consider this issue is the leading case of QD (Iraq) v SSHD [2011] 1 WLR 689 which considered the part played by the Qualification Directive in the common European asylum legal framework. Between [7] and [8] of his judgment, Sedley LJ summarised the genesis of the Qualification Directive as a mechanism to codify new forms of protection not embraced by the Refugee Convention. He concluded his introductory remarks in the following way, at [9]:

[9] As this suggests, the Directive brings together classical Geneva refugee status with what it calls subsidiary protection status. The latter status has broadly two sources. One is the obligation assumed by all EU member states as part of the Council of Europe to give effect to the rights contained in the European Convention for the Protection of Human Rights and Fundamental Freedoms essentially rights of non-refoulement for individuals who cannot establish an affirmative right to asylum. The other is the humanitarian practices adopted by many EU states, the United Kingdom included, towards individuals who manifestly need protection but who do not necessarily qualify under either Convention. Among these are people whose lives or safety, if returned to their home area, would be imperilled by endemic violence.

58. Since the UK’s departure from the EU, several authorities have tackled the question of whether the Qualification Directive continues to operate as an international legal obligation in this jurisdiction. In G v G [2021] UKSC 9; [2022] AC 544, the Supreme Court considered the collision of obligations arising under Hague Convention as against the Qualification Directive and the Procedures Directive in a case where a child claimed international protection as a dependent on her mother’s primary claim. Relying in part on a concession made on behalf of the Secretary of State, Lord Stephens JSC held, at [84], that both Directives “remained extant in domestic law as “retained EU law” after the United Kingdom’s withdrawal from the EU”. The Supreme Court returned to the subject in R (AAA (Syria)) v SSHD [2023] UKSC 42; [2023] 1 WLR 4433 in the context of a policy to remove asylum-seekers to Rwanda. The conclusion reached in G v G about the continuing applicability of the Procedures Directive was found, at [147], not to have been based on full argument and without reference to relevant legislation on the removal of free movement rights. Without any necessity to formally depart from a previous ruling, the Supreme Court concluded, at [148], that Articles 25 and 27 of the Procedures Directive were not retained EU law. Importantly, AAA did not doubt the conclusion reached in G v G that the Qualification Directive was retained EU law.

59. The most recent authoritative statement on the status of the Qualification Directive is to be found in the Court of Appeal judgment in D8 v SSHD [2025] EWCA Civ 33; [2025] 1 WLR 2900. At [77]-[80] of his judgment, Males LJ made the position clear as to the continuing legal effect of the Qualification Directive in UK law following our departure from the EU:

[77] Section 20(1) of the Withdrawal Act defines 'enactment' as including 'rules … or other instrument made under an Act'. In my judgment it is sufficiently clear that, as a result of this definition, the Immigration Rules fall within the definition of 'enactment' for the purpose of the Withdrawal Act, even though as a matter of ordinary language they are not legislation and there has been some debate whether they are 'made under' the Immigration Act 1971 (cf. Odelola v Secretary of State for the Home Department [2009] UKHL 25, [2009] 1 WLR 1230 and R (Alvi) v Secretary of State for the Home Department [2012] UKSC 33, [2012] 1 WLR 2208 , which discuss the status of the Rules).

[78]  Section 4 of the Withdrawal Act, also as amended by the 2020 Act, provides that:
 
'(1) any rights, powers, liabilities, obligations, restrictions, remedies and procedures which, immediately before IP completion day
(a)  are recognised and available in domestic law by virtue of section 2(1) of the European Communities Act 1972, and
(b)  are enforced, allowed and followed accordingly,
continue on and after IP completion day to be recognised and available in domestic law (and to be enforced, allowed and followed accordingly). …'

[79]  Thus section 4 of the Withdrawal Act is concerned with European Union law which has effect in domestic law by virtue of section 2(1) of the European Communities Act 1972, while section 2 of the Act is concerned with European Union law which has effect in domestic law by virtue of section 2(2) of the 1972 Act. The distinction between these two provisions of the 1972 Act is that section 2(1) deals with directly applicable European Union law ('without further enactment to be given legal effect'), while section 2(2) enables domestic regulations to be made in order to implement obligations of the United Kingdom under European Union law.

[80] Because the Qualification Directive was not directly applicable, it did not have effect in domestic law by virtue of section 2(1) of the 1972 Act, as already explained. Rather, it was given effect by virtue of changes to the Immigration Rules. Therefore the relevant provisions of the Immigration Rules are EU-derived domestic legislation having effect in domestic law within the meaning of section 2 of the Withdrawal Act. The route by which they form part of this retained EU law as defined in section 6(7) of the Act is section 2, not section 4, of the Withdrawal Act.

