Tribunal decisions

The decision

IN THE UPPER TRIBUNAL
IMMIGRATION AND ASYLUM CHAMBER
Case No.: UI-2025-000348

First-tier Tribunal No: PA/60200/2023
LP/09314/2024

THE IMMIGRATION ACTS

Decision & Reasons Issued:
On 21 July 2025

Before

DEPUTY UPPER TRIBUNAL JUDGE MONSON

Between

SECRETARY OF STATE FOR THE HOME DEPARTMENT
Appellant
and

BJ (IRAN)
(ANONYMITY ORDER MADE)
Respondent

Representation:
For the Appellant: Mr Andrew Mullen, Senior Home Office Presenting Officer
For the Respondent: In person

Heard at Field House and via Teams on 25 June 2025

Although the Secretary of State is the appellant in these proceedings before the Upper Tribunal, for ease of reference I shall hereafter refer to the parties as they were before the First-tier Tribunal.

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 Secretary of State appeals against the decision of First-tier Tribunal Judge Galloway promulgated on 2 December 2024 (“the Decision”). By the Decision, Judge Galloway allowed the appellant’s asylum appeal on the ground that the appellant was at risk of serious harm upon return to Iran on account of his perceived sexuality; and the Judge also found that the appellant’s enforced return to Iran would be reasonably likely to breach his Article 3 ECHR rights on account of his medical condition.
Relevant Background
2. The appellant is a national of Iran, whose date of birth is 17 April 1986. The appellant admits that he had left Iran legally, travelling on his own passport in 2014, and that he then destroyed it. Before arriving in the UK to claim asylum on 2 July 2019, the appellant made asylum claims in Germany and Sweden which were refused.
3. The appellant made a witness statement in support of his claim, dated 11 January 2022, and he was interviewed about his asylum claim on 18 August 2022.
4. In the subsequent reasons for refusal letter (RFRL) dated 19 October 2023, the Secretary of State identified the appellant as having three separate fears. Firstly, upon return to Iran he feared unlawful killing by his ex-girlfriend’s husband, because he had dated his wife in Sweden. Secondly, he feared imprisonment by the state due to his military desertion. Thirdly, he feared the men who had sexually abused him as a child would treat him badly upon return.
5. The Secretary of State accepted that the appellant was subjected to sexual abuse as a child; that he had had a relationship with a woman in Sweden; and that he had undergone Iranian national service.
6. The Secretary of State did not accept that the appellant was or would be the subject of adverse attention from powerful local people, or from the government of Iran, because of the sexual crimes committed against him as a child; or that he was the subject of adverse attention from the Iranian state due to him having deserted from national service; or that he was the subject of adverse attention from his ex-girlfriend’s Iranian husband because he had dated his Iranian ex-wife while they were both asylum seekers in Sweden.
7. This was because he had provided inconsistent evidence without reasonable explanation, as well as a lack of detail. There were also some elements of his account which were implausible and inconsistent with external information.
8. He was inconsistent about his fear of the men who had raped him. On the one hand, he said that they were powerful local people, and on the other hand he said that the people were not members of the Iranian authorities and that they were ordinary people who had done this to him.
9. He was internally inconsistent about the nature of the attacks on him when he was a child. He said that there was a group of 16 people who would pick him up. Alternatively, he had told them that these acts were random and not coordinated in any way.
10. He was externally inconsistent regarding his fear of the attackers. He told them that he did not report the attacks, out of fear that his life would be in danger. But this was contrary to external evidence that not only did Iran have punishments for the crimes committed against him, but the Iranian state also had protections in place for children who were the victim of such crimes.
11. He was internally inconsistent regarding his sexuality. He told them that he was a passive homosexual who would never act on it (AIR 20), and that he had recently been involved in a romantic relationship with a female asylum-seeker in Sweden.
12. He was lacking in specificity and detail regarding his claim that he had been persecuted by the state due to his perceived homosexuality. He stated that the state believed he was a homosexual, but he offered no evidence of any discrimination or persecution he had suffered as a result, apart from the bullying which he said he had suffered while on his three-month national service training.
