Tribunal decisions

The decision

IN THE UPPER TRIBUNAL
IMMIGRATION AND ASYLUM CHAMBER
Case No: UI-2025-000317

First-tier Tribunal No: PA/59260/2023
LP/04846/2024

THE IMMIGRATION ACTS

Decision & Reasons Issued:

On 23rd of May 2025

Before

UPPER TRIBUNAL JUDGE MAHMOOD

Between

GM
(ANONYMITY ORDER continued)
Appellant
and

The Secretary of State for the Home Department
Respondent

Representation:
For the Appellant: Mr A J Offiah (Legal Representative) of JDS Solicitors
For the Respondent: Ms S Lecointe, Senior Home Office Presenting Officer

Heard at Field House on 15 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. The parties may apply on notice to vary this order.

DECISION AND REASONS
1. This is the oral decision that I delivered at the hearing today.
Background
2. The Appellant appeals with the permission of Upper Tribunal Judge Sheridan against the decision of First-tier Tribunal Judge Fox (“the Judge”), who had dismissed the Appellant’s protection and human rights claim.
3. The relevant background is that the Appellant is a national of the Democratic Republic of Congo. He had claimed asylum contending that he was a member of the ECIDE and that he had been attacked and had to receive medical treatment. The Secretary of State had rejected the Appellant’s asylum claim both within the Reasons for Refusal Letter and then also upheld that decision upon review.
4. At the hearing at the First-tier Tribunal, the Judge had considered the oral and written evidence of the Appellant and also had heard from the Appellant’s then instructed counsel. The Appellant was dissatisfied with the decision of the Judge. Grounds of appeal were drafted by new solicitors, Messrs JDS Solicitors.
5. The Appellant’s application for permission to appeal was refused by the First-tier Tribunal. It was renewed to the Upper Tribunal and Upper Tribunal Judge Sheridan, by way of a decision dated 18 March 2025 granted permission. The learned Upper Tribunal Judge observed also that the grounds were late but he was satisfied that it was in the interests of justice to admit the application, having been told of the reasons in respect of funding and difficulties with representation.
6. When granting permission, the Upper Tribunal Judge said:
“The grounds are difficult to follow as the subheadings for each of the 4 grounds do not correspond to the points made under them. Moreover, numerous cases are cited without their relevance being explained. However, there is an arguable point made within the body of ground 4, which I would characterise as a submission that the judge arguably erred by failing to take into account that there is no requirement for an appellant in a protection claim to provide corroborative evidence: see the consideration of this in MAH (Egypt) v SSHD [2023] EWCA Civ 216.”
The Upper Tribunal Judge did not restrict the grounds, which could be pursued but he observed that there was not any arguable merit in grounds 1 to 3.
The Hearing Before Me
7. At the hearing before me today I heard from both parties. Ms Lecointe had required time to find the necessary paperwork, she having informed me that she was having some difficulty in respect of, I think her, technology and access today. I had adjourned the case until a later time until she was ready to proceed.
8. Mr Offiah had relied on the grounds of appeal and had made submissions in respect of them.
9. I take into account the Respondent’s Rule 24 Response dated 12 May 2025.
10. Ms Lecointe said that whilst she agreed that the Appellant had not been compelled to provide documents, the Judge had dealt with credibility strongly. Ms Lecointe referred to the Respondent’s review and she said it was made plain that the Applicant had failed to provide correct documentation. It was said that the Appellant’s claim was one which was a fraudulent claim and therefore when there was such a strong indication, it was necessary to provide supporting evidence. She submitted that therefore in any event, even if there is an error of law, it was not material because the Respondent had set out her case that it was incumbent upon the Judge to deal with both sides fairly.
11. I was taken by Ms Lecointe to various parts of the Judge’s decision including at paragraph 62, which referred to the Appellant claiming he had lost contact with his family in 2021 and he continued to communicate with his political associates in the DRC thereafter and that he shares his father’s political ideologies. It was submitted that there was no reliable evidence demonstrating that the Appellant sought to trace his father by his political associates.
Consideration and Analysis
