Tribunal decisions

The decision

IN THE UPPER TRIBUNAL
IMMIGRATION AND ASYLUM CHAMBER
Case No: UI-2025-000111

First-tier Tribunal No: PA/56621/2024

THE IMMIGRATION ACTS

Decision & Reasons Issued:

On 23rd of April 2025

Before

DEPUTY UPPER TRIBUNAL JUDGE HUTCHINSON

Between

The Secretary of State for the Home Department
Appellant
and

HH
(ANONYMITY ORDER MADE)
Respondent

Representation:
For the Appellant: Mr I Halliday, Advocate instructed by Gray & Co Solicitors
For the Respondent: Mrs R Arif, Senior Home Office Presenting Officer

Heard at Field House by video link to Scotland on 26 March 2025

Order Regarding Anonymity

Pursuant to rule 14 of the Tribunal Procedure (Upper Tribunal) Rules 2008, [the appellant] (and/or any member of his family, expert, witness or other person the Tribunal considers should not be identified) 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 (and/or other person). Failure to comply with this order could amount to a contempt of court.

DECISION AND REASONS

Introduction
1. The appellant in this case is the Secretary of State and the respondent is Mr HH. For the purposes of this decision however, I shall refer to the parties as they were before the First-tier Tribunal where the appellant was Mr HH. Mr HH is a citizen of El Salvador who applied for protection on 6 October 2022. That application was refused by the respondent in a decision dated 28 February 2024. His appeal against the decision was allowed by First-tier Tribunal Judge McGrade (“the judge”) on 2 December 2024, after a hearing on 30 October 2024.
2. Permission to appeal was granted by Judge of the First-tier Tribunal Mulready on 9 January 2025, on the basis that it was arguable that the First-tier Judge had erred in law in failing to consider section 8 of the Asylum and Immigration (Treatment of Claimants, etc.) Act 2004 (“section 8”) and failing to give reasons for accepting that the government has blocked access to a number of websites for the appellant. No reference was made to the principles of XX (PJAK - sur place activities - Facebook) Iran CG [2022] UKUT 00023 (“XX”), when considering the appellant’s online activity.
3. The matter came before me, in a hearing heard by video link to the appellant and respondent before the First-tier Tribunal and his representatives based in Scotland, to determine whether or not the First-tier Tribunal had erred in law, and if so whether any such error was material and thus whether the decision should be set aside.
Submissions – Error of Law
4. In the grounds of appeal and in oral submissions by Mrs Arif it was argued, in short summary for the Secretary of State as follows:
5. It was submitted under Ground 1 that the judge erred in failing to give reasons why he found the appellant’s account credible. It was argued that the appellant had based his concerns on supposition and conjecture and admitted that he had never been specifically targeted by the El Salvadorian regime. It was asserted that, as the judge gave no reasons for accepting that the appellant had come to the adverse interest of the government, nor why the judge found his political activities in the UK surrounding an online activity to be carried out due to a genuinely held belief, rather than an attempt to bolster a weak asylum claim, that any conclusion by the judge was flawed.
6. In oral submissions Mrs Arif contended that the first ground was a reasons challenge and reiterated that the judge had failed to give reasons why he found the appellant credible, particularly in circumstances where the appellant admitted that he had never been specifically targeted by the regime. Therefore the judge had based the claimed concerns on supposition and conjecture with no adequate reasons why the appellant was credible, and no adequate reasons given as to why the appellant had come to the adverse interest of the government. The judge had also failed to provide reasons why the appellant’s online activity was on the basis of a genuine belief rather than to bolster an asylum claim and to that extent the judge’s findings were flawed.
7. Mrs Arif referred to paragraph [8] of the decision where the judge was satisfied that the claim engaged the Refugee Convention. The judge accepted that the appellant was a victim of gang violence in 2012 and 2014 and specifically found that this was not linked to political activities. The judge then set out the appellant’s account and at [12] addressed the social media. At no point, it was argued, did the judge give reasons why the appellant was credible and why he was at risk. This was also tied into ground 3 with no reasons given why the El Salvadorian government are responsible for blocking the appellant’s access to websites and that the judge’s conclusions are not based on any objective information.
8. Ground 2 submitted that any credibility findings were further flawed by the failure of the judge to have regard to the application of section 8. The appellant travelled through both the USA and Germany onward to the UK and failed to claim asylum in either country. The judge was therefore required to consider this as damaging to the appellant’s credibility and the judge’s failure to do so was a misdirection in law and ignored the fact that the appellant’s relationship with his current partner, who is resident in the UK, began prior to his arrival here and his seeking asylum could have been an attempt to circumvent immigration requirements. The determination is silent on section 8 and the reasons advanced in the respondent’s review for its applicability, when reaching the conclusion as to the genuine nature of the appellant’s claims, which, it was submitted rendered the determination unsound.