60. From this survey of the authorities, it is tolerably clear that the Qualification Directive, which is the source of principles of humanitarian protection, is retained EU law. It follows that notwithstanding the fact that the substantive principles now take their place in UK law through the vehicle of the Immigration Rules, it remains a reflection of international legal obligations. This is consistent with the plain language used in the rights of appeal provided for in the 2002 Act which continues to refer to “the United Kingdom’s obligations in relation to person eligible for a grant of humanitarian protection”. We are satisfied that principles of humanitarian protection drawn from the Qualification Directive and reflected in the Immigration Rules are international legal obligations for the purposes of the Robinson doctrine.

Issues-based reasoning

61. In a contemporary context, no analysis of the Robinson doctrine would be complete without also considering the recent procedural developments in this jurisdiction relating to issues-based reasoning.

62. In Lata (FtT: principal controversial issues) [2023] UKUT 00163 (IAC), a Presidential panel emphasised the fundamental importance of the parties' engagement in a process to define and narrow the issues in dispute. An exception to this general approach would be where a judge has overlooked a Robinson-obvious point of law. The observations made at [31] and [33]-[35] are particularly relevant:

[31] The Secretary of State's ground of appeal evidences a misconception that it is sufficient for a party to be silent upon, or not make an express concession as to, an issue for a burden to then be placed upon a judge to consider all potential issues that may favourably arise, even if not expressly relied upon. In simple terms, this amounts to a judge being required to search for and consider an 'obvious' point, though not so obvious that it was raised by a party at the hearing. The reformed appeal process that now operates in the FtT has been established to ensure that a judge is not required to trawl through the papers in an appeal to identify what issues are to be addressed. The task of the judge is to deal with the issues that the parties have identified. It is trite that the hearing before the FtT is not a lap in the warm-up for a subsequent appeal in which the party's case can be differently articulated. Parties are expected to advance their cases to their best advantage, permitting a judge to decide between two competing sets of submissions that identify the full extent of the parties' positions.

[…]

[33] It is important to appreciate that the parties can properly identify their case on appeal to their opponent and to the FtT at various procedural stages, including the filing of the ASA, the undertaking of a meaningful review, at a case management review hearing, at the commencement of a hearing when a judge requests clarification as to outstanding issues and during closing submissions. If by the conclusion of a hearing, a party has not asserted reliance on an issue, a judge can properly proceed on the basis that it is not a matter upon which they are required to reach a decision, though a judge will be aware of the likely lack of procedural and legal knowledge when an appellant represents themselves and of the incumbent requirement to apply anxious scrutiny in a protection appeal. The latter establishes a need for decisions to show by their reasoning that every factor which might tell in favour of an appellant has been properly considered. The application of anxious scrutiny is not an excuse for the failure of a party to identify through the available procedural requirements those issues which are the principal controversial issues in the case. Indeed, to the contrary, the procedural requirements should drive the parties to identify the principal controversial issues which in turn they consider that it is in the interests of their client for the FtT to apply anxious scrutiny in the determination of the case. At the stage of an appeal from the FtT to UTIAC, it should be rare indeed for there to be a point requiring anxious scrutiny (which is not Robinson obvious in the case of an appellant) to have illuded the reformed FtT appeal procedures. The procedures are specifically designed to ensure that the parties identify the issues and they are comprehensively addressed before the FtT, not that proceedings before the IAC are some form of rolling reconsideration by either party of its position.

[34] We consider that there exists a duty upon the parties to identify relevant issues of their own motion. There is no place for hiding a jewel of a submission in the hope that it will purchase favour on appeal. A party that fails to identify an issue before the FtT that it subsequently asserts to have been essential for a judge to consider is unlikely to have a good ground of appeal before UTIAC. None of this is to say that a FtT judge is to entirely lack curiosity in relation to an aspect of a case that the judge requires further assistance with or which the judge considers should be examined as part of the evaluation of the case. Where, as here, a point has not been identified by the parties, and nor is it one which has independently drawn the attention of the judge, it is not an issue which can be appropriately raised for the first time in the context of an appeal to UTIAC.

[35] We conclude that the Secretary of State's present reliance before us upon an earlier judicial finding that it would be in the interests of HL's younger son, whilst a minor, to return to live with his mother in India, was not part of her case before the FtT. As confirmed in AZ (error of law: jurisdiction; PTA practice) Iran [2018] UKUT 00245 (IAC), [2018] Imm AR 1418, at [64], in its application to asylum law, the Robinson approach applies only in favour of the individual, who is seeking asylum; not in favour of the Secretary of State, except in an identified exceptions such as exclusion or the statutory presumptions as to criminality. The exceptions do not arise in this matter.