13. He was internally inconsistent over his fears. He told them that he was raped at the age of 13, but did not leave Iran until 2014, which would mean that he was aged 27 when he left Iran.
14. Consideration had been given as to whether he should be granted discretionary leave. He stated that he was suffering from mental health conditions and memory-lapse. He did not qualify for discretionary leave because he had provided no credible evidence of his medical history that supported his claim that, without treatment, he posed a danger to himself or others.
15. In the Secretary of State’s Review dated 22 August 2024, the Secretary of State said that there were considerable inconsistencies concerning the circumstances surrounding the sexual abuse which it was accepted the appellant had suffered as a child. In his appeal statement dated 7 February 2024, the appellant stated that the incident when men picked him up and took him to a mansion to rape him took place when he was 7 or 8 years old. But in his earlier witness statement dated 22 February 2022, the appellant had given the names of the individuals who raped him, and said that it was when he was 13 years old.
16. It was also noted that, in his appeal statement, the appellant said that the recorded answer to AIR 20 was incorrect. He had never said that he was homosexual.
17. On the issue of whether the appellant was eligible for discretionary leave on compassionate grounds, it was noted that the appellant had provided a medico-legal report from Dr Gupta, who said that the appellant was deeply traumatised and suffering from PTSD, anxiety and depression.
18. However, no medical records other than a psychiatric report had been submitted by the appellant. The report dated 3 July 2024 appeared to have been conducted based upon one virtual meeting, which took place on 25 June 2024. It was submitted that it was unclear how much weight could be placed on a report completed after just one video-call. It was further noted that Dr Gupta remarked upon how the appellant had been assessed before, but complained that the assessment was not done professionally. The report referred to had not been produced by the appellant, and no reasonable explanation for this omission had been provided. It was also unclear whether the results of this initial report were available to Dr Gupta, which called into question the usefulness of Dr Gupta’s report.
19. Dr Gupta stated that the appellant reported mental health conditions, but that he was not currently being prescribed any anti-depressant medication. He also stated that there was no history to suggest organicity, psychosis, schizophrenia, bi-polar affected disorder or bi-personality disorder, and that the appellant came across as a person with average intelligence, good comprehension, and normal attention and concentration. No clinically significant cognitive impairments could be elicited.
20. It was submitted that the appellant’s suffering from PTSD, anxiety and depression was based upon the appellant’s self-reporting, and therefore the part which the psychiatric report could play in the assessment of credibility was very limited, applying HE (DRC) [2004] UKIAT 00321.
21. The appellant could receive suitable treatment for his mental health conditions upon return to Iran, having regard to (among other things) the CPIN on Iran: Healthcare and Medical Treatment, version 3.0, June 2024.
The Hearing Before, and the Decision of, the First-Tier Tribunal
22. The appellant’s appeal came before Judge Galloway sitting at Manchester on 22 November 2024. Both parties were legally represented, with Mr Hingora of Counsel appearing on behalf of the appellant.
23. As is recorded in the Decision, the appellant was called as a witness and he adopted as his evidence in chief his two witness statements. He was cross-examined by the Presenting Officer.
24. In the Decision, the Judge addressed the issue of the appellant’s perceived sexuality at paras [16] onwards.
25. At para [23] the Judge said that having considered all the evidence in the round, she was satisfied that it was reasonably likely that the appellant was perceived as gay within Iran. This was because he had been previously sexually abused by men on multiple occasions in his childhood years. Further, she accepted that his attitude and appearance even into his 20s meant that others within the surrounding society perceived him as gay.
26. At para [24] the Judge held that the appellant was a vulnerable person who clearly still feared those who had raped him in childhood, despite the passage of time. She accepted that he had PTSD and that he was highly traumatised. Further, 2.4.1 of the June 2022 CPIN made it clear that an openly gay person was likely to be at risk of treatment from state actors which would amount to persecution or serious harm. The penalties for those involved in homosexual activity ranged from flogging to the death penalty:
