Tribunal decisions

The decision

IN THE UPPER TRIBUNAL
IMMIGRATION AND ASYLUM CHAMBER
Case No: UI-2025-000384

First-tier Tribunal No: PA/56748/2023
LP/03950/2024

THE IMMIGRATION ACTS

Decision & Reasons Issued:
18th of June 2025

Before

UPPER TRIBUNAL JUDGE OWENS
DEPUTY UPPER TRIBUNAL JUDGE BAGRAL

Between

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Appellant
and

VB
(ANONYMITY ORDER MADE)
Respondent

Representation:
For the Appellant: Ms R. Tariq, Senior Home Officer Presenting Officer
For the Respondent: Mr K. Pullinger, Counsel instructed by Greater London Solicitors Limited

Heard at Field House on 30 April 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 him. Failure to comply with this order could amount to a contempt of court.

DECISION AND REASONS
Introduction
1. The Secretary of State appeals with permission against the decision of First-tier Tribunal Judge Morgan (‘the judge’) dated 18 November 2024 allowing VB’s appeal against a decision of the Secretary of State for the Home Department refusing her protection and human rights claim in a decision dated 4 September 2023.
2. For the purpose of this decision, the parties are as above, but we refer to the Secretary of State for the Home Department as the respondent and to VB as the appellant, reflecting their positions before the First-tier Tribunal.
Background
3. The appellant is a citizen of India of Tamil ethnicity who entered the UK on 29 December 2021 aged 45 with her son aged 17. At that time the appellant’s husband, also a national of India of Tamil ethnicity, was a failed asylum seeker in the UK. The primary basis of the husband’s claim was that he had been detained and tortured by the Indian authorities because of his support for the LTTE in India; a proscribed terrorist organisation. He claimed that prior to his departure that he had to go into hiding because the Indian authorities were looking for him. The respondent refused the husband’s asylum claim and his onward appeal was dismissed by First-tier Tribunal Judge Greasley on 22 February 2018. Essentially, Judge Greasley found the husband’s claim was not credible and consequently that he was of no interest to the Indian authorities.
4. In 2022 the appellant’s husband made a fresh claim for asylum relying on the scarring report of Dr Martin dated 27 February 2022 said to corroborate his claim of torture. In June 2022 the respondent refused the application with no right of appeal but nevertheless granted the husband Discretionary Leave to remain on 24 August 2022, valid until 13 December 2024, subsequently extended to 3 June 2027. Ms Tariq confirmed the basis of that grant was for reasons unrelated to his asylum claim.
5. The appellant relied on Dr Martin’s report in support of her asylum claim made on 27 April 2022; naming her son as a dependent. The primary basis of the appellant’s protection claim is that she was harassed by the Indian authorities when they came looking for her husband.
6. The Secretary of State in refusing the appellant’s claim did not accept the appellant’s husband was arrested in connection to the LTTE and relied on the findings of Judge Greasley. Further, the respondent in rejecting the appellant’s claim identified various irreconcilable deficiencies in her account and concluded that neither she nor her son were entitled to protection. She further reasoned there were no very significant obstacles to the appellant’s (and her son’s) integration on return to India and concluded there were no exceptional circumstances that would warrant a grant of leave outside of the immigration rules, nor would her removal either violate Article 3 ECHR or result in unjustifiably harsh consequences either for her or any family member.
The Decision of the First-tier Tribunal
7. Both parties were represented before the judge. Whilst the appellant, her husband and son attended the hearing, the judge noted that “given the matters in issue it was not necessary to hear oral evidence…” ([11]). The hearing thus proceeded by way of submissions. The judge had before him, amongst other things, Dr Martin’s scarring report, a psychologist report in respect of the appellant and a country expert report. The appellant’s counsel conceded the medical evidence did not reach the Article 3 ECHR threshold, and the respondent’s representative agreed that if credibility was established the appellant’s subjective fear was objectively well-founded and her appeal ought to be allowed ([15]-[16]). The representatives agreed that the principal controversial issue:
“…was whether the new evidence provided, and in particular the medical report in respect of the husband’s scarring, enabled fresh findings in respect of the risk to the husband or persecutory ill-treatment if returned to India” ([11]).
8. The judge answered that question in the affirmative and allowed the appeal under the Refugee Convention and on Article 8 ECHR grounds. We shall turn to consider the judge’s decision in further detail below.
The appeal to the Upper Tribunal
9. The respondent sought permission to appeal on the ground the judge misdirected himself in law on material matters. Thereunder the grounds advance several points criticising the judge’s application of the guidelines in Devaseelan v Secretary of State for the Home Department [2002] UKIAT 00702 and the inadequacy of his reasoning. These errors it was said were material and infected the judge’s decision allowing the appeal on asylum and human rights grounds.
10. Permission to appeal was granted on all grounds by the First-tier Tribunal.
11. The appellant filed a Rule 24 response.
The error of law hearing
12. The matter comes before us to determine whether the decision contains an error of law and, if it is so concluded, to either re-make the decision or remit the appeal to the First-tier Tribunal to do so.
13. A consolidated bundle was filed by the appellant’s representatives containing, inter alia, the core documents in the appeal, including the parties’ respective bundles before the First-tier Tribunal.