63. Observations to much the same effect were made by a further Presidential panel in TC (PS compliance - "issues-based" reasoning) Zimbabwe [2023]UKUT 00164 (IAC) where it was emphasised that the procedural machinery of Practice Statement No 1 of 2022 was designed to promote focussed attention on the genuinely disputed issues so as to produce proportionately efficient proceedings.

64. The Senior President of Tribunal's Practice Direction of the Immigration and Asylum Chamber of the First-tier Tribunal begins with a reassertion of the principles decided in Lata and TC and provides as follows, at [1.3]:

[1.3] The disputed issues represent the parameters, or scope, of the appeal and will operate as the foundation and structure for all judicial decisions. Subject to 'Robinson obvious' matters and the need for extra care when litigants in person are involved in proceedings, judges should not be expected to infer issues which have not been clearly identified and articulated by the parties. The Tribunal will not tolerate a rolling consideration of issues and will not permit the issues to evolve at will for procedural advantage.

Conclusions on the law

65. A full analysis and consideration of the authorities which touch upon the scope of the Robinson doctrine demonstrates that such obvious points are not restricted to appellants or the subject-matter of the Refugee Convention. Properly understood, the doctrine can have purchase to ensure that the UK remains compliant with its international legal obligations on a broader plane which includes humanitarian protection principles and the ECHR.

66. The Secretary of State is not, as a matter of principle, precluded from raising a Robinson-obvious point. However, any extension of the Robinson doctrine to the Secretary of State can only be adopted with the greatest caution, and incrementally. Any incremental steps are likely to be underpinned by hard-edged points of law. Before allowing the Secretary of State to take a Robinson-obvious point, it will generally be instructive to look to the initial decision to assess whether the point has already been broadly taken in substance, if not in form. A party is unlikely to be permitted to take a Robinson-obvious point if the point could only become obvious on further facts being found.

67. Ultimately, with that foregoing counsel of restraint, and as a matter of principle, the Robinson doctrine can apply to points taken by the Secretary of State in matters touching on international legal obligations, not solely the Refugee Convention. Consistent with the recent procedural sea change in respect to issues-based reasoning, the tribunal will be slow to permit such a point to be taken and there should be no expectation that poor preparation and a lack of grip on the disputed issues will be judicially indulged. However, in an international protection context, important factors in allowing a new point to be taken will be whether it relates to exclusion from protection or serious criminality.

Discussion and Application

68. In seeking to apply the principles we have distilled in the analysis above, it is important to place on record the lamentable way in which the respondent settled the refusal decision and then prepared its case for the appeal proceedings which followed in the FTT. Upon deciding that the appellant was a serious criminal and presumed to be a danger to the community of the UK for the purposes of the Refugee Convention claim, the decision became incoherent when the mirroring provisions in the Immigration Rules, which expressly draw on the very same statutory provision, s.72 of the 2002 Act, were then not addressed in the context of humanitarian protection. It is difficult to conceive of how s.72 was the centrepiece of the decision to refuse the asylum claim but was then, in the part of the decision which immediately followed, wholly omitted. Mr Cole sought to persuade us that this must have been a conscious decision on the part of the respondent decision-maker. We are unable to accept that submission. To take such jarringly inconsistent approaches to the same underlying criminality would make no sense when moving from the primary basis of international protection under to the Refugee Convention, to subsidiary humanitarian protection. It appears to us that the far more natural interpretation of the decision is that the failure to include, in the humanitarian protection section, the very same analysis which went to the appellant’s criminality under the Refugee Convention section must be regarded as an oversight.

69. The lack of thoroughness in the refusal decision only hardened over time because the point was not taken in the respondent’s review nor was it taken at the substantive hearing of the appeal. Professional and competent conduct of the appeal would have brought the stark omission into sharp focus once the appellant took the position that his asylum claim could not succeed because he recognised that a Refugee Convention reason did not underpin his fears of return. This ought to have been the signal to carefully consider whether all of the required points had been considered in the context of the only remaining and meaningful protection ground of appeal. That this did not happen reflects poorly on those who were handling the appeal on the behalf of the respondent.

70. Mr Cole forcefully argued, in accordance with Lata and the requirements of issues-based reasoning, that the respondent should be fixed with the inevitable consequences of conducting the decision-making process and appeal proceedings with such ineptitude. We are not persuaded that the consequences of this poor preparation should be the unprincipled windfall of protected status for an individual who has manifestly not been found to meet all of the necessary requirements before humanitarian protection can be afforded. Paragraph 339C (iv) of the Immigration Rules is abundantly clear that such status can only be granted where the individual in question is “not excluded”. Paragraph 339D (iv) provides that exclusion follows where the Secretary of State is satisfied that there are serious reasons for considering that the asylum applicant […] having been convicted by a final judgement of a particularly serious crime (as defined in Section 72 of the Nationality, Immigration and Asylum Act 2002), constitutes a danger to the community of the UK. In view of the position expressly adopted by the respondent in taking the s.72 point for the purposes of the asylum claim, it cannot be sensibly suggested that the Secretary of State was not so satisfied. That being so, the judge was required to address his mind to whether the appellant was excluded from a grant of humanitarian protection on the strength of his criminal offending. The judicial failure to apply the full structure of this part of the Immigration Rules, reflecting as it does retained EU law as international legal obligations, was a Robinson-obvious point and a demonstrable error of law.

