Tribunal decisions

The decision

IN THE UPPER TRIBUNAL
IMMIGRATION AND ASYLUM CHAMBER
Case No: UI-2025-000696

First-tier Tribunal No: DC/50083/2022
LD/00191/2022

THE IMMIGRATION ACTS

Decision & Reasons Issued:

On 25th of September 2025

Before

UPPER TRIBUNAL JUDGE RASTOGI

Between

Mariglen Masdreku
(NO ANONYMITY ORDER MADE)
Appellant
and

The Secretary of State for the Home Department

Respondent

Representation:
For the Appellant: Mr B. Lams, Counsel instructed by Oaks Solicitors
For the Respondent: Mr E. Terrel, Senior Home Officer Presenting Officer

Heard at Field House on 27 August 2025

DECISION AND REASONS
1. The appellant appeals with permission against the decision of the First-tier Tribunal (FTT), dated 18 November 2024 (the decision), in which the judge upheld the respondent’s decision of 8 April 2022 to deprive the appellant of British citizenship and dismissed his appeal against that decision.
2. Permission to appeal was initially refused by the FTT but on 7 March 2025 permission was granted by Upper Tribunal Judge Bulpitt. He did so on the basis that it was arguable the judge erred in law by determining the question of whether the appellant’s citizenship was obtained by fraud (the condition precedent) on public law grounds. The proper approach was clarified by the Court of Appeal in Chaudhry v Secretary of State for the Home Department [2025] EWCA Civ 16, where Underhill LJ stated at [46]:
“In my judgement on the first part of the test, it is for the FTT to find, in the event of a dispute, as a fact whether there was fraud, false representation, or concealment of a material fact for the purposes of section 40(3) of the BNA 1981.”
3. Consequently, Judge Bulpitt found it arguable that the FTT had failed to determine for itself whether the appellant’s citizenship had been obtained by fraud. Judge Bulpitt expressed a preliminary view that, in light of Chaudhry, the error of law was material and that the FTT’s decision should be set aside, with the appeal remitted to the FTT for a fresh hearing. Accordingly, Judge Bulpitt issued directions stating that, unless opposed with reasons within 21 days, the error of law decision would stand without a hearing under Rule 34 of the Tribunal Procedure (Upper Tribunal) Rules 2008 (the Procedure Rules) otherwise it would be listed for a hearing.
4. On 3 April 2025, the respondent replied to those directions, opposing the proposed course of action for several reasons. Regarding the ground on which permission was expressly granted (Ground 1), the respondent conceded that the tribunal has jurisdiction to make its own determination as to whether there was fraud, false representation, or concealment of a material fact, applying Chaudhry. The failure to do so amounted to an error of law, but the respondent submitted that the error was not material. The respondent’s reasoning, summarised at paragraph 6, was that based on the factual findings made, the tribunal would have reached the same conclusion even if it had conducted the condition precedent analysis itself. The principle of materiality of an error of law in a statutory appeal is reflected in ASO (Iraq) v Secretary of State for the Home Department [2023] EWCA Civ 1282 at [43]. Grounds 2-4 were opposed in their entirety.
5. Accordingly, the appeal was listed for a hearing to determine whether the FTT had made a material error of law in its decision.
The Hearing