14. The hearing was attended by representatives for both parties as above. Both representatives made submissions and the conclusions below reflect those arguments and submissions where necessary.
15. At the end of the hearing, we reserved our decision.
Discussion
16. We have considered the judge’s decision, the composite bundle, the grounds of appeal, the Rule 24 response and the submissions made at the hearing, before coming to a decision in this appeal.
17. We remind ourselves of the following principles. The Supreme Court in HA (Iraq) v SSHD [2022] UKSC 22 reiterated that judicial caution and restraint is required when considering whether to set aside a decision of a specialist tribunal. In particular, judges of the specialist tribunal are best placed to make factual findings. Appellate courts should not rush to find the tribunal misdirected itself simply because they might have reached a different conclusion on the facts or expressed themselves differently: see AH (Sudan) v SSHD [2007] UKHL 49 and KM v SSHD [2021] EWCA Civ 693. Where a relevant point is not expressly mentioned by the tribunal, the court should be slow to infer that it has not been taken into account: see MA (Somalia) v SSHD [2020] UKSC 49. When it comes to the reasons given by the tribunal, the court should exercise judicial restraint and should not assume that the tribunal misdirected itself just because not every step in its reasoning is fully set out: see R (Jones) v FTT (SEC) [2013] UKSC 19.
18. Having borne in mind the above guidance and after careful consideration of the representatives’ submissions we are satisfied that the judge’s decision is vitiated by a material error of law for the following reasons.
19. Ms Tariq in her submissions helpfully distilled the respondent’s grounds into three grounds of challenge, namely:
(1) Failure to apply the Devaseelan guidelines.
(2) Failure to consider the evidence in the round.
(3) Flawed Article 8 assessment.
20. Mr Pullinger did not object to Mr Tariq’s reformulation of the grounds – they accurately reflect the grounds on which permission was granted – and he addressed each ground in turn. We shall consider grounds (1) and (2) together as they overlap to some extent.
Ground 1 - Failure to apply the Devaseelan guidelines.
Ground 2 - Failure to consider the evidence in the round/inadequate reasons.
21. Judge Greasley rejected the husband’s claim and gave detailed reasons for doing so. These included a wholesale rejection of the husband’s claim that he had any political links or was in any way connected to the LTTE. Judge Greasley took into account the husband’s appalling immigration history; the fact that he deceived immigration officials in claiming to be a genuine student when he had never studied in the UK; his failure to mention his links to the LTTE when he first claimed asylum, and found the documentary evidence was unreliable. Such was the damage to the husband’s credibility that Judge Greasley concluded the claim was entirely fabricated.
22. There is no dispute that in a case (such as this) where earlier findings of fact made in a decision relating to a different party, such as a family member, but arising out of the same facts, the guidelines enunciated in Devaseelan apply. In accordance with those guidelines Judge Greasley’s decision was the ‘starting-point’ from which the judge was required to evaluate the appellant’s claim. We do not need to recite the well-known guidelines, they have been the subject of discussion in several leading authorities, but in AL (Albania) [2019] EWCA Civ 950, LJ Davies reminds us, that “…not only is the earlier determination the starting point, it should be followed unless there is a very good reason not to do so” (at [25]). We further acknowledge that there needs to be a degree of sensible flexibility in the application of the guidelines: see BK (Afghanistan) [2019] EWCA Civ 1358.
23. We return to the judge’s decision.
24. In his evaluation of the facts the judge first considered section 8 of the Asylum and Immigration (Treatment of Claimants, etc) Act 2004. His finding that the appellant’s credibility was undermined by her delay in claiming asylum is uncontroversial. In consequence, the judge found:
‘…that the appellant’s account needs to be subjected to greater scrutiny.’ ([17])
25. The judge’s operative reasoning for allowing the appeal is set out at [18]-[21]. Given the succinctness of the judge’s findings of fact we reproduce them in full here:
’18. As already indicated both representatives accepted that whilst the starting point was the previous decision of the tribunal in 2018 this appeal would turn primarily on an assessment of the scarring report of Doctor Martin. Mr. Clarke, who represented the respondent, did not seek to impugn the report or qualifications of Doctor Martin but submitted that this evidence was insufficient to justify fresh evidential findings.
19. Ms Miszkiel, who represented the appellant, submitted that the scarring report was cogent evidence that the appellant’s husband had been detained and ill-treated by the Indian authorities as claimed. In particular she submitted that the doctor found the husband to have lost incisive teeth in a manner that was highly consistent with being kicked and further scars that were highly consistent with being repetitively kicked in detention (sic). She submitted that the report was independent and highly probative of the appellant’s account and that the doctor had explicitly considered alternative causation within the report. I am persuaded by these submissions. The findings in the medical report justify in my judgement, fresh findings in respect of the appellant’s husband account and a finding that there is a real risk that he has been detained by the Indian authorities and ill-treated as alleged because of his involvement with the LTTE.
