Tribunal decisions

The decision

IN THE UPPER TRIBUNAL
IMMIGRATION AND ASYLUM CHAMBER
Case No: UI-2025-000101

First-tier Tribunal Nos: PA/65293/2023
LP/09683/2024

THE IMMIGRATION ACTS

Decision & Reasons Issued:
On the 20 March 2025

Before

DEPUTY UPPER TRIBUNAL JUDGE SAINI

Between

AA
(ANONYMITY ORDER MAINTAINED)
Appellant
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Mr N Garrod, Counsel; Abbey Law Limited
For the Respondent: Ms A Everett, Senior Home Office Presenting Officer

Heard at Field House on 13th March 2025

Order Regarding Anonymity

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

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

DECISION AND REASONS
1. The Appellant appeals against the decision of First-tier Tribunal Judge M B Hussain promulgated on 20th November 2024 dismissing his appeal against the Secretary of State’s refusal of his asylum and human rights claims. The Appellant applied for permission to appeal, which was granted by First-tier Tribunal Judge Barker in the following terms:
“1. The application is in time.
2. The grounds disclose arguable errors of law in the First-tier Tribunal Judge’s decision.
3. It is arguable that the Judge applied the wrong standard of proof to this protection appeal. Whilst the Judge identifies the correct standard at paragraph 39, and gives no indication that they have applied the wrong standard throughout, paragraph 50 of the decision and reasons arguably suggests that the Judge in fact applied the wrong standard of proof.
4. Whilst the other grounds argued may not disclose material errors, given the other findings made by the Judge, the issue in relation to the standard of proof applied by the Judge arguably means that the Judge may have also erred in making these findings.
5. In those circumstances, permission to appeal is granted on all grounds relied on”.
2. The Secretary of State did not provide a Rule 24 response but indicated that the appeal was resisted.
Findings
3. At the close of the hearing, I reserved my decision, which I shall now give. I find that there are material errors of law in the decision such that it should be set aside. My reasons for so finding are as follows.
4. Amongst the three Grounds of Appeal it is Ground 1 that gives the most immediate cause for concern and indicates an error of law in the judge’s decision. The complaint in the Grounds of Appeal is that, at paragraph 39, the First-tier Tribunal Judge identifies under the heading Burden and Standard of Proof, the correct standard which applies to asylum claims, i.e. the lower standard of proof; however, under his findings the judge applied the wrong standard of proof at paragraph 50 by stating expressly as follows:
“50. Having looked at the totality of the evidence before me the conclusion to which I have come is that I am not satisfied on the balance of probability that the appellant has proven that he is a homosexual. It follows from this that there is no real risk of the appellant being persecuted if returned to his country now”.
5. As Ms Everett rightly and pragmatically put it, the statement that the “balance of probabilities” had been applied to the asylum appeal was “jarring”. However, Ms Everett argued that, apart from paragraph 50, there did not appear to be any other indication that the judge had applied a higher standard of proof as opposed to the lower one. I sympathise greatly with the submission as it accorded with my own view. I asked Mr Garrod, whether there were any paragraphs that he could direct my attention to which indicated that a higher standard of proof had been applied, however he could only point me to what he termed as material mistakes of fact in the judge’s decision, which were not part of the grounds and which in any event did not go to demonstrating a higher threshold had been applied. For my part, as Ms Everett stated, the pronouncement of the standard of proof applied cannot be a typo, given the precise inclusion of these words, which is out of the normal course and unusual to see from such an experienced judge. Therefore, I find that there is an error of law established on the face of this decision, albeit not a material one on by itself given that Mr Garrod could not point to any supporting evidence this misstatement of the standard of proof at paragraph 50. Therefore I go on to consider Ground 2.
6. Ground 2 argues that there was procedural unfairness in the First-tier Tribunal Judge’s decision making because he reached adverse conclusions against the Appellant without either the Respondent or the judge having put these concerns first to the Appellant. In essence the point made by previous counsel who drafted the grounds (not Mr Garrod) is that, at paragraph 42 of the judge’s decision, the judge errs in stating as follows:
“42. ... It is quite interesting that in his interview he was able to say so little about his realisation, the feelings he went through and the experiences he had. Yet, when it came to the appellant’s written statement, he seemed to be full of words which seems to suggest to me that the statement was composed by someone, not necessarily using the appellant’s own expression of his thoughts and experiences”.
The issue as the grounds put it was therefore that this matter was not raised during cross-examination, nor by the judge of his own initiative during the hearing and thus it was procedurally unfair for the judge to rely on this adverse credibility point in his findings without first putting this concern to the Appellant for giving him the opportunity to respond.
7. This ground gave me great concern and pause, not least because the ground was, in my view, inadequately pleaded in that it did not seek to grapple with whether the instances where the Appellant’s credibility in relation to his sexuality had been raised and addressed by him in the course of his evidence demonstrated that the gist of the concern had in fact been put to him and that this finding was, in essence, open to the judge. I thus turn to those points myself, in order to view the allegation in context and to undertake the exercise that previous counsel has not done for reasons unknown.