9. In relation to ground 2, Mrs Arif submitted that the credibility findings were further flawed by the lack of a section 8 assessment with no reasons or conclusions, which was a misdirection in law and specifically ignored that the appellant and his current partner’s relationship commenced before the appellant came to the UK, which might suggest that the appellant’s reasons for seeking asylum were not genuine but rather an attempt to circumvent immigration requirements, as highlighted by the respondent in the respondent’s review.
10. Ground 3 submitted that the judge similarly failed to provide any reasons why he accepted that the El Salvadorian government were responsible for blocking the appellant’s access to a number of websites. It was argued that any such conclusion was based on supposition and conjecture, and not on any objectively based information, nor did it consider any other reasons, including the appellant accessing government websites from a different country, which could explain his limited access. There had been no evidence provided to support the contention that Emmanuel P. (paragraph [14]) was connected to the current regime, and a reading of the exchange of messages indicated what appeared to be a healthy debate, rather than any potential threat (page 79 of the consolidated bundle). It was unclear why these two factors were said to place the appellant at risk on return to El Salvador. The judge’s own conclusion was that the appellant would not be deemed as a threat to the regime on this basis (at paragraph [14]). Therefore, it was unclear how the appellant’s sur place activities were sufficient to place him at risk
11. Ground 4 submitted that the judge erred in failing to apply the principles of XX (PJAK – sur place activities – Facebook) Iran CG [2022] UKUT 00023 (IAC) (‘XX’) when considering the appellant’s online activity and the subsequent reliability of any documentation produced. Whilst accepted that XX was issued predominantly surrounding guidance as to Facebook activity in Iran, the principles on social media in general apply.
12. It was argued therefore relying on that guidance, that the appellants production of excerpts, rather than full disclosure, failed to comply with the principles set out in XX. Therefore, any reliance on such evidence should have been considered through the prism of potential manipulation. The judge’s failure to do so rendered any conclusion surrounding the reliability of this evidence flawed and it is integral to any overall assessment of whether the appellant’s beliefs are genuinely held, such that return would force him to amend his behaviour through fear of persecution.
13. In terms of ground 4, Mrs Arif submitted that the judge did not apply the principles of XX and there were only extracts provided. However, Mrs Arif conceded that this had not been raised by the Secretary of State before the First-tier Tribunal. However, she maintained what the judge should have done with the XX principles.
14. In the Rule 24 response and in oral submissions by Mr Halliday for the appellant before the First-tier Tribunal, it was argued in short summary as follows:
15. The agreed issues before the First-tier Tribunal were: (1) whether the Appellant was at risk of persecution in El Salvador on the basis of his past and current political activity; (2) whether, on the same basis, return to El Salvador would breach the Appellant’s convention rights under Art 2 and 3 ECHR; and (3) whether removal would be give rise to unjustifiably harsh consequences for the appellant or his British citizen wife (described as his “sponsor” in the decision).
16. It was submitted that the judge only addressed the first of these questions, notwithstanding that detailed submissions were made on the Art 8 ECHR point. However, as the judge found in favour of the appellant on the first point, determination of the other matters was not required to decide the appeal.
17. In response to Ground 1 (Acceptance of two aspects of the appellant’s account), properly read, it was submitted that this ground was a complaint that there were inadequate reasons given by the judge for his acceptance of two specific parts of the appellant’s account: accepting that the appellant had come to the adverse attention of the El Salvadorian government and that his political activities in the UK were carried out due to a genuinely held belief.
18. It was submitted that the judge had stated why he accepted that the appellant had come to the adverse interest of the authorities. The judge referred specifically to the evidence of Ricardo F which corroborated the appellant’s claim that, following various exchanges on social media with individuals linked to the El Salvadorian regime, the appellant was placed on a list of identified individuals considered to some extent persona non grata by the El Salvadorian authorities and blocked from accessing various government websites. The judge noted that the evidence included correspondence with Mr F (a journalist who authored a story about the “block list”) in which Mr Flores confirmed he had seen the list and the appellant’s name is on it.
19. Similarly, it was submitted that the respondent was wrong to say that the judge’s decision left an informed reader in substantial doubt as to why the judge considered the appellant’s sur place activities were expressions of his genuinely held views. The judge accepted that the appellant is genuinely critical of the El Salvadorian government and was willing to express that criticism openly whilst still in that country. It was submitted that the judge was careful to be clear that he did not find that that the appellant’s expression of his beliefs at that time gave rise to a risk of persecution. Nonetheless, the acceptance that the appellant genuinely held these beliefs explains why the judge did not accept the respondent’s assertion that the beliefs were confected sur place activities to found an asylum claim.