6. The Tribunal was provided with a 476-page error of law bundle containing most of the material which had been before the FTT save the appellant’s skeleton argument and the respondent’s supplementary decision letter dated 5 November 2024 which were sent separately. The appellant applied under Rule 15(2A) of the Procedure Rules to admit further evidence, including additional court documents from Kosovo and a witness statement. I heard submissions from both representatives. It was only the appellant’s witness statement for which admission was expressly sought at the error of law hearing before me. I deal with this further below. At the conclusion of the hearing, I reserved my decision, which I now give with reasons.
Legal Framework
7. Section 40(3) of the British Nationality Act 1981 (the 1981 Act) provides as follows:
“(3) The Secretary of State may by order deprive a person of a citizenship status which results from his registration or naturalisation if the Secretary of State is satisfied that the registration or naturalisation was obtained by means of –
(a) fraud,
(b) false representation, or
(c) concealment of a material fact.”
8. As the judge did in the FTT decision, I shall refer to these collectively as ‘fraud’.
9. The right of appeal is contained within section 40(1) of the 1981 the Act.
10. It is now common ground that the test to be applied on appeal against a deprivation decision under Section 40(3) of the 1981 Act is set out in Chaudhry, summarised at [46] and again at [54] (my emphasis):
“... the proper approach to an appeal under section 40A of the BNA 1981 from decisions of the Secretary of State made pursuant to section 40(3) of the BNA 1981 is: (i) it is for the FTT to find, in the event of a dispute, as a fact whether there was fraud, false representation or concealment of a material fact for the purposes of section 40(3) of the BNA 1981;” (ii) the decision of the Secretary of State on the causation issue whether the registration or naturalisation was obtained by the impermissible means is to be reviewed on appeal by the FTT on public law grounds, in accordance with the principles referred to by Lord Reed in paragraph 71 of Begum (No.1); (iii) the exercise of the Secretary of State's discretion to make an order depriving a person of citizenship status is to be reviewed on appeal by the FTT on public law grounds in accordance with the principles referred to by Lord Reed in paragraph 71 of Begum (No.1); and (iv) it is for the FTT to consider whether the Secretary of State had acted in breach of other relevant legal obligations, including those arising under section 6 of the Human Rights Act. Although due weight would need to be given to the findings, evaluations and policies of the Secretary of State, the decision was for the FTT”.
11. Chaudhry confirmed at [44] that for the purposes of section 40(3) of the 1981 Act, any such fraud needed to be dishonest.
12. Section 12 of the Tribunals, Courts and Enforcement Act 2007 (the 2007 Act), in material part, says:
"(1) Subsection (2) applies if the Upper Tribunal, in deciding an appeal under section 11, finds that the making of the decision concerned involved the making of an error on a point of law.
(2) The Upper Tribunal—
(a) may (but need not) set aside the decision of the First-tier Tribunal, and
(b) if it does, must either—
(i) remit the case to the First-tier Tribunal with directions for its reconsideration, or
(ii) re-make the decision."
Grounds of Appeal
13. There are 4 grounds summarised as follows:

Ground 1: The FTT applied the wrong test to the determination of the condition precedent;
Ground 2: the judge’s treatment of the appellant’s medical notes amounted to procedural unfairness;
Ground 3: the judge’s conclusion that the 2021 cancellation of the appellant’s registration was valid was irrational;
Ground 4: the judge erred in adopting the respondent’s submissions on Kosovan law in the absence of expert evidence.
Background
14. The appellant arrived in the United Kingdom in 1999 whereupon he claimed asylum on the basis that he was a Kosovan national. That claim was refused but he was granted exceptional leave to remain until 24 February 2004. He successfully applied for indefinite leave to remain on 11 February 2004. On 27 October 2005 he successfully applied to be naturalised as a British citizen using the same details as he had previously. Following his conviction of an offence of the production/supply of Class A drugs on 30 September 2013, the respondent made enquiries about the appellant’s identity in 2016 and information came to light which suggested that someone with similar details to the appellant appeared in the register in Albania, whereas his details could not be found in the relevant registration books in Kosovo. Accordingly, the appellant was warned that the respondent was considering depriving him of his British citizenship. He produced some Kosovan identification documents but, following verification checks, the respondent was told by the Kosovan authorities that the appellant’s entry into the registration books had been cancelled and they required the return of the documents. Accordingly, the respondent decided to deprive the appellant of his British citizenship. Following the appellant appealing the refusal to the FTT, the respondent issued a supplementary decision letter following a review, in which the decision was upheld and further reasons provided.
15. The appellant has always maintained that he is Kosovan of Albanian ethnicity. He said he registered with the UN Mission in Kosovo (UKMIK) in 2011 and was issued with the relevant documents on the basis of that registration. He has challenged the cancellation of his registration by way of legal proceedings in Kosovo and, at the date of the hearing before the FTT, that case was still pending. He has maintained throughout that he had lost contact with his parents and at times he has tried to find them both in Kosovo and Albania.
Discussion
16. At the hearing before the FTT, the judge heard evidence from the appellant and considered the evidence on which both parties relied.
17. At [26] the judge considered the appellant’s submissions that the law as set out in Ciceri (deprivation of citizenship appeals: principles) [2021] UKUT 00238 (IAC) was wrongly decided and that the FTT was to consider the question of the condition precedent for itself. The judge decided that she was bound by Ciceri and therefore found:
“I must consider whether the respondent’s findings of fact are unsupported by any evidence or are based on a view of the evidence that could not be reasonably held”.
18. In other words, the judge decided she was to approach the question of the condition precedent on the basis of a public law review.
19. Albeit that both at the date of the hearing and at the date on which the judge promulgated her decision Chaudhry had not been published, by the time of consideration of the appellant’s application for permission it had. It is notable that notwithstanding that the law in Ciceri said something different, it had always been the appellant’s position that Ciceri was wrongly decided and the FTT had jurisdiction to determine the condition precedent for itself. This then became ground 1 of the appellant’s onward appeal to the Upper Tribunal.
20. In any event, the respondent now concedes this point and accepts the FTT erred in applying the incorrect legal test to the condition precedent, contrary to the guidance now given by the Court of Appeal in Chaudhry as regards how the FTT should approach Stage 1 of the test to be applied in deprivation decisions under section 40(3) of the 1981 Act.
21. I agree that the respondent’s concession is rightly made and the judge erred on a point of law as outlined above.
22. The application of the wrong legal test is a significant legal error, particularly when considering the seriousness of the issues in this appeal. On the face of it, it may seem uncontroversial that it is so significant that the only course of action open to the Upper Tribunal would be to set the decision aside pursuant to 12(2)(a) of the 2007 Act and remit the appeal to the FTT under section 12(2)(b)(i) to consider it in accordance with the correct legal framework. Indeed, that was the preliminary view of Judge Bulpitt.
23. However, before deciding whether that course of action is required, it is necessary to consider whether or not the error is material. I am expressly invited to do so for the reasons already stated. In so doing, I refer to [43] of ASO, applying [49] of Secretary of State for the Home Department v AJ (Angola) [2014] EWCA Civ 1636 which formulated the relevant question (following agreement between the parties) as:
“whether ‘it is clear on the materials before [the F-tT] any rational tribunal must have come to the same conclusion’. If that is clear, then any error of law would be immaterial, and the appeal should fail”.