“As a person perceived as being gay by surrounding society, I find and accept the appellant also in fact fears serious repercussions from the state and surrounding society on return. This, again, may account for his strong reluctance and fear at being noted to be “passively” gay within the interview. For all these reasons, I am satisfied on the lower standard of proof that the appellant in fact fears persecution on return to Iran on account of his perceived sexuality.”
27. At para [28], the Judge said that in general, a person living openly as LGBTI is likely to be at risk of ill-treatment from state actors which is sufficiently serious by its nature as to amount to persecution:
“This includes persons clearly perceived to be gay (as alleged by the appellant). There is also, in general, a serious risk from non-state actors …”
28. At para [29] the Judge concluded that the appellant was at risk of serious harm upon return to Iran on account of his perceived sexuality.
29. She did not, however consider that the appellant was at risk of serious harm on account of his relationship with a woman in Sweden, or on account of his leaving military service.
30. The Judge went on to consider the appellant’s medical claim under Article 3 ECHR. At para [31] she said that she was satisfied that the appellant was a seriously ill person. It was regrettable that the GP records were not provided to the Expert and were not produced in evidence, but this must be seen within the context of the Secretary of State accepting that past sexual abuse of the appellant did occur.
31. At para [32] the Judge said that she had considered whether the appellant would have access to medical support, as recommended by Dr Gupta, within Iran. She noted from the CPIN on Medical and Healthcare Issues, dated June 2024, that many in Iran did not seek treatment for mental health issues. Having considered the vulnerability of the appellant in conjunction with all the evidence in the round, and the nature of his historic abuse from multiple men, she found that it was highly likely that he would access mental health treatment, even if it were available to him within Iran. She submitted that at the time of examination by Dr Gupta, the appellant was not receiving any treatment. This remained the case at the time of the hearing (as confirmed by the appellant).
The Grounds of Appeal to the Upper Tribunal
32. The Secretary of State’s grounds of appeal to the Upper Tribunal were settled by Samuel Pierce of the Specialist Appeals Team.
33. Ground 1 was that the Judge’s finding that the appellant would be unable to return and relocate within Iran because he would be perceived as gay, was both irrational and perverse, while also not being adequately reasoned.
34. Ground 2 was that the Judge’s assessment of the appellant’s claim under Article 3 medical grounds was perverse, or it was inadequately reasoned when applying the relevant case law. The appellant had been diagnosed with depression, anxiety and PTSD, which seemingly stemmed from his childhood abuse. However, there was no evidence or finding that the appellant was thereby unable to lead a normal life in Iran, as he currently did in the UK. He was not in receipt of any therapy/counselling, despite this being recommended in Dr Gupta’s report, and he did not appear to be prescribed any medication. Overall, it could not be said that the Judge’s findings were adequate or that they would satisfy the elevated threshold established in AM (Article 3 - Health Cases) Zimbabwe [2022] UKUT 131 (IAC).
The Reasons for the Eventual Grant of Permission to Appeal
35. Permission to appeal was refused by the First-tier Tribunal on the basis that the Judge had given cogent reasons for the findings that were sought to be impugned by the Secretary of State. Following a renewed application for permission to appeal to the Upper Tribunal, on 13 March 2025 Deputy Upper Tribunal Judge Woodcraft granted permission to appeal on both grounds, for the following reasons:
“It is arguable that the Judge has inadequately reasoned the findings, particularly as the appellant is not gay and arguably would not be perceived as such, given that he has had heterosexual relations. It is also arguable that the appellant’s psychological difficulties outlined by the Judge would not amount to a life-threatening condition or would lead to a shortening of the appellant’s life-span.”
The Hearing in the Upper Tribunal