20. In response to Ground 2 (“section 8 Credibility”) in appeals from specialist tribunals, such as the First tier Tribunal, appellate courts and tribunals should start from the position that the specialist tribunal has probably got the law right; their decisions should be respected unless it is quite clear that they have misdirected themselves at law and appellate courts and tribunals should not rush to find such misdirections (AH (Sudan) v Secretary of State for the Home Department [2007] UKHL 49 at [30]). Even where a relevant point is not expressly mentioned by the specialist tribunal, the appellate tribunal should be slow to infer that it has not been taken into account. There is no obligation on a Tribunal to deal with each and every point which has been raised in an appeal process (VV (grounds of appeal) [2016] UKUT 53 (VV).
21. Section 8 is a necessary consideration in every First-tier Tribunal decision. Even though section 8 is not expressly mentioned by the judge, the judge provides adequate reasons, including by reference to independent and objective evidence, why he accepted the appellant as a credible witness. The omission of an express mention of section 8 does not constitute an error of law.
22. It was submitted in response to Ground 3 (Awareness of El Salvadorian authorities) that this essentially restated Ground 1, in that Ground 3 complains the judge failed to provide reasons why he accepted the El Salvadorian authorities had blocked the appellant from accessing various websites. This was the reason why the judge accepted that the appellant is among a number of identified individuals considered to some extent persona non grata by the El Salvadorian authorities, so it was accepted this point is significant. The judge referred specifically to the evidence of Ricardo F. and the associated correspondence, and it is clear why the judge made the findings he did.
23. In response to Ground 4 (Failure to apply the correct principles when considering social media) the respondent argued that the judge failed to apply the principles of XX. The Grounds assert that the judge should have viewed the alleged failure of the appellant to give “full disclosure” of his social media accounts through the prism of “potential manipulation”. However, it was noted that the respondent was making this argument for the first time in its grounds of appeal. An allegation that the First-tier Tribunal has erred cannot normally get off the ground unless the appellant can show firstly that the matter to which the complaint relates was raised in the proceedings before the First Tier Tribunal as a substantive issue (VV). It was submitted that the respondent did not challenge the authenticity or (lack of) volume of the appellant’s social media evidence in the Respondent’s Review. The assertion of manipulation was not put to the appellant in cross-examination, as fairness would require. Nor did the respondent’s submissions refer the judge to XX, or explain why it was necessary or appropriate for the judge to apply the principles in this appeal.
24. In any event, it was submitted that the requirement for evidence of sufficient social media activity to make it plausible that the El Salvadorian authorities are aware of the appellant’s social media comments is rather overtaken by the separate evidence discussed under the response to Grounds 1 and 3. The judge accepted other evidence as confirming that the authorities had identified the appellant personally as a critic of the regime, notwithstanding the extent to which social media activity might come to the attention of the authorities simply because of its volume.
25. For the reasons given at paragraph [14], the judge found that the El Salvadorian government’s “unfavourable” view of the appellant is sufficient to put him at risk, even though the judge accepted the appellant is not a member of a political party or unlikely to be viewed as a “significant threat”.
Conclusions and Error of Law
26. As I indicated at the hearing, the decision of Judge McGrade does not disclose any material errors of law and shall stand.
Ground 1
27. In terms of ground 1, it is not correct to assert that the judge failed to give reasons for finding the appellant credible in accepting that the appellant had come to the adverse interest of authorities in El Salvador and that his political activities in the UK were carried out due to a genuinely held belief.
28. The judge accepted that the appellant had had disagreements with the father of the Minister of Culture in El Salvador in an academic setting, but did not find that this was sufficient in itself to lead to future prosecution: “as academics will often disagree on a variety of issues”. The judge did not therefore uncritically accept the appellant’s account wholesale without adequate reasons, but rather considered all the evidence in the round, before reaching his positive credibility findings.
29. The judge considered the appellant’s consistent evidence that he had been followed by a vehicle with no number plates in El Salvador, close to the election day, with the judge accepting that he found the incident took place in February 2021. The judge noted that the appellant continued to live at home without difficulties until April 2022. However it was open to the judge to find, as he did at [11], that this incident may have been an attempt to intimidate the appellant. In so doing, it is tolerably clear from the decision that the judge considered not only the appellant’s evidence but also the background country information, including the judge’s reference, at paragraph [13] to the actions of the El Salvadorian government in targeting those who are considered political opponents of the regime.
30. In accepting the appellant’s account as credible, including that the incident where the appellant was followed in 2021 may have been an attempt to intimidate the appellant, the judge had had the benefit of the appellant’s oral and written evidence. The appellant at paragraph 7 to 8 of his witness statement had responded to the criticism by the Secretary of State of the appellant’s evidence at interview, with the appellant noting that the criticism related to just six questions at interview, whereas the whole interview had lasted three hours.