71. We are fortified that this is a sufficiently cautious and incremental step to take in circumstances where it cannot be said that the appellant was meaningfully taken by surprise that exclusion from a grant of humanitarian protection fell to be considered. As discussed in Gurung, the substance of the exclusion point was plain to see from the face of the original refusal decision. The appellant always knew that the respondent was relying on his serious criminality as a preliminary matter to deprive him of the protections afforded by the Refugee Convention. It was only the procedural happenstance of the asylum claim falling away that he might hope to benefit from this fundamental question being left out of account in resolving his humanitarian protection claim.

72. Given the way in which the refusal decision was framed, the judge simply could not allow the appeal on humanitarian protection grounds without resolving whether the appellant fell to be excluded as a serious criminal. This was a Robinson-obvious point. Ex parte Shen characterised an obvious point as one which “jumps out of the pages”. Here, the substance of the point was contained within the pages of the refusal decision and should have jumped out at the judge who had to decide whether the appellant was entitled to protected status at all.

73. In his written submissions, Mr Cole argued that the judge’s findings on Article 3 meant that even if there was an error of law in how the humanitarian protection ground of appeal was approached, it must be immaterial. At the hearing, Mr Cole accepted that the conclusion reached on the human rights ground of appeal could not render immaterial errors of law which vitiated the lawfulness of the decision to allow a separate humanitarian protection ground of appeal. We agree with his latter position.

74. Overall, we find that the decision of the judge to allow the appeal on humanitarian protection grounds involved a material error of law because he did not consider the Robinson-obvious point, drawn from international legal obligations, of whether the appellant was excluded from such protected status given his serious criminality. We set aside the decision.

75. In view of the conclusion we have reached on ground 1, we need not address ground 2 in substance.

Disposal

76. The starting point is paragraph 7.2 of the Practice Statements of the Immigration and Asylum Chambers of the First-tier Tribunal and the Upper Tribunal which provides: 

7.2. The Upper Tribunal is likely on each such occasion to proceed to remake the decision, instead of remitting the case to the First-tier Tribunal, unless the Upper Tribunal is satisfied that:  

(a) the effect of the error has been to deprive a party before the First-tier Tribunal of a fair hearing or other opportunity for that party’s case to be put to and considered by the First-tier Tribunal; or  
 
(b) the nature or extent of any judicial fact finding which is necessary in order for the decision in the appeal to be re-made is such that, having regard to the overriding objective in rule 2, it is appropriate to remit the case to the First-tier Tribunal. 
 
77. We are also mindful of the guidance in Begum (Remaking or remittal) Bangladesh [2023] UKUT 00046 (IAC).

78. The parties were agreed that the matter should be remitted to the FTT if ground one succeeded, as it has. We agree that this is the appropriate procedural course in circumstances where the appellant’s criminality has not previously been the subject of judicial consideration in the context of his protection grounds of appeal. The Upper Tribunal should not become the first judicial decision-maker on the important question of whether the appellant is a serious criminal, presents a danger to the community of the UK and falls to be excluded from humanitarian protection. To do so would be to deprive the appellant of a second tier of appeal in an important context, in addition to the Secretary of State, in a matter of considerable public interest.

79. While we accept Mr Cole’s invitation to infer that the facts which underpinned the Article 3 conclusion were the very same as the narrative facts which underpinned the humanitarian protection claim, we are not persuaded that these findings, or the overall decision on Article 3, should be preserved for the purposes of any fresh hearing. This is because these findings were uninformed by any assessment of whether the appellant had rebutted the presumption that, as a serious criminal, he posed a danger to the community of the UK. Had this important issue been confronted by the judge, he would have inevitably been required to consider the appellant’s evidence about whether he was a reformed character and no longer posed a danger. The findings on this point may well have informed how his broader narrative evidence was assessed, in the round, on the underlying factual claims of what transpired before he left Iraq.


Notice of Decision

The decision of the judge involved a material error of law. We set aside the decision, preserving no findings of facts. The matter will be remitted to the FTT to be decided de novo by a judge other than the judge who decided the matter originally.


P Lodato

Judge of the Upper Tribunal
Immigration and Asylum Chamber

31 December 2025