36. The hearing before me to determine whether an error of law was made out was a hybrid one, with the appellant and Mr Mullen attending remotely via Teams. Shortly before the hearing, the appellant’s solicitors notified the Tribunal that they were coming off the record, as legal aid funding had been withdrawn and/or not extended. They did not request a Farsi interpreter, so no Farsi interpreter had been booked. However, the appellant had a friend with him who could communicate in both Farsi and English, and the friend was able and willing to act as an interpreter for the appellant so he could follow the proceedings.
37. As the appellant was not going to be required to give oral evidence, and as the scope of the hearing was confined to whether an error of law was made out as advanced in the grounds of appeal, I considered that it was in accordance with the overriding objective and the interests of justice to proceed with the hearing in the absence of a Farsi Interpreter who had been booked by the Tribunal.
38. Mr Mullen had nothing to add to the grounds of appeal or to the reasons for the grant of permission to appeal, and accordingly, having provided a brief explanation to the appellant of the process, I reserved my decision.
Discussion and Conclusions
39. I bear in mind the observations of Lord Brown in South Bucks County Council -v- Porter [2004] UKHL 33; 2004 1 WLR 1953 at para [36]. His guidance is cited with approval by the Presidential Panel in TC (PS compliance - “Issues-based reasoning”) Zimbabwe [2023] UKUT 00164 (IAC). Lord Brown’s observations were as follows:
“The reasons for a decision must be intelligible and they must be adequate. They must enable the reader to understand why the matter was decided as it was and what conclusions were reached on the “principal controversial issues”, disclosing how any issue of law or fact was resolved. Reasons can be briefly stated, the degree of particularity required depending entirely on the nature of the issues falling for decision. The reasoning must not give rise to a substantial doubt as to whether the decision-maker erred in law, for example by misunderstanding some relevant policy or some other important matter or by failing to reach a rational decision on relevant grounds. But such adverse inference will not readily be drawn. The reasons need refer only to the main issues in dispute, not to every material consideration…”
40. I also take into account the guidance given by the Court of Appeal in Volpi and another v Volpi [2022] EWCA Civ 464 at para [2]:
“i) An appeal court should not interfere with the trial judge's conclusions on primary facts unless it is satisfied that he was plainly wrong.
ii) The adverb "plainly" does not refer to the degree of confidence felt by the appeal court that it would not have reached the same conclusion as the trial judge. It does not matter, with whatever degree of certainty, that the appeal court considers that it would have reached a different conclusion. What matters is whether the decision under appeal is one that no reasonable judge could have reached.
iii) An appeal court is bound, unless there is compelling reason to the contrary, to assume that the trial judge has taken the whole of the evidence into his consideration. The mere fact that a judge does not mention a specific piece of evidence does not mean that he overlooked it.
iv) The validity of the findings of fact made by a trial judge is not aptly tested by considering whether the judgment presents a balanced account of the evidence. The trial judge must of course consider all the material evidence (although it need not all be discussed in his judgment). The weight which he gives to it is however pre-eminently a matter for him.
v) An appeal court can therefore set aside a judgment on the basis that the judge failed to give the evidence a balanced consideration only if the judge's conclusion was rationally insupportable.
vi) Reasons for the judgment will always be capable of having been better expressed. An appeal court should not subject a judgment to narrow textual analysis. Nor should it be picked over or construed as though it was a piece of legislation or a contract.”
Ground 1
41. Ground 1 relates to the Judge’s finding on the issue of the appellant’s perceived sexuality. I consider that the Judge gave cogent reasons for finding in the appellant’s favour on various adverse credibility issues posed against him by the Secretary of State in respect of his narrative. However, on the ultimate issue of risk on return I do not consider that the Judge reached a rational decision on relevant grounds.