31. The judge took into account and accepted the appellant’s evidence that he had had an exchange with a journalist Ricardo F, a journalist with La Prensa Grafica Newspaper and the judge had the benefit of not only the email exchange between Mr F and the appellant but also Mr Fs’ article. Mr F confirmed that the appellant was one of those whose social media account had been blocked by the El Salvadorian government. The judge had before him printouts which showed the appellant was unable to access various accounts. It is clear from the findings as a whole, including at paragraph [12], that the judge accepted this evidence as credible.
32. In accepting that the appellant’s access to other websites has been blocked and that he has been criticised by Emmanuel P for comments made, the judge considered the background country information at paragraph [13] of the decision. This included that there was a state of emergency to deal with gang violence, resulting in a prison population of 104,000 and the judge also referred to ‘clear indications’ that the government has targeted those viewed as political opponents and those denouncing corruption/trade unionists, have been labelled by the El Salvadorian government as gang defenders, with a Reuters’ report noting the existence of a troll farm in El Salvador, working for the president. It was open to the judge to take into account that evidence in reaching his conclusions that he accepted the appellant’s account.
33. There was no error in the judge then accepting as he did, that there was evidence before him that the appellant had been blocked in his ability to access information on public websites in El Salvadore, with the judge accepting the evidence that this was because of the comments made by the appellant on social and print media and that his comments have been deemed sufficiently offensive to the authorities (paragraph [14]). The judge was entitled to attach weight as he did at paragraph [12] of the decision to the evidence from the journalist Ricardo F. It was open to the judge to go on to find at [14] that the evidence established that the appellant was viewed ‘unfavourably’ by the authorities and the judge again referenced the large number of people incarcerated by the El Salvadorean authorities, together with he targeting of those who are political opponents or are viewed as being opposed to the regime.
34. It is trite law that there is no requirement for the First-tier Tribunal to rehearse every detail or issue raised (Budhathoki (reasons for decisions) [2014] UKUT 00341 (IAC)). The judge, as he was required to do, identified and resolved the key conflicts in the evidence and explained in clear and brief terms his reasons. Mere disagreement is not a ground on which to reverse a decision. The assessment of weight is generally for the First-tier Tribunal (see including AE (Iraq) v Secretary of State for the Home Department [2021] EWCA Civ 948). The conclusions reached by the judge, that he accepted the appellant’s evidence as credible and that the appellant specifically was viewed unfavourably by the regime, were reasonably open to him. No error is disclosed in Ground 1.
Ground 2
35. The appellant explained why, in his statement at paragraph 12, he had not claimed asylum in Germany or the United States. The appellant had wanted to come to the UK to join his partner. The respondent raised this as an issue why the asylum claim may not be genuine. It was evident that the judge would have considered all the material factors in reaching the conclusions he did, including in his references throughout the judgment to different parts of the material before him. An absence of specific mention of particular parts of the evidence does not therefore mean that the judge did not consider that evidence and is not an error of law.
36. In the global assessment of credibility, the judge found the appellant had discharged the burden of proof and the lack of a specific paragraph addressing this is not material. This is not a case where the appellant did not provide an explanation for his section 8 behaviours. Considering the decision in its entirety, including the positive credibility findings, it is not clear any damage under section 8 would have undermined those clear findings. The decision must be read, fairly and as a whole. In this context, the judge did not consider those section 8 behaviours significant enough to refer to in his succinct written reasons. Any error in failing to do so is not material. Ground 2 is not made out.
Ground 3
37. Both the appellant’s own account and the supportive evidence were accepted by the judge, including at paragraph [14] where the judge was satisfied that the appellant had made comments which had been deemed to be sufficiently offensive by the El Salvadorian government that it has blocked his ability to access information on public websites. This constitutes adequate reasons for the judge accepting that the El Salvadorean government were responsible for blocking access to government websites when considered, as the judge did, in light of the corroborative evidence that the appellant had been told by a journalist that his name was on the list of those whose access was blocked.
38. Although ground 3 argued that there were no reasons why the judge accepted that the El Salvadorian government were responsible for blocking the appellant’s access to a number of websites, the crux of Ground 3, is the evidence from the journalist Ricardo F, which the judge referred to and accepted. It was open to the judge to do so, sand his reasons were adequate. Ground 3 is not made out.
Ground 4