24. As to the correct legal test for the determination of the condition precedent, I have set this out at [10] above. The second and third stages of the test were not issues before me.
25. As Chaudhry confirmed, any fraud needed to be dishonest. As to the approach in cases involving dishonesty, that is outlined in Ullah v Secretary of State for the Home Department [2024] EWCA Civ 201. Ullah was also a case considering a deprivation decision pursuant to section 40(3) of the 1981 Act. At [22] the Green LJ said:
“The legal burden of proving that the appellant acted dishonestly lies upon the Secretary of State. There is a three-stage process: (i) the Secretary of State first must adduce prima facie evidence of deception ("the first stage"); (ii) the Appellant then has a burden of raising an innocent explanation which satisfies the minimum level of plausibility ("the second stage"); and (iii), if that burden is discharged, the Secretary of State must establish on a balance of probabilities that this explanation is to be rejected ("the third stage"). “
26. At [23] the Green LJ confirmed a “careful examination of the standard and quality of the evidence adduced is required” and recognised that the allegation made against the appellant in Ullah was “plainly of high seriousness given the consequences”.
27. At [28] the Green LJ set out the two-stage test for dishonesty as derived from Ivey v Genting Casinos [2017] UKSC 67 and the approach was summarised in the criminal case in R v Barton and another [202] EWCA Crim 575 as being:
“(i) what was the individual’s actual state of knowledge or belief as to the facts and (ii) was his conduct dishonest by the standards of ordinary decent people?”.
28. At [62] of Barton, it was further explained:
“When dishonesty is in question the fact-finding tribunal must first ascertain (subjectively) the actual state of the individual's knowledge or belief as to the facts. The reasonableness or otherwise of his belief is a matter of evidence (often in practice determinative) going to whether he held the belief; the question is whether it is genuinely held. When once his actual state of mind as to knowledge or belief as to facts is established, the question whether his conduct was honest or dishonest is to be determined by the fact-finder by applying the (objective) standards of ordinary decent people. There is no requirement that the defendant must appreciate that what he has done is, by those standards, dishonest”
29. In other words, stage (i) is a subjective test and (ii) an objective one. At [30] of Ullah Green LJ noted that it was incorrect to argue that reliance on Ivey in the immigration context was misplaced and at [2] he specifically stated that the Ivey test for dishonesty applied in the context of deprivation decisions under section 40(3) of the 1981 Act.
30. Accordingly, when considering the question of materiality, I am to look at the material before the FTT in order to decide if a rational tribunal would come to the same conclusion the FTT did in this appeal. In order to do that, it is incumbent upon me to identify the correct legal test which the rational tribunal would have to apply. I have done that at [10] above. That inherently involves consideration of dishonesty, so the rational tribunal would also have to consider the two tests set out at [27] above.
31. In order to assist resolving the materiality test, it is necessary to contrast what the judge actually did, with what a rational tribunal would have to do in order to decide if the conclusion would be the same.
32. It is common ground that the FTT did not undertake this exercise or consider the evidence expressly with the correct test in mind. It is plain that the FTT’s final conclusion, namely that the respondent was justified in arriving at her decision, was arrived at on public law grounds. That is evident form the wording employed. For example, at [57]-[58] the judge said:
“57.The respondent has given reasons for rejecting the appellant’s evidence, and/or placing little weight on it. The reasons are detailed and cogent and do not disclose and perversity or irrationality.
58. I find the respondent’s conclusion that the condition precedent is satisfied is one that was reasonably open to her on the evidence”.
33. However, as the respondent points out, the process the judge undertook to arrive at that conclusion has some hallmarks of a merits based approach rather than the judge confining herself to the evidence before the respondent.
34. For example, at [27] of the decision, the judge noted the appellant’s oral evidence as to how he registered himself in Kosovo. From [28] the judge evaluated the evidence of the appellant’s expert Dr Korovilas as the registration process and the reasons for the Kosovan authority’s decision of 4 June 2021. Although noting he was suitably qualified, she otherwise found his report unsatisfactory and she gave reasons. Those reasons included lack of referencing or sourcing [28/31/33] and speculation [29]. From [35] the judge evaluated the evidence from the appellant’s Kosovan lawyer as to the registration process and various stages over previous years. Although at [36] the judge attached little weight to his opinion, in fact the judge found at [35/37] that the lawyer and the expert were relatively concordant about the registration process in Kosovo and accepted their evidence. At [38] the judge noted the lack of evidence on either side regarding foreign law about the registration process.