12. I invited the parties to consider the Court of Appeal’s judgment in MAH (Egypt) [2023] EWCA Civ 216; [2023] Imm A.R. 713. Paragraphs 84 to 88 of the Court of Appeal’s decision makes clear that there is no requirement for an Appellant to adduce corroborative evidence. However, on the other hand, the absence of corroborative evidence can, depending on the circumstances, be of some evidential value: if, for example, it could reasonably have been obtained and there is no good reason for not obtaining it, that may be a matter to which the tribunal can give appropriate weight.
13. At paragraph 87, Singh LJ said, “Although the UT directed itself, at para. 84, that there is no legal duty on the Appellant to corroborate his claim, that was in substance the basis on which it proceeded.” Singh LJ said further that, “I have reached the conclusion that the UT required more of him than was necessary. It then fell into error by concluding that the failure to adduce corroborative evidence undermined his credibility with the result that his evidence was found not to be ‘truthful’…”
14. In my judgment, reading as a whole the Judge’s decision, in particular paragraphs 61 to 69 he was clearly seeking corroboration. That was an impermissible approach and therefore a material error of law. I take by way of example the following from the Judge’s decision,
“68. It is reasonable to expect that photographs of publicly disseminated literature may have been available ...”
“69. … Despite this the respondent was satisfied that the appellant had presented a valid travel document issued by his alleged persecutor to support an entry clearance application sponsored by his alleged persecutor.”
“66. While this evidence may not be available in original format the available evidence demonstrates that the appellant remains in contact with political associates in DRC for the purpose of evidence to support this appeal. Despite on-going opportunities for continued contact with political associates in DRC the appellant is silent on the issue relating to the elections in December 2023.”
“65. I accept that the appellant may not be able to produce the original leaflets he claims to have distributed. …”
“64. The representative were given the opportunity to consider the first card. When the available evidence is considered in the round the first card is not a reliable document. The anomalies in its presentation and the nature and timing of its production do not assist the appeal in conjunction with the remaining evidence. The absence of the staple demonstrates that the original document has been altered by unknown person(s) at best.”
“62. … There is no reliable evidence to demonstrate that the appellant sought to trace his father via his political associates at minimum.”
15. I fully hear Ms Lecointe’s point that where deficiencies are pointed out to an Appellant by the Respondent, whether in the Respondent’s refusal letter or indeed in a review, then the Appellant and/or his legal representatives should seek to deal with them. In this instance and in this case, however, the Judge had not merely picked up on one minor item, instead there are several aspects where the Judge was seeking corroboration. Put another way, the Judge was seeking supportive evidence.
16. In view of the clear decision of the Court of Appeal in MAH (Egypt) and to which I referred earlier, in particular the judgment of Lord Justice Singh, with whom Lord Justice Warby and Lady Justice King agreed, it is not possible to be satisfied that in this protection claim that the Judge considered the case with the most anxious scrutiny.
17. I therefore must set aside the decision of the First-tier Tribunal as it contains a material error of law.
18. I canvassed with the Mr Offiah and Ms Lecointe what the venue of the remaking ought to be. Applying AEB [2022] EWCA Civ 1512 and Begum (Remaking or remittal) Bangladesh [2023] UKUT 00046 (IAC), I carefully consider whether to retain the matter for remaking in the Upper Tribunal, in line with the general principle set out in statement 7 of the Senior President’s Practice Statement. I also take into consideration the history of this case, the nature and extent of the findings to be made as well as the fact that the nature of the errors of law in this case mean that the Appellant was deprived of an adequate consideration of his appeal. I further consider that it would be unfair for either party to be unable to avail themselves of the two-tier decision-making process and I therefore remit the appeal to the First-tier Tribunal with no retained findings.

Notice of Decision
The decision of the First-tier Tribunal contains a material error of law and it is set aside.
The matter is remitted to the First-tier Tribunal for a hearing afresh on all matters, before a different judge.
None of the current findings shall stand.
The anonymity direction previously made shall continue because the matter relates to a protection claim.

Abid Mahmood

Judge of the Upper Tribunal
Immigration and Asylum Chamber

15 May 2025