Tribunal decisions

The decision

IN THE UPPER TRIBUNAL
IMMIGRATION AND ASYLUM CHAMBER
Case No: UI-2025-000556

First-tier Tribunal No: PA/00416/2024

THE IMMIGRATION ACTS

Decision & Reasons Issued:
9th June 2025

Before

UPPER TRIBUNAL JUDGE LOUGHRAN
DEPUTY UPPER TRIBUNAL JUDGE ZUCKER

Between

ADS
(ANONYMITY ORDER MADE)
Appellant
and

The Secretary of State for the Home Department
Respondent

Representation:
For the Appellant: Mr C Sultan of Counsel, instructed by Sarker Solicitors
For the Respondent: Mr E Tufan, Senior Home Office Presenting Officer

Heard at Field House on 29 May 2025

Order Regarding Anonymity

Pursuant to rule 14 of the Tribunal Procedure (Upper Tribunal) Rules 2008, the Appellant and any member of her family, are 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 with permission against the decision of First-tier Tribunal Judge Robinson promulgated on 27 November 2024 dismissing his appeal against the decision of the Respondent not to grant her international protection in the UK.
Background
2. The Appellant is a national of Nepal who arrived in the United Kingdom on 1 June 2022 with a Seasonal Work Visa granted on 29 May 2022, valid until 29 November 2022. On 14 September 2022 she made application for international protection as a refugee. On 5 January 2024 a decision was made to refuse the application. The Appellant appealed.
3. The Appellant’s claim was that she was a member of the Communist Party of Nepal who had been detained in Nepal because of rallying against the government.
4. On 12 November 2024 her appeal was heard by Judge Robinson sitting at Hatton Cross. The appeal was dismissed on asylum and humanitarian grounds.
5. Not content with that decision, by Application accompanied by Grounds dated 9 December 2024 the Appellant sought permission to appeal to the Upper Tribunal. At first instance, in a decision dated 2 January 2025, First-tier tribunal Judge Curtis refused permission. The Appellant then renewed her Application to the Upper Tribunal and on 28 March 2025, Upper Tribunal Judge Kamara granted permission thus the matter comes before us. In granting permission Judge Kamara stated,
“…in view of the many aspects of the Appellant’s claim that were accepted by the Respondent along with the multiple favourable findings made by the judge regarding very recent and traumatic events in Nepal, it is at least arguable that the judge erred in concluding that the Appellant faced no further risk of persecution.”
6. In essence the Grounds upon which the decision of the First-tier Tribunal is challenged are as follows:
The Judge
(i) erred in the assessment of the overall evidence of the Applicant’s claim resulting in an error of law;
(ii) incorrectly applied the second stage of asylum assessment under § 32 (4) of the Nationality and Borders Act 2022.
Was there an error of law?
7. We are satisfied that the judge did make a material error of law. Firstly, we are satisfied that the judge failed to consider that past persecution is a serious indication of future risk. There is no reference to that longstanding principle anywhere in the determination. We are also satisfied that the judge (i) failed to consider why the Appellant may not have been politically active and indeed failed to consider the case of HJ (Iran) [2010] UKSC 31 and (ii) how that applied to the Appellant’s case and then (iii) thirdly we are also satisfied that the judge failed to apply the correct standard of proof; in terms of determining future risk the judge should have applied the lower standard. We are satisfied that the judge failed to do so.
The Remaking
8. In the remaking we note that there are significant findings of fact favourable to the Appellant in this case. It is clear that the judge found the Appellant to be a witness of truth. Indeed the judge went so far at paragraph 27 to say,
“In light of all my findings and looking at all the circumstances as a whole I am satisfied on balance that the Appellant does in fact fear persecution in Nepal on the grounds of political opinion”.
9. What appears in the preceding paragraph is for us, a starting point because it tells us about the mind of the Appellant. What the judge did thereafter was to look at background material rather than see the impact of what had happened upon the Appellant and how it was affecting her behaviour. We go on to note that at paragraph 29 the judge said this:
“I bear in mind that the Appellant has stated she was not involved in any political activities in Nepal after being detained by the police on 14 January 2021. Whilst she said that she decided to get a work visa in the UK because she was scared of the police, she has also said that she stayed at home and worked on the farm and did not experience any difficulties before leaving Nepal for the UK on 31 May 2022.”
10. Reading the decision as a whole, this is an Appellant who stayed at home and worked on the farm out of fear. The judge found that she was frightened of the authorities even after those events when she was in the United Kingdom at the time of the hearing.
11. There are two points which we find important in this case and affect our thinking. One is paragraph 339O of the Immigration Rules, which states in terms that past events are an indicator of future events. We think that is a Robinson obvious point (see: R v Secretary of State for the Home Department, ex p Robinson [1997] 3 WLR) that the judge should at least have considered and secondly there is an HJ (Iran) point because through fear caused by the authorities, and if not the authorities of the police officer, in circumstances in which there was not a sufficiency of protection, the Appellant, we find based on the findings already made, was not able to lead the normal life that she had been living before.
12. We put to Mr Tufan whether the approach above was open to us and whether there was a logic to it and he agreed that it was open to us, lest he wanted to make further submissions. We were grateful to him for his realistic approach.
Decision
13. In the remaking therefore we find that the Appellant has established not only that he had a subjective fear but that there is a real risk to her on return for the reasons that we have stated and therefore we find not only the error of law but remake the decision of the First-tier Tribunal such that the appeal is allowed. We also make a fee award. The anonymity order will stay in place.

D G Zucker
Deputy Judge of the Upper Tribunal
Immigration and Asylum Chamber

2 June 2025