35. From [39] the judge evaluated the evidence as it related to the decision of the Kosovan authorities to cancel the appellant’s registration. She considered the court documents he provided and noted he supported those proceedings with evidence from the same people on whom he relied to register in the first place. She also noted the absence within these proceedings of evidence from those people [42] and a lack of clarity as the basis for the Kosovan legal challenge so at [41] she attached little weight to the application.
36. From [43] the judge considered the appellant’s account about losing contact with his family. There is an overlap here with Ground 2 as it is here the judge identified inconsistencies between the appellant’s claim and his GP notes. I return to this below.
37. Next at [52]-[53] the judge evaluated the appellant’s evidence about where he said he was born and found there to be some discrepancies in his account, a lack of supporting evidence and she rejected the assistance the expert report provided on this issue due to lack of detail therein.
38. Finally the judge evaluated whether or not the respondent had failed to have regard to the 2011 UNMIK document.
39. Having done all of this, the judge then moved on to her “findings” at [55]. I set these out in full as they are relevant to the materiality discussion:
“(i) The appellant made an application for inclusion on the Birth Civil Status Register which at the time was administered by UNMIK. The application was successful and the details he provided were entered into the register.
(ii) The appellant was able to obtain a Kosovan birth certificate, identity card and passport on the basis of his registration.
(iii) The Kosovan authorities made a decision on 4 June 2021 to cancel the appellants details in the main register of births (reconstruction), Electronic Register of Civil Registration; and to cancel the appellant’s details in the hard copy registry of the civil registry (reconstruction), list number 10, year 2011 and on the central electronic register.
(iv) The cancellation of the appellant’s registration is effective from 4 June 2021.
(v) The consequences of the cancellation of the appellant's registration is that he was required to return his documents within 8 days, or they would be liable to be confiscated.
(vi) The hard copy registry list number 10, year 2011 referred to in (iii) above is the UNMIK Birth Civil Status Register.
(vii) The Kosovan authorities were competent to make the decision to cancel the appellant’s registration and it is reasonable to infer that the decision was made following consideration of relevant information and evidence.
(viii) Because the Kosovan decision is a decision of a competent foreign authority, it is one to which the respondent was entitled to rely on.
(ix) While the respondent’s enquiries may well have prompted the Kosovan investigation and decision to cancel the appellant’s registration, there is no evidence of any influence whatsoever on the part of the respondent on the Kosovan decision-making process. As a foreign government department, the Home Office would have no standing to make an application or request to the Kosovan authorities and to suggest otherwise is naïve.
(x) The appellant has lodged a challenge against the decision to cancel his registration which remains outstanding. The exact legal basis of the challenge and the prospects of success are unknown.
(xi) The appellant has not been truthful about a lack of contact with his parents or his ties to Albania.
(xii) The appellant’s failure to adduce evidence that is reasonably likely to be available, for example copies of the witness statements used to support his registration and/or evidence from family members including his cousins in Italy and possibly one or both of his parents is damaging to his credibility.”
40. The first observation is that at no stage in her findings did the judge find as fact that the appellant is Albanian or ‘not Kosovan’; nor that she found him to believe he was Kosovan or Albanian; nor that he was dishonest when he presented himself to the Kosovan authorities for registration; nor that he was dishonest at any stage in his dealings with the respondent including when he applied for naturalisation; nor that he used fraud.
41. For that reason we do not know what the judge thought of these matters.
42. Looking more carefully at the findings she did make, there are some which go more obviously to the question of the appellant’s credibility and therefore to the question of his honesty and the question of whether he employed fraud.
43. In order to evaluate those findings, it is necessary to consider more carefully the issue raised by Ground 2 of the appeal as this underlies the adverse credibility findings the judge made.
44. Ground 2 challenges [44]-[51] of the judge’s decision. The context of the judge’s consideration of the appellant’s GP records was within her evaluation of the credibility of the appellant’s claim that he has long since lost contact with his family. However, the judge noted that there is reference in the GP notes to the appellant’s family as the judge set out at [44]-[47]. These entries were all from 2016/17 and they included reference to his father in Albania having been diagnosed with cancer.
45. The judge then said at [48]:
“I acknowledge that this was not put to the appellant in cross examination or by me. I have considered therefore whether it is fair to rely on this evidence without giving the appellant an opportunity to comment. I find that it is for the following reasons.
(i) This is the appellant's own evidence, and he can be assumed to be aware of its contents, including anything which is contrary to his witness statements.
(ii) The respondent’s bundle containing the medical records was first uploaded to the online case management system, my HMCTS, on 18 May 2022.
(iii) The appellant adopted his witness statements contained in the consolidated bundle and confirmed that their contents were true and correct.
(iv) All three witness statements were made after the respondent’s bundle containing the medical records was uploaded and therefore available to the appellant and his representative.
(v) The appellant has addressed other aspects of the evidence contained in the respondent’s bundle and so it cannot be said that he has not had a fair opportunity to do so.”
46. The appellant’s challenge to the judge’s approach is summarised at [6] of the grounds of appeal.
47. Mr Lams elaborated upon this ground in his oral submission and took me to the sections of the GP notes which not only refer to the appellant have been “from Kosovo originally” but also provided more detail about his life there, for example “witnessed a lot of violence and death in Kosovo” (24 October 2017).
48. Accordingly he submitted that, even if the judge was entitled to consider the notes notwithstanding they formed no part of the respondent’s case against the appellant, nor raised or put to the appellant at the hearing, nor without inviting submissions once she identified the issue, it was incumbent upon her to consider them in the round including those parts of the notes which in fact corroborated the appellant’s claim.
49. Furthermore, at the hearing before me, the appellant sought permission to rely on a further witness statement he prepared dated 29 November 2025 in which he addressed a possible reason why he provided the information recorded in the notes about his family in Albania (the impact upon him of the mental health medication he was prescribed at that time). Mr Terrell opposed the application primarily because there is no basis to admit it applying the test set out in E and R v Secretary of State for the Home Department [2004] EWCA Civ 49, applying the principles in Ladd v Marshall [1954] 1 WLR 1489. I find there is merit in the respondent’s submissions given that the evidence contained within the appellant’s statement is likely to be controversial. Although Mr Terrell couched it in terms of lacking credibility because what the appellant says about his medication in 2016 is not borne out by the GP notes, I do not find this to be the primary basis to refuse to admit the evidence. I do so firstly because I do not find I need to admit it as I am satisfied Ground 2 is made out without it (see below) but, in any event, even if that were not the case, the appellant is seeking to attribute his statements about Albania to his mental health medication at the time and I am not satisfied this is a subject on which he is qualified to give evidence. Accordingly, even if I admitted the evidence, I would not be able to attach any real weight to it.
50. Mr Terrell referred me to Hima v Secretary of State for the Home Department [2024] EWCA Civ 680. Although he referred me to [51] therein in support of his submission that whether or not to refer a matter back to the appellant is a matter of judgment for a judge, I note that [51] summarises the respondent’s submissions in that case which were ultimately unsuccessful. Mr Terrell also relied on reference at [51] to SSHD v Maheshwaran [2002] EWCA Civ 173 to submit that there may have been a reason why the appellant did not want to deal with what was a clear inconsistency in his case. In Maheshwaran, Schiemann LJ said at [5]:
“Where much depends on the credibility of a party and when that party makes several inconsistent statements which are before the decision maker, that party manifestly has a forensic problem. Some will choose to confront the inconsistencies straight on and make evidential or forensic submissions on them. Others will hope that ‘least said, soonest mended’ and consider that forensic concentration on the point will only make matters worse and that it would be better to try and switch the tribunal’s attention to some other aspect of the case. Undoubtedly it is open to the tribunal expressly to put a particular inconsistency to a witness because it considers that the witness may not be alerted to the point or because it fears that it may have perceived something as inconsistent with an earlier answer which is in truth not inconsistent. Fairness may in some circumstances require this to be done but this will not be the usual case. Usually the tribunal, particularly if the party is represented, will remain silent and see how the case unfolds”.
51. In turn Mr Lams relied on Chiver (10758) and the general point that it was incumbent on the judge to consider the effect of a lie in one part of the claim to the overall issue to be decided. In MA (Somalia) v Secretary of State for the Home Department [2010] UKSC 49. Sir John Dyson SCJ said at [32]:
“The AIT in the present case was rightly alive to the danger of falling into the trap of dismissing an appeal merely because the appellant had told lies. The dangers of that trap are well understood by judges who preside over criminal trials before juries. People lie for many reasons, In R v Lucas [1981] QB 720, the Court of Appeal had to consider whether a statement containing a lie was capable of amounting to corroboration. At p 724F, Lord Lane CJ said:
“To be capable of amounting to corroboration the lie told out of court must first of all be deliberate. Secondly, it must relate to a material issue, Thirdly, the motive for the lie must be the realisation of guilt and fear of the truth. The jury should in appropriate cases be reminded that people sometimes lie, for example, in an attempt to bolster up a just cause, or just out of shame or out of a wish to conceal disgraceful behaviour from their family”.”
52. Specifically on Ground 2, I am just about persuaded that the judge committed procedural unfairness in her approach to the GP notes. The point having not been taken by the respondent or raised by the tribunal at the hearing is perhaps a matter which could have been permissible in light of the case law on which the respondent relied and in light of the detailed reason the judge gave for attaching weight to them without reverting to the appellant, if the notes pointed only in one direction. However, to do so when there was material evidence in the notes in both directions as to the central issue the judge was deciding, namely the appellant’s nationality, raised a question about the reasons why the appellant said both to his GP. In my judgment, fairness required he be given the chance to answer that. As the GP notes informed one of the primary reasons for the judge’s subsequent adverse credibility findings, the error here was clearly material.
53. In any event, and even if I am wrong about Ground 2, the issues raised in this ground are also relevant to the materiality issue in Ground 1. In my judgment, even had the judge not committed an error in attaching weight to the inconsistency in the notes without giving the appellant a chance to address it, and she was entitled to consider that he was untruthful about having lost touch with his family, for the reasons I have given, she needed to address that in the context of what she needed to decide applying the correct test.
54. As the judge was not applying the correct test to the condition precedent, she did not do that. If she were applying the correct test, it was incumbent upon her to consider what that meant to the primary issue before her as to whether or not the appellant had committed fraud, which required a finding of dishonesty. She would have needed to consider that the appellant may be both Kosovan and in touch with his family. He may have lied about being in touch with his family for a reason unconnected with his nationality. Furthermore, the significance of the lie has to be considered in the round with the rest of the evidence. In this case, the same evidence which revealed a potential untruth also contained evidence which corroborated the appellant’s case.
55. On proper analysis, as the judge did not apply the correct test, she did not evaluate the evidence as she would have needed to were she doing so and she did not make the findings of fact that she would have had to. I have considered whether or not the outcome was bound to be the same, but in my judgement there is too much of a lacuna in the judge’s reasoning and findings to be satisfied of that.
Conclusions
56. I am not satisfied that it is clear that a rational tribunal considering the evidence available to the FTT must have come to the same conclusion. It follows that I find Ground 1 to reveal a material error on a point of law in the FTT decision.
57. I further find Ground 2 to reveal that the judge to have made a material error on a point of law.
58. I am satisfied that either one of these errors are sufficient to justify setting aside the decision of the FTT pursuant to section 12(2)(a) of the 2007 Act, and together they most certainly are. For that reason, it is not necessary for me to go on and consider Grounds 3 and 4.
59. As to disposal, Mr Lams submitted that the case would need to be heard de novo applying the correct test. He submitted the FTT was the appropriate venue for the re-hearing. Mr Terrell submitted there may be some facts capable of preservation but, even if not, it is possible the Upper Tribunal could retain the re-hearing.
60. I have considered carefully paragraph 7.2 of the Senior President’s Practice Statement for the Immigration and Asylum Chambers, the guidance in AEB v Secretary of State for the Home Department [2022] EWCA Civ 1512 and Begum (Remaking or Remittal) v Secretary of State for the Home Department [2023] UKUT 46 (IAC), and the extent to which the decision is to be remade. On balance, as none of the evidence was evaluated under the correct legal framework, this is sufficiently unfair on the appellant that I am satisfied the only course of action is that the decision be set aside with no preserved findings of fact. In those circumstances, the appropriate venue for re-making is the FTT to be heard by a different judge.
Notice of Decision
The decision of the First-tier Tribunal contains an error on a point of law and is set aside.
The appeal is to be remitted to the First-tier Tribunal to be heard by a different judge.

SJ Rastogi
Judge of the Upper Tribunal
Immigration and Asylum Chamber

22 September 2025