Tribunal decisions

The decision

IN THE UPPER TRIBUNAL
IMMIGRATION AND ASYLUM CHAMBER
Case Nos: UI-2025-000754
UI-2025-000755

First-tier Tribunal Nos: RP/50083/2023
LR/00053/2024
RP/50114/2023
LR/00054/2024

THE IMMIGRATION ACTS

Decision & Reasons Issued:

On 16th of July 2025

Before

UPPER TRIBUNAL JUDGE O’BRIEN

Between

IW (First Appellant)
GW (Second Appellant)
(ANONYMITY ORDER MADE)
Appellants
and

The Secretary of State for the Home Department
Respondent

Representation:
For the Appellants: Ms Patel of Counsel, instructed by Legal Justice Solicitors
For the Respondent: Mr Lawson, Home Office Presenting Officer

Heard at Birmingham Civil Justice Centre on 3 June 2025

Order Regarding Anonymity

Pursuant to rule 14 of the Tribunal Procedure (Upper Tribunal) Rules 2008, [the appellant] (and/or any member of his family, expert, witness or other person the Tribunal considers should not be identified) 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 (and/or other person). Failure to comply with this order could amount to a contempt of court.

DECISION AND REASONS
1. The appellants appeal against the decision of the First-tier Tribunal following a hearing on 19 December 2024, and promulgated on 8 January 2025, dismissing their appeal against the respondent’s decision to revoke their protection status.
2. Both of the appellants were granted refugee status on the basis that they were Afghan Sikhs subject to religious based persecution. The decision to revoke was made on the basis that the respondent had learned that the appellants had, at some stage, obtained Indian passports and was therefore satisfied that they were in fact of Indian nationality, had mispresented their circumstances in claiming asylum and were otherwise not entitled to refugee status, and so applied paragraph 339AB of the Immigration Rules.
3. Permission to appeal was granted by the First-tier Tribunal on all grounds. Those grounds, in essence, are as follows.
4. Ground 1 is that the First-tier Tribunal Judge (‘the judge’) applied the wrong standard of proof, and that by repeated reference to ‘conclusive proof’ had applied a standard of proof even higher than the balance of probabilities vis-á-vis the Indian nationality, which it was agreed today would have been the correct standard of proof pursuant to RM (Sierra Leone) v The Secretary of State for the Home Department [2015] EWCA Civ 541.
5. Ground 2(a) is that the judge failed to make findings on the appellants’ explanation for why they had obtained the Indian passports. Ground 2(b) is that the judge had failed to make findings on the appearance of the first appellant’s image and name in a book published by the Afghan Sikh Society.
6. Ground 3 is that the judge had failed to take into account the fact that the first appellant had provided an Afghan Tazkera considered to be an original document by the expert whose expertise was not challenged before the judge.
7. Mr Lawson, in response, conceded that the decision involved the making of an error of law, in particular in respect of grounds 1, 2(a) and 3. He agreed that there was at least a risk that the judge had applied too stringent a burden of proof. He accepted that she had failed to take into account the fundamental argument advanced by the appellants, which is that whilst the passports were, it seems, uncontroversially genuine they had been obtained fraudulently and had failed to deal with that explanation.
8. Mr Lawson also conceded that in the assessment of nationality, the judge had taken into account of an immaterial matter: the appellants’ failure to seek confirmation of their Afghan nationality at the Afghan Embassy. He conceded that, as a general proposition, a refugee should not be required to attend the embassy of the nation from which he has sought refuge. Finally, there was an inadequate consideration of the Tazkira produced by the first appellant, which the judge had treated as akin to a driver’s licence or other identification document which might be issued by a nation to citizens of any country who otherwise qualify for that document. Mr Lawson accepted that it was uncontroversial that an Afghan Tazkera is only issued by the authorities to an Afghan national.
9. Certainly in respect of the latter points, these are concessions properly made. It is agreed between the parties that a Tazkera is a document only issued to Afghan nationals and it is clear from the judge’s consideration of the document that judge treated that as a matter in dispute. Consequently, the judge failed to take a material matter into account:. that a genuine Afghan document establishing nationality had been provided to the expert. She further takes it into account an immaterial matter: the failure of the appellant to attend the Afghan Embassy. In any event, there is inadequate consideration of the explanation offered by the appellants for being in possession of Indian passports. It follows that the judge’s conclusion was not one reasonably open to her.
10. Incidentally, it is agreed between the parties that the use of the word ‘conclusive’ indicated the application of too high a standard of proof. I would not necessarily have been so persuaded had I been required to adjudicate on the matter. However, in light of my findings above it is unnecessary to do so. The parties agree, as do I, that the matter has to be adjudicated afresh. Notwithstanding the terms of the Presidential Practice Direction, this is a case which needs to go back to the First-tier Tribunal to be heard afresh by a different judge.
Notice of Decision
1. The decision of the First-tier Tribunal involved the making of an error of law and is set aside.
2. The appeal is remitted to the First-tier Tribunal to be hear by a different judge with no finings of fact preserved.

Sean O’Brien

Judge of the Upper Tribunal
Immigration and Asylum Chamber

11 July 2025