’20. The appellant provided a detailed country report from Dr Holden but although this report is relevant, I note the respondent’s position, confirmed and reiterated by Mr Clarke, was that it was not suggested that if the appellant’s husband had been arrested, detained and ill-treated in the past that there would not be a real risk of similar persecution in the future.
21. In all the circumstances I find the Appellant has proved to the lower standard that they are refugees because their subjective fear of future persecution is objectively well founded (sic).’
(our emphasis)
26. The judge in his final analysis, and, ‘for the sake of completeness’ ([22]) found applying HJ (Iran) [2010] UKSC 31 that the appellant’s husband could not be expected to conceal his political opinions and that his support for the LTTE would come to light on return to India. In the alternative, the judge found that if the husband were to be discreet he would be so through fear of further persecution. In consequence of these findings the judge found that family life between the appellant, her husband and their son could not be enjoyed in India. Accordingly, the judge allowed the appeal on asylum and Article 8 ECHR grounds.
27. We acknowledge the judge made reference to Devaseelan and was aware that the starting point was Judge Greasley’s decision ([13(iii) & [18]). We are not, however, satisfied that the judge’s decision demonstrates that he subjected the appellant’s account to ‘greater scrutiny’ from that starting-point. We are not persuaded by Mr Pullinger’s submission that the judge commenced his consideration with Judge Greasley’s findings in mind simply because he referred to them at [2]. Here the judge in his introductory paragraphs was simply contextualising the appellant’s appeal by summarising the husband’s immigration history. The judge’s operative reasons for departing from Judge Greasley’s decision are encapsulated at [19] which we have set out above. Therein it is appreciably clear that the judge’s approach to the previous decision, shows that he did not engage with the findings of Judge Greasley as required but departed from them wholesale on the basis of the medical evidence. Whilst the judge may have been entitled to conclude that the medical report justified fresh findings being made in respect of the appellant’s husband account, he was required to address that evidence and reason how the medical report justified a departure from Judge Greasley’s findings, but did not do so.
28. We agree with Ms Tariq that the medical report was just one aspect of the evidence the judge was required to consider within the context of all the evidence including the written testimony of the appellant and her husband. The judge made no ‘fresh findings’ in respect of the husband’s claim and despite the judge’s self-direction that the appellant’s account needed to be subjected to greater scrutiny he failed to engage at all with the appellant’s evidence, whose appeal was before him, and reason why she was at risk despite being able to live in India for a considerable period long after her husband left without being arrested by the authorities. The judge’s approach in our view clearly demonstrates that he deferred without more to the findings of the expert in assessing credibility. We therefore have no hesitation in concluding that the judge’s approach to the evidence was legally flawed: Mibanga v Secretary of State for the Home Department [2005] EWCA Civ 367 at [25].
29. In reaching these conclusions we acknowledge Mr Pullinger’s submissions that the judge had the entirety of the evidence in mind, and that being so, the reasoning at [19] is adequate. In our judgment, it is simply too much of a leap to assume that the judge must have had those matters in mind, when they are not factored into the decision-making. The judge’s findings at [19] which we emphasised above are conclusionary statements of the judge’s findings which are not grounded in sound reason and nor do they articulate adequately to the losing party why they have lost. The absence of reasons in our view renders a judgment flawed and violates fundamental principles of fairness.
30. We find that grounds 1 and 2 are made out. We find the judge materially erred in law and that these errors fundamentally undermine the sustainability of the decision. We therefore address ground 3 briefly.
Ground 3 -Flawed Article 8 assessment.
31. Mr Pullinger did not seek to defend this judge’s assessment of the appellant’s Article 8 claim with any vigour. He properly recognised that the judge’s reference to the husband’s grant of Discretionary Leave was insufficient to make out the appellant’s Article 8 claim, and it is apparent nonetheless that the appeal was allowed on the appellant having made out her claim on asylum grounds (at [25]). As we have found that the judge’s findings on the asylum claim are unsustainable, we are satisfied that the judge’s assessment of the Article 8 ECHR is flawed and cannot stand.
Disposal
32. Applying AEB [2022] EWCA Civ 1512 and Begum (Remaking or remittal) Bangladesh [2023] UKUT 00046 (IAC), we have carefully 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. We agree with Mr Pullinger that the matter ought to be remitted with no preserved findings of fact. We took 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 meant that the appellant was deprived of an adequate consideration of her protection appeal. We further consider that it would be unfair for either party to be unable to avail themselves of the two-tier decision-making process and therefore remit the appeal to the First-tier Tribunal.
Notice of Decision
33. The making of the decision of the First-tier Tribunal did involve the making of an error of law.
34. The decision to allow the appellant’s appeal is set aside.
35. The appeal is remitted to the First-tier Tribunal to be heard afresh by a judge other than Judge Morgan.

R Bagral

Deputy Judge of the Upper Tribunal
Immigration and Asylum Chamber

12 June 2025