42. Firstly, the Judge wholly failed to factor into her analysis the fact that the only sexual activity that the appellant had ever voluntarily engaged in as an adult was heterosexual activity, and so it was prima facie irrational, and certainly inadequately reasoned, for the Judge to find that the appellant would nonetheless be perceived by the Iranian state as a homosexual upon return to Iran., and that he would thereby be at risk of being punished by the Iranian state for engaging in illicit homosexual activity. Although the Judge questioned the reliability of the appellant’s retraction of the answer attributed to him in the interview record that he was a passive homosexual, the appellant had always been consistent in maintaining that he was not an active homosexual, and that the homosexual abuse to which he had been subjected while he was a child was non-consensual.
43. Secondly, it is apparent from the Decision that the Presenting Officer submitted that the appellant’s account of the treatment he had encountered in Iran as an adult only amounted to harassment, not to persecution or serious harm. The Judge wholly failed to engage with this distinction in her reasoning. The Judge failed to ask herself whether the appellant’s treatment as an adult amounted to persecution or serious harm. This was critical, as if the appellant’s manner and style of dress as an adult had only ever led to bullying and harassment, but not to persecution or serious harm, the Judge did not have a rational basis for inferring that nonetheless the appellant would be at a real risk of serious harm or persecution upon return.
44. Thirdly, while it was clearly open to the Judge to find that the appellant was credible in his account of his adverse experiences as an adult in Iran, she needed to explain in the Decision what it was about the appellant’s presentation or style of dress now - as at date of the hearing - which engendered a real risk of him suffering persecution or serious harm upon return to Iran on account of his perceived, but not actual, homosexuality.
Ground 2
45. As to Ground 2, the relevant test was whether the appellant was suffering from a serious illness such that he would face a real risk, on account of the absence of appropriate treatment in the receiving state or the lack of access to such treatment, of being exposed to (i) a serious, rapid and irreversible decline in his state of health resulting in intense suffering, or (ii) a substantial reduction in his life expectancy.
46. I do not consider that the Judge reached a rational decision on relevant grounds on the issue of the severity of the appellant’s mental health condition or on the related issue of the risk he would thereby face on return.
47. Having rightly recognised that Dr Gupta’s diagnosis was not corroborated by any surrounding medical evidence such as GP medical records, since in breach of HA (expert evidence; mental health) Sri Lanka [2022] UKUT 00111 (IAC) such records had not been disclosed to either Dr Gupta or to the Tribunal, the Judge found that it was nonetheless established that the appellant was seriously ill now just because the Secretary of State did not dispute that the appellant had been sexually abused as a child.
48. This line of reasoning is manifestly defective. The Judge wholly failed to factor into her analysis that the appellant lived in Iran for some nine years after becoming an adult, and it was not suggested, and/or there was no evidence of, the appellant attempting to commit suicide or self-harming in Iran. The Judge also wholly failed to factor into her analysis that it was not suggested, and/or there was no evidence of, the appellant attempting to commit suicide or self-harming in the UK. Against this background, the Secretary of State’s acceptance that the appellant was abused as a child was irrelevant to the issue of whether the appellant’s current mental health condition, many years later, was of sufficient severity to meet the elevated threshold required for Article 3 ECHR to be engaged.
Conclusions
49. For the above reasons, the Decision is unsafe and it must be set aside in its entirety.
Future Disposal
50. I have carefully considered the venue of any rehearing. Applying AEB [2022] EWCA Civ 1512 and Begum (Remaking or remittal) Bangladesh [2023] UKUT 00046 (IAC), I have considered 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.
51. I 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.
52. I acknowledge that there is no cross appeal by the appellant against the Judge’s findings in favour of the Secretary of State on the other two principal controversial issues in the appeal. Nonetheless, I do not consider that it is appropriate to direct that these findings should be treated as preserved.
Notice of Decision
The decision of the First-tier Tribunal contains an error of law, and accordingly the decision is set aside in its entirety, with none of the findings of fact being preserved.
This appeal is remitted to the First-tier Tribunal at Manchester for a full rehearing before any Judge apart from Judge Galloway.

Andrew Monson
Deputy Judge of the Upper Tribunal
Immigration and Asylum Chamber

15 July 2025