8. First, under the heading Credibility in the Respondent’s index Reasons for Refusal Letter, there is a challenge to the Appellant’s answers given in interview at AIR 87–91 in relation to his sexuality and his realisation that he was a homosexual whilst a teenager. That, as far as I can see, was addressed by the Appellant and expanded upon at paragraphs 3 to 4 of his witness statement before the First-tier Tribunal, which is the reference to his realisation of his sexuality, that I take the judge was referring to in relation to his eloquence in his statement (albeit that the judge did not specify any paragraphs in his decision, which made it harder to know the judge’s mind and the passages that exercised him so). As far as I can see, the discussion or explanation of the Appellant’s realisation of his sexuality is put in more eloquent and more detailed terms by the Appellant’s solicitors who, I agree, have plainly settled the statement, presumably after taking instructions from the Appellant. The insinuation posed by the judge at paragraph 42 of the Decision, that the Appellant’s witness statement was composed by “someone, not necessarily using the appellant’s own expression of his thoughts and experiences”, is tantamount to an allegation of unprofessional conduct by the Appellant’s solicitors. I note, with some surprise, that they seem to have either completely failed to notice this insinuation, or have chosen not to respond to it as one might have expected, for example, by way of a witness statement from the solicitor explaining whether or not they had settled the statement in the English language using their own words, or using the Appellant’s own expression of his thoughts and experiences. Be that as it may, Ms Everett also flagged paragraph 27 of the judge’s decision which reflected that, “In cross examination, [the Appellant] said that he was happy when he first realised that he was homosexual. He was different from others ...”, which Ms Everett argued seemed to indicate that the topic of the Appellant’s realisation of his sexuality and his feelings on the matter had been raised in cross-examination by the Presenting Officer, in direct contradiction of what was said by previous counsel in the Grounds of Appeal.
9. Mr Garrod attempted to make various submissions on other points which were not pleaded in the Grounds of Appeal; however, when pressed upon this matter by me, Mr Garrod did contend that the juxtaposition, or contradiction, between the detail in the Appellant’s Asylum Interview Record and that seen in his witness statement, was not expressly put to him in cross-examination nor by the judge and therefore the basis of the Ground of Appeal still remained.
10. In my overall assessment, this is a tenuous Ground of Appeal, which is not expressed in any detail and is poorly pleaded. However, undertaking the due diligence for myself, I am only by the smallest margin, just persuaded that the judge could have raised this matter with the Appellant in clarification, as Ms Everett said was ‘an option’ that was available to the judge, albeit one that she said that the judge did not need to undertake. I respectfully disagree that the judge did not need to undertake this, but only due to the discrete nature of the judge’s finding which does not originate with the criticisms levelled in the Refusal Letter nor with the cross-examination I can see referenced in the Decision.
11. Given this second error of law alongside the previous error of law, and the maxim that ‘justice must not only be done, but must be seen to be done’, or put in other terms, that there must be no inadvertent unfairness or misapprehension of unfairness to an objective bystander or reader of the decision, the first two grounds begin to demonstrate a material error of law such that the decision should be set aside. But, in any event I turn briefly to consider Ground 3 as well as making my own observations as to what remains if a material error is found from the three grounds.
12. Turning to Ground 3 it is argued that the judge erred in law in finding elements of the Appellant’s account to be implausible or providing inadequate reasons for rejecting it. The grounds argue that, at paragraph 43, it was not open to the judge to find it was “highly implausible” how the Appellant’s sexuality was initially revealed in Bangladesh and his family’s reaction to it. The criticism is largely levelled at the following excerpt of the decision which reads as follows:
“43. It seems to me that his family would have been a lot more wiser than the appellant would have me believe. I say this because by beating an adult about his sexual orientation was more likely to attract attention to the issue than would otherwise be the case. I accept that his conservative family would have wanted to protect their reputation by the appellant’s sexuality not becoming public, but it seems to me that they are more likely to have used persuasion rather than force”.
To my mind whilst I have sympathy with Ms Everett’s submission that this could be the judge undertaking to understand the culture and nuance and the context of the scenario before him, but it could equally be seen as speculation on the judge’s part given that the observations are not founded upon or in reference to any evidence before the judge. Had this been a stand alone ground, I would not have been minded to find it was material, however in conjunction with the previous two grounds, it adds to the finding I have already made that it may inadvertently give rise to an appearance of unfairness or speculation on the part of the judge in reaching his findings. I am fortified in this view, and remind myself of, the judgment of Lord Justice Keene at [25] of Y v. Secretary of State for the Home Department [2006] EWCA Civ 1223 which states that a tribunal of fact should be cautious before finding an account to be inherently incredible, because there is a considerable risk that it will be overinfluenced by its own views of what is or is not plausible, and those views will have inevitably been influenced by its own background in this country by the customs and ways of our own society. It is therefore important that it should seek to view an Appellant’s account of events in the context of conditions in the country from which the Appellant comes. With that in mind and given that there is no statement that the findings of the Appellant’s account are made expressly in the context of the conditions in the country from which the Appellant comes, with support from objective evidence, for example, I find that there is a further error of law, which taken cumulatively with Grounds 1, 2 and 3 demonstrates a materiality of error in the judge’s decision.
13. In light of the above findings, I find that the decision contains material errors of law such that it should be set aside in its entirety.
Obiter
14. Before leaving this matter I pause to note that, despite having the opportunity to do so, there are several adverse findings made by the judge at paragraphs 44 through to 49, none of which have been challenged by the Appellant in the appeal to this Tribunal. These findings all raise serious adverse credibility matters which are unchallenged, and do not appear to have been attacked in any way by his legal representatives or previous counsel. Given that the decision is being set aside due to the discrete errors I have found, these paragraphs are not preserved; however, I observe that these are matters which the First-tier Tribunal will be entitled to explore (and may expect the Appellant to give evidence in relation to), as the Appellant unquestionably has notice of them, they have not been challenged by the Appellant on appeal to this Tribunal, and they are matters which, if so advised, he may wish to address when this matter is remitted for rehearing before the First-tier Tribunal.
Notice of Decision
15. The appeal to the Upper Tribunal is allowed.
16. The appeal is to be remitted to be heard by any Judge of the First-tier Tribunal other than Judge M B Hussain.

P. Saini

Deputy Judge of the Upper Tribunal
Immigration and Asylum Chamber

17 March 2025