39. In terms of ground 4 and the submissions made in respect of XX, the respondent cannot now before the Upper Tribunal rely on a case not made or argued before the First-tier Tribunal. The joint Presidential panel in TC (PS compliance - "issues-based" reasoning) Zimbabwe [2023] UKUT 614 stressed the importance of the principal important controversial issues being identified. The parties are under a duty to provide the First-tier Tribunal with relevant information as to the circumstances of the case including defining and narrowing the issues in dispute (see Lata (FtT: principal controversial issues) India [2023] UKUT 163 (IAC)).
40. In any event, XX is not authority for a finding that in every case where social media evidence is relied on, that full downloads of social material must be provided. Rather it is a matter for the deciding tribunal what weight should be attached to particular online activity. In some circumstances, Facebook printouts may be of limited value but ultimately this is a matter for the First-tier Tribunal to determine. The evidence before the First-tier Tribunal was not from Facebook but from Twitter. XX refers to the facility to download information on Facebook. It is unclear whether such a function existed on Twitter. The respondent had not identified any evidence to suggest that there is an equivalent function on Twitter that the appellant ought to have utilised. More fundamentally, it had not been argued before the First-tier Tribunal that little weight should be attached to the Twitter evidence because of XX. No suggestion was made until the grounds of appeal to the Upper Tribunal that the social media content had been manipulated in some way. It was not an issue that the judge was asked to consider .
41. The respondent further failed to identify that the material relied on by the appellant was on Twitter not Facebook with no submissions made either before the Upper Tribunal, the First-tier Tribunal or otherwise as to what it was that the appellant could or should have produced in relation to Twitter.
42. The judge for the reasons he gave, in the context of an account he found credible, accepted that the appellant had continued to be active both in print and on social media.
43. The ground is without merit.
Conclusion
44. The making of a decision in the First-tier Tribunal did not involve the making of an error on a point of law.
45. I do not set aside the decision.

M M Hutchinson

Deputy Judge of the Upper Tribunal
Immigration and Asylum Chamber

11 April 2025