Tribunal decisions

The decision

IN THE UPPER TRIBUNAL
IMMIGRATION AND ASYLUM CHAMBER
Case No: UI-2024-005839

First-tier Tribunal No: PA/01426/2024

THE IMMIGRATION ACTS

Decision & Reasons Issued:

26th June 2025

Before

DEPUTY UPPER TRIBUNAL JUDGE GREER

Between

BM
(ANONYMITY ORDER MADE)
Appellant
and

SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: In Person
For the Respondent: Ms Newton, a Senior Home Office Presenting Officer.

Heard at Manchester Civil Justice Centre on 20 May 2025

Order Regarding Anonymity

Pursuant to rule 14 of the Tribunal Procedure (Upper Tribunal) Rules 2008, the appellant is granted anonymity.

No-one shall publish or reveal any information, including the name or address of the appellant, likely to lead members of the public to identify the appellant. Failure to comply with this order could amount to a contempt of court.

DECISION AND REASONS
1. The Appellant appeals with permission a decision of the First-tier Tribunal (‘Judge N. Malik’), promulgated following a hearing at Manchester on 4 October 2024, in which the Judge dismissed the appeal against the refusal of his application for international protection and/or leave to remain in the United Kingdom on any other ground.
2. The Appellant is a citizen of Iran. The protection claim was made on 11 September 2022 and refused by the Secretary of State in a decision dated 7 March 2024.
3. It is the Appellant’s case that he managed a satellite television channel in Iran which broadcast programmes viewed by the Iranian state as hostile towards it. The state authorities sought to arrest the Appellant while he was filming at a beauty salon. The Appellant escaped from the authorities and attended a demonstration against the Iranian Regime. The Appellant fled Iran and travelled to the United Kingdom, claiming asylum upon arrival. He says that he has converted to Christianity and he will be persecuted on account of his religion if he returns to Iran.
4. The Respondent refused the Appellant’s application for asylum, considering that the Appellant had not given a truthful account of his circumstances in Iran. Having considered the documents, oral evidence, and submissions made the Tribunal sets out its findings from [17] – [20]. In summary, the Tribunal found that the Appellant was not a witness of truth in respect of events in Iran and the Appellant was not a Christian.
5. Although the Appellant was represented before the First tier Tribunal, he was no longer represented at the time of his application for permission to appeal against Judge N. Malik’s decision. The Appellant sought permission to appeal which was refused by another judge of the First-tier Tribunal but granted on a renewed application by the Upper Tribunal on 28 January 2025, the operative part of the grant being in the following terms:
It is arguable that when assessing the evidence from the church witnesses, the judge failed to take into account the witnesses’ evidence about their efforts to ascertain whether the appellant’s beliefs were genuine and/or failed to give adequate reasons for rejecting that evidence. It is also arguable that many of the judge’s findings were speculative based on his view of how the appellant or the Iranian authorities would have acted, for instance in respect of the gunshot wound
6. The Secretary of State filed a Rule 24 Reply dated 20th February 2025. At the hearing before me, Ms Newton argued that the First Tier Tribunal decision contained no material legal error.
Discussion and analysis
7. I have, as Ms Newton urged me to do, kept in mind the guidance in Volpi and another v Volpi [2022] EWCA Civ 464; [2022] 4 WLR 48 (Volpi) and T(Fact-finding: second appeal) [2023] EWCA Civ 485. Those cases had themselves referred to the review of the law in this area by the Supreme Court in McGraddie v McGraddie [2013] USC 58; [2013] 1 WLR 2477 and Fage UK Ltd v Chobani UK Ltd [2014] EWCA Civ 5; [2014] ETMR 26 (Fage). In short, it is a well-established principle of law that there is a need to show restraint when addressing findings of fact made by a specialist fact finding Tribunal.
8. At [11]–[13], the First-tier Tribunal makes an unimpeachable self-direction in respect of the burden and standard of proof in an appeal against a decision to refuse an application for asylum made after the implementation of the 2022 Act. However, the paragraphs that follow demonstrate that the Tribunal Judge did not keep the correct burden and standard of proof at the forefront of her mind, and did not apply it in substance.
9. This is because the Judge repeatedly finds that the Appellant has “fabricated the core of his claim” (for example, at [16], [17(e)], [18(f)], and [19(g)]). In my judgment, it is unsatisfactory in a case of this kind for the fact-finder to express findings of fact in those terms. The task facing the Tribunal is to determine whether there is a reasonable degree of likelihood that the Appellant faces a risk of persecution upon return to his country of origin. A finding expressed in the terms used by the First-tier Tribunal does not squarely confront the relevant question.
10. Moreover, the Judge does not explain to what standard of proof she has found the Appellant’s claims to be fabricated, or upon whom she has placed the burden. Aside from the self-direction at [11]–[13], there is no reference to the standard of proof on the face of the determination. A natural reading of the determination—particularly what is said at [16]—would tend to suggest that the Tribunal Judge has found it reasonably likely that the Appellant’s claims are fabricated. That is to invert the correct standard of proof. I find that this amounts to a material legal error infecting the entirety of the decision under appeal.
11. This error alone is sufficient to render the determination unsafe. However, it is not the only error in the Judge’s determination.
12. It is a trite proposition of asylum law that findings in respect of the plausibility of a claim must be based on reasonably drawn inferences, supported by background evidence before the Tribunal, and not on the Judge’s own view of the inherent probability of the claim. In the present case, the Tribunal reaches findings as to the inherent probability of the Appellant’s account without disclosing, on the face of the determination, what background evidence informed those findings. The only conclusion open to an informed reader is that the Tribunal relied on its own speculative assumptions as to life in Iran.
13. At [17(a)], [17(b)] and [18(d)], the Tribunal finds the Appellant’s claims regarding the behaviour of the Iranian authorities to lack credibility. Leaving aside the troubling use of the term credibility synonymously with plausibility, these findings are made without a single reference to relevant country background information. This Tribunal can have no confidence that the First-tier Tribunal correctly understood or applied the guidance in HK v SSHD [2006] EWCA Civ 1037. This is a further material legal error which contaminates the entirety of the First-tier Tribunal’s findings of fact.
Notice of Decision
1. The determination of the First-tier Tribunal is infected with material legal error. It is to be set aside.
2. The matter is to be remitted to the First-tier Tribunal for a de novo hearing before a Judge other than Judge Malik.

J. Greer

Deputy Judge of the Upper Tribunal
Immigration and Asylum Chamber

